EXHIBIT 10(a)
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AMONG
TIDEWATER INC., ET AL
(as Companies)
BANKBOSTON, N.A.
(as Administrative Agent)
BANK ONE, LOUISIANA, NATIONAL ASSOCIATION
(as Documentation Agent)
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
(as Syndication Agent)
BANKBOSTON, N.A.
BANK ONE, LOUISIANA, NATIONAL ASSOCIATION
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
(as Agents)
and
CERTAIN BANKS
(as Lenders)
----------
$200,000,000.00
----------
Dated: as of February 18, 1999
TABLE OF CONTENTS
Page No.
Introduction........................................................... 1
Section 1. Commitment of Lenders...................................... 1
1.1 Line of Credit; Term Loan...................................... 2
1.2 Borrowing Procedure Under the Credit Facility.................. 2
1.3 Use of Proceeds................................................ 2
1.4 Liability of the Companies; Additional Domestic Subsidiaries... 3
1.5 Termination of the Prior Credit Facility....................... 3
Section 2. Promissory Notes........................................... 3
2.1 Line of Credit Notes........................................... 3
2.2 Term Notes..................................................... 3
2.3 Principal Payment Dates........................................ 3
Section 3. Interest and Fees.......................................... 4
3.1 Interest....................................................... 4
3.2 Administrative Agent's Determination........................... 4
3.3 Interest Payment Dates; Late Payment and Default Rate.......... 8
3.4 Facility Fee; Agents' Fee...................................... 8
3.5 Method of Calculating Interest and Fees........................ 8
Section 4. Payments, Reduction or Termination of the Credit
Facility and Prepayments.................................. 8
4.1 Place of Payment............................................... 9
4.2 Reduction of Facility Credit; Prepayments...................... 9
4.3 Prepayments of Term Notes...................................... 9
4.4 Pro Rata Payments.............................................. 10
Section 5. Representations and Warranties of the Companies............ 10
5.1 Corporate Existence............................................ 10
5.2 Authorization; Validity........................................ 10
5.3 Conflicting Agreements and Other Matters....................... 10
5.4 Financial Statements........................................... 11
5.5 Litigation and Contingent Liabilities.......................... 11
5.6 Outstanding Debt............................................... 12
5.7 Title to Properties............................................ 12
5.8 Purpose........................................................ 12
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5.9 Margin Stock................................................... 12
5.10 ERISA.......................................................... 12
5.11 Consents....................................................... 13
5.12 Tax Returns; Taxes............................................. 13
5.13 Compliance with Laws........................................... 13
5.14 Foreign Assets Control Regulations............................. 13
5.15 Disclosure..................................................... 13
5.16 Environmental Matters.......................................... 14
5.17 Year 2000 Compliance........................................... 14
5.18 Special Provisions............................................. 14
Section 6. Covenants of the Companies................................. 15
6.1 Financial Statements........................................... 15
6.2 Inspection of Property and Books and Records................... 18
6.3 Covenant to Secure Notes Equally............................... 18
6.4 Guaranteed or Collateralized Obligations....................... 18
6.5 Maintenance of Insurance....................................... 19
6.6 Maintenance of Corporate Existence/Compliance with Law/
Preservation of Property...................................... 19
6.7 Compliance with Environmental Laws............................. 19
6.8 Liens.......................................................... 20
6.9 Investments.................................................... 21
6.10 Dispositions of Stock and Debt................................. 22
6.11 Mergers and Consolidations..................................... 23
6.12 Minimum EBITDA to Fixed Charge Ratio........................... 23
6.13 Maximum Debt to EBITDA Ratio................................... 23
6.14 Maximum Debt to Total Capitalization Ration.................... 23
6.15 Transactions with Related Party................................ 23
6.16 Stock Transactions by Subsidiaries............................. 24
6.17 ERISA.......................................................... 24
6.18 Federal Reserve Regulations, etc............................... 24
6.19 Environmental Matters.......................................... 24
6.20 Taxes.......................................................... 25
Section 7A. Conditions Precedent to the Funding of the Initial Advance
under the Credit Facility.................................. 25
7A.1 Resolutions of the Companies.................................... 25
7A.2 Organization Documents; Good Standing........................... 25
7A.3 Incumbency...................................................... 25
7A.4 Notes........................................................... 25
7A.5 Officer's Certificate........................................... 25
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7A.6 Opinion......................................................... 26
7A.7 Payment of Fees and Expenses.................................... 26
7A.8 Termination of Prior Credit Facility............................ 26
Section 7B. Conditions Precedent to the Funding of the Term Loan....... 26
7B.1 Notes........................................................... 26
7B.2 Officer's Certificate........................................... 26
Section 8. Conditions Precedent to Subsequent Advances Under the Line
of Credit and Funding of the Term Loan..................... 27
8.1 Default......................................................... 27
8.2 Representations and Warranties.................................. 27
Section 9. Events of Default; Remedies; Set Offs....................... 27
9.1 Events of Default............................................... 27
9.2 Remedies........................................................ 29
9.3 Waiver of Set-Offs.............................................. 30
Section 10. The Agents.................................................. 30
10.1 Appointment and Authorization................................... 30
10.2 Agents' Reliance................................................ 30
10.3 Acts by Administrative Agent after Default, etc................. 31
10.4 Lender Credit Decision.......................................... 31
10.5 Agents.......................................................... 32
10.6 Assignments and Participations.................................. 32
10.7 Indemnification of the Agents................................... 33
Section 11. General.................................................... 34
11.1 Definitions..................................................... 34
11.2 Financial Terms................................................. 44
11.3 Delay........................................................... 44
11.4 Notices......................................................... 44
11.5 Costs, Expenses and Taxes; Indemnification...................... 45
11.6 Foreign Lenders................................................. 46
11.7 Severability.................................................... 48
11.8 Counterparts.................................................... 48
11.9 Law............................................................. 48
11.10 Successors...................................................... 48
11.11 Singular and Plural............................................. 48
11.12 Amendments....................................................... 48
11.13 Entire Agreement................................................. 49
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Signatures.............................................................. 50
Exhibit A List of Domestic Subsidiaries................................ 61
Exhibit B Commitments of Lenders....................................... 62
Exhibit C Form of Line of Credit Note.................................. 66
Exhibit D Form of Term Note............................................ 70
Exhibit E Form of Assignment and Acceptance............................ 74
Schedule 5.6 Outstanding Debt
Schedule 5.16 Environmental Matters
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT (the "Agreement") dated as of
February 18, 1999 (the "Effective Date"), by and among Tidewater Inc., a
Delaware corporation (the "Company"), the Domestic Subsidiaries (as hereinafter
defined) of the Company named on Exhibit "A", attached hereto and made a part
hereof, the respective state of incorporation of each of which Domestic
Subsidiaries being set forth opposite its name and which Domestic Subsidiaries
constitute all of the Domestic Subsidiaries of the Company (herein together with
the Company called the "Companies"), and BankBoston, N.A., a national banking
association, as administrative agent (the "Administrative Agent"), Bank One,
Louisiana, National Association, a national banking association, as
documentation agent (the "Documentation Agent") and Chase Bank of Texas,
National Association, as Syndication Agent (the "Syndication Agent")(the
Administrative Agent, the Documentation Agent and the Syndication Agent,
collectively, the "Agents"), and the banks listed on the signature pages hereof
(the "Lenders").
RECITALS
A. Subject to the terms and conditions of this Agreement, the Lenders have
severally agreed to make a $200,000,000 revolving line of credit available to
the Companies, and the Companies have agreed to accept the line of credit from
the Lenders.
B. The Companies, Agents and Lenders desire to set forth the terms and
conditions of the line of credit herein.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants,
agreements and undertakings herein contained, the Agents, Lenders and the
Companies hereby agree as follows:
Section 1. Commitment of Lenders. Subject to the terms and conditions
hereof, each Lender severally agrees to make a line of credit and loan to the
Companies, on the terms and conditions set forth in this Agreement, in the
aggregate principal amounts set forth on Exhibit B hereto:
1.1 Line of Credit; Term Loan. The Lenders shall severally establish a
revolving line of credit (the "Line of Credit") which may be drawn upon by the
Companies on any Business Day during the period from the date hereof until and
including the Drawdown Termination Date, in such amounts (but not less than
$5,000,000 per Advance and above $5,000,000 in even multiples of $1,000,000) as
the Companies may from time to time request (individually, an "Advance" and,
collectively, the "Advances"), but not exceeding the Commitments for the Line of
Credit set forth on Exhibit B hereto (the "Line of Credit Commitments"). The
amount outstanding under said Line of Credit as of the close of business on the
Drawdown Termination Date shall then convert on the following day to a four (4)
year term loan (the "Term Loan") with principal payable quarterly on a four (4)
year amortization schedule. The credit available to the Companies from time to
time under the Line of Credit shall be reduced by the aggregate of the face
amount of any and all unpaid Advances made by the Lenders to the Companies
pursuant to this Agreement and shall constitute the "Available Credit."
1.2 Borrowing Procedure Under the Credit Facility. Advances shall be made
as follows: (i) in the case of a Base Rate Advance, on notice from the Company
to the Administrative Agent received by the Administrative Agent no later than
10:00 A.M. (Eastern time) on the date of such proposed Advance, specifying the
amount thereof; and (ii) in the case of a Eurodollar Rate Advance, on notice
from the Company to the Administrative Agent at least three (3) Business Days
prior to the date of such proposed Advance. The Administrative Agent will use
its best efforts to give telephone notice of a proposed Advance on the same day
such notice is received by the Administrative Agent from the Company. Not later
than 2:00 P.M. (Eastern time) on the date of such Advance and upon fulfillment
of the applicable conditions set forth in Section 7A(in the case of the initial
Advance under the Line of Credit) and Section 8 (in the case of subsequent
Advances under the Line of Credit and/or funding of the Term Loan), the Lenders
will make such Advance available to the Administrative Agent, which shall make
such total Advance available to the Company in same day funds at the
Administrative Agent's office at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. The
request for an Advance under the Line of Credit shall constitute a certification
by the Companies that all of the representations and warranties contained in
Section 5 are true and correct as of the date of such request. The Lenders
shall be obligated to fund Advances in proportion to their respective
Commitments. The obligations of the Lenders under this Agreement shall be
separate and several and not joint and several or solidary; none of the Lenders
shall be responsible or liable for the acts or omissions of any of the other
Lenders.
1.3 Use of Proceeds. The Companies shall use the proceeds of the Line of
Credit only (i) for the refinancing of any existing indebtedness of the
Companies pursuant to the Revolving Credit and Term Loan Agreement among the
Companies, the Agents and certain other lenders, dated as of March 19, 1997, as
amended, and (ii) for general corporate purposes not inconsistent with the
provisions of this Agreement.
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1.4 Liability of the Companies; Additional Domestic Subsidiaries.
Irrespective of the Company or Companies who directly or indirectly receive the
amounts funded on Advances, each of the Companies shall be liable jointly and
severally and solidarily to the Lenders for all amounts outstanding from time to
time under the Credit Facility. The Company shall promptly notify the
Documentation Agent of the creation or acquisition of any company that becomes a
Domestic Subsidiary after the Effective Date and shall sign such instruments as
the Documentation Agent prepares (which shall be reasonably consistent with
instruments executed in connection with the execution of this Agreement) to make
such new Domestic Subsidiary a party thereto.
1.5 Termination of the Prior Credit Facility. Not later than the Business
Day following the Effective Date, the Companies shall give notice to the
administrative agent pursuant to the Revolving Credit and Term Loan Agreement,
dated as of March 19, 1997, as amended (the "Prior Credit Facility"), of the
Companies' termination of said agreement and the credit facility available
thereunder. The Companies agree (i) that they will not obtain any advances
under the Prior Credit Facility on or after the Effective Date of this
Agreement, and (ii) that if there are any advances outstanding under the Prior
Credit Facility as of the Effective Date of this Agreement, the Companies shall
repay said advances in full (either with their own funds or with Advances under
this Credit Facility or a combination of both) prior to or simultaneously with
obtaining Advances under this Credit Facility for any other purpose.
Section 2. Promissory Notes.
2.1 Line of Credit Notes. The Line of Credit shall be evidenced by
promissory notes of the Companies, each in the form of Exhibit "C" hereto, dated
the Effective Date, and payable to each Lender respectively (together with any
and all renewals, extensions, rearrangements and/or modifications thereof, the
"Line of Credit Notes"), in the amount of the Lenders' respective Line of Credit
Commitments, with appropriate insertions, and payable in full on the Drawdown
Termination Date.
2.2 Term Notes. The Term Loan shall be evidenced by promissory notes of
the Companies in the form of Exhibit "D" hereto, dated the day following the
Drawdown Termination Date, payable to the order of each Lender respectively
(together with any and all renewals, extensions, rearrangements and/or
modifications thereof, the "Term Notes"), in the Lenders' respective
proportionate amount of the Term Loan, with appropriate insertions. The Term
Notes shall provide for payment of 16 quarterly installments of principal in an
amount equal to one-sixteenth (1/16th) of the initial principal balance thereof,
and shall be payable in full on the fourth anniversary of the Drawdown
Termination Date. Once the Term Loan is initially funded, the Lenders shall not
fund any additional Advances under the Term Loan.
2.3 Principal Payment Dates. Principal payments under each respective
Loan shall be allocated first to Base Rate Tranches, then to Eurodollar Rate
Tranches having a Eurodollar
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Rate Interest Period ending on the quarterly installment payment date, and then
to Eurodollar Rate Tranches having a Eurodollar Rate Interest Period ending
subsequent to the quarterly installment payment date (in which case the
Companies shall pay any loss or expense incurred or sustained by the Lenders as
specified in Section 3.2(e) hereof).
Section 3. Interest and Fees.
3.1 Interest. The unpaid principal of the Credit Facility shall bear
interest at one (or both) of the following interest rates, at the Company's
option: (i) Base Rate plus the Applicable Base Rate Margin or (ii) Eurodollar
Rate plus the Applicable Eurodollar Rate Margin. The Company shall select the
interest rate applicable to each Tranche at the time of funding each Advance,
and the selected interest rate shall continue as to said Tranche until changed
in accordance with the following. The Company shall notify the Administrative
Agent of the Company's desire to change the interest rate on Advances (or any
portion thereof) not less than three (3) Business Days prior to the date on
which such change shall be effective. The Company may change from Base Rate
Advances to Eurodollar Rate Advances at any time without payment of premium or
penalty, but the Company may change from Eurodollar Rate Advances to Base Rate
Advances only as of the last day of a Eurodollar Rate Interest Period without
payment of premium or penalty. In the absence of any specific rate election by
the Company, the Credit Facility shall bear interest at the Base Rate. Not more
than twelve (12) Line of Credit Eurodollar Rate Tranches shall be permitted at
any time, and not more than two (2) Term Loan Eurodollar Rate Tranches shall be
permitted at any time. No Credit Facility Tranche may have a principal amount
of less than $5,000,000, and each Tranche shall be proportionately the same on
each Note.
3.2 Administrative Agent's Determination. (a) The Administrative Agent
shall determine the amount of interest payable on each Tranche, and its
determination shall be conclusive in the absence of manifest error. The
Administrative Agent shall endeavor to notify the Company of the amount of any
interest payment prior to the date on which an interest payment is due: provided
that the failure of the Administrative Agent to provide such notice shall not
affect the Companies' obligation to pay interest on such date.
(b) If the Administrative Agent gives notice to the Company that no
Eurodollar Rate is quoted to the Administrative Agent for the applicable
Eurodollar Rate Interest Period or in the applicable amounts, then (i) the
obligation of the Lenders to make a Eurodollar Rate Advance and the ability of
the Company to select the Eurodollar Rate for a Tranche shall be suspended, and
(ii) the Companies shall either prepay all Eurodollar Rate Tranches for which an
interest rate is to be determined on such date or the Notes shall thereafter
bear interest at the Base Rate plus the Applicable Base Rate Margin.
(c) If any applicable domestic or foreign law, treaty, rule or regulation
(whether
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now in effect or hereinafter enacted or promulgated, including Regulation D of
the Board of Governors of the Federal Reserve System) or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law):
(i) changes the basis of taxation of payments to the Lenders of any
principal, interest, or other amounts attributable to any Eurodollar Rate
Tranche (other than taxes imposed on the overall net income of the Lenders
or any lending office of the Lenders by any jurisdiction in which the
Lenders or any such lending office is located);
(ii) changes, imposes, modifies, applies or deems applicable any
reserve, special deposit, insurance assessments or similar requirements in
respect of any such Eurodollar Rate Tranche (excluding those for which the
Lenders are fully compensated pursuant to adjustments made in the
definition of Eurodollar Rate) or against assets of, deposits with or for
the account of, or credit extended by, the Lenders; or
(iii) imposes on the Lenders or the interbank eurocurrency deposit
and transfer market any other condition affecting any such Eurodollar Rate
Tranche,
and the result of any of the foregoing is to increase the cost to the Lenders of
funding or maintaining any such Eurodollar Rate Tranche (other than costs for
which the Lenders are fully compensated pursuant to adjustments made in the
definition of Eurodollar Rate) or to reduce the amount of any sum receivable by
the Lenders in respect of any such Eurodollar Rate Tranche by an amount deemed
by the Lenders to be material, then the Administrative Agent shall promptly
notify the Companies in writing (such writing including the necessary
calculations in reasonable detail) of the happening of such event and the
Companies shall upon demand pay to the Lenders such additional amount or amounts
as will compensate the Lenders for such additional cost or reduction accrued as
of the time of such notice and thereafter, the Companies may either continue to
pay to the Lenders such additional amount as will compensate the Lenders for the
additional cost or reduction of Eurodollar Rate Tranches, or the Companies may
elect, by giving to the Administrative Agent not less than three Business Days'
notice, to change the interest rate applicable to such Tranche from the
Eurodollar Rate plus the Applicable Eurodollar Rate Margin to the Base Rate plus
the Applicable Base Rate Margin.
(d) Notwithstanding any other provision hereof, if any change in applicable
laws, treaties, rules or regulations or in the interpretation or administration
thereof of or in any jurisdiction whatsoever, domestic or foreign, shall make it
unlawful or impracticable for the Lenders to maintain Eurodollar Rate Tranches
bearing interest at the Eurodollar Rate plus the Applicable Eurodollar Rate
Margin, or shall materially restrict the authority of the Lenders to
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purchase, sell or take certificates of deposit or offshore deposits of dollars,
then all Eurodollar Rate Tranches which are then outstanding and which cannot
lawfully or practicably be maintained shall immediately cease to bear interest
at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin and shall
commence to bear interest at the Base Rate plus the Applicable Base Rate Margin.
The Companies agree to indemnify the Lenders and hold them harmless against all
costs, expenses, claims, penalties, liabilities and damages which may result
from any such change in law, treaty, rule, regulation, interpretation or
administration, arising out of or in connection with this Agreement and the
Loans.
(e) The Companies will indemnify the Lenders against, and reimburse each
Lender on demand for, any loss or expense incurred or sustained by the Lenders
(including without limitation, any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by the Lenders
to fund or maintain Eurodollar Rate Tranches) as a result of (i) any payment or
prepayment (whether authorized or required hereunder or otherwise) of all or a
portion of any such Tranche on a day other than the day on which the applicable
Eurodollar Rate Interest Period ends, (ii) any payment or prepayment, whether
required hereunder or otherwise, of Eurodollar Rate Tranches made after the
delivery, but before the effective date, of an election to have the Eurodollar
Rate plus the Applicable Eurodollar Rate Margin apply to a Eurodollar Rate
Tranche, if such payment or prepayment prevents such election from becoming
fully effective, (iii) the failure of any Eurodollar Rate Tranche to be made by
the Lenders or of any such election to become effective due to any condition
precedent to a Eurodollar Rate Tranche not being satisfied or due to any other
action or inaction of the Companies, (iv) the Companies' election to change the
interest rate from the Eurodollar Rate plus the Applicable Eurodollar Rate
Margin to the Base Rate plus the Applicable Base Rate Margin pursuant to Section
3.2(f)(iv) hereof, or (v) the occurrence of a Default or the non-payment of the
Notes at maturity of the Notes for any reason as set forth in Section 3.3
hereof. For purposes of this Subsection, funding losses arising by reason of
liquidation or reemployment of deposits or other funds acquired by the Lenders
to fund or maintain Eurodollar Rate Tranches shall be calculated as (A) the
remainder, if a positive number, obtained by subtracting (1) the yield
(reflecting both stated interest rate and discount, if any) to maturity of
obligations of the United States Treasury as determined by the Administrative
Agent in an amount equal or comparable to such advance for the period of time
commencing on the date of the payment, prepayment or change of rate as provided
above and ending on the last day of the subject Eurodollar Rate Interest Period,
from (2) the Eurodollar Rate plus the Applicable Eurodollar Rate Margin of the
subject Eurodollar Rate Interest Period, (B) times the number of days from the
date of payment, prepayment or change of rate to the last day of the Eurodollar
Rate Interest Period, divided by 360, (C) times the amount of the applicable
Eurodollar Rate Tranche. Any payment due under this section will be paid to the
Administrative Agent within five days after the Administrative Agent delivers to
the Company a certificate setting forth in reasonable detail the amount of such
payment, which certificate shall be conclusive in the absence of manifest error.
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(f) The Companies covenant and agree that:
(i) The Companies will pay, when due and on an after-tax basis, all
present and future stamp and other taxes, levies, costs and charges
whatsoever imposed, assessed, levied or collected on or in respect of any
Eurodollar Rate Tranche (other than taxes, levies, costs or charges imposed
on or measured by the overall net income of the Lenders, or any lending
office of the Lenders by any jurisdiction in which the Lenders or any such
lending office is located) (all such non-excluded taxes, levies, costs and
charges being collectively called "Reimbursable Taxes"). Promptly after
the date on which payment of any Reimbursable Taxes is due pursuant to
applicable law, the Companies will, at the request of the Administrative
Agent, furnish to the Lenders evidence in form and substance satisfactory
to the Lenders that the Companies have met their obligation under this
subsection.
(ii) The Companies will indemnify the Administrative Agent and the
Lenders against, and reimburse the Administrative Agent and the Lenders on
demand for, any Reimbursable Taxes paid by the Administrative Agent and the
Lenders and any loss, liability, claim or expense, including interest,
penalties and legal fees, that the Administrative Agent and the Lenders may
incur at any time arising out of or in connection with the failure of the
Companies to make any payment of Reimbursable Taxes when due. Any payment
due under this subsection will be paid to the Administrative Agent within
five days after demand therefor by the Administrative Agent.
(iii) All payments on account of the principal of, and interest on,
Eurodollar Rate Tranches and all other amounts payable by the Companies to
the Lenders hereunder shall be made free and clear of and without reduction
by reason of any Reimbursable Taxes.
(iv) If the Companies are ever required to pay any Reimbursable Taxes
with respect to any Eurodollar Rate Tranches, the Companies may elect, by
giving to the Administrative Agent not less than three (3) Business Days'
notice, to change the interest rate applicable to any such advance from the
Eurodollar Rate plus the Applicable Eurodollar Rate Margin to the Base Rate
plus the Applicable Base Rate Margin, but such election shall not diminish
the Companies' obligation to pay all Reimbursable Taxes theretofore
imposed, assessed, levied or collected.
(g) If any applicable law or regulation, or the action of any applicable
regulatory requirement increases the reserves or capital required for the
Credit Facility, the Administrative Agent shall promptly deliver a certificate
to the Company specifying in reasonable detail the additional amount as will
compensate the Lenders for the additional costs,
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which certificate shall be conclusive in the absence of manifest error. The
Companies shall pay the amount specified in such certificate promptly upon
receipt.
3.3 Interest Payment Dates; Late Payment and Default Rate. Interest on
Base Rate Advances under any of the Loans shall be payable quarterly in arrears
on the last day of each March, June, September and December, beginning March 31,
1999; interest on Eurodollar Rate Advances shall be payable on the last day of
each Eurodollar Rate Interest Period (1 month, 2 months, 3 months or 6 months),
and in the case of 6-month Eurodollar Rate Interest Periods, also at the end of
the first 3 months thereof. Upon the occurrence of a Default and for so long as
such Default remains uncured, the interest rate on the Notes shall be increased
to the Base Rate plus the Applicable Base Rate Margin plus two percent (2%).
Interest after maturity of the Notes for any reason whatsoever (including
acceleration following the occurrence of an Event of Default) shall be increased
to the Base Rate plus the Applicable Base Rate Margin plus two percent (2%) and
shall be payable on demand.
3.4 Facility Fee; Agents' Fee.
(a) A facility fee equal to the Applicable Facility Fee Rate on the daily
average Available Credit shall begin to accrue on the Effective Date of this
Credit Facility, and shall be payable by the Companies quarterly in arrears on
the last day of each March, June, September and December, beginning March 31,
1999, through and including the Drawdown Termination Date.
(b) A commitment fee for the Credit Facility in the amount of $150,000
(being 0.075% of the Commitments) shall be payable by the Companies to the
Administrative Agent to be shared pro rata among the Lenders based on their
respective commitments.
(c) An Agents' fee for the Credit Facility in the amount set forth in the
Agents' Fee Agreement shall be payable by the Companies to the Agents in
accordance with the Agents' Fee Agreement.
3.5 Method of Calculating Interest and Fees. Interest at the Base Rate
(based on the Prime Rate) shall be computed on the basis of a year consisting of
365 days (366 days in a leap year) and paid for the actual days elapsed.
Interest at the Base Rate (based on the Federal Funds Rate) shall be computed on
the basis of a year consisting of 360 days and a month consisting of 30 days and
paid for the actual days elapsed. Interest at the Eurodollar Rate shall be
computed on the basis of a year consisting of 360 days and a month consisting of
30 days and paid for the actual days elapsed. Interest at the Applicable
Facility Fee Rate shall be computed on the basis of a year consisting of 360
days and a month consisting of 30 days and paid for the actual days elapsed.
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Section 4. Payments, Reduction or Termination of the Credit Facility and
Prepayments.
4.1 Place of Payment. All payments hereunder (including payments of
interest, principal and fees) with respect to the Notes shall be made by the
Companies to the Administrative Agent in immediately available funds, prior to
1:00 p.m. (Eastern time) at its offices at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, or at such other place as may be designated by Administrative
Agent to the Companies in writing. Any payment received after 1:00 p.m.
(Eastern time) shall be deemed received on the next Business Day. Whenever any
payment to be made hereunder or under the Notes fall on a date other than a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall be included in the computation of payment of
interest or any fees.
4.2 Reduction of Credit Facility; Prepayments. (a) The Companies may from
time to time (in the case of Base Rate Tranches) or at the end of any Eurodollar
Rate Interest Period (in the case of Eurodollar Rate Tranches), upon at least
three (3) Business Days prior telephonic notice (confirmed in writing) to
Administrative Agent, permanently reduce the amount of the Commitments available
under the Line of Credit (which Commitments shall be reduced proportionately by
the Lenders), but only upon payment of the outstanding principal amount of the
Line of Credit Notes in excess of the then reduced amount of the Commitments
available under the Line of Credit. Any such reduction shall be in an amount of
$10,000,000.00 or an integral multiple thereof. The Companies may at any time
(in the case of Base Rate Tranches) or at the end of any Eurodollar Rate
Interest Period (in the case of Eurodollar Rate Tranches), on like notice,
terminate the Commitments available under the Line of Credit upon payment in
full of the Line of Credit Notes and other liabilities of the Companies
hereunder. In the case of either a reduction or termination of the Commitments,
the Companies shall thereafter have no right to increase or restore the
Commitments.
(b) The Companies may from time to time (in the case of Base Rate Tranches)
or at the end of any Eurodollar Rate Interest Period (in the case of Eurodollar
Rate Tranches) prepay the principal of the Line of Credit Notes in whole or in
part without premium; provided, however, any partial prepayment of principal
shall be in an amount of $1,000,000.00 or any integral multiple thereof. Any
prepayment of the principal of the Line of Credit Note shall include accrued
interest to the date of prepayment on the principal amount being prepaid.
4.3 Prepayments of Term Notes. The Companies may from time to time (in
the case of Base Rate Tranches) or at the end of any Eurodollar Rate Interest
Period (in the case of Eurodollar Rate Tranches), upon at least three Business
Day's prior telephonic notice (confirmed in writing) to the Administrative
Agent, prepay the principal of the Term Notes in whole or in part without
premium; provided, however, any partial prepayment of principal shall be in an
amount not less than $20,000,000.00. Any prepayment of the principal of the
Term Notes shall include accrued interest to the date of prepayment on the
principal amount
9
being prepaid. All prepayments when made shall be applied pro rata to unpaid
installments of principal, and shall not relieve the Companies from the
obligation to pay scheduled installments of principal (as reduced by the pro
rata application of the prepayment) in accordance with the Term Notes.
4.4 Pro Rata Payments. All payments and prepayments of principal,
interest, fees (except the fees payable to the Agents pursuant to the Agents'
Fee Agreement), and other amounts paid by the Companies to the Administrative
Agent from time to time under this Agreement shall be promptly wired by the
Administrative Agent to the Lenders in proportion to their respective
Commitments.
Section 5. Representations and Warranties of the Companies.
The Companies represent and warrant to the Lenders that as of the Effective
Date and any date thereafter:
5.1 Corporate Existence. Each of the Companies is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated and is duly qualified and in good
standing in all jurisdictions wherein the property it owns or the business it
transacts make such qualification necessary as a foreign corporation, except
where the failure to so qualify would not materially impair the ability of the
Company or any of its Subsidiaries to operate its business or own its assets;
and each of the Companies has and will continue to have (i) all necessary
corporate power and authority and (ii) all necessary material permits, licenses,
patents, trademarks and other intangibles, to acquire, own and hold the property
and all other properties it purports to own and hold and to carry on its
business as now conducted. The Domestic Subsidiaries listed on Exhibit "A"
attached hereto constitute all of the Domestic Subsidiaries of the Company.
5.2 Authorization; Validity. Each of the Companies is and/or has been
duly authorized to execute and deliver this Agreement and the Notes, and is and
will continue to be duly authorized to borrow monies hereunder and to perform
its obligations under this Agreement and the Notes. This Agreement and the
Notes, as executed and when delivered, shall constitute the legal, valid and
binding obligations of each of the Companies, enforceable in accordance with
their respective terms.
5.3 Conflicting Agreements and Other Matters. Neither the Company nor any
of its Subsidiaries is a party to any contract or agreement or subject to any
charter or other corporate restriction which materially and adversely affects
the business, property, assets, or financial condition of the Company and its
Subsidiaries, taken as a whole. Neither the execution nor delivery of this
Agreement or the Notes, nor fulfillment of nor compliance with the terms and
provisions hereof and of the Notes will conflict with, or result in a breach of
the terms, conditions or provisions of, or constitute a default under, the
charter or by-laws of the Company or any of its Subsidiaries, any award of any
arbitrator or any agreement (including
10
any agreement with stockholders) or instrument to which the Company or any of
its Subsidiaries is now a party, or result in the creation of any Lien on any
property or assets of the Company or any of its Subsidiaries, or constitute a
violation of any law, statute, rule, regulation, order, judgment or decree to
which the Company or any of its Subsidiaries is subject. Neither the Company nor
any of its Subsidiaries is a party to, or otherwise subject to any provision
contained in, any instrument evidencing indebtedness of the Company or such
Subsidiary, any agreement relating thereto or any other contract or agreement
(including its charter) which (i) limits the amount of, or otherwise imposes
restrictions on the incurring of, Debt of the Companies of the type to be
evidenced by the Credit Facility, or (ii) which imposes restrictions on the
granting of Liens by the Companies on otherwise unencumbered assets of the
Companies as security for the Credit Facility.
5.4 Financial Statements. The Company has furnished the Lenders with the
consolidated balance sheets of the Company and its Subsidiaries as at fiscal
year end in each of the years 1996 through 1998, inclusive, and for the nine-
month period ending December 31, 1998, and a consolidated statement of income
and statement of cash flows for each such fiscal year and such nine-month
period, all identified by a principal financial officer of such Company and all
(other than any financial information for such nine-month period) certified by
KPMG Peat Marwick LLP with respect to the fiscal years ending March 31, 1996 and
March 31, 1997 and by Ernst & Young, LLP with respect to the fiscal year ending
March 31, 1998. Such financial statements (including any related schedules
and/or notes) are true and correct in all material respects (subject, as to
interim statements, to changes resulting from audits and normal year-end
adjustments) and have been prepared in accordance with generally accepted
accounting principles, and, unless otherwise set forth therein, consistently
followed throughout the periods involved and show all liabilities, direct and
contingent, of the Company and its Subsidiaries required to be shown in
accordance with such principles. The balance sheets fairly present the
condition of the Company and its Subsidiaries as at the dates thereof, and the
related statements of earnings, stockholders' equity and cash flows fairly
present the results of the operations of the Company and its Subsidiaries for
the periods indicated. As of the date of this Agreement, there has been no
material adverse change in the business, condition or operations (financial or
otherwise) of the Company and its Subsidiaries taken as a whole, since December
31, 1998.
5.5 Litigation and Contingent Liabilities. No litigation or governmental
proceedings are pending or threatened against the Company or any of its
Subsidiaries, the results of which are likely to materially adversely affect the
financial condition or operations of the Company and its Subsidiaries on a
consolidated basis, except as provided for or disclosed in the financial
statements referred to in Section 5.4 hereof. Other than any liability incident
to such litigation or proceedings provided for or disclosed in the financial
statements referred to in Section 5.4 hereof, or any other material contingent
liabilities provided for or disclosed in the financial statements referred to in
Section 5.4 hereof, the Company and its Subsidiaries, on a consolidated basis,
do not have any material contingent liabilities.
11
5.6 Outstanding Funded Debt. Neither the Company nor any of its
Subsidiaries has outstanding any Funded Debt except as set forth on Schedule 5.6
attached hereto and made a part hereof. There exists no default under the
provisions of any instrument evidencing Debt or of any agreement relating
thereto.
5.7 Title to Properties. Except for assets which are the subject of
Capitalized Lease Obligations, the Company and its Subsidiaries each have and
will continue to have good and marketable title to their respective properties
and assets, including the properties and assets reflected in the financial
statements described in Section 5.4 hereof, subject to no Lien of any kind
except Liens permitted by Section 6.8 hereof. All leases necessary in any
material respect for the conduct of the respective businesses of the Company and
its Subsidiaries are valid and subsisting and are in full force and effect.
5.8 Purpose. The proceeds of the Loan will be used by the Companies only
for the purposes specified in Section 1.3 hereof.
5.9 Margin Stock. Neither the Company nor any of its Subsidiaries is
engaged in the business of purchasing or selling margin stock (as defined in any
regulation of the Board of Governors of the Federal Reserve System) or extending
credit to others for the purpose of purchasing or carrying margin stock and no
part of the proceeds of any borrowing hereunder will be used to purchase or
carry any margin stock or for any other purpose which would violate any of the
margin regulations of such Board of Governors.
5.10 ERISA. No accumulated funding deficiency (as defined in Section 302
of ERISA and Section 412 of the Code), whether or not waived, exists with
respect to any Plan (other than a Multiemployer Plan). No liability to the PBGC
has been or is expected by the Company to be incurred with respect to any Plan
(other than a Multiemployer Plan) by the Company or any of its Subsidiaries
which is or would be materially adverse to the Company and its Subsidiaries
taken as a whole. Neither the Company nor any of its Subsidiaries has incurred
or presently expects to incur any withdrawal of liability under Title IV of
ERISA with respect to any Multiemployer Plan which is or would be materially
adverse to the Company and its Subsidiaries taken as a whole. The execution and
delivery of this Agreement will not, and the delivery of the Notes will not,
involve any transaction which is subject to the prohibitions of Section 406 of
ERISA or in connection with which a tax could be imposed pursuant to Section
4975 of the Code. The term "Code" shall mean the Internal Revenue Code of
1986, as amended; the term "Plan" shall mean an "employee pension benefit plan"
(as defined in Section 3 of ERISA) which is or has been established or
maintained, or to which contributions are or have been made, by the Company or
by any trade or business, whether or not incorporated, which, together with the
Company, is under common control, as described in Section 414(b) or (c) of the
Code; and the term "Multiemployer Plan" shall mean any plan which is a
"multiemployer plan" (as such term is defined in Section 4001(a)(3) of ERISA).
12
5.11 Consents. No consent, approval or authorization of, or registration
or declaration with, any federal or state governmental authority or other
regulatory agent for the validity of the execution and delivery or for the
performance by any of the Companies of this Agreement and the Notes or any
agreement or instrument executed in connection herewith, is or will be required.
5.12 Tax Returns; Taxes. The Company has and each of its Subsidiaries
have filed all federal, state, foreign and other income tax returns which, to
the knowledge of the officers of the Company, are required to be filed by any
jurisdiction, and each has paid and will pay all taxes which have or
subsequently become due pursuant to said returns or pursuant to any assessments,
except those contested in good faith by appropriate proceedings and for which
sufficient reserves have been or will be established.
5.13 Compliance with Laws. The Company and each of its Subsidiaries is in
substantial compliance with all laws and regulations applicable to the Companies
and the businesses conducted by them (including without limitation, laws and
regulations relating to pollution and environmental control, equal employment
opportunity and employer safety) in all jurisdictions in which the Company and
each of its Subsidiaries is presently doing business, and the Company will
substantially comply and cause each of its Subsidiaries to substantially comply
with all such laws and regulations which may be legally imposed in the future in
jurisdictions in which the Company or any Subsidiary may then be doing business.
5.14 Foreign Assets Control Regulations. Neither the borrowing by the
Companies hereunder nor their use of the proceeds thereof will violate the
Foreign Assets Control Regulations, the Burmese Sanctions Regulations, the Cuban
Assets Control Regulations, the Iranian Assets Control Regulations, the Libyan
Sanctions Regulations, the Iranian Transactions Regulations, Iraqi Sanctions
Regulations, the Sudanese Sanctions Regulations, the UNITA (Angola) Sanctions
Regulations or the Federal Republic of Yugoslavia (Serbia and Montenegro)
Sanctions Regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V), or the Comprehensive Anti-Apartheid Act of 1986 (P.L. 99-440), or
any similar asset control regulations now existing or hereafter promulgated by
the United States Treasury Department.
5.15 Disclosure. Neither this Agreement nor any other document,
certificate or statement furnished to the Lenders by or on behalf of the Company
and the Subsidiaries in connection herewith contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein and therein not misleading. There is no fact
peculiar to the Company or any of its Subsidiaries which materially adversely
affects or in the future may (so far as the Company can now foresee) materially
adversely affect the business, property or assets, or financial condition, of
the Company and any of its Subsidiaries, taken as a whole, and which has not
been set forth in this Agreement or in the
13
other documents, certificates and statements furnished to the Lenders by or on
behalf of the Company prior to the date hereof in connection with the
transactions contemplated hereby.
5.16 Environmental Matters. (i) Neither the Company nor any Subsidiary is
subject to any Environmental Liability or Environmental Requirement which could
reasonably be expected to have a material adverse effect on the business,
financial condition, operations or prospects of the Company and its
Subsidiaries, taken as a whole.
(ii) Except as set forth on Schedule 5.16, neither the Company nor any
Subsidiary has been designated as a potentially responsible party under CERCLA
or under any state statute similar to CERCLA. None of the Properties has been
identified on any current or proposed National Priorities List under 40 C.F.R.
(S)300 or any list arising from a state statute similar to CERCLA. None of the
Properties has been identified on any CERCLIS list.
(iii) No Hazardous Materials have been or are being used, produced,
manufactured, processed, generated, stored, disposed of, released, managed at or
shipped or transported to or from the Properties or are otherwise present at,
on, in or under the Properties or, to the best knowledge of the Companies, at or
from any adjacent site or facility, except for Hazardous Materials used,
produced, manufactured, processed, generated, stored, disposed of, released and
managed in the ordinary course of business in compliance with all applicable
Environmental Requirements, except where failure to comply could not reasonably
be expected to have a material adverse affect on the business, operations, or
financial condition of the Company and its Subsidiaries, taken as a whole.
(iv) Except as set forth in Schedule 5.16, the Company and each of its
Subsidiaries has procured all permits, licenses or authorizations (or any
variances or waivers) necessary under Environmental Requirements for the conduct
of its business.
5.17 Year 2000 Compliance. The Company represents and warrants as follows
to Lenders that all devices, systems, machinery, information technology,
computer software and hardware, and other date sensitive technology
(collectively, the "Systems") necessary for the Company and its Subsidiaries to
carry on its business as presently conducted are Year 2000 Compliant or will be
Year 2000 Compliant within a period of time calculated to result in no material
disruption of any of the Companies' business operations. For the purposes
hereof, "Year 2000 Compliant" means that such Systems are designed to be used
prior to, during and after the Gregorian calendar year 2000 A.D. and will
operate during each such time period without material error relating to date
data, specifically including any error relating to, or the product of, date data
which represents or references different centuries or more than one century.
5.18 Special Provisions. The foregoing representations and warranties
shall be true and correct as of the Effective Date, and shall remain true and
correct from and after the Effective Date.
14
Section 6. Covenants of the Companies.
From the date of this Agreement and thereafter until the expiration or
termination of the Credit Facility and until the Notes and other liabilities of
the Companies hereunder are paid in full:
6.1 Financial Statements: The Company agrees that it will furnish to the
Documentation Agent one copy for each of the Lenders of the following:
(a) as soon as practicable and in any event within forty-five (45) days
after the end of each quarterly period (other than the last quarterly
period) in each fiscal year, a consolidated balance sheet of the
Company and its Subsidiaries as at the end of such quarterly period
and the related statement of earnings and cash flows for the period
from the beginning of the current fiscal year to the end of such
quarterly period, setting forth in each case in comparative form
figures for the corresponding period in the preceding fiscal year, all
in reasonable detail and certified by an authorized financial officer
of the Company, subject to changes resulting from year end
adjustments; provided, however, that delivery pursuant to clause (c)
below of copies of the Quarterly Report on Form 10-Q of the Company
for such quarterly period filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this clause
(a);
(b) as soon as practicable and in any event within ninety (90) days after
the end of each fiscal year, a consolidated balance sheet of the
Company and its Subsidiaries as at the end of such year and the
related statements of earnings, stockholders' equity and cash flow for
such year, setting forth in each case in comparative form
corresponding consolidated figures from the preceding annual audit,
all in accordance with generally accepted accounting principles and
unrestricted in audit scope and certified as to consolidated
statements of the Company by independent public accountants of
recognized standing selected by the Company whose certificate shall be
in scope and substance satisfactory to Lenders; provided, however,
that delivery pursuant to clause (c) below of copies of the Annual
Report on Form 10-K of the Company for such fiscal year filed with the
Securities and Exchange Commission shall be deemed to satisfy the
requirements of this clause (b);
(c) promptly upon transmission thereof, copies of all such financial
15
statements, proxy statements, notices and reports as the Company shall
send to its public stockholders and copies of all registration
statements (without exhibits) and all reports which the Company files
with the Securities and Exchange Commission (or any governmental body
or agency succeeding to the functions of the Securities and Exchange
Commission);
(d) promptly upon receipt thereof, a copy of each other report submitted
to the Company or any of its Subsidiaries by independent accountants
in connection with any annual, interim or special audit made by them
of the books of the Company or any of its Subsidiaries and which the
Company or any of its Subsidiaries shares with the audit committee of
the Board of Directors of the Company;
(e) with reasonable promptness, such other financial data as Lenders may
reasonably request; and
(f) as soon as practicable but in any event not later than ninety (90)
days after the beginning of each fiscal year, a consolidated budget of
the Company and its Subsidiaries for the ensuing fiscal year.
Together with each delivery of financial statements required by clauses (a) and
(b) above, the Company will deliver to the Documentation Agent an original of an
Officer's Certificate demonstrating (with computations in reasonable detail)
compliance with Sections 6.12, 6.13 and 6.14, stating that there exists no Event
of Default or Default, or, if any such Event of Default or Default exists,
specifying the nature thereof, the period of existence thereof and what action
the Company proposes to take with respect thereto. Together with each delivery
of financial statements required by clause (b) above, the Company will also
deliver to the Documentation Agent an original of a certificate of said
accountants stating that, in making the audit necessary to the certification of
such financial statements, they have obtained no knowledge of any Default or any
Event of Default, or, if any such Event of Default or Default exists, specifying
the nature and period of existence thereof. Such accountants, however, shall
not be liable to anyone by reason of their failure to obtain knowledge of any
such Event of Default or Default which would not be disclosed in the course of
an audit conducted in accordance with generally accepted auditing standards.
The Companies also agree that forthwith upon the chief executive officer,
principal financial officer or principal accounting officer of the Company
obtaining knowledge of:
(i) an Event of Default or Default;
(ii) a material adverse change in the financial condition, business or
16
operations of the Company and its Subsidiaries, taken as a whole;
(iii) the institution of legal proceedings against the Company and/or
any Subsidiary, which is likely to materially adversely affect
the financial condition, business or operations of the Company
and its Subsidiaries, taken as a whole, or which in any manner
draws into question the validity of or is likely to impair the
ability of the Companies to perform their obligations under this
Agreement or the Notes;
(iv) the occurrence of any default (after the passage of any grace
period) by a Company under any agreement or note evidencing
borrowed money for an aggregate initial principal amount equal to
or greater than $1,000,000;
(v) any (A) Environmental Liability which is likely to materially
adversely affect the financial condition, business or operations
of the Company and its Subsidiaries, taken as a whole, (B)
pending, threatened or anticipated Environmental Proceedings,
which is likely to materially adversely affect the financial
condition, business or operations of the Company and its
Subsidiaries, taken as a whole, (C) Environmental Notice which is
likely to materially adversely affect the financial condition,
business or operations of the Company and its Subsidiaries, taken
as a whole, (D) Environmental Judgment or Order which is likely
to materially adversely affect the financial condition, business
or operations of the Company and its Subsidiaries, taken as a
whole, or (E) Environmental Releases at, on, in, under or in any
way materially affecting the Properties;
(vi) any violation of the provisions of Section 6.17 hereto relating
to ERISA compliance; or
(vii) the occurrence of any other event that is likely to impair the
ability of the Companies to meet their obligations hereunder.
the Company will deliver to the Documentation Agent an Officer's Certificate
specifying the nature and period of existence thereof and what action the
Company has taken, is taking or proposes to take with respect thereto.
The Documentation Agent will promptly distribute to the Lenders, originals
(to the extent available) or copies of the financial statements and reports, the
Officer's Certificates and all other documents received by the Documentation
Agent from the Borrower pursuant to this Section 6.1.
17
6.2 Inspection of Property and Books and Records. The Companies agree
that they will permit the Agents, each Lender (with prior notice to the Agents)
and any Person designated by the Agents in writing, at Agents' (or Lender's)
expense, to visit and inspect any of the properties of the Company and its
Subsidiaries, to examine the corporate books and financial records of the
Companies and make copies thereof or extracts therefrom, and to discuss the
affairs, finances and accounts of any of such corporations with the principal
officers of each of the Companies and their respective independent public
accountants, all at such reasonable times and as often as Agents or the Lenders
may reasonably request.
6.3 Covenant to Secure Notes Equally. (a) The Companies agree that if the
Company or any Subsidiary shall create or assume any Lien of any kind upon any
of its property or assets, whether now owned or hereafter acquired, other than
Liens permitted by the provisions of Section 6.8 (unless prior written consent
to the creation or assumption thereof shall have been obtained), they will make
or cause to be made effective provisions whereby the Notes will be secured by
such Lien equally and ratably with any and all other Debt thereby secured, as
long as any such other Debt shall be so secured.
(b) The Companies agree not to become a party to, or otherwise be subject
to, any provision contained in any instrument evidencing indebtedness of any of
the Companies which imposes restrictions on the granting of Liens by the
Companies on otherwise unencumbered assets of the Companies as security for the
Notes, except as set forth herein.
6.4 Guaranteed or Collateralized Obligations. The Company agrees that if
it or any of its Subsidiaries incurs or permits to exist any Debt in any event
in excess of an aggregate principal amount equal to $10,000,000 guaranteed or
collateralized (except as permitted by Sections 6.8(v) and 6.8(ix) hereof) in
any other manner by any other Person (other than any governmental entity, or
other than in connection with (y) bonds, letters of credit, letters of
undertaking, or other instruments related to litigation, or the avoidance
thereof, involving the Company or its Subsidiaries, including the release of
assets of the Company or its Subsidiaries in connection with such litigation, or
(z) performance bonds, surety bonds, letters of credit, bank guaranties, and
other instruments related to the conduct of the business of the Company or its
Subsidiaries, excluding any obligation for borrowed money), it will
simultaneously cause such Person to execute and deliver to the Lenders a
guaranty agreement or collateral agreement, as the case may be, in form and
substance satisfactory to the Lenders either (i) guaranteeing payment of the
principal amount of the Notes and any premium and interest thereon, which bears
the same ratio to the total unpaid principal amount of the Notes as the amount
of such other obligation which is guaranteed bears to the total unpaid principal
amount of such other obligation or (ii) collateralizing the Notes equally and
ratably with such other obligation, as the case may be. Nothing contained in
the foregoing shall be deemed to permit the Companies to incur Liens to Persons
other than the Lenders in excess of those permitted by Section 6.8 hereof.
18
6.5 Maintenance of Insurance. Each Company agrees that it and each
Subsidiary will maintain, with responsible insurers, insurance with respect to
its properties and business against such casualties and contingencies
(including, but not limited to, public liability, larceny, embezzlement or other
criminal misappropriation, pollution and war risks) and in such amounts as is
customary in the case of similarly situated corporations engaged in the same or
similar businesses.
6.6 Maintenance of Corporate Existence/Compliance with Law/Preservation of
Property. Except as allowed under Sections 6.10 and 6.11, each Company
covenants that it and each Subsidiary will do or cause to be done all things
necessary to preserve, renew and keep in full force and effect the corporate
existence of such Company and its Subsidiaries and comply in all material
respects with all laws and regulations (including, without limitation, laws and
regulations relating to equal employment opportunity and employee safety)
applicable to it and its Subsidiaries, the failure with which to comply is
likely to materially adversely affect the business, operations or financial
condition of such Company and its Subsidiaries, taken as a whole; at all times
maintain, preserve and protect all material intellectual property of such
Company and its Subsidiaries, and preserve all the remainder of its material
property used or useful in the conduct of its business and keep the same in good
repair, working order and condition. The Companies shall not enter into
business activities materially different from the nature of the business
activities of the Companies as of the date of this Agreement.
6.7 Compliance with Environmental Laws. Each of the Companies will, and
the Company will cause each of its Subsidiaries to, comply in a timely fashion
with, or operate pursuant to valid waivers of the provisions of, all
Environmental Requirements including, without limitation, requirements with
respect to the emission of wastewater effluent, solid and hazardous waste and
air pollution, and any other applicable requirements for conducting, on a
timely basis, periodic tests and monitoring for contamination of ground water,
surface water, air and land and for biological toxicity of the aforesaid, and
comply with any applicable regulations (except to the extent such regulations
are waived by appropriate governmental authorities) of the Environmental
Protection Agency or other relevant federal, state or local governmental
authority, except where the failure to do so is not likely to materially
adversely affect the business, operations or financial condition of the Company
and the Subsidiaries, taken as a whole. To the fullest extent permitted by
applicable law, each Company agrees to indemnify and hold the Agents, the
Lenders, their officers, agents and employees harmless from any loss, liability,
claim or expense that they may incur or suffer as a result of a breach by the
Company or any of the Subsidiaries, as the case may be, of this covenant. No
Company shall be deemed to have breached or violated this Section 6.7 if such
Company or Subsidiary is challenging in good faith by appropriate proceedings
diligently pursued the application or enforcement of such Environmental
Requirements for which adequate reserves have been established in accordance
with generally accepted accounting principles.
19
6.8 Liens. The Companies agree that they will not and will not permit any
Subsidiary to create, assume or suffer to exist any Lien upon any of their
respective property or assets, whether now owned or hereafter acquired (whether
or not provision is made for the equal and ratable securing of the Credit
Facility in accordance with the provisions of Section 6.3) except:
(i) Liens for taxes (including ad valorem and property taxes) not yet
due or which are being contested in good faith by appropriate
proceedings;
(ii) Liens incidental to the conduct of their businesses or the
ownership of their property and assets which were not incurred in
connection with the borrowing of money or the obtaining of
advances of credit, and which do not in the aggregate materially
detract from the value of their property or assets or materially
impair the use thereof in the operation of their business;
(iii) presently existing Liens on property or assets of any of the
Subsidiaries to secure obligations of any of such Subsidiaries to
the Company or another Subsidiary;
(iv) presently existing Liens on property or assets of any Foreign
Subsidiary consisting of marine mortgages on new vessels under
construction or on vessels already constructed, which Liens were
required as a condition of new vessel financing from non-United
States sources, all of which Liens (other than Liens which are
incidental and do not materially affect such property or assets)
are set forth on Schedule 2-Part 1 attached hereto and made a
part hereof;
(v) any presently existing Lien which existed on any real or personal
property of any corporation at the time it became a Subsidiary,
or which existed prior to the time of acquisition upon any real
or personal property acquired by the Company or any Subsidiary
through purchase, merger or consolidation or otherwise, whether
or not assumed by the Company or any Subsidiary, or placed upon
real or personal property acquired by the Company or any
Subsidiary, in connection with the purchase thereof, all of which
Liens (other than Liens which are incidental and do not
materially affect such property) are set forth on Schedule 2-Part
2 attached hereto and made a part hereof, provided that any such
Lien shall not encumber any other property of the Company or any
Subsidiary;
(vi) any Lien renewing, extending or refunding any Lien permitted by
clause
20
(v) above, provided that the principal amount secured is not
increased and the Lien is not extended to other property;
(vii) Liens to secure up to $20,000,000 of letters of credit
obligations of the Company;
(viii) any common law right of set off or banker's lien arising in
the ordinary course of business in connection with deposit
arrangements maintained by the Company and its Subsidiaries with
its banks or other financial institution, other than a Lender in
connection with this Agreement (which such rights have been
waived pursuant to Section 9.3 hereof); and
(ix) Liens on assets covered by financing arrangements, including
lease financing arrangements which would be characterized as
capitalized leases in accordance with generally accepted
accounting principles, if the indebtedness for all such
agreements does not in the aggregate exceed ten percent (10%) of
Consolidated Stockholders' Equity.
6.9 Investments. The Companies agree that they will not and will not
permit any Subsidiary to make any investment in, or any loan or advance to, or
own, purchase or acquire (other than as allowed in Section 6.11) any stock or
securities of, any Person (all of the foregoing being herein called "Restricted
Investments"), except that:
(i) the Company or any of its Subsidiaries may own, purchase or
acquire (A) direct obligations of the United States of America or
any of its agencies or obligations guaranteed by the United
States of America or any of its agencies and having maturities
not in excess of two years from the date of purchase or
acquisition, (B) prime commercial paper rated A1 or P1 and having
maturities not in excess of two years from the date of purchase
or acquisition, (C) certificates of deposit issued by any banks
with a net worth of at least $100,000,000 and a rating by either
Xxxxx'x Investor Services, Inc. or Standard & Poors of at least A
or better and having maturities not in excess of two years from
the date of purchase or acquisition; provided, however, that in
the case of any Lender or Lenders whose rating is less than A,
the maximum amount of the certificates of deposit issued by such
Lender or Lenders shall not exceed $3,000,000 individually or
$12,000,000 in the aggregate;
(ii) any Canadian Subsidiary may own, purchase or acquire direct
obligations of the Canadian Government having maturities not in
excess of two years from the date of purchase or acquisition;
21
(iii) the Company or any of its Subsidiaries may (A) make or permit
to remain outstanding loans or advances to the Company or any
Subsidiary, (B) own, purchase or acquire stock or securities of a
Subsidiary or of a corporation which immediately after such
purchase or acquisition will be a Subsidiary, or (C) acquire and
own stock or securities received in a settlement of debts created
in the ordinary course of business and owed to the Company or any
Subsidiary;
(iv) any Foreign Subsidiary may own, purchase or acquire certificates
of deposit having maturities not in excess of two years from the
date of purchase or acquisition and issued by foreign banks or by
the foreign branches of United States banks if each such foreign
bank or foreign branch has a net worth of at least $100,000,000
and a rating by either Xxxxx'x Investor Services, Inc. or
Standard & Poors of at least A or better; and
(v) the Company or any Subsidiary may make loans or advances to or
own, purchase or acquire stock or securities or an interest in
any joint venture entity; provided, however, that the aggregate
amount of all such loans, advances and investments in joint
venture entities at any time outstanding shall not exceed
$100,000,000.
The foregoing restrictions on investments by the Companies shall not apply to
funds maintained in rabbi trusts established by the Companies for supplemental
executive retirement plans and early retirement incentive programs.
Furthermore, the foregoing restrictions on investments by the Company shall not
apply to purchases by the Company of its own stock or securities.
6.10 Dispositions of Stock and Debt. The Companies agree that they will
not and will not permit any Subsidiary to sell or otherwise dispose of any
shares of stock or Debt of any Subsidiary, except (i) to the Company or another
Subsidiary, (ii) a sale of shares of a Subsidiary in connection with the
creation of a joint venture (subject to the limitations on investments set forth
in Subsections 6.9(v), and (iii) except that all shares of stock and Debt of any
Subsidiary at the time owned by or owed to the Company or any of its
Subsidiaries may be sold as an entirety for a cash consideration which
represents the fair value (as determined in good faith by the Board of Directors
of the Company) at the time of sale of the shares and Debt so sold; provided
that the assets of such Subsidiary do not constitute a substantial part of the
consolidated assets of the Company and its Subsidiaries; and provided further
that, at the time of such sale, such Subsidiary shall not own, directly or
indirectly, any Debt of the Company or any shares of stock or Debt of any other
Subsidiary (unless all of the shares of stock and Debt of such other Subsidiary
owned, directly or indirectly by the Company and all Subsidiaries are
simultaneously being sold as permitted by this Section 6.10; and provided,
22
further, that the Company may sell 70% of the stock of Tidewater (Malaysia)
Sdn.Bhd. to citizens of Malaysia.
6.11 Mergers and Consolidations. The Companies agree that they will not
and will not permit any Subsidiary to merge or consolidate with any other
corporation or sell, lease or transfer or otherwise dispose of all or a
substantial part of its assets to any Person, except that provided no Default
has occurred and is continuing and further provided that no Default will occur
as a result thereof:
(i) any Subsidiary may merge or consolidate with the Company
(provided that the Company shall be the continuing or surviving
corporation) or with any one or more other Subsidiaries;
(ii) any Subsidiary may sell, lease, transfer or otherwise dispose of
any of its assets to the Company or another Subsidiary;
(iii) any Subsidiary may sell or otherwise dispose of all or
substantially all of its assets subject to the conditions
specified in Section 6.11 with respect to a sale of the stock of
such Subsidiary;
(iv) the Company may merge or consolidate with any corporation
provided that the Company shall be the continuing or surviving
corporation; and
(v) any Subsidiary may merge or consolidate with any corporation
provided such continuing or surviving corporation shall remain or
become a Subsidiary of the Company.
6.12 Minimum EBITDA to Fixed Charge Ratio. The Company agrees that it
will not permit its EBITDA to Fixed Charge Ratio to be less than 2.00 to 1.00.
6.13 Maximum Funded Debt to EBITDA Ratio. The Company agrees that it will
not permit its Funded Debt to EBITDA Ratio to be greater than 3.00 to 1.00.
6.14 Maximum Funded Debt to Total Capitalization Ratio. The Company
agrees that it will not permit its Funded Debt to Total Capitalization Ratio to
be greater than 0.40 to 1.00.
6.15 Transactions with Related Party. The Companies agree that they will
not and will not permit any Subsidiary to effect any transaction with any
Affiliate or Subsidiary by which any asset or services of a Company or a
Subsidiary is transferred to such Affiliate or Subsidiary, or from such
Affiliate or Subsidiary or enter into any other transaction with an Affiliate or
Subsidiary, on terms less favorable to such Company or such Subsidiary than
would be reasonably expected to be given in a similar transaction with an
unrelated entity.
23
The foregoing restrictions shall not apply to transactions between the Company
and a Subsidiary or a Subsidiary and another Subsidiary.
6.16 Stock Transactions by Subsidiaries. The Company agrees that it will
not permit any Subsidiary to issue, sell or dispose of any shares of any class
of its stock (other than directors' qualifying shares or shares which are
effectively controlled by the Company) except to the Company or another
Subsidiary or as permitted by Section 6.11.
6.17 ERISA. The Company agrees that it will not, and will not permit any
Subsidiary to:
(i) terminate or withdraw from any Plan so as to result in any
material liability to the PBGC;
(ii) engage in or permit any Person to engage in any prohibited
transaction (as defined in Section 4975 of the Code) involving any Plan (other
than a Multiemployer Plan) which would subject the Company or any Subsidiary to
any material tax, penalty or other Liability;
(iii) incur or suffer to exist any material accumulated funding
deficiency (as defined in Section 302 of ERISA and Section 412 of the Code),
whether or not waived, involving any Plan (other than a Multiemployer Plan); or
(iv) allow or suffer to exist any risk or condition, which presents a
material risk of incurring a material liability to the PBGC.
6.18 Federal Reserve Regulations, etc. The Company agrees that it will
not, and will not permit any Subsidiary or any agent acting on behalf of the
Company or any Subsidiary, to take any action which might cause this Agreement
or the Notes to violate Regulation U or any other regulation of the Board of
Governors of the Federal Reserve System or to violate the Securities Exchange
Act of 1934, as amended, in each case as in effect now or as the same may
hereafter be in effect.
6.19 Environmental Matters. Each of the Companies agrees that it will
not, and will not permit any Third Party to, use, produce, manufacture, process,
generate, store, dispose of, manage at, or ship or transport to or from the
Properties any Hazardous Materials except for Hazardous Materials used,
produced, manufactured, processed, generated, stored, disposed of, released or
managed in the ordinary course of business in compliance with all applicable
Environmental Requirements and except for Hazardous Materials released in
amounts which do not require remediation pursuant to applicable law or
regulation, and which do not present any danger to health, safety or the
environment, or unless any liability resulting from such remediation is not
likely to materially adversely affect the business, operations or financial
24
condition of the Company and its Subsidiaries, taken as a whole.
6.20 Taxes. The Company agrees that it will pay when due, and cause each
of its Subsidiaries to pay when due, all taxes, assessments, and other
liabilities, other than for borrowed money, except and so long as contested in
good faith.
Section 7A. Conditions Precedent to the Funding of the Initial Advance
under the Credit Facility. The obligation of the Lenders to make the initial
Advance under the Line of Credit to the Companies under this Agreement are
subject to the receipt by the Documentation Agent of the following:
7A.1 Resolutions of the Companies. Copies, duly certified by the
secretary or assistant secretary of each of the Companies, of (a) the
resolutions of the Board of Directors of each of the Companies authorizing the
borrowings hereunder and the execution and delivery of this Agreement and the
Notes, (b) all documents evidencing other necessary corporate action, and (c)
all approvals, or consents, if any, necessary with respect to this Agreement and
the Notes.
7A.2 Organization Documents; Good Standing. Copies of (a) the certificate
of incorporation of the Company (certified as of a recent date by the Secretary
of State of Delaware), (b) the by-laws of the Company, certified by the
secretary or assistant secretary of the Company, (c) the certificate of
incorporation and by-laws of each Identified Subsidiary, certified by the
secretary or assistant secretary of such Identified Subsidiary, in each case as
in effect on the Effective Date, (d) certificates of good standing for the
Company and each of the Identified Subsidiaries, issued by the Secretary of
State of their respective states of incorporation, (e) certificate of
qualification to do business of the Company issued by the Secretary of State of
the State of Louisiana.
7A.3 Incumbency. Certificates of the secretary or assistant secretary of
each of the Companies, certifying the name of the officers of each of the
Companies, respectively, authorized to execute this Agreement and the Notes, and
all other documents or certificates to be delivered hereunder, together with the
true signatures of such officers.
7A.4 Notes. The duly executed Line of Credit Notes payable to the
respective Lenders.
7A.5 Officer's Certificate. A certificate of the president or chief
financial officer of the Company, dated as of the Effective Date, certifying
that as of the Effective Date (i) the representations and warranties of the
Companies set forth in Section 5 hereof are true and correct, (ii) no Event of
Default has occurred, and (iii) no material adverse change in the financial
condition, business, operations or prospects of the Company or its Subsidiaries
has occurred since December 31, 1998.
25
7A.6 Opinion. The opinion of Jones, Walker, Waechter, Poitevent, Carrere
& Xxxxxxx, L.L.P., special counsel to the Company, addressed to the Lenders, to
the effect that (a) each of the Company and the Identified Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and is duly qualified and in good
standing as a foreign corporation in all jurisdictions wherein the property it
owns or the business it transacts makes such qualification necessary, except
where the failure to so qualify would not impair the ability of Company or any
of the Identified Subsidiaries to operate its business or own its assets; (b)
each of the Companies has full power to execute, deliver and perform its
obligations under this Agreement, the Line of Credit Notes and the Term Notes;
(c) such actions have been duly authorized by all necessary corporate action,
and are not in conflict with any provision of law or of the charter or by-laws
of any of the Companies, nor in conflict with any agreement binding upon the
Company or any of the Identified Subsidiaries; (d) this Agreement and the Line
of Credit Notes, when executed and delivered, are the legal and binding
obligations of the Companies, enforceable in accordance with their respective
terms, except as enforcement may be limited by applicable bankruptcy,
reorganization, moratorium or similar laws; and (e) no consent or approval of
the shareholders of the Company or of any governmental authority is required as
a condition to the validity or enforceability of this Agreement or the Notes.
7A.7 Payment of Fees and Expenses. Evidence that the Company has paid (i)
all underwriting fees due the Administrative Agent pursuant to the Agents' Fee
Agreement, and (ii) all other fees and expenses of the Agents and their counsel
as described in Section 11.5 hereof.
7A.8 Termination of Prior Credit Facility. Copy of the irrevocable notice
of termination given by the Company pursuant to Section 1.5 hereof, to fully
terminate the credit facility pursuant to the Revolving Credit and Term Loan
Agreement, dated as of March 19, 1997, as amended, together with a certification
by the Company that all amounts due thereunder have been paid in full or will be
paid in full simultaneously with the initial Advance under this Credit Facility.
Section 7B. Conditions Precedent to the Funding of the Term Loan. In
addition to the conditions precedent set forth in Section 7A above, the
obligation of the Lenders to make the Term Loan to the Companies, are subject to
the receipt by the Documentation Agent on the Drawdown Termination Date of the
following:
7B.1 Notes. The duly executed Term Notes payable to the respective
Lenders.
7B.2 Officer's Certificate. A certificate of the president or chief
financial officer of the Company, dated as of the Drawdown Termination Date,
certifying that as of the Drawdown Termination Date (i) the representations and
warranties of the Companies set forth
26
in Section 5 hereof are true and correct, (ii) no Event of Default has occurred,
and (iii) no material adverse change in the financial condition, business,
operations or prospects of the Company or its Subsidiaries has occurred since
the date of the most recent financial statements timely furnished by the Company
to the Documentation Agent.
Section 8. Conditions Precedent to Subsequent Advances Under the Line of
Credit and Funding of the Term. In addition to the applicable conditions
precedent set forth in Section 7A or Section 7B above, the obligation of the
Lenders to make any subsequent Advances under the Line of Credit, and the
obligation of the Lenders to fund the Term Loan, are subject to the satisfaction
of each of the following conditions precedent:
8.1 Default. Before and after giving effect to such Advance or funding of
the Term Loan, no Default shall have occurred and be continuing.
8.2 Representations and Warranties. Before and after giving effect to
such Advance or funding of the Term Loan, the representations and warranties in
Section 5 hereof shall be true and correct as though made on the date of such
Advance or funding of the Term Loan, except (i) for such changes as are
specifically permitted hereunder and (ii) that the representations and
warranties contained in the last sentence of Section 5.4 hereof (relating to no
material adverse change) shall refer to changes from the most recently timely
submitted financial statements of the Company.
Section 9. Events of Default; Remedies; Set Offs.
9.1 Events of Default. Any one of the following events shall constitute
Events of Default hereunder and under the Credit Facility and the Notes,
individually and collectively:
(a) The Companies default in the payment of any principal on any Note when
the same shall become due, either by the terms thereof or otherwise as herein
provided.
(b) The Companies default in the payment of any interest on any Note or any
other amount due hereunder for more than 5 days after the date due.
(c) The Company or any Subsidiary defaults in any payment of principal or
of interest on any other obligation for borrowed money (including, but not
limited to, any Capitalized Lease Obligation, any obligation under a conditional
sale or other title retention agreement, any obligation issued or assumed as
full or partial payment for property whether or not secured by a purchase money
mortgage or any obligation under notes payable or drafts accepted representing
extensions of credit) beyond any period of grace provided with respect thereto,
or in the performance or observance of any other agreement, term or condition
contained in any agreement under which any such obligation is created if the
effect of such
27
default is to cause, or permit the holder or holders of such obligation (or a
trustee on behalf of such holder or holders) to cause, such obligation to become
due (or to be defeased or repurchased by the Company or any Subsidiary) prior to
its stated maturity, provided that the aggregate amount of all obligations as to
which such payment default shall occur and be continuing or such failure (or
defeasance or resale) or other event causing or permitting acceleration shall
occur and be continuing exceeds $1,000,000, individually or in the aggregate.
(d) Any representation or warranty made by the Companies herein or in any
writing furnished in connection with or pursuant to this Agreement shall be
false in any material respect on the date as of which made or deemed made.
(e) The Companies default in the performance or observance of any agreement
or covenant contained in Sections 6.8 through 6.20 of this Agreement.
(f) The Companies default in the performance or observance of any other
agreement, covenant, term or condition contained herein and such default shall
not have been remedied within 30 days after the earlier to occur of (i) the date
on which the President, the Treasurer or the Chief Financial Officer of the
Company obtains actual knowledge thereof or (ii) the date on which written
notice thereof shall have been received by the Company from the Administrative
Agent.
(g) The Company or any Subsidiary makes an assignment for the benefit of
creditors or is generally not paying its debts as such debts become due.
(h) Any decree or order for relief in respect of the Company or any
Subsidiary is entered under any bankruptcy, reorganization, compromise,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law, whether now or hereinafter in effect (herein called "Bankruptcy
Law"), of any jurisdiction.
(i) The Company or any Subsidiary petitions or applies to any tribunal for,
or consents to the appointment of, or taking possession by, a trustee, receiver,
custodian, liquidator or similar official, of the Company or any Subsidiary, or
of any substantial part of the assets of the Company or any Subsidiary, or
commences a voluntary case under the Bankruptcy Law of the United States or any
proceedings (other than proceedings for the voluntary liquidation and
dissolution of a Subsidiary) relating to the Company or any Subsidiary under the
Bankruptcy Law of any other jurisdiction.
(j) Any such petition or application described in Section 9.1(i) is filed,
or any such proceedings are commenced, against the Company or any Subsidiary,
and the Company or such Subsidiary by any act indicates its approval thereof,
consent thereto, or acquiescence therein, or an order, judgment or decree is
entered appointing any such trustee, receiver,
28
custodian, liquidator or similar official, or approving the petition in any such
proceedings, and such order, judgment or decree remains unstayed and in effect
for more than 60 days.
(k) Any order, judgment or decree is entered in any proceedings against the
Company decreeing the dissolution of the Company and such order remains in
effect for more than 60 days.
(l) Any order, judgment or decree is entered in any proceedings against the
Company or any Subsidiary, as the case may be, decreeing a split-up of the
Company or such Subsidiary which requires the divestiture of assets representing
a substantial part, or the divestiture of the stock of a Subsidiary whose assets
represent a substantial part, of the assets of the Company and its Subsidiaries
or which requires the divestiture of assets, or stock of a Subsidiary, which
shall have contributed a substantial part of the Consolidated Net Income of the
Company and its Subsidiaries for any of the three (3) fiscal years then most
recently ended, and such order, judgment or decree remains unstayed and in
effect for more than 60 days.
(m) A final judgment in an amount in excess of $1,000,000 is rendered
against the Company or any Subsidiary and, within 60 days after entry thereof,
such judgment is not discharged or execution thereof stayed pending appeal, or
within 60 days after the expiration of any such stay, such judgment is not
discharged.
9.2 Remedies. (a) If any Event of Default specified in Subsections
9.1(h), 9.1(i) or 9.1(j) occurs, the Credit Facility shall automatically be
deemed terminated and the outstanding Notes shall automatically become
immediately due and payable, all without presentment, demand, protest or notice
of any kind, all of which are hereby waived by the Companies. If any Event of
Default occurs under any other subsection of Section 9.1, the Required Lenders
may, at their option, and in addition to any right, power or remedy provided by
law or equity, by notice in writing to the Company, declare the Credit Facility
to be terminated and the outstanding Notes to be immediately due and payable,
whereupon the Credit Facility shall be terminated and the outstanding Notes
shall become immediately due and payable, all without presentment, demand,
protest or notice of any kind, all of which are hereby waived by the Companies.
(b) In furtherance to the remedies specified above, the Documentation Agent
(with the direction of the Required Lenders) may proceed to protect and enforce
the Lenders' rights under this Agreement and the outstanding Notes by exercising
such remedies as are available to the Documentation Agent or the Lenders in
respect thereof under applicable law (except to the extent waived by Section 9.3
hereof), either by suit in equity or by action at law, or both, whether for
specific performance of any covenant or other agreement contained in this
Agreement or in aid for the exercise of any power granted in this Agreement. No
remedy conferred in this Agreement upon the Documentation Agent or the Lenders
is intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall
29
be in addition to every other remedy conferred herein or now or hereafter
existing at law or in equity or by statute or otherwise, except to the extent
waived by Section 9.3 hereof.
9.3 Waiver of Set-Offs. The Administrative Agent, each Agent and each
Lender hereby specifically waive (i) the right to set-off any funds of any of
the Companies in possession of the Administrative Agent, each Agent or any
Lender against the obligation of the Companies to the Administrative Agent, each
Agent or any Lender pursuant to this Agreement, or (ii) any counterclaim
against, security interest in or banker's or other lien on, any of such funds or
accounts of the Companies.
Section 10. The Agents.
10.1 Appointment and Authorization. (a) Each Lender appoints and
authorizes the Administrative Agent to receive all payments of principal,
interest, fees and other amounts payable by the Companies under this Agreement
and to remit same immediately to the Lenders, to disburse the Advances from the
Lenders, and to take such action and to exercise such powers under this
Agreement and the Notes as are delegated to the Administrative Agent by the
Lenders from time to time. The Administrative Agent shall promptly distribute
to the Lenders upon receipt all payments and prepayments of principal, interest,
fees and other amounts paid by the Companies under this Agreement, in proportion
to the Lenders' Commitments. Similarly, the Lenders shall be obligated to fund
Advances in proportion to their Commitments. The Administrative Agent shall
promptly distribute to the Agents the fees payable by the Companies pursuant to
the Agents' Fee Agreement. The Administrative Agent may resign at any time by
written notice to the Lenders; the successor Administrative Agent shall be
selected by the Required Lenders from between the remaining Agents.
(b) Each Lender appoints and authorizes the Documentation Agent to hold
this Agreement and all other documentation in connection herewith (except for
the Notes which will be held by the respective Lenders), and to take such action
and exercise such powers under this Agreement and the Notes as are delegated to
the Documentation Agent by the Lenders from time to time. Any requests by the
Company for consent by the Lenders or waiver or amendment of provisions of the
Agreement shall be delivered by the Company to the Documentation Agent (with
copies to the other Agents), but favorable action on such requests shall require
the approval of the Required Lenders.
(c) Each Lender appoints and authorizes the Syndication Agent to supervise
the syndication of the Credit Facility to a group of financial institutions
identified by the Syndication Agent in consultation with the Administrative
Agent, the Documentation Agent and the Company in accordance with the provisions
of Section 10.6 hereof.
10.2 Agents' Reliance. Neither the Agents nor any of their directors,
officers, agents or employees shall be liable for any action taken or omitted to
be taken by it or them under or
30
in connection with this Agreement and the Notes, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Agents: (i) may treat the payee of any of the Notes as the
holder thereof until the Documentation Agent receives written notice of the
assignment or transfer thereof, signed by such payee and in form satisfactory to
the Documentation Agent; (ii) may consult with legal counsel (including counsel
for the Company), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, warranties or representations
made in or in connection with this Agreement and the Notes; (iv) shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of this Agreement and the Notes or to
inspect any property (including the books and records) of the Companies; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement
and the Notes or any other instrument or document furnished pursuant thereto;
and (vi) shall incur no liability under or in respect to this Agreement and the
Notes by acting upon any notice, consent, certificate or other instrument or
writing (which may be by facsimile, telegram, cable or telex) believed by it to
be genuine and signed or sent by the proper party or parties.
10.3 Acts by Administrative Agent after Default, etc. In the event that
the Administrative Agent shall have been notified in writing by any of the
Companies or the Lenders of any Event of Default (or in the event that the
officer of the Administrative Agent responsible for the Borrower's account
obtains actual knowledge of an Event of Default), the Administrative Agent (a)
shall immediately notify the Lenders; (b) shall take such action and assert
such rights under this Agreement as it is expressly required to do pursuant to
the terms of this Agreement with the consent of the Required Lenders; (c) may
take such other actions and assert such other rights as it deems advisable, in
its discretion, for the protection of the interests of the Lenders pursuant to
applicable laws with the consent of the Required Lenders; and (d) shall inform
all the Lenders of the taking of action or assertion of rights pursuant to this
Section. Each Lender agrees with the Administrative Agent and the other Lenders
that the decisions and determinations of the Required Lenders in enforcing this
Agreement and the Notes and guiding the Administrative Agent in those matters
shall be binding upon all the Lenders, including, without limitation,
authorizing the Administrative Agent at the pro rata expense of all the Lenders
(to the extent not reimbursed by the Companies) to retain attorneys to seek
judgment on this Agreement and the Notes. Each Lender agrees with the other
Lenders that it will not, without the consent of the other Lenders, separately
seek to institute any legal action with respect to the Loan; provided that
following the maturity of the Notes (whether by acceleration or at stated
maturity), each Lender may, without the concurrence of the other Lenders,
separately seek to institute any legal action with respect to the Loan.
10.4 Lender Credit Decision. Each Lender acknowledges that it has,
independently
31
and without reliance upon the Agents or any other Lender and based on the
financial statements referred to in Section 5.4 hereof and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement and the Notes.
10.5 Agents. Agents shall have the same rights and powers under this
Agreement and the Notes as any other Lender and may exercise the same as though
it were not the Agents; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include Agents in its individual capacity.
Agents may accept deposits from, lend money to, act as trustee under indentures
of, and generally engage in any kind of business with the Company as if Agents
were not the Agents and without any duty to account therefor to the Lenders.
10.6 Assignments and Participations. (a) No Lender may assign to any
other Person any portion of its interests, rights and obligations under this
Agreement (including, without limitation, any portion of its Commitment or the
Loan at the time owing to it and Note held by it) unless each of the following
conditions is or has been satisfied: (i) each of the Documentation Agent and
Administrative Agent have given its prior written consent (which consent will
not be unreasonably withheld), (ii) the Company has given its prior written
consent (which consent will not be unreasonably withheld), (iii) each such
assignment is of a constant, and not a varying, percentage of all the assigning
Lender's rights and obligations under this Agreement, (iv) the assignment is for
a Commitment of $10,000,000 or more, (v) the parties to such assignment have
executed and delivered to the Documentation Agent an Assignment and Acceptance,
substantially in the form of Exhibit "E" hereto (the "Assignment and
Acceptance"), together with any Note subject to such assignment, one or more
signature pages to this Agreement containing the signature of the assignee, and
(following the Effective Date) payment by the assignee to the Documentation
Agent for its own account of an assignment administration fee in the amount of
$3,500, (vi) the Documentation Agent shall have delivered to the Company a copy
of such fully-executed Assignment and Acceptance, and (vii) the assignee is (A)
a state or national commercial bank located in the United States or (B) a bank
organized under a jurisdiction other than the United States, provided that such
foreign bank has provided the Documentation Agent and the Company with the tax
forms prescribed in Section 11.6(c) hereof, and provided further that such
foreign bank shall not transfer its interests, rights and obligations under this
Agreement to any Affiliate of such foreign bank unless such Affiliate provides
the Documentation Agent and the Company with the aforesaid tax forms. Upon
satisfaction of each of the foregoing conditions and upon acceptance and
notation by the Documentation Agent, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, (x) the assignee thereunder shall
be a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender, and
32
(y) the assigning Lender shall, to the extent provided in such assignment, be
released from its obligations under this Agreement. Notwithstanding the
foregoing, the restrictions contained above in this Section 10.6(a) shall not
apply to assignments to any Federal Reserve Bank, and the conditions set forth
in clauses (i) and (ii) above shall not apply to assignments by any Lender to
any Person which controls, is controlled by, or is under common control with, or
is otherwise substantially affiliated with that Lender.
(b) Upon its receipt of an Assignment and Acceptance executed by the
parties to such assignment together with any Note or Notes subject to such
assignment and the written consent of the Documentation Agent, Administrative
Agent and the Company to such assignment, the Documentation Agent shall give
prompt notice thereof to the Company and the Lenders. Within five (5) Business
Days after receipt of such notice, the Companies at their own expense, shall
execute and deliver to the Documentation Agent, in exchange for the surrendered
Note, a new Note or Notes to the order of such assignee(s) in an amount equal to
the amount assumed by such assignee(s) pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained some portion of its
obligations hereunder, a new Note or Notes to the order of the assigning Lender
in an amount equal to the amount retained by it hereunder. Such new Note or
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of the surrendered Note, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in the form of the assigned
Note. The surrendered Note shall be cancelled and returned to the Company. The
Documentation Agent shall have the right to substitute a revised Exhibit B
hereto to reflect the respective commitments following each such assignment.
(c) Each Lender, without the consent of the Company or the Agents, may sell
participations to one or more banks in all or a portion of its Loans (including
its Commitment) under this Agreement, provided that the selling Lender shall
retain the sole right and responsibility to enforce the obligations of the
Companies relating to such Loans and that the only rights granted to the
participant pursuant to such participation arrangements with respect to waivers,
amendments or modifications of this Agreement shall be the right to approve
waivers, amendments, or modifications which require the consent of all of the
Lenders as provided in Section 11.12 hereof.
Section 10.7 Indemnification of the Agents. The Lenders ratably (computed
by reference to each Lender's respective Commitment) shall indemnify each Agent,
their respective affiliates and the respective shareholders, directors,
officers, employees, agents and counsel of the foregoing (each an " Agent
Indemnitee") and hold each Agent Indemnitee harmless from and against any and
all claims (whether groundless or otherwise), liabilities, losses, damages,
costs and expenses of any kind, including, without limitation, (i) the
reasonable fees and disbursements of counsel and (ii) any expenses for which the
Agents have not been reimbursed by the Companies as required by this Agreement),
which may be incurred by such Agent Indemnitee arising out of or related to this
Agreement or the transactions
33
contemplated hereby, or the Agents' actions taken hereunder; provided that no
Agent Indemnitee shall have the right to be indemnified hereunder for such Agent
Indemnitee's own gross negligence or willful misconduct, as determined by a
court of competent jurisdiction, or to the extent that such claim relates to the
breach by such Agent Indemnitee of its obligations under this Agreement.
Section 11. General.
11.1 Definitions. As used in this Agreement, terms used herein with
initial capital letters shall have the following meanings, unless defined
elsewhere in this Agreement or unless the context clearly indicates otherwise:
"Administrative Agent" shall mean BankBoston, N.A., or its successor
selected pursuant to Section 10.1 hereof.
"Agent Indemnitee" shall have the meaning specified in Section 10.7 hereof.
"Advances" shall have the meaning specified in Section 1.1 hereof.
"Affiliate" shall mean, as to any Person, any Subsidiary of such Person and
any other Person which, directly or indirectly, controls, is controlled by, or
is under common control with, such Person. For purposes of this definition,
"control" shall mean the possession of the power to direct or cause the
direction of management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise, and an Affiliate of
any of the Companies includes, without limitation, any officer or director of
such corporation and any Person who beneficially owns, directly or indirectly,
10% or more of the issued outstanding capital stock of such corporation.
"Agents" shall mean BankBoston, N.A., Bank One, Louisiana, National
Association and Chase Bank of Texas, National Association.
"Agents Fee Agreement" shall mean any agreement among the Agents and the
Company from time to time relating to the compensation of the Agents in
connection with the preparation, negotiation, syndication and administration of
the Credit Facility.
"Agreement" shall mean this Revolving Credit and Term Loan Agreement, as it
may be amended and restated, modified and/or supplemented from time to time.
"Applicable Base Rate Margin" shall mean the following per annum interest
rate applicable to Base Rate Advances from time to time depending on the Funded
Debt to Total Capitalization Ratio Level of the Company:
34
Level Applicable Base Rate Margin
----- ---------------------------
Level I 0.000%
Level II 0.000%
Level III 0.000%
The Applicable Base Rate Margin for any fiscal quarter shall be determined by
reference to the Funded Debt to Total Capitalization Ratio as of the last day of
the second fiscal quarter prior to the quarter for which the Applicable Base
Rate Margin is determined. For example, the Applicable Base Rate Margin for the
fiscal quarter beginning April 1, 1999 shall be determined on the basis of the
Funded Debt to Total Capitalization Ratio of the Company as of December 31,
1998.
"Applicable Eurodollar Rate Margin" shall mean the following per annum
interest rate applicable to Eurodollar Rate Advances from time to time depending
on the Funded Debt to Total Capitalization Ratio Level of the Company:
Level Applicable Eurodollar Rate Margin
----- ---------------------------------
Level I 0.500%
Level II 0.625%
Level III 0.750%
The Applicable Eurodollar Rate Margin for any fiscal quarter shall be determined
by reference to the Funded Debt to Total Capitalization Ratio as of the last day
of the second fiscal quarter prior to the quarter for which the Applicable
Eurodollar Rate Margin is determined. For example, the Applicable Eurodollar
Rate Margin for the fiscal quarter beginning April 1, 1999 shall be determined
on the basis of the Funded Debt to Total Capitalization Ratio of the Company as
of December 31, 1998.
"Applicable Facility Fee Rate" shall mean the following per annum facility
fee interest rate applicable to the Available Credit from time to time depending
on the Funded Debt to Total Capitalization Ratio Level of the Company:
Level Applicable Facility Fee Rate
----- ----------------------------
Level I 0.250%
Level II 0.250%
Level III 0.250%
The Applicable Facility Fee Rate for any fiscal quarter shall be determined by
reference to the Funded Debt to Total Capitalization Ratio as of the last day of
the second fiscal quarter prior to the quarter prior to the quarter for which
the Applicable Facility Fee Rate is determined. For example, the Applicable
Facility Fee Rate for the fiscal quarter beginning April 1, 1999 shall
35
be determined on the basis of the Funded Debt to Total Capitalization Ratio of
the Company as of December 31, 1998.
"Assignment and Acceptance" shall have the meaning specified in Section
10.6 hereof.
"Available Credit" shall have the meaning specified in Section 1.1 hereof.
"Bankruptcy Law" shall have the meaning specified in Section 9.1(h) hereof.
"Base Rate" shall mean the greater of (i) the Prime Rate or (ii) the
Federal Funds Rate plus 0.5%.
"Base Rate Advances" shall mean advances bearing interest at the Base Rate
plus the Applicable Base Rate Margin.
"Base Rate Tranche" shall mean any part of the principal amount of the
Loans that constitutes Base Rate Advances.
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which commercial banks in Xxx Xxxxxxx, Xxxxxxxxx (xx Xxxxxx, Xxxxxxx in the
case of Eurodollar Rate Advances or payments) are required or authorized to be
closed.
"Canadian Subsidiary" shall mean any Subsidiary organized under the laws of
Canada or any province thereof.
"Capital Asset" shall mean any asset other than a current asset (as
determined in accordance with generally accepted accounting principles).
"Capitalized Lease Obligation" shall mean any rental obligation which,
under generally accepted accounting principles, is or will be required to be
capitalized on the books of the Company or any Subsidiary, taken at the amount
thereof accounted for as indebtedness (net of interest expense) in accordance
with such principles, on a consolidated basis.
"CERCLA" shall mean the Comprehensive Environmental Response Compensation
and Liability Act, as amended.
"CERCLIS" shall mean the Comprehensive Environmental Response Compensation
and Liability Inventory System established pursuant to CERCLA.
"Code" shall have the meaning specified in Section 5.10.
"Commitments" shall mean the Line of Credit Commitments.
36
"Company" shall mean Tidewater Inc.
"Companies" shall mean the Company and the Domestic Subsidiaries.
"Consolidated EBITDA" shall mean Consolidated Net Income of the Company and
its Subsidiaries, plus (i) interest expense, (ii) tax expense and (iii)
depreciation and amortization expense, to the extent that any of such items are
deducted from consolidated gross revenues of the Company and its Subsidiaries
for the purpose of determining Consolidated Net Income.
"Consolidated Fixed Charge" shall mean the sum of all scheduled payments of
principal and interest due (and whether or not paid) on all Funded Debt of the
Company and its Subsidiaries for the preceding 12 months, under which the
Company or any of its Subsidiaries is the obligor, on a consolidated basis.
"Consolidated Funded Debt" shall mean the sum of (i) the aggregate
principal amounts outstanding on all indebtedness of the Companies for borrowed
money and all obligations of the Companies evidenced by notes, debentures, bonds
or similar instruments; and (ii) all Capitalized Lease Obligations (excluding
any obligation to purchase any asset at the end of a lease term until such asset
is so purchased), all determined in accordance with generally accepted
accounting principles on a consolidated basis.
"Consolidated Net Income" shall mean, for any period, the consolidated net
income of the Company and its Subsidiaries (excluding unusual, extraordinary
and/or non-recurring income and/or losses) determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Consolidated Stockholders' Equity" shall mean total stockholders' equity
of the Company, on a consolidated basis, as shown on the Company's financial
statements prepared in accordance with generally accepted accounting principles
determined as of the last day of each fiscal quarter.
"Credit Facility" shall mean the Line of Credit and the Term Loan.
"Debt" shall mean, without duplication, (a) any obligation for borrowed
money (and any notes payable and drafts accepted representing extensions of
credit whether or not representing obligations for borrowed money); (b) any
obligation secured by a Lien on, or payable out of the proceeds of production
from, property of the Company or any Subsidiary (even though such obligation
shall not be assumed by the Company or such Subsidiary); and (c) any obligation,
which under generally accepted accounting principles is shown on the balance
sheet as a liability (including, without limitation, Capitalized Lease
Obligations and excluding reserves for deferred income taxes and for foreign
employee service indemnities and
37
other reserves to the extent that such reserves do not constitute an
obligation); (d) amounts equal to the aggregate net rentals (after making
allowance for any interest, taxes or other expenses included therein) under any
lease (whether or not such rentals accrue and become payable only on an annual
or other periodic basis) which lease (i) constitutes the substantial equivalent
of a purchase of the property subject to such lease, (ii) has an initial term
materially less than the useful life of such property and provides that the
lessee has the option to renew such lease for the remaining useful life of such
property at a rental which at the inception of such lease appears to be
substantially less than the fair rental value of such property, or (iii)
provides an option to the lessee to acquire the property subject to such lease
at a price which, at the inception of such lease, appears to be substantially
less than the probable fair value of such property at the time or times of
permitted acquisition by the lessee; (e) guarantees, endorsements (other than
endorsements of negotiable instruments for collection in the ordinary course of
business) and other contingent liabilities (whether direct or indirect) in
connection with the obligations, stock or dividends of any Person; (f)
obligations under any contract providing for the making of loans, advances or
capital contributions to any Person, or for the purchase of any property from
any Person, in each case in order to enable such Person primarily to maintain
working capital, net worth or any other balance sheet condition or to pay debts,
dividends or expenses; (g) obligations under any contract for the purchase of
materials, supplies or other property if such contract (or any related document)
requires that payment for such materials, supplies or other property shall be
made regardless of whether or not delivery of such materials, supplies or other
property is ever made or tendered; (h) obligations under any contract to rent or
lease (as lessee) any real or personal property if such contract (or any related
document) provides that the obligation to make payments thereunder is absolute
and unconditional under conditions not customarily found in commercial leases
then in general use or requires that the lessee purchase or otherwise acquire
securities or obligations of the lessor; (i) obligations under any contract for
the sale or use of materials, supplies or other property if such contract (or
any related document) requires that payment for such materials, supplies or
other property, or the use thereof, shall be subordinated to any indebtedness
(of the purchaser or user of such materials, supplies or other property) owed or
to be owed to any Person; and (j) obligations under any other contract which, in
economic effect, is substantially equivalent to a guarantee; all as determined
in accordance with generally accepted accounting principles.
"Default" shall have the meaning specified in the definition of Event of
Default hereinafter.
"Domestic Subsidiary" shall mean any Subsidiary organized under the laws of
any State of the United States.
"Drawdown Termination Date" shall mean April 30, 2001, or such later date
as the Agents, Lenders and the Companies agree to in writing.
"EBITDA to Fixed Charge Ratio" shall mean the ratio of (i) Consolidated
EBITDA for
38
the immediately preceding four consecutive fiscal quarters, less the tax expense
for taxes actually paid during such period to (ii) Consolidated Fixed Charge for
such period.
"Effective Date" shall mean the date on which this Agreement is executed by
the Companies and the Agents.
"Environmental Authority" shall mean any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Judgments and Orders" shall mean all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" shall mean any liabilities, whether accrued or
contingent, arising from or relating in any way to any Environmental
Requirements.
"Environmental Notices" shall mean any written communication from any
Environmental Authority stating possible or alleged noncompliance with or
possible or alleged liability under any Environmental Requirement, including
without limitation any complaints, citations, demands or requests from any
Environmental Authority for correction of any purported violation of any
Environmental Requirements or any investigation concerning any purported
violation of any Environmental Requirements. Environmental Notices also means
(i) any written communication from any private Person threatening litigation or
administrative proceedings against or involving any Company relating to an
alleged violation of any Environmental Requirements and (ii) any complaint,
petition or similar documents filed by any private Person commencing litigation
or administrative proceedings against or involving any Company relating to
alleged violation of any Environmental Requirements.
"Environmental Proceedings" shall mean any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" shall mean releases (as defined in CERCLA or under
any applicable state or local environmental law or regulation) of Hazardous
Materials. Environmental Releases do not include releases for which no
remediation or reporting is required by applicable Environmental Requirements
and which do not present a danger to health, safety or the environment.
"Environmental Requirements" shall mean any applicable local, state or
federal law, rule, regulation, permit, order, decision, determination or
requirement relating in any way to Hazardous Materials or to the protection of
human health or the environment.
39
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Eurodollar Rate" means during any Eurodollar Rate Interest Period for any
Tranche, an interest rate per annum equal to the quotient (converted to a
percentage) of (i) the rate per annum as determined by the Administrative Agent
at or about 9:00 o'clock A.M. (Eastern time) (or as soon thereafter as
practicable) on the second Business Day prior to the first day of each
Eurodollar Rate Interest Period, as being the rate at which deposits of United
States Dollars are offered to the Administrative Agent in the London inter-bank
market by the Reference Banks, at the time of determination and in accordance
with the normal practice in such market, for delivery on the first day of such
Eurodollar Rate Interest Period and for the number of days comprised therein,
in amounts equal (as nearly as may be) to the amount of the Tranche as of the
first day of such Eurodollar Rate Interest Period, divided by (ii) 1.00 minus
the Eurodollar Rate Reserve Requirement (as defined below), expressed as a
decimal, for such Eurodollar Rate Interest Period. "Eurodollar Rate Reserve
Requirement" shall mean for any day during a Eurodollar Rate Interest Period for
any Eurodollar Rate Tranche, that percentage which is specified by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any marginal reserve
requirement) for the Lenders with respect to liabilities consisting of or
including "Eurocurrency liabilities" (as defined in Regulation D of the Board of
Governors of the Federal Reserve System) with a maturity equal to such
Eurodollar Rate Interest Period. In determining the percentage, the
Administrative Agent may use any reasonable averaging and attribution methods.
"Reference Banks" shall mean (i) the principal London offices of the banks shown
on page 16 of the Telerate screen (or such other page as may replace the
Eurodollar page on that service for the purpose of displaying London interbank
offered rates of major banks), in the case of Eurodollar Rate Interest Periods
of 1 month, 2 months, 3 months or 6 months. "Eurodollar Rate Interest Period"
shall be the period between the Business Day on which the Eurodollar Rate plus
the Applicable Eurodollar Rate Margin shall begin and the day on which the
Eurodollar Rate plus the Applicable Eurodollar Rate Margin shall end. The
duration of each Eurodollar Rate Interest Period for a Eurodollar Rate Advance
shall be 1 month, 2 months, 3 months or 6 months as the Company may select,
subject to the following: (i) no Eurodollar Rate Interest Period shall extend
past the maturity date of either the Line of Credit Notes or the Term Notes;
(ii) whenever the last day of any Eurodollar Rate Interest Period would
otherwise occur on a day other than a Business Day, the last day of such
Eurodollar Rate Interest Period shall be extended to occur on the next
succeeding Business Day, except that if the next succeeding Business Day would
occur in the next following calendar month, the last day of such Eurodollar Rate
Interest Period shall be shortened to occur on the next preceding Business Day;
and (iii) Eurodollar Rate Tranches outstanding under each Term Loan may not at
any time exceed the aggregate principal amount outstanding on such respective
Term Loan.
40
"Eurodollar Rate Advances" shall mean Advances bearing interest at the
Eurodollar Rate plus the Applicable Eurodollar Rate Margin.
"Eurodollar Rate Interest Period" shall have the meaning specified in the
definition of Eurodollar Rate.
"Eurodollar Rate Tranche" shall mean any part of the principal amount of
the Loans that constitutes Eurodollar Rate Advances for a specific Eurodollar
Rate Interest Period.
"Event of Default" shall mean any of the events specified in Section 9,
provided that there has been satisfied any requirements in connection with such
event for the giving of notice, or the lapse of time, or the happening of any
further condition, event or act, and "Default" shall mean any of such events,
whether or not any such requirement has been satisfied.
"Federal Funds Rate" shall mean the rate per annum (rounded upward, 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 (i) 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, and (ii) 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
quoted to BankBoston, N.A., Boston, Massachusetts on such day on such
transactions as determined by the Administrative Agent.
"Foreign Subsidiary" shall mean any Subsidiary other than a Domestic
Subsidiary.
"Funded Debt to EBITDA Ratio" shall mean the ratio of (i) Consolidated
Funded Debt determined as of the last day of each fiscal quarter, to (ii)
Consolidated EBITDA for the immediately preceding four consecutive fiscal
quarters.
"Funded Debt to Total Capitalization Ratio" shall mean the ratio of (i)
Consolidated Funded Debt to (ii) the sum of Consolidated Funded Debt plus
Consolidated Stockholders' Equity.
"Hazardous Materials" includes, without limitation (a) hazardous waste as
defined in the Resource Conservation and Recovery Act of 1976, or in any
applicable state or local law or regulation, (b) hazardous substances, as
defined in CERCLA, or in any applicable state or local law or regulation, (c)
gasoline, or any other petroleum product or by-product, (d) toxic substances, as
defined in the Toxic Substances Control Act of 1976, or in any applicable state
or local law or regulation or (e) insecticides, fungicides, or rodenticides, as
defined in the Federal Insecticide, Fungicide, and Rodenticide Act of 1975, or
in any applicable state or local law or regulation, as each such Act, statute or
regulation may be amended from time to time.
41
"Identified Subsidiaries" shall mean each of Tidewater Marine, Inc.;
Tidewater Marine Alaska, Inc.; and Xxxxxx Gulf Marine Corporation.
"Lease Rental Expenses" shall mean lease rentals payable by the Company or
any Subsidiary pursuant to any agreements to rent or lease any real or personal
property (excluding rentals or leases of data processing equipment and sales
offices, rentals treated as Debt and rentals of real property which have been
subleased to others by the Company or any Subsidiary for the remaining term of
such leases at rents at least equal to those payable by the Company or any
Subsidiary).
"Lender Indemnitee" shall have the meaning specified in Section 11.5(b)
hereof.
"Lenders" shall have the meaning specified in the first introductory
paragraph hereof, together with any other financial institutions which become a
party to this Agreement and the holder of a Note, from time to time.
"Level" shall mean the following levels based on the Funded Debt to Total
Capitalization Ratio indicated:
Funded Debt to Total
Capitalization Ratio Level
---------------------- -----
Less than 25% I
25% through 32.49% II
32.5% through 39.99% III
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and the filing of any
financing statement under the Uniform Commercial Code of any jurisdiction) or
any other type of preferential arrangement for the purpose of, or having the
effect of protecting a creditor against loss or securing the payment or
preference of any obligation. "Liens" shall not include unsecured guarantees.
"Line of Credit" shall have the meaning specified in Section 1.1 hereof.
"Line of Credit Commitment" shall have the meaning specified in Section 1.1
hereof.
"Line of Credit Notes" shall have the meaning specified in Section 2.1
hereof.
"Loan" shall mean the loans under the Credit Facility (including the Term
Loan).
"Multiemployer Plan" shall have the meaning specified in Section 5.10.
42
"Notes" shall mean the Line of Credit Notes and the Term Notes,
collectively, and any and all modifications, amendments, supplements, renewals,
rearrangements and/or extensions thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Plan" shall have the meaning specified in Section 5.10 hereof.
"Persons" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a government
or any department or agency thereof.
"Prime Rate" shall mean the rate of interest announced publicly by
BankBoston, N.A. from time to time as its prime or base rate.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Company or any Subsidiary, wherever located.
"Reimbursable Taxes" shall have the meaning specified in Section 3.2(f)
hereof.
"Required Lenders" shall mean Lenders holding at least 66-2/3rds of the
aggregate principal amount of the Notes.
"Restricted Investments" shall have the meaning set forth in Section 6.10
hereof.
"Subsidiary" shall mean any corporation all of the stock of every class of
which, except directors' qualifying shares, shall, at the time as of which any
determination is being made, be beneficially owned or effectively controlled by
the Company, either directly or through Subsidiaries.
"Taxes" shall have the meaning set forth in Section 11.6.
"Term Loan" shall have the meaning specified in Section 1.1 hereof.
"Term Notes" shall have the meaning specified in Section 2.2 hereof.
"Third Party" shall mean all lessees, sublessees, licensees and other users
of the Properties, excluding those users of the Properties in the ordinary
course of the Company's business (consistent with its practices on the date of
this Agreement) and on a temporary basis.
"Tranche" shall mean a part of the Loans that bears interest at a
particular rate
43
depending on whether such tranche is a Eurodollar Rate Tranche or Base Rate
Tranche.
11.2 Financial Terms. Unless otherwise defined or the context otherwise
requires, all financial and accounting terms shall be defined under generally
accepted accounting principles.
11.3 Delay. No delay on the part of the Lenders or any holder of the
Notes, in the exercise of any power or right shall operate as a waiver thereof,
nor shall any single or partial exercise of any power or right preclude other or
further exercise thereof, or the exercise of any other power or right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law (except to the extent waived by Section 9.3 hereof).
11.4 Notices. Any notice or demand which, by any provision of this
Agreement, is required or permitted to be given or served by any Agent or
Lenders to or on the Companies shall be deemed to have been sufficiently given
and served for all purposes (if mailed) three calendar days after being
deposited, postage prepaid, in the United States mail, registered or certified
mail, or (if delivered by express courier) one calendar day after being
delivered to such courier, or (if delivered in person) the same day as delivery,
in each case addressed (until another address or addresses are given in writing
by the Companies to Documentation Agent and Administrative Agent or Lenders) as
follows:
Tidewater Inc.
Pan American Life Center - Suite 1900
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
With a copy to:
Tidewater Inc.
Pan American Life Center - Suite 1900
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Any notice or demand which, by any provision of this Agreement, is required
or permitted to be given or served by the Companies to or on Administrative
Agent or Documentation Agent shall be deemed to have been sufficiently given and
served for all purposes (if mailed) three calendar days after being deposited,
postage prepaid, in the United States mail, registered or certified mail, or (if
delivered by express courier) one calendar day after being delivered to such
courier, or (if delivered in person) the same day as delivery, in each case
addressed (until another address or addresses are given in writing by
Administrative
44
Agent or Documentation Agent to the Companies) as follows:
Administrative Agent:
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Transportation Division
(Mail Stop 01-08-01)
Documentation Agent:
Bank One, Louisiana, National Association
000 Xx. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Energy Group
J. Xxxxxxx Xxxxx, Xx.
Senior Vice President
With a copy to:
Xxxxxx deV. Xxxxxxxx, Esq.
Xxxxxx Xxxxxx, L.L.P.
Texaco Center - 30th Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Any notice or demand which, by any provision of this Agreement, is required
or permitted to be given or served by the Companies to or on Lenders shall be
deemed to have been sufficiently given and served for all purposes (if mailed)
three calendar days after being deposited, postage prepaid, in the United States
mail, registered or certified mail, or (if delivered by express courier) one
calendar day after being delivered to such courier, or (if delivered in person)
the same day as delivery, in each case addressed (until another address or
addresses are given in writing by Lenders to the Companies) to the Lenders at
the addresses set forth on Exhibit B hereto.
11.5 Costs, Expenses and Taxes; Indemnification. (a) The Companies shall
pay on demand the reasonable out-of-pocket costs and expenses of the Agents in
connection with the negotiation, syndication, preparation, execution and
delivery of this Agreement and any amendments thereto or waivers thereof which
may be requested by the Companies, including the reasonable fees and out-of-
pocket expenses of legal counsel to Agents. The Companies shall pay on demand
the reasonable out-of-pocket costs and expenses of the Agents and each of
45
the Lenders in connection with the enforcement of this Agreement and/or the
Notes and in connection with any amendments thereto or waivers thereof which may
be requested by the Companies during the continuance of, or to avoid, a Default
or Event of Default, including any amendments or waivers tantamount to a
refinancing, restructuring, or reorganization (whether or not under any
Bankruptcy Law). The out-of-pocket costs and expenses referred to in the
previous sentence shall include the reasonable fees and out-of-pocket expenses
of any legal counsel retained by the Agents or by any Lender, and the reasonable
fees and out-of-pocket expenses of any independent public accountants and other
outside experts retained by the Agents on behalf of the Lenders. The Lenders
agree that, with respect to the retention of separate legal counsel for each
Lender under such circumstances, each will consider in good faith whether
separate legal counsel is reasonably appropriate under the policies of that
Lender and, in any event, endeavor to avoid unreasonable duplication of work
effort by such legal counsel. The Companies shall pay any and all documentary
and other taxes (other than income or gross receipts taxes generally applicable
to banks) and shall reimburse, hold harmless, and indemnify the Agents and each
Lender from and against any and all loss, liability, or legal or other expense
with respect to or resulting from any delay in paying or failure to pay any tax,
cost, expense, fee, or charge or that any of them may suffer or incur by reason
of the failure of the Companies to perform any of its obligations under this
Agreement or the Notes. Any amount payable to the Agents or any Lender under
this Section shall bear interest from the date of receipt of demand for payment
at the Base Rate plus one percent (1%).
(b) The Companies shall indemnify each Agent and Lender, their respective
affiliates and the respective shareholders, directors, officers, employees,
agents and counsel of the foregoing (each an "Indemnitee") and hold each
Indemnitee harmless from and against any and all liabilities, losses, damages,
costs and expenses of any kind, including, without limitation, the reasonable
fees and disbursements of counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of the Credit Facility or any actual or
proposed use of proceeds of the Loans hereunder; provided that no Indemnitee
shall have the right to be indemnified hereunder for such Indemnitee's own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction, or to the extent that such claim relates to the breach by such
Lender Indemnitee of its obligations under this Agreement.
11.6 Foreign Lenders. (a) All payments by the Company under the Credit
Facility shall be made free and clear of and without deduction for or on account
of any present or future income, stamp, or other taxes, fees, duties,
withholding or other charges of any nature whatsoever imposed by any taxing
authority, excluding in the case of each Lender taxes imposed on or measured by
its net income or franchise taxes imposed in lieu of net income taxes by the
jurisdiction in which it is organized or through which it acts for purposes of
this Agreement.
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(b) If as a result of any change in law (or the interpretation thereof)
after the Effective Date, any withholding or deduction from any payment to be
made to, or for the account of, a Lender by the Companies hereunder is required
in respect of any non-excluded taxes referred to in Subsection (a) above
pursuant to any applicable law, rule, or regulation, then the Company will (i)
pay to the relevant authority the full amount required to be so withheld or
deducted; (ii) to the extent available, promptly forward to the Agent an
official receipt or other documentation satisfactory to the Documentation Agent
evidencing such payment to such authority; and (iii) pay to the Administrative
Agent, for the account of each affected Lender, such additional amount or
amounts as are necessary to ensure that the net amount actually received by such
Lender will equal the full amount such Lender would have received had no such
withholding or deduction been required. Each Lender shall determine such
additional amount or amounts payable to it (which determination shall, in the
absence of manifest error, be conclusive and binding on the Company). If a
Lender becomes aware that any such withholding or deduction from any payment to
be made by the Company under the Credit Facility is required, then such Lender
shall promptly notify the Documentation Agent and the Company thereof stating
the reasons therefor and the additional amount required to be paid under this
Section, and such Lender shall execute and deliver to the Documentation Agent
and the Company such forms as it may be required to execute and deliver pursuant
to Subsection (c) hereof. To the extent that any such withholding or deduction
results from the failure of a Lender to provide a form required by Subsection
(c) hereof, the Company shall have no obligation to pay the additional amount
required by clause (iii) above. Anything in this Section notwithstanding, if
any Lender elects to require payment by the Company of any material amount under
this Section, the Company may, within 60 days after the date of receiving notice
thereof and so long as no Default shall have occurred and be continuing, elect
to terminate such Lender as a party to this Agreement; provided that,
concurrently with such termination, the Company shall (i) if the Documentation
Agent and each of the other Lenders shall consent, pay that Lender all
principal, interest and fees and other amounts owed to such Lender through such
date of termination or (ii) have arranged for another financial institution
approved by the Documentation Agent (such approval not to be unreasonably
withheld) as of such date, to become a substitute Lender for all purposes under
this Agreement in the manner provided for herein; provided further that, prior
to substitution for any Lender, the Company shall have given written notice to
the Documentation Agent of such intention and the Lenders shall have the option,
but not the obligation, for a period of 60 days after receipt of such notice, to
increase their Commitments in order to replace the affected Lender in lieu of
such substitution.
(c) With respect to each Lender which is organized under the laws of a
jurisdiction outside the United States, on the day of the initial borrowing from
each such Lender hereunder and from time to time thereafter if requested by the
Company or the Documentation Agent, such Lender shall provide the Documentation
Agent and the Company with the forms prescribed by the Internal Revenue Service
of the United States certifying as to such Lender's status for purposes of
determining exemption from United States withholding taxes with
47
respect to all payments to be made to such Lender hereunder or other documents
satisfactory to such Lender and Documentation Agent indicating that all payments
to be made to such Lender hereunder are not subject to United States withholding
tax. Unless the Documentation Agent and the Company shall have received such
forms or such documents indicating that payments hereunder are not subject to
United States withholding tax, the Administrative Agent and the Company shall
withhold taxes from such payments at the applicable statutory rate in the case
of payments to or for any Lender organized under the laws of a jurisdiction
outside the United States.
11.7 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
11.8 Counterparts. This Agreement may be executed in as many counterparts
as may be deemed necessary or convenient, and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed an
original but all such counterparts shall constitute but one and the same
instrument.
11.9 Law. This Agreement and the Notes shall be contracts made under and
governed by the laws of the State of Louisiana.
11.10 Successors. This Agreement shall be binding upon the Companies and
Lenders, and their respective successors and assigns, and shall inure to the
benefit of the Companies and Lenders, and the successors and assigns of Lenders.
The Companies shall not assign their rights or duties hereunder without the
consent of Lenders.
11.11 Singular and Plural. Words used herein in the singular, where the
context so permits, shall be deemed to include the plural and vice versa. The
definition of words in the singular herein shall apply to such words when used
in the plural where the context so permits and vice versa.
11.12 Amendments. No amendment or waiver of any provision of this
Agreement or consent to any departure therefrom by the Companies or Lenders
shall be effective unless the same shall be in writing and signed by the
Companies, the Agents and the Required Lenders, provided that, without the
written consent of all of the Lenders, no amendment to this Agreement shall (i)
change the maturity of any Note, or (ii) change the principal of or the rate or
time of payment of interest or any premium payable with respect to any Note, or
(iii) change the principal payment date of any installment of the Term Notes, or
(iv) increase the Commitments, or (v) release any of the Companies, or affect
the time, amount or allocation of any required prepayments, or (vi) reduce the
proportion of the Required Lenders required with respect to any consent, or
(vii) change the definition of Required Lenders or amend this
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Section 11.12. No course of dealing between any of the Companies and the Lenders
nor any delay in exercising any rights hereunder or under any Note shall operate
as a waiver of any rights of any of the Lenders. In the case of a waiver or
consent, such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
11.13 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes any and all prior agreements with respect to
the transactions contemplated hereby.
[Signatures on Following Pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
TIDEWATER INC.
By: /s/ Xxx X. Xxxxxxx
----------------------
Name: Xxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
GULF FLEET SUPPLY VESSELS, INC.
XXXXXXXX OIL & GAS, INC.
XXXXXXX MARINE CORPORATION
JAVA BOAT CORPORATION
QUALITY SHIPYARDS, INC.
S.O.P., INC.
SEAFARER BOAT CORPORATION
POINT MARINE, INC.
T. BENETEE CORPORATION
TIDEWATER OFFSHORE (GP-1984), INC.
TIDEWATER MARINE, INC.
TIDEWATER MARINE ALASKA, INC.
TIDEWATER MARINE SERVICE, INC.
TIDEWATER MARINE WESTERN, INC.
TT BOAT CORPORATION
TWENTY GRAND MARINE SERVICE, INC.
TWENTY GRAND OFFSHORE, INC.
XXXXXX GULF MARINE CORPORATION
XXXXXX GULF MARINE OPERATORS, INC.
XXXXXX GULF PACIFIC, INC.
By: /s/ Xxx X. Xxxxxxx
-----------------------
Name: Xxx X. Xxxxxxx
Title: Authorized Officer
50
BANKBOSTON, N.A.
Agent and Lender
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
BANK ONE, LOUISIANA, NATIONAL
ASSOCIATION, Agent and Lender
By: /s/ J. Xxxxxxx Xxxxx, Xx.
--------------------------
Name: J. Xxxxxxx Xxxxx, Xx.
Title: Senior Vice President
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, Agent and Lender
By: /s/ Xxxx X. Xxxx
--------------------------
Name: Xxxx X. Xxxx
Title: Managing Director
AMSOUTH BANK, Lender
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
51
DEPOSIT GUARANTY NATIONAL BANK,
Lender
By: /s/ Xxxx Xxxxxxxx
------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
SUNTRUST BANK, ATLANTA, Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: First Vice President
WACHOVIA BANK OF GEORGIA, N.A.,
Lender
By: /s/ Xxxxxx X. Xxxxx
----------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK, Lender
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HIBERNIA NATIONAL BANK, Lender
By: /s/ Xxxxx X. Xxxx
------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
52
WHITNEY NATIONAL BANK, Lender
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
53
