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EXHIBIT 10(a)
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AMONG
TIDEWATER INC., ET AL
(as Companies)
THE FIRST NATIONAL BANK OF BOSTON
(as Administrative Agent)
FIRST NATIONAL BANK OF COMMERCE
(as Documentation Agent)
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(as Syndication Agent)
FIRST NATIONAL BANK OF COMMERCE
THE FIRST NATIONAL BANK OF BOSTON
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(as Agents)
and
FIRST NATIONAL BANK OF COMMERCE,
THE FIRST NATIONAL BANK OF BOSTON,
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(as Lenders)
------------
$600,000,000.00
------------
Dated: as of March 19, 1997
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TABLE OF CONTENTS
Page No.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Commitment of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Line of Credit; Conversion Term Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Acquisition Term Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Borrowing Procedure Under the Credit Facility . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.5 Liability of the Companies; Additional Domestic Subsidiaries . . . . . . . . . . . . . . . 3
1.6 Termination of the Prior Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2. Promissory Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Line of Credit Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Conversion Term Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Acquisition Term Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.4 Principal Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Administrative Agent's Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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 . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Payments, Reduction or Termination of the Credit and Prepayments . . . . . . . . . . . 9
4.1 Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.2 Reduction of Credit under the Line of Credit; Prepayments . . . . . . . . . . . . . . . . . 9
4.3 Prepayments of Term Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.4 Pro Rata Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5. Representations and Warranties of the Companies . . . . . . . . . . . . . . . . . . . 10
5.1 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.2 Authorization; Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.3 Conflicting Agreements and Other Matters . . . . . . . . . . . . . . . . . . . . . . . . 11
5.4 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.5 Litigation and Contingent Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.16 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.17 Special Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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 Fixed Charge Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.13 Minimum Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.14 Maximum Debt to Total Capitalization Ration . . . . . . . . . . . . . . . . . . . . . . . 24
6.15 Transactions with Related Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.16 Stock Transactions by Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.17 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.18 Federal Reserve Regulations, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.19 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.20 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7A. Conditions Precedent to the Funding of any Advance under
the Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7A.1 Resolutions of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7A.2 Organization Documents; Good Standing . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7A.3 Incumbency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7A.4 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7A.5 Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7A.6 Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7A.7 Payment of Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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7A.8 Termination of Prior Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7B. Conditions Precedent to the Funding of any Advance under the
Credit Facility for the Acquisition . . . . . . . . . . . . . . . . . . . . . 27
7B.1 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7B.2 Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7C. Conditions Precedent to the Funding of the Conversion
Term Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7C.1 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7C.2 Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8. Conditions Precedent to Advances after the Line of
Credit for Other than the Acquisition . . . . . . . . . . . . . . . . . . . . 28
8.1 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.2 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 9. Events of Default; Remedies; Set Offs . . . . . . . . . . . . . . . . . . . . . . . . 28
9.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.3 Waiver of Set-Offs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 10. The Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.1 Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.2 Agents' Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.3 Acts by Documentation Agent after Default, etc . . . . . . . . . . . . . . . . . . . . . 33
10.4 Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.5 Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.6 Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.7 Indemnification of the Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 11. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.2 Financial Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
11.3 Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
11.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
11.5 Costs, Expenses and Taxes; Indemnification . . . . . . . . . . . . . . . . . . . . . . . 48
11.6 Foreign Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.9 Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
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11.10 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.11 Singular and Plural . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.11 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.12 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Exhibit A List of Domestic Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 54
Exhibit B Commitments of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Exhibit C Form of Line of Credit Note . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Exhibit D Form of Conversion Term Note . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Exhibit E Form of Acquisition Term Note . . . . . . . . . . . . . . . . . . . . . . . . . 64
Exhibit F Form of Assignment and Acceptance . . . . . . . . . . . . . . . . . . . . . . . 68
Schedule 1.4 Subsidiaries of O.I.L.
Schedule 5.6 Outstanding Debt
Schedule 5.16 Environmental Matters
Schedule 6.10 Permitted Dispositions of Stock
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT (the "Agreement") dated
as of March 19, 1997 (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 The First National Bank of
Boston, a national banking association, as administrative agent (the
"Administrative Agent"), First National Bank of Commerce, a national banking
association, as documentation agent (the "Documentation Agent") and Texas
Commerce Bank 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 (i) to make a $200,000,000 revolving line of
credit available to the Companies, and (ii) to make a $400,000,000 term loan to
the Companies, and the Companies have agreed to accept the line of credit and
borrow the term loan from the Lenders.
B. The Companies, Agents and Lenders desire to set forth the
terms and conditions of the loans 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; Conversion 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
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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 "Conversion 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 Acquisition Term Loan. The Lenders shall severally make a
term loan (the "Acquisition Term Loan") to the Companies on the date the
Acquisition Date, in the amounts set forth on Exhibit B hereto (the
"Acquisition Term Loan Commitments"). If the Acquisition does not occur on or
prior to May 30, 1997, unless the parties hereto have extended such date on
terms and conditions satisfactory to the parties hereto, the Acquisition Term
Loan Commitments shall terminate and be of no further force and effect. The
termination of the Acquisition Term Loan Commitments shall not affect the
availability of the Line of Credit and Conversion Term Loan pursuant to this
Agreement.
1.3 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
Sections 7A and 7B (in the case of Advances under the Line of Credit and under
the Acquisition Loan for the Acquisition) and Section 8 (in the case of each
other Advance under the Line of Credit), 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 for any purpose other than the Acquisition 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.
Subject to the provisions of Section 9.2 hereof, 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
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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.
1.4 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 Amended and Restated Loan Agreement among the
Companies, the Agents and certain other lenders, dated as of December 29, 1995,
as amended, and (ii) for general corporate purposes not inconsistent with the
provisions of this Agreement. The Companies shall use the proceeds of the
Acquisition Term Loan only for financing, in part, the acquisition of all of
the outstanding capital stock of O.I.L. Ltd. and its subsidiaries listed on
Schedule 1.4 hereto (the "Acquisition") and to pay certain fees and expenses in
connection therewith; the Companies may also use the proceeds of the Line of
Credit for the same purposes as the Acquisition Term Loan.
1.5 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 to make such new Domestic Subsidiary a
party thereto.
1.6 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 Amended and Restated Revolving Credit
and Term Loan Agreement, dated December 29, 1995, as amended, of the Companies'
termination of said agreement and the credit facility available thereunder.
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 Conversion Term Notes. The Conversion 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 "Conversion Term
Notes"), in the Lenders' respective proportionate amount of the Conversion Term
Loan, with appropriate insertions. The Conversion Term Notes shall provide for
payment of 16
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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
Conversion Term Loan is initially funded, the Lenders shall not fund any
additional Advances under the Conversion Term Loan.
2.3 Acquisition Term Notes. The Acquisition Term Loan shall be
evidenced by promissory notes of the Companies in the form of Exhibit "E"
hereto, dated the Acquisition Date, payable to the order of each Lender
respectively (together with any and all renewals, extensions, rearrangements
and/or modifications thereof, the "Acquisition Term Notes"), in the amount of
the Lenders' respective Acquisition Term Loan Commitments, with appropriate
insertions. The Acquisition Term Notes shall provide for payment of 28
quarterly installments of principal in an amount equal to one-twenty-eighth
(1/28th) of the initial principal balance thereof, and shall be payable in full
on June 30, 2004.
2.4 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 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 3.4(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; provided, that the
interest rate on the Acquisition Term Loan and any Advance under the Line of
Credit for the Acquisition shall be at the Federal Funds Rate plus 1.0% for the
period from the Acquisition Date through the fourth (4th) day thereafter. 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) Conversion
Term Loan or Acquisition Term Loan Eurodollar Rate Tranches shall be permitted
at any time. No Credit Facility Tranche may have
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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 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
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11
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 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
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12
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.
(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.
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13
(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, the Administrative Agent shall promptly deliver a certificate
to the Company specifying in reasonable detail the additional amount as will
compensate the Lenders for the additional costs, which certificate shall be
conclusive in the absence of manifest error. The Companies shall pay the
amount specified in such certificate promptly upon receipt.
3.3 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, 1997; 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 fourth (4th)
Business Day following the Effective Date and shall be payable by the Companies
quarterly in arrears on the last day of each March, June, September and
December, beginning March 31, 1997, through and including the Drawdown
Termination Date.
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14
(b) 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.
Section 4. Payments, Reduction or Termination of the Credit and
Prepayments.
4.1 Place of Payment. All payments hereunder (including payments
of interest, principal and fees) with respect to the 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 under the Line of Credit; 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's prior telephonic notice
(confirmed in writing) to Administrative Agent, permanently reduce the amount
of the Commitments available under the Line of Credit (which Commitments shall
be reduced proportionately by the Lenders), but only upon payment of the
outstanding principal amount of the Line of Credit Notes in excess of the then
reduced amount of the Commitments available under the Line of Credit. Any such
reduction shall be in an amount of $10,000,000.00 or an integral multiple
thereof. The Companies may at any time (in the case of 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.
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15
(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 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.
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16
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 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, or (ii) which imposes restrictions on the granting of Liens by the
Companies on otherwise unencumbered assets of the Companies as security for the
Credit.
5.4 Financial Statements. The Company has furnished the Lenders
with the consolidated balance sheets of the Company and its Subsidiaries as at
fiscal year end in each of the years 1994 through 1996, inclusive, and for the
nine-month period ending December 31, 1996, 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 (or its predecessor). Such
financial statements (including any related schedules and/or notes) are true
and correct in all material respects (subject, as to interim statements, to
changes resulting from audits and normal year-end adjustments) and have been
prepared in accordance with generally accepted accounting principles, and,
unless otherwise set forth therein, consistently followed throughout the
periods involved and show all liabilities, direct and contingent, of the
Company and its Subsidiaries required to be shown in accordance with such
principles. The balance sheets fairly present the condition of the Company and
its Subsidiaries as at the dates thereof, and the related statements of
earnings, stockholders' equity and cash flows fairly present the results of the
operations of the Company and its Subsidiaries
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17
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, 1996.
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.
5.6 Outstanding Debt. Neither the Company nor any of its
Subsidiaries has outstanding any Debt except as permitted by Section 6.9 and as
set forth on Schedule 5.6 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 1.4 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
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18
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).
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 Cuban Assets Control Regulations, the
Rhodesian Sanctions Regulations, the Iranian Assets Control Regulations, the
Nicaraguan Trade Control Regulations, the South African Transactions
Regulations, the Libyan Sanctions Regulations, the Iranian Transactions
Regulations, the Panamanian Transactions Regulations, Iraqi Sanctions
Regulations, the Kuwaiti
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Assets Control Regulations, the Haitian Transactions Regulations or the Federal
Republic of Yugoslavia (Serbia and Montenegro) Sanctions Regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V), or the
Comprehensive Anti-Apartheid Act of 1986 (P.L. 99-440), or any similar asset
control regulations now existing or hereafter promulgated by the United States
Treasury Department.
5.15 Disclosure. Neither this Agreement nor any other document,
certificate or statement furnished to the Lenders by or on behalf of the
Company and the Subsidiaries in connection herewith contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein and therein not misleading.
There is no fact peculiar to the Company or any of its Subsidiaries which
materially adversely affects or in the future may (so far as the Company can
now foresee) materially adversely affect the business, property or assets, or
financial condition, of the Company and any of its Subsidiaries, taken as a
whole, and which has not been set forth in this Agreement or in the other
documents, certificates and statements furnished to 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 516, 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.
Section 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 516, 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.
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5.17 Special Provisions. The foregoing representations and
warranties shall be true and correct as of the Effective Date, and shall
remain true and correct during the period from the Effective Date to the
Acquisition Date (but only as to Advances under the Line of Credit for purposes
other than the Acquisition) and after the Acquisition Date (whether or not the
Acquisition is consummated) for all purposes.
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
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and Exchange Commission shall be deemed to satisfy the
requirements of this clause (b);
(c) promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as
the Company shall send to its public stockholders and copies
of all registration statements (without exhibits) and all
reports which the Company files with the Securities and
Exchange Commission (or any governmental body or agency
succeeding to the functions of the Securities and Exchange
Commission);
(d) promptly upon receipt thereof, a copy of each other report
submitted to the Company or any of its Subsidiaries by
independent accountants in connection with any annual, interim
or special audit made by them of the books of the Company or
any of its Subsidiaries and which the Company or any of its
Subsidiaries shares with the audit committee of the Board of
Directors of the Company;
(e) with reasonable promptness, such other financial data as
Lenders may reasonably request;
(f) as soon as practicable and in any event within ninety (90)
days after the end of each fiscal year, a copy of the
Company's internal statement of operations by area; and
(g) as soon as practicable but in any event not later than ninety
(90) days after the beginning of each fiscal year, a
consolidated budget of the Company and its Subsidiaries for
the ensuing fiscal year, setting forth the anticipated
revenues and expenses for such year, the incurrence and
repayment of Debt during such year, and such other matters as
the Lenders may reasonably require.
Together with each delivery of financial statements required by clauses (a) and
(b) above, the Company will deliver to the 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
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22
and period of existence thereof. Such accountants, however, shall not be
liable to anyone by reason of their failure to obtain knowledge of any such
Event of Default or Default which would not be disclosed in the course of an
audit conducted in accordance with generally accepted auditing standards.
The Companies also agree that forthwith upon the chief executive
officer, principal financial officer or principal accounting officer of the
Company obtaining knowledge of:
(i) an Event of Default or Default;
(ii) a material adverse change in the financial condition,
business or operations of the Company and its
Subsidiaries, taken as a whole;
(iii) the institution of legal proceedings against the
Company and/or any Subsidiary, which is likely to
materially adversely affect the financial condition,
business or operations of the Company and its
Subsidiaries, taken as a whole, or which in any
manner draws into question the validity of or is
likely to impair the ability of the Companies to
perform their obligations under this Agreement or the
Notes;
(iv) the occurrence of any default (after the passage of
any grace period) by a Company under any agreement or
note evidencing borrowed money for an aggregate
initial principal amount equal to or greater than
$1,000,000;
(v) 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.
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23
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.
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
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24
such Person to execute and deliver to the Lenders a guaranty agreement or
collateral agreement, as the case may be, in form and substance satisfactory to
the Lenders either (i) guaranteeing payment of the principal amount of the
Notes and any premium and interest thereon, which bears the same ratio to the
total unpaid principal amount of the Notes as the amount of such other
obligation which is guaranteed bears to the total unpaid principal amount of
such other obligation or (ii) collateralizing the Notes equally and ratably
with such other obligation, as the case may be. Nothing contained in the
foregoing shall be deemed to permit the Companies to incur Liens to Persons
other than the Lenders in excess of those permitted by Section 6.8 hereof.
6.5 Maintenance of Insurance. Each Company agrees that it and
each Subsidiary will maintain, with responsible insurers, insurance with
respect to its properties and business against such casualties and
contingencies (including, but not limited to, public liability, larceny,
embezzlement or other criminal misappropriation, pollution and war risks) and
in such amounts as is customary in the case of similarly situated corporations
engaged in the same or similar businesses.
6.6 Maintenance of Corporate Existence/Compliance with
Law/Preservation of Property. Except as allowed under Sections 6.11 and 6.12,
each Company covenants that it and each Subsidiary will do or cause to be done
all things necessary to preserve, renew and keep in full force and effect the
corporate existence of such Company and its Subsidiaries and comply in all
material respects with all laws and regulations (including, without limitation,
laws and regulations relating to equal employment opportunity and employee
safety) applicable to it and its Subsidiaries, the failure with which to comply
is likely to materially adversely affect the business, operations or financial
condition of such Company and its Subsidiaries, taken as a whole; at all times
maintain, preserve and protect all material intellectual property of such
Company and its Subsidiaries, and preserve all the remainder of its material
property used or useful in the conduct of its business and keep the same in
good repair, working order and condition. 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
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25
indemnify and hold the Agents, the Lenders, their officers, agents and
employees harmless from any loss, liability, claim or expense that they may
incur or suffer as a result of a breach by the Company or any of the
Subsidiaries, as the case may be, of this covenant. No Company shall be deemed
to have breached or violated this Section 6.7 if such Company or Subsidiary is
challenging in good faith by appropriate proceedings diligently pursued the
application or enforcement of such Environmental Requirements for which
adequate reserves have been established in accordance with generally accepted
accounting principles.
6.8 Liens. The Companies agree that they will not and will not
permit any Subsidiary to create, assume or suffer to exist any Lien upon any of
their respective property or assets, whether now owned or hereafter acquired
(whether or not provision is made for the equal and ratable securing of the
Credit in accordance with the provisions of Section 6.3) except:
(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
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26
of which Liens (other than Liens which are incidental
and do not materially affect such property) are set
forth on Schedule 2-Part 2 attached hereto and made a
part hereof, provided that any such Lien shall not
encumber any other property of the Company or any
Subsidiary;
(vi) any Lien renewing, extending or refunding any Lien
permitted by clause (v) above, provided that the
principal amount secured is not increased and the
Lien is not extended to other property;
(vii) Liens to secure up to $10,000,000 of letters of
credit obligations of the Company to the extent
permitted by Section 6.9(a);
(viii) any common law right of set off or banker's lien
arising in the ordinary course of business in
connection with deposit arrangements maintained by
the Company and its Subsidiaries with its banks or
other financial institution, other than a Lender in
connection with this Agreement (which such rights
have been waived pursuant to Section 9.3 hereof); and
(ix) Liens on assets covered by financing arrangements,
including lease financing arrangements which would be
characterized as capitalized leases in accordance
with generally accepted accounting principles, if the
indebtedness for all such agreements does not in the
aggregate exceed fifteen percent (15%) of
Consolidated Tangible Net Worth.
6.9 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
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27
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;
(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;
(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; and
(vi) the Company may make the Acquisition.
The foregoing restrictions on investments by the Companies shall not apply to
funds maintained in rabbi trusts established by the Companies for supplemental
executive retirement plans and early retirement incentive programs.
6.10 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 6.09(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
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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 hereof; provided, further, that the Company may sell 70% of the
stock of Tidewater (Malaysia) Sdn.Bhd. to citizens of Malaysia; provided,
however, that the transactions described on Schedule 6.10 are also expressly
permitted hereunder.
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 Fixed Charge Ratio. The Company agrees that it will not
permit Consolidated EBITDA for the immediately preceding four consecutive
fiscal quarters less the tax expense for taxes actually paid during such
period, to be less than 200% of Consolidated Fixed Charges.
6.13 Minimum Tangible Net Worth. The Company agrees that it will not
permit at any time Consolidated Tangible Net Worth to be less than the
following: for the period from the
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29
Effective Date up to the Acquisition Date and thereafter if the Acquisition is
not consummated, 80% of Consolidated Tangible Net Worth as of December 31,
1996, plus 50% of cumulative positive Consolidated Net Income after December
31, 1996, plus 100% of cumulative Net Equity Proceeds after December 31, 1996;
for the period following the Acquisition Date if the Acquisition is
consummated, 80% of Consolidated Tangible Net Worth as of the Acquisition Date
(after taking into account the effect of the Acquisition), plus 50% of
cumulative positive Consolidated Net Income after the Acquisition Date, plus
100% of cumulative Net Equity Proceeds after the Acquisition Date.
6.14 Maximum Debt to Total Capitalization Ratio. The Company agrees
that it will not permit its Debt to Total Capitalization Ratio to be greater
than the following:
Debt to Total
Period Capitalization Ratio
------ --------------------
Effective Date through
March 31, 1998 0.50%
April 1, 1998 through
March 31, 1999 0.45%
April 1, 1999 through
March 31, 2000 0.40%
April 1, 2000 and
thereafter 0.35%
6.15 Transactions with Related Party. The Companies agree that they
will not and will not permit any Subsidiary to effect any transaction with any
Affiliate or Subsidiary by which any asset or services of a Company or a
Subsidiary is transferred to such Affiliate or Subsidiary, or from such
Affiliate or Subsidiary or enter into any other transaction with an Affiliate
or Subsidiary, on terms less favorable to such Company or such Subsidiary than
would be reasonably expected to be given in a similar transaction with an
unrelated entity. The foregoing restrictions shall not apply to transactions
between the Company and a Subsidiary or a Subsidiary and another Subsidiary.
6.16 Stock Transactions by Subsidiaries. The Company agrees that it
will not permit any Subsidiary to issue, sell or dispose of any shares of any
class of its stock (other than directors' qualifying shares or shares which are
effectively controlled by the Company) except to the Company or another
Subsidiary or as permitted by Section 6.11.
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30
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
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.
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Section 7A. Conditions Precedent to the Funding of any Advance under
the Credit Facility. The obligation of the Lenders to make the initial Advance
under the Line of Credit and/or to make the Acquisition Term Loan 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, 1996.
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
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32
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 and Acquisition
Term 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, at least three days prior to any
Advance under the Credit Facility, to fully terminate the credit facility
pursuant to the Amended and Restated Revolving Credit and Term Loan Agreement,
dated December 29, 1995, as amended, together with a certification by the
Company that all amounts due thereunder have been paid in full.
Section 7B. Conditions Precedent to the Funding of any Advance under
Credit Facility for the Acquisition. In addition to the conditions precedent
set forth in Section 7A above, the obligation of the Lenders to make the
initial Advance under the Line of Credit and to make the Acquisition Term Loan
to the Companies, in both cases for the financing of the Acquisition in any
part under this Agreement, are subject to the receipt by the Documentation
Agent on the Acquisition Date or by May 30, 1997, whichever date is sooner, of
the following:
7B.1 Notes. The duly executed Acquisition 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 Acquisition Date,
certifying that (i) the representations and warranties of the Companies set
forth in Section 5 hereof were true and correct as of the Effective Date, (ii)
none of the events described in Subsections 9.1(g), (h), (i), (j) or (k) have
occurred (irrespective of the passage of any grace periods therein), and (iii)
all conditions to the consummation of the Acquisition (except for payment of
the purchase price to be funded under this Agreement) have been satisfied, and
(iv) upon payment of the purchase price, the Acquisition will be consummated
substantially on the terms, conditions, corporate and capital structure as
provided by the Company to the Agents in the Project Atlantic Modeling Results.
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Section 7C. Conditions Precedent to the Funding of the Conversion
Term Loan. In addition to the conditions precedent set forth in Section 7A
above, the obligation of the Lenders to make the Conversion Term Loan to the
Companies, are subject to the receipt by the Documentation Agent on the
Drawdown Termination Date of the following:
7C.1 Notes. The duly executed Conversion Term Notes payable to the
respective Lenders.
7C.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 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 Advances after the Line of Credit
for Other than the Acquisition. In addition to the applicable conditions
precedent set forth in Section 7A above, the obligation of the Lenders to make
any subsequent Advances under the Line of Credit for purposes other than
financing the Acquisition, and the obligation of the Lenders to make the
Advances under the Conversion 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, no
Default shall have occurred and be continuing.
8.2 Representations and Warranties. Before and after giving
effect to such Advance, the representations and warranties in Section 5 hereof
shall be true and correct as though made on the date of such Advance, except
for such changes as are specifically permitted hereunder.
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.
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34
(c) The Company or any Subsidiary defaults in any payment of
principal or of interest on any other obligation for borrowed money (including,
but not limited to, any Capitalized Lease Obligation, any obligation under a
conditional sale or other title retention agreement, any obligation issued or
assumed as full or partial payment for property whether or not secured by a
purchase money mortgage or any obligation under notes payable or drafts
accepted representing extensions of credit) beyond any period of grace provided
with respect thereto, or in the performance or observance of any other
agreement, term or condition contained in any agreement under which any such
obligation is created if the effect of such default is to cause, or permit the
holder or holders of such obligation (or a trustee on behalf of such holder or
holders) to cause, such obligation to become due (or to be defeased or
repurchased by the Company or any Subsidiary) prior to its stated maturity,
provided that the aggregate amount of all obligations as to which such payment
default shall occur and be continuing or such failure (or defeasance or resale)
or other event causing or permitting acceleration shall occur and be continuing
exceeds $1,000,000, individually or in the aggregate.
(d) Any representation or warranty made by the Companies herein or
in any writing furnished in connection with or pursuant to this Agreement shall
be false in any material respect on the date as of which made 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
- 29 -
35
dissolution of a Subsidiary) relating to the Company or any Subsidiary under
the Bankruptcy Law of any other jurisdiction.
(j) Any such petition or application described in Section 9.1(i)
is filed, or any such proceedings are commenced, against the Company or any
Subsidiary, and the Company or such Subsidiary by any act indicates its
approval thereof, consent thereto, or acquiescence therein, or an order,
judgment or decree is entered appointing any such trustee, receiver, custodian,
liquidator or similar official, or approving the petition in any such
proceedings, and such order, judgment or decree remains unstayed and in effect
for more than 60 days.
(k) Any order, judgment or decree is entered in any proceedings
against the Company decreeing the dissolution of the Company and such order
remains in effect for more than 60 days.
(l) Any order, judgment or decree is entered in any proceedings
against the Company or any Subsidiary, as the case may be, decreeing a split-up
of the Company or such Subsidiary which requires the divestiture of assets
representing a substantial part, or the divestiture of the stock of a
Subsidiary whose assets represent a substantial part, of the assets of the
Company and its Subsidiaries or which requires the divestiture of assets, or
stock of a Subsidiary, which shall have contributed a substantial part of the
Consolidated Net Income of the Company and its Subsidiaries for any of the
three (3) fiscal years then most recently ended, and such order, judgment or
decree remains unstayed and in effect for more than 60 days.
(m) A final judgment in an amount in excess of $1,000,000 is
rendered against the Company or any Subsidiary and, within 60 days after entry
thereof, such judgment is not discharged or execution thereof stayed pending
appeal, or within 60 days after the expiration of any such stay, such judgment
is not discharged.
9.2 Remedies. (a) Except as provided in Subsection (b) hereof,
(i) 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; and (ii) 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) Notwithstanding the provisions of Subsection (a), during the
period from the Effective Date through the Acquisition Date, (i) if any Event
of Default specified in Subsections
- 30 -
36
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; and (ii) if any
Event of Default or Default specified in any other Subsections of Section 9.1
occurs (which with notice, the passage of time and/or the happening of any
further condition or act would constitute an Event of Default) and is
continuing uncured, (A) the Lenders shall have no obligation to make advances
under the Line of Credit Notes for purposes other than the Acquisition, unless
and until such Default is cured prior to the earlier of the occurrence of an
Event of Default or the Acquisition Date, and (B) 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 Line of Credit (as it
relates solely to Advances for purposes other than the Acquisition) to be
terminated, and the outstanding Line of Credit Notes (as they relate solely to
Advances for purposes other than the Acquisition) to be immediately due and
payable, whereupon the Line of Credit (as it relates solely to Advances for
purposes other than the Acquisition) and the outstanding Line of Credit Notes
(as they relate solely to Advances for purposes other than the Acquisition)
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;
the foregoing provisions of Subsection (b)(ii) shall not apply to Advances
under the Line of Credit or the Acquisition Term Loan for purposes of the
Acquisition.
(c) 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 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.
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37
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 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,
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38
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 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
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39
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 $20,000,000 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 "D" 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 fully executed copy of such 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 (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
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40
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.
Furthermore, the parties hereto agree to execute an amendment to this Agreement
to reflect all of said assignments as of the Acquisition Date.
(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 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:
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"Acquisition" shall have the meaning specified in Section 1.4 hereof.
"Acquisition Date" shall mean the sooner to occur of the date on which
the Acquisition is consummated or May 30, 1997 or such later date as the
Agents, Lenders and Company agree to in writing.
"Acquisition Term Loan" shall have the meaning specified in Section
1.3 hereof.
"Acquisition Term Loan Commitment" shall have the meaning specified in
Section 1.2 hereof.
"Acquisition Term Notes" shall have the meaning specified in Section
2.3 hereof.
"Administrative Agent" shall mean The First National Bank of Boston,
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 First National Bank of Commerce, The First
National Bank of Boston and Texas Commerce Bank 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 Debt to Total Capitalization Ratio Level of the Company:
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42
Level Applicable Base Rate Margin
----- ---------------------------
Level I 0.000%
Level II 0.000%
Level III 0.000%
Level IV 0.000%
The Applicable Base Rate Margin for any fiscal quarter shall be determined by
reference to the 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, 1997 shall be determined on the basis of the
Debt to Total Capitalization Ratio of the Company as of December 31, 1996.
Notwithstanding the foregoing, the Applicable Base Rate Margin for the balance
of the period through December 31, 1997 shall be at the Applicable Base Rate
Margin for Level IV.
"Applicable Eurodollar Rate Margin" shall mean the following per annum
interest rate applicable to Eurodollar Rate Advances from time to time
depending on the 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%
Level IV 1.000%
The Applicable Eurodollar Rate Margin for any fiscal quarter shall be
determined by reference to the 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, 1997 shall be
determined on the basis of the Debt to Total Capitalization Ratio of the
Company as of December 31, 1996. Notwithstanding the foregoing, the Applicable
Eurodollar Rate Margin for the period from the Effective Date through December
31, 1997 shall be at the Applicable Eurodollar Rate Margin for Level IV.
"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 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%
Level IV 0.250%
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The Applicable Facility Fee Rate for any fiscal quarter shall be determined by
reference to the 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, 1997 shall be
determined on the basis of the Debt to Total Capitalization Ratio of the
Company as of December 31, 1996. Notwithstanding the foregoing, the Applicable
Facility Fee Rate for the period from the Effective Date through December 31,
1997 shall be at the Applicable Facility Fee Rate for Level IV.
"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.
"CERCLA" shall mean the Comprehensive Environmental Response
Compensation and Liability Act, as amended.
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44
"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 and the
Acquisition Term Loan Commitments.
"Company" shall mean Tidewater Inc.
"Companies" shall mean the Company and the Domestic Subsidiaries.
"Consolidated Debt" shall mean Debt of the Company and its
Subsidiaries which is consolidated in accordance with generally accepted
accounting principles.
"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 Charges" shall mean the sum of all scheduled
payments of principal and interest due (and whether or not paid) on all 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 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 Tangible Net Worth" shall mean, at a particular date,
the sum of capital and preferred stock, paid-in capital and retained earnings
of the Company and its Subsidiaries, minus the sum of patents, patent
applications, trademarks, service marks, copyrights, trade names, good will and
all other intangibles of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with generally accepted accounting principles.
"Conversion Term Loans" shall have the meanings specified in Section
1.1 hereof.
"Conversion Term Notes" shall have the meanings specified in Section
2.2 hereof.
"Credit Facility" shall mean the Line of Credit, Conversion Term Loan
and the Acquisition Term Loan.
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"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 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.
"Debt to Total Capitalization Ratio" shall mean the ratio of (i)
Consolidated Debt (defined for these purposes as Debt plus the face amount of
all letters of credit issued for the
- 40 -
46
account of all Companies on a consolidated basis) to (ii) the sum of
Consolidated Debt (as defined in clause (i) hereof) plus Consolidated Total
Stockholders' Equity (defined for these purposes as the 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.
"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, 1999, or such later
date as the Agents, Lenders and the Companies agree to in writing.
"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.
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47
"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.
"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
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48
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, the Conversion Term Notes or the Acquisition 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.
"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 The First National Bank of Boston, 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.
"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
- 43 -
49
or local law or regulation or (e) insecticides, fungicides, or rodenticides, as
defined in the Federal Insecticide, Fungicide, and Rodenticide Act of 1975, or
in any applicable state or local law or regulation, as each such Act, statute
or regulation may be amended from time to time.
"Identified Subsidiaries" shall mean each of Tidewater Marine, Inc.,
Tidewater Compression Service, Inc.; Tidewater Marine Alaska, Inc.; and Xxxxxx
Gulf Marine Corporation.
"Lease Rental Expenses" shall mean lease rentals payable by the
Company or any Subsidiary pursuant to any agreements to rent or lease any real
or personal property (excluding rentals or leases of data processing equipment
and sales offices, rentals treated as 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 Debt to Total
Capitalization Ratio indicated:
Debt to Total
Capitalization Ratio Level
-------------------- -----
Less than 25% I
25% through 32.49% II
32.5% through 39.99% III
40% and greater IV
"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.
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50
"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
Conversion Term Loan and the Acquisition Term Loan).
"Multiemployer Plan" shall have the meaning specified in Section 5.10.
"Net Equity Proceeds" shall mean (i) the amounts received by the
Company (after payment of underwriting fees, attorneys' fees, filing fees and
related costs) in connection with the issuance of securities of the Company for
cash, (ii) the net value of assets less liabilities (after payment of
underwriting fees, attorneys' fees, filing fees and related costs) in
connection with the issuance of securities of the Company for assets, and (iii)
the net worth of another company in connection with the issuance of securities
of the Company for securities of the other company (if the transaction is
accounted for as a pooling of interest) or the net value of assets less
liabilities (if the transaction is accounted for as a purchase of assets), in
either case, after payment of underwriting fees, attorneys' fees, filing fees
and related costs.
"Notes" shall mean the Line of Credit Notes, the Conversion Term Notes
and the Acquisition 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 The
First National Bank of Boston 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).
"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.
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51
"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 Notes" shall mean the Conversion Term Notes and the Acquisition
Term Notes.
"Third Party" shall mean all lessees, sublessees, licensees and other
users of the Properties, excluding those users of the Properties in the
ordinary course of the Company's business (consistent with its practices on the
date of this Agreement) and on a temporary basis.
"Tranche" shall mean a part of the Loans that bears interest at a
particular rate 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.
0000 Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
With a copy to:
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52
Tidewater Inc.
0000 Xxxxx 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 Agent or Documentation Agent to the Companies) as
follows:
Administrative Agent:
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Transportation Division
(Mail Stop 01-08-01)
Documentation Agent:
First National Bank of Commerce
FNBC Center, 28th Floor
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Energy Group
J. Xxxxxxx Xxxxx, Xx.
Vice President
With a copy to:
Xxxxxx deV. Claverie, 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
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53
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 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
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54
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.
(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
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55
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
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.
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56
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 Conversion
Term Notes or the Acquisition 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 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.
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57
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
TIDEWATER COMPRESSION SERVICE, INC.
POINT MARINE, INC.
T. BENETEE CORPORATION
TIDEWATER NORTH SEA SAFETY, INC.
TIDEWATER OFFSHORE (GP-1984), INC.
TIDEWATER OFFSHORE SERVICES, INC.
TIDEWATER MARINE, INC.
TIDEWATER MARINE ALASKA, INC.
TIDEWATER MARINE ATLANTIC, INC.
TIDEWATER MARINE SERVICE, INC.
TIDEWATER MARINE WESTERN, INC.
TIDEWATER SERVICES, INC.
TT BOAT CORPORATION
TWENTY GRAND MARINE SERVICE, INC.
TWENTY GRAND OFFSHORE, INC.
XXXXXX GULF MARINE CORPORATION
XXXXXX GULF MARINE OPERATORS, INC.
XXXXXX GULF PACIFIC, INC.
By: /s/ XXX X. XXXXXXX
----------------------------------------
Name: Xxx X. Xxxxxxx
Title: Authorized Officer
58
FIRST NATIONAL BANK OF COMMERCE,
Agent and Lender
By: /s/ J. XXXXXXX XXXXX, XX.
----------------------------------
Name: J. Xxxxxxx Xxxxx, Xx.
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
Agent and Letter
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Agent and Lender
By: /s/ XXXX X. XXXX
----------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
AMSOUTH BANK OF ALABAMA, Lender
By: /s/ X. XXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Commercial Bank Officer
BANK ONE, LOUISIANA, N.A., Lender
By: /s/ XXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
59
HERNIA NATIONAL BANK, Lender
By: /s/ XXXXX X. XXXX
----------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
SUNTRUST BANK, ATLANTA, Lender
By: /s/ X. XxXXXXXXX XXXXXX, III
----------------------------------
Name: X. XxXxxxxxx Xxxxxx, III
Title: Group Vice President
By: /s/ XXXX X. XXXXXX, XX.
----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.,
Lender
By: /s/ XXXX X. XXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION, Lender
By: /s/ XXXXX X. XXXXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
ABN AMRO BANK N.V., Houston Agency,
Lender
By: /s/ XXXXXX X. LIPSHOTZ
----------------------------------
Name: Xxxxxx X. Lipshotz
Title: Group Vice President
By: /s/ W. XXXXX XXXXXXX
----------------------------------
Name: W. Xxxxx Xxxxxxx
Title: Group Vice President
60
ARAB BANKING CORPORATION (B.S.C.), Lender
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BANQUE PARIBAS, Lender
By: /s/ XXXXXX XXXXXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Group Vice President
THE BANK OF NEW YORK, Lender
By: /s/ XXXX X. XXXXXX, XX.
--------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
CHRISTIANIA BANK OG KREDITKASSE,
NEW YORK BRANCH, Lender
By: /s/ XXXXXX XXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: First Vice President
By: /s/ XXXXXX X. XxXXXXX, III
--------------------------------------
Name: Xxxxxx X. XxXxxxx, III
Title: Vice President
CIBC INC., Lender
By: /s/ XXXXXXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxxxxxx X. Xxxxxxx
Title: Vice President
61
CORESTATES BANK, N.A., Lender
By: /s/ S. XXXXX XXXXX
-------------------------------
Name: S. Xxxxx Xxxxx
Title: Assistant Vice President
CREDIT LYONNAIS, Lender
By: /s/ PASCAL POUPELLE
-------------------------------
Name: Pascal Poupelle
Title: Senior Vice President
DEPOSIT GUARANTY NATIONAL BANK, Lender
By: /s/ XXXXX X. XXXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
FLEET BANK N.A., Lender
By: /s/ XXXXXXX XXXXXXX
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
THE FUJI BANK, LIMITED, Lender
By: /s/ XXXXX XXXXXX
-------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
62
SOCIETE GENERALE, Lender
By: /s/ XXXXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A., Lender
By: /s/ XXXXXXX X. XxXXXX, XX.
----------------------------------
Name: Xxxxxxx X. XxXxxx, Xx.
Title: Vice President
WHITNEY NATIONAL BANK, Lender,
By: /s/ XXXXXX X. ZOMMAN
----------------------------------
Name: Xxxxxx X. Zomman
Title: Vice President