AMENDED AND RESTATED
CREDIT AGREEMENT
BY AND AMONG
UNIFAB INTERNATIONAL, INC.
(AS BORROWER),
BANK ONE, LOUISIANA, NATIONAL ASSOCIATION
(AS AGENT)
AND
THE LENDERS PARTY HERETO
__________________________________
DATED AS OF OCTOBER 19, 2000
__________________________________
TABLE OF CONTENTS
PAGE NO.
ARTICLE I. DEFINITIONS
1.1 Definitions of Certain Terms Used Herein 1
ARTICLE II. THE CREDITS
2.1 Term Loans 13
2.2 Revolving Loans 13
2.3 Letters of Credit 13
2.4 Types of Advances 14
2.5 Commitment Fee; Reductions in Aggregate Revolving Loan Commitment
14
2.6 Minimum Amount of Each Advance 15
2.7 Prepayments 15
2.8 Method of Selecting Types and Eurodollar Interest Periods for New
Advances 16
2.9 Conversion and Continuation of Outstanding Advances 16
2.10 Changes in Interest Rate, etc. 17
2.11 Rates Applicable After Default 17
2.12 Method of Payment 18
2.13 Noteless Agreement; Evidence of Indebtedness 18
2.14 Telephonic Notices 19
2.15 Interest Payment Dates; Interest and Fee Basis 19
2.16 Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions 19
2.17 Lending Installations 19
2.18 Non-Receipt of Funds by the Agent 19
2.19 Collateral 20
ARTICLE III. YIELD PROTECTION; TAXES
3.1 Yield Protection 21
3.2 Changes in Capital Adequacy Regulations 21
3.3 Availability of Types of Advances 22
3.4 Funding Indemnification 22
3.5 Taxes 22
3.6 Lender Statements; Survival of Indemnity 24
ARTICLE IV. CONDITIONS PRECEDENT
4.1 Initial Advance 25
4.2 Each Advance 27
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.1 Existence and Standing 28
5.2 Authorization and Validity 28
5.3 No Conflict; Government Consent 28
5.4 Financial Statements 29
5.5 Material Adverse Change 29
5.6 Taxes 29
5.7 Litigation and Contingent Obligations 29
5.8 Subsidiaries 29
5.9 ERISA 29
5.10 Accuracy of Information 30
5.11 Regulation U 30
5.12 Material Agreements 30
5.13 Compliance With Laws 30
5.14 Ownership of Properties 30
5.15 Plan Assets; Prohibited Transactions 30
5.16 Environmental Matters 30
5.17 Investment Company Act 31
5.18 Public Utility Holding Company Act 31
5.19 Solvency 31
5.20 Regulation O 31
ARTICLE VI. COVENANTS
6.1 Financial Reporting 33
6.2 Use of Proceeds 35
6.3 Notice of Default 35
6.4 Conduct of Business 35
6.5 Taxes 35
6.6 Insurance 35
6.7 Compliance with Laws 35
6.8 Maintenance of Properties 36
6.9 Inspection 36
6.10 Dividends 36
6.11 Indebtedness 36
6.12 Merger 37
6.13 Sale of Assets 37
6.14 Investments and Acquisitions 38
6.15 Liens 38
6.16 Year 2000 39
6.17 Transactions with Affiliates 39
6.18 Appraisals 40
6.19 Financial Covenants 40
ARTICLE VII. DEFAULTS 42
ARTICLE VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration 44
8.2 Amendments 44
8.3 Preservation of Rights 45
ARTICLE IX. GENERAL PROVISIONS
9.1 Survival of Representations 46
9.2 Governmental Regulation 46
9.3 Headings 46
9.4 Entire Agreement 46
9.5 Several Obligations; Benefits of this Agreement 46
9.6 Expenses; Indemnification 46
9.7 Numbers of Documents 47
9.8 Accounting 47
9.9 Severability of Provisions 47
9.10 Nonliability of Lenders 47
9.11 Confidentiality 48
9.12 Nonreliance 48
9.13 Disclosure 48
ARTICLE X. THE AGENT
10.1 Appointment; Nature of Relationship 49
10.2 Powers 49
10.3 General Immunity 49
10.4 No Responsibility for Loans, Recitals, etc. 49
10.5 Action on Instructions of Lenders 50
10.6 Employment of Agents and Counsel 50
10.7 Reliance on Documents; Counsel 50
10.8 Agent's Reimbursement and Indemnification 50
10.9 Notice of Default 51
10.10Rights as a Lender 51
10.11Lender Credit Decision 51
10.12Successor Agent 52
10.13Agent's Fee 52
10.14Delegation to Affiliates 52
10.15Execution of Collateral Documents 52
10.16Collateral Releases 53
ARTICLE XI. SETOFF; RATABLE PAYMENTS
11.1 Setoff 54
11.2 Ratable Payments 54
ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns 55
12.2 Participations 55
12.3 Assignments 56
12.4 Dissemination of Information 57
12.5 Tax Treatment 57
ARTICLE XIII. NOTICES
13.1 Notices 58
13.2 Change of Address 58
ARTICLE XIV. COUNTERPARTS 59
ARTICLE XV. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL
15.1 Choice of Law 60
15.2 Consent to Jurisdiction 60
15.3 Waiver of Jury Trial 60
SCHEDULES
1 Commitment Amounts of the Lenders 63
2 Pricing Schedule 64
3 List of Borrower's Subsidiaries 66
4 Eligible Accounts and Eligible Fixed Assets......................67
5 Responses to Phase I Study 71
EXHIBITS
A Compliance Certificate 72
B Assignment Agreement 76
C Borrowing Base Certificate 85
AMENDED AND RESTATED
CREDIT AGREEMENT
This Agreement, dated as of October 19, 2000, is among UNIFAB
INTERNATIONAL, INC., as Borrower, BANK ONE, LOUISIANA, NATIONAL
ASSOCIATION, as Agent, and the Lenders party hereto, who agree as
follows:
RECITALS
A. The Borrower, the Agent and the Lenders have heretofore
executed a Credit Agreement dated as of November 30, 1999 (as amended,
the "Original Credit Agreement").
B. The Borrower proposes to repay the Terms Loans in full with
the proceeds of an issuance of stock, and in connection therewith the
Borrower has requested that the Agent and the Lenders modify certain of
the financial covenants and other provisions of the Original Credit
Agreement.
C. In view of the foregoing, the Borrower, the Agent and Lenders
wish to amend and restate the Original Credit Agreement to provide for
the foregoing.
AGREEMENT
NOW, THEREFORE, the Borrower, the Agent and the Lenders hereby
amend and restate the Original Credit Agreement to read as follows:
ARTICLE I
DEFINITIONS
1.1. DEFINITIONS OF CERTAIN TERMS USED HEREIN. As used in this
Agreement, the following terms shall have the following meanings:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by
which the Borrower or any of its Subsidiaries (i) acquires any going
business or all or substantially all of the assets of any firm,
corporation or limited liability company, or division thereof, whether
through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number
of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such
power only by reason of the happening of a contingency) or a majority
(by percentage or voting power) of the outstanding ownership interests
of a partnership or limited liability company.
"Advance" means a borrowing hereunder, (i) made by the Lenders on
the same Borrowing Date, or (ii) converted or continued by the Lenders
on the same date of conversion or continuation, consisting, in either
case, of the aggregate amount of the several Loans of the same Type and,
in the case of Eurodollar Loans, for the same Eurodollar Interest
Period.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if the
controlling Person owns 10% or more of any class of voting securities
(or other ownership interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of
the management or policies of the controlled Person, whether through
ownership of stock, by contract or otherwise.
"Agent" means Bank One, Louisiana, National Association, in its
capacity as contractual representative of the Lenders pursuant to
Article X, and not in its individual capacity as a Lender, and any
successor Agent appointed pursuant to Article X.
"Aggregate Revolving Loan Commitment" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as reduced from time to
time pursuant to the terms hereof.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted
accounting principles as in effect from time to time, applied in a
manner consistent with that used in preparing the financial statements
referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per
annum equal to the higher of (i) the Corporate Base Rate for such day or
(ii) the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced from time to time by Bank One, N.A. (which is
not necessarily the lowest rate charged to any customer), changing when
and as said corporate base rate changes. "Federal Funds Effective Rate"
means, for any day, an interest rate per annum 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) on such day on such transactions
received by the Agent from three Federal funds brokers of recognized
standing selected by the Agent in its sole discretion.
"Applicable Fee Rate" means, at any time, the percentage rate per
annum at which commitment fees are accruing on the unused portion of
the Aggregate Revolving Loan Commitment at such time as set forth in the
Pricing Schedule.
"Applicable Letter of Credit Fee Rate" means, at any time, with
respect to Letters of Credit, the percentage rate per annum which is
applicable at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at
any time, the percentage rate per annum which is applicable at such time
with respect to Advances of such Type as set forth in the Pricing
Schedule.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors.
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Assignment Agreement" means any assignment agreement in the form
of EXHIBIT B, executed and delivered pursuant to Section 12.3.
"Authorized Officer" means any of the Chairman, President, or Chief
Financial Officer of the Borrower, acting singly.
"Borrower" means UNIFAB International, Inc., a Louisiana
corporation, and its successors and assigns.
"Borrowing Base" means at any time an amount equal to 80% of
Eligible Accounts PLUS the lesser of 50% of Eligible Fixed Assets or
$15,000,000, less any Reserves.
"Borrowing Base Certificate" means a certificate executed and
delivered by the Borrower to the Agent from time to time setting forth
the Borrowing Base as of a certain date, substantially in the form of
EXHIBIT C.
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or
rate selection of Eurodollar Advances, a day (other than a Saturday or
Sunday) on which banks generally are open in New Orleans for the conduct
of substantially all of their commercial lending activities, interbank
wire transfers can be made on the Fedwire system and dealings in United
States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which
banks generally are open in New Orleans for the conduct of substantially
all of their commercial lending activities and interbank wire transfers
can be made on the Fedwire system.
"Capital Expenditures" means, without duplication, any expenditures
for any purchase or other acquisition of any asset which would be
classified as a fixed or capital asset on a consolidated balance sheet
of the Borrower and its Subsidiaries prepared in accordance with
Agreement Accounting Principles excluding (i) the cost of assets
acquired with Capitalized Lease Obligations, (ii) expenditures of
insurance proceeds to rebuild or replace any asset after a casualty loss
and (iii) leasehold improvement expenditures for which the Borrower or a
Subsidiary is reimbursed promptly by the lessor.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Expenses" means, with reference to any period,
the lease payments of the Borrower and its Subsidiaries with respect to
Capitalized Leases calculated on a consolidated basis for such period.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown
as a liability on a balance sheet of such Person prepared in accordance
with Agreement Accounting Principles.
"Change" is defined in Section 3.2.
"Change in Control" means the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934) of 20% or more of the outstanding
shares of voting stock of the Borrower.
"Closing Date" means the date upon which the conditions precedent
to the initial Advance have been satisfied or waived by the Lenders and
the initial Revolving Loans are made hereunder.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Collateral" shall mean all of the types of property described in
Section 2.19, or as otherwise described in any Collateral Documents.
"Collateral Documents" means, collectively, all guaranties and all
security agreements, financing statements, mortgages, deeds of trust,
assignments creating and perfecting security interests, liens, or
encumbrances in the assets of the Borrower and its Subsidiaries in favor
of the Agent, for the benefit of the Lenders to secure the Secured
Obligations.
"Commitment" means, for each Lender, collectively, such Lender's
Revolving Loan Commitment.
"Compliance Certificate" means the certificate required from the
Borrower from time to time in the form of EXHIBIT A, signed by the chief
financial officer of the Borrower.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Default" means an event described in Article VII.
"Domestic Subsidiaries" means Subsidiaries of the Borrower
incorporated or organized under the laws of any state of the United
States.
"EBITDA" means Net Income PLUS, to the extent deducted from
revenues in determining Net Income, (i) Interest Expense, (ii) expense
for taxes paid or provided for (accrued), (iii) depreciation, (iv)
amortization, (v) other non-cash charges, and (vi) extraordinary losses
incurred other than in the ordinary course of business, MINUS, to the
extent included in Net Income, extraordinary gains realized other than
in the ordinary course of business, all calculated for the Borrower and
its Subsidiaries on a consolidated basis.
"Eligible Accounts" is defined on SCHEDULE 4.
"Eligible Fixed Assets" is defined on SCHEDULE 4.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances,
rules, judgments, orders, decrees, plans, injunctions, permits,
concessions, grants, franchises, licenses, agreements and other
governmental restrictions relating to (i) the protection of the
environment, (ii) the effect of the environment on human health, (iii)
emissions, discharges or releases of pollutants, contaminants, hazardous
substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any rule or regulation issued
thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the applicable Eurodollar
Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance
for the relevant Eurodollar Interest Period, the applicable British
Bankers' Association Interest Settlement Rate for deposits in U.S.
dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London time)
two Business Days prior to the first day of such Eurodollar Interest
Period, and having a maturity equal to such Eurodollar Interest Period,
PROVIDED that, (i) if Reuters Screen FRBD is not available to the Agent
for any reason, the applicable Eurodollar Base Rate for the relevant
Eurodollar Interest Period shall instead be the applicable British
Bankers' Association Interest Settlement Rate for deposits in U.S.
dollars as reported by any other generally recognized financial
information service as of 11:00 a.m. (London time) two Business Days
prior to the first day of such Eurodollar Interest Period, and having a
maturity equal to such Eurodollar Interest Period, and (ii) if no such
British Bankers' Association Interest Settlement Rate is available to
the Agent, the applicable Eurodollar Base Rate for the relevant
Eurodollar Interest Period shall instead be the rate determined by the
Agent to be the rate at which Bank One, N.A. or one of its Affiliate
banks offers to place deposits in U.S. dollars with first-class banks in
the London interbank market at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Eurodollar Interest
Period, in the approximate amount of the relevant Eurodollar Loan and
having a maturity equal to such Eurodollar Interest Period.
"Eurodollar Interest Period" means, with respect to a Eurodollar
Advance, a period of one, two or three months commencing on a Business
Day selected by the Borrower pursuant to this Agreement. Such
Eurodollar Interest Period shall end on the day which corresponds
numerically to such date one, two, or three months thereafter, PROVIDED,
HOWEVER, that if there is no such numerically corresponding day in such
next, second or third succeeding month, such Eurodollar Interest Period
shall end on the last Business Day of such next, second or third
succeeding month. If an Eurodollar Interest Period would otherwise end
on a day which is not a Business Day, such Eurodollar Interest Period
shall end on the next succeeding Business Day, PROVIDED, HOWEVER, that
if said next succeeding Business Day falls in a new calendar month, such
Eurodollar Interest Period shall end on the immediately preceding
Business Day.
"Eurodollar Loan" means a Loan which, except as otherwise provided
in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for
the relevant Eurodollar Interest Period, the sum of (i) the quotient of
(a) the Eurodollar Base Rate applicable to such Eurodollar Interest
Period, divided by (b) one minus the Reserve Requirement (expressed as a
decimal) applicable to such Eurodollar Interest Period, plus (ii) the
Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it, by (i) the jurisdiction under
the laws of which such Lender or the Agent is incorporated or organized
or (ii) the jurisdiction in which the Agent's or such Lender's principal
executive office or such Lender's applicable Lending Installation is
located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Financial Letter of Credit" means a Letter of Credit delivered to
a Person to secure the performance by the Borrower or any Subsidiary of
its purely financial obligations.
"Floating Rate" means, for any day, a rate per annum equal to (i)
the Alternate Base Rate for such day plus (ii) the Applicable Margin, in
each case changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Funded Indebtedness" means at any time the aggregate dollar amount
of Indebtedness of the Borrower and its Subsidiaries, calculated on a
consolidated basis, which has actually been funded and is outstanding at
such time, whether or not such amount is due or payable at such time.
"Income Taxes" means, with reference to any period, all federal,
state and local income taxes paid or provided for (accrued) by the
Borrower and its Subsidiaries, calculated on a consolidated basis for
such period.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase
price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary
in the trade), (iii) obligations, whether or not assumed, secured by
Liens or payable out of the proceeds or production from Property now or
hereafter owned or acquired by such Person, (iv) obligations which are
evidenced by notes, bonds, debentures, acceptances, or other
instruments, (v) obligations to purchase securities or other Property
arising out of or in connection with the sale of the same or
substantially similar securities or Property, (vi) Capitalized Lease
Obligations, (vii) any other obligation for borrowed money or other
financial accommodation which in accordance with Agreement Accounting
Principles would be shown as a liability on the consolidated balance
sheet of such Person; (viii) all reimbursement obligations relating to
letters of credit, bankers' acceptances and similar instruments (but
excluding performance bonds), (ix) all liabilities with respect to
unfunded vested benefits under any Plan, (x) all endorsements (other
than for collection or deposit in the ordinary course of business), and
(xi) all obligations under guaranties for any obligations described in
clauses (i) through (x) hereof.
"Interest Expense" means, with reference to any period, the
interest expense of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made
in the ordinary course of business), extension of credit (other than
accounts receivable arising in the ordinary course of business on terms
customary in the trade) or contribution of capital by such Person;
stocks, bonds, mutual funds, partnership interests, notes, debentures or
other securities owned by such Person; any deposit accounts and
certificate of deposit owned by such Person; and structured notes,
derivative financial instruments and other similar instruments or
contracts owned by such Person.
"Lenders" means the lending institutions listed on the signature
pages of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Agent, the office, branch, subsidiary or affiliate of such Lender or the
Agent listed on the signature pages hereof or on a Schedule or otherwise
selected by such Lender or the Agent pursuant to Section 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued by a Lender upon the application of the
Borrower or any of its Subsidiaries as set forth in Section 2.3.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, the interest of a vendor or lessor under any conditional
sale, Capitalized Lease or other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof), and
collectively all Revolving Loans, whether made or continued as or
converted to Floating Rate Loans or Eurodollar Loans.
"Loan Documents" means this Agreement, any Notes issued pursuant to
Section 2.13 and the Collateral Documents.
"Material Adverse Effect" means a material adverse effect on (i)
the business, Property, condition (financial or otherwise), results of
operations, or prospects of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Borrower to perform its obligations under
the Loan Documents or (iii) the validity or enforceability of any of the
Loan Documents or the rights or remedies of the Agent or the Lenders
thereunder.
"Moody's" means Moody's Investors Service, Inc.
"Net Income" means, with reference to any period, the net income
(or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any Revolving Note.
"Obligations" means all Indebtedness of the Borrower to the
Lenders, from time to time, including without limitation, all unpaid
principal of and accrued and unpaid interest on the Loans, all
commercial and standby letters of credit and bankers acceptances, issued
by any Lender, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the
Lenders or to any Lender, the Agent or any indemnified party arising
under the Loan Documents.
"Operating Lease" of a Person means any lease of Property (other
than a Capitalized Lease) by such Person as lessee which has an original
term (including any required renewals and any renewals effective at the
option of the lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Performance Letter of Credit" means a Letter of Credit delivered
to a Person to secure the performance by the Borrower or any Subsidiary
of its obligations in connection with bidding on or performing under any
contract to manufacture, assemble, sell or deliver equipment.
"Permitted Liens" is defined in Section 6.15.
"Person" means any natural person, corporation, firm, joint
venture, partnership, limited liability company, association,
enterprise, trust or other entity or organization, or any government or
political subdivision or any agency, department or instrumentality
thereof.
"Plan" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code as to which the Borrower may have any liability.
"Pricing Schedule" means SCHEDULE 2.
"Pro Rata Share" means, with respect to any Lender at any time, the
percentage obtained by dividing (i) the sum of such Lender's Revolving
Loan Commitment at such time (in each case, as adjusted from time to
time in accordance with the provisions of this Agreement) by (ii) the
Aggregate Revolving Loan Commitment at such time.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other
assets owned, leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into
between the Borrower and any Lender or Affiliate thereof which is a rate
swap, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option
with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies,
commodity prices, equity prices or other financial measures.
"Rate Management Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (i) any and all Rate Management Transactions, and (ii)
any and all cancellations, buy backs, reversals, terminations or
assignments of any Rate Management Transactions.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor
thereto or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of
the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor
or other regulation or official interpretation of said Board of
Governors relating to the extension of credit by banks for the purpose
of purchasing or carrying margin stocks applicable to member banks of
the Federal Reserve System.
"Rental Expense" means, with reference to any period, the
aggregate fixed amounts payable by the Borrower and its Subsidiaries
under all Operating Leases, calculated on a consolidated basis for such
period.
"Reportable Event" means a reportable event as defined in Section
4043 of ERISA and the regulations issued under such section, with
respect to a Plan, excluding, however, such events as to which the PBGC
has by regulation waived the requirement of Section 4043(a) of ERISA
that it be notified within 30 days of the occurrence of such event,
PROVIDED, HOWEVER, that a failure to meet the minimum funding standard
of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Lenders" means Lenders whose Pro Rata Shares, in the
aggregate, are 66 2/3 % or greater, but in any event, at least two
Lenders.
"Reserve Requirement" means, with respect to an Eurodollar Interest
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under
Regulation D on Eurocurrency liabilities.
"Reserves" means, with respect to the Borrowing Base such reserves
against Eligible Accounts which the Agent may, in its reasonable credit
judgment, establish from time to time. Without limiting the generality
of the foregoing, Reserves established to insure the payment of accrued
Interest Expense or Indebtedness shall be deemed to be a reasonable
exercise of the Agent's credit judgment.
"Revolving Loan" is defined in Section 2.2.1.
"Revolving Loan Commitment" means, for each Lender, the obligation
of such Lender to make Revolving Loans not exceeding the amount set
forth on Schedule 1 for such Lender or as set forth in any Assignment
Agreement relating to any assignment that has become effective pursuant
to Section 12.3, as such amount may be modified from time to time
pursuant to the terms hereof.
"Revolving Loan Termination Date" means November 30, 2002 or any
earlier date upon which the Aggregate Revolving Loan Commitment is
reduced to zero or otherwise terminated pursuant to the terms of Section
2.5.
"Revolving Note" means any promissory note evidencing Revolving
Loans issued at the request of a Lender pursuant to Section 2.13.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and
(ii) all Rate Management Obligations owing to one or more Lenders.
"Subsidiary" means (i) any corporation, more than 50% of the
outstanding securities having ordinary voting power of which shall at
the time be owned or controlled, directly or indirectly, by the Borrower
or by one or more of its Subsidiaries or by the Borrower and one or more
of its Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization, more than
50% of the ownership interests having ordinary voting power of which
shall at the time be so owned or controlled.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than
10% of the consolidated assets of the Borrower and its Subsidiaries as
would be shown in the consolidated financial statements of the Borrower
and its Subsidiaries as at the beginning of the twelve-month period
ending with the month in which such determination is made, or (ii) is
responsible for more than 10% of the consolidated net sales or of the
consolidated net income of the Borrower and its Subsidiaries as
reflected in the financial statements referred to in clause (i) above.
"Tangible Net Worth" means at any time total shareholders' equity
of the Borrower and its Subsidiaries calculated on a consolidated basis
as of such time, LESS (i) the amount of any treasury stock, (ii) any
dividends paid, and (iii) the amount of any intangible assets (such as
patents, trademarks, copyrights or goodwill).
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all
liabilities with respect to the foregoing, but EXCLUDING Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"Unmatured Default" means an event which but for the lapse of time
or the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all
of the outstanding voting securities of which shall at the time be owned
or controlled, directly or indirectly, by such Person or one or more
Wholly-Owned Subsidiaries of such Person, or by such Person and one or
more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership,
limited liability company, association, joint venture or similar
business organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. TERM LOANS. [INTENTIONALLY OMITTED]
2.2. REVOLVING LOANS.
2.2.1. MAKING THE REVOLVING LOANS. From and including the Closing
Date and prior to the Revolving Loan Termination Date, each Lender
severally agrees, on the terms and conditions set forth in this
Agreement, to make revolving loans to the Borrower from time to time in
amounts not to exceed in the aggregate at any one time outstanding the
LESSER of (i) the amount of its Revolving Loan Commitment (each
individually a "Revolving Loan" and, collectively, the "Revolving
Loans"), MINUS 100% of the principal amount of all Letters of Credit,
or (ii) the Borrowing Base, MINUS 100% of the principal amount of all
Financial Letters of Credit and 25% of the principal amount of all
Performance Letters of Credit. Each Advance under this Section 2.2.1
shall consist of Revolving Loans made by each Lender ratably in
proportion to such Lender's respective Pro Rata Share, it being
understood that no Lender shall be responsible for any failure by any
other Lender to perform its obligation to make any Revolving Loan
hereunder nor shall the Revolving Loan Commitment of any Lender be
increased or decreased as a result of any such failure. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow
Revolving Loans at any time prior to the Revolving Loan Termination
Date. The Revolving Loan Commitments of the Lenders shall expire on the
Revolving Loan Termination Date.
2.2.2. REPAYMENT OF THE REVOLVING LOANS. On the Revolving Loan
Termination Date, the Borrower shall repay in full the outstanding
principal balance of the Revolving Loans.
2.3 LETTERS OF CREDIT.
2.3.1 ISSUANCE OF LETTERS OF CREDIT. From and including the
Closing Date, the Agent shall issue one or more standby Letters of
Credit for the account of the Borrower or any of its Subsidiaries,
pursuant to the Agent's standard form of application for standby letters
of credit. The aggregate face amount of all outstanding Letters of
Credit (i) shall constitute a portion of the Revolving Loan Commitments
(reducing the Revolving Loan Commitments available for Revolving Loans
on a dollar-for-dollar basis and (ii) shall not exceed $10,000,000. The
expiry date of all Letters of Credit shall be not later than five
Business Days prior to the Revolving Loan Termination Date.
2.3.2 RISK PARTICIPATION. Immediately upon the issuance of a
Letter of Credit by the Agent, each Lender shall be deemed to have
automatically, unconditionally and irrevocably (except as provided for
in Section 10.8) purchased from the Agent an undivided interest and
participation in the Letter of Credit, the obligations in respect
thereof, and the liability of the Agent, equal to the face amount of the
Letter of Credit multiplied by such Lender's Pro Rata Share.
2.3.3 LETTER OF CREDIT FEES. (a) The Borrower agrees to pay the
Agent a fronting fee equal to 0.125% per annum on the face amount of the
Letter of Credit, payable quarterly in arrears on the last day of each
calendar quarter, for the term of the Letter of Credit, together with
the Agent's customary letter of credit issuance and processing fees.
The fronting fee and customary letter of credit issuance and processing
fees shall be retained by the Agent and shall not be shared with the
other Lenders;
(b) In addition, the Borrower agrees to pay the Agent the
following fees: (i) a fee equal to the Financial Letter of Credit Fee
Rate (on a per annum basis) shown on the Pricing Schedule for all
standby letters of credit issued to support the financial obligations of
the Borrower or Subsidiary for whose account the letter of credit was
issued; and (ii) a fee equal to the Performance Letter of Credit Fee
Rate (on a per annum basis) shown on the Pricing Schedule for all
standby letters of credit issued to support performance obligations
(including bid bonds, performance bonds, milestone payments, guaranties,
warranties and fabrication performance obligations) of the Borrower or
Subsidiary for whose account the Letter of Credit was issued. The
foregoing Letter of Credit fees shall be based on the principal amount
of the Letters of Credit (as reduced from time to time) payable
quarterly in arrears on the last day of each calendar quarter, for the
term of the Letter of Credit and shall be shared by the Agent and the
Lenders on the basis of each Lender's Pro Rata Share.
2.3.4 GUARANTY OF SUBSIDIARIES. The Borrower hereby absolutely and
unconditionally guarantees the prompt and punctual payment of all
Indebtedness of all Subsidiaries to the Agent and Lenders arising from
the issuance of any Letters of Credit for the account of one or more
Subsidiaries.
2.4. TYPES OF ADVANCES. The Advances must be either Floating Rate
Advances or Eurodollar Advances, or a combination thereof, selected by
the Borrower in accordance with Sections 2.8 and 2.9.
2.5. COMMITMENT FEE; REDUCTIONS IN AGGREGATE REVOLVING LOAN
COMMITMENT. (a) The Borrower agrees to pay to the Agent, for the
account of the Pro Rate Share of each Lender, a commitment fee at a per
annum rate equal to the Applicable Fee Rate on the daily unused portion
of the aggregate Revolving Loan Commitment from the date hereof to and
including the Revolving Loan Termination Date, payable quarterly in
arrears on last day of each calendar quarter hereafter and on the
Revolving Loan Termination Date. For the purposes hereof, "unused
portion" shall mean the aggregate Revolving Loan Commitment, MINUS the
principal amount outstanding on the Revolving Loan, MINUS the face
amount of all outstanding Letters of Credit.
(b) The Borrower may permanently reduce the Aggregate Revolving
Loan Commitment in whole, or in part ratably among the Lenders in
integral multiples of $1,000,000, upon at least five Business Days'
written notice to the Agent, which notice shall specify the amount of
any such reduction, PROVIDED, HOWEVER, that the amount of the Aggregate
Revolving Loan Commitment may not be reduced below the aggregate
principal amount of the outstanding Revolving Loans. All accrued
commitment fees shall be payable on the effective date of any
termination of the obligations of the Lenders to make Revolving Loans
hereunder.
2.6. MINIMUM AMOUNT OF EACH ADVANCE. Each Eurodollar Advance shall
be in the minimum amount of $1,000,000 (and in multiples of $100,000 if
in excess thereof), and each Floating Rate Advance shall be in the
minimum amount of $200,000 (and in multiples of $100,000, if in excess
thereof), PROVIDED, HOWEVER, that any Floating Rate Advance may be in
the amount of the unused Aggregate Revolving Loan Commitment.
2.7. PREPAYMENTS.
2.7.1. OPTIONAL PREPAYMENTS. The Borrower may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances,
or, in a minimum aggregate amount of $200,000 or any integral multiple
of $100,000 in excess thereof, any portion of the outstanding Floating
Rate Advances for the full outstanding balance of all Floating Rate
Advances, if less than such minimum, upon one Business Days' prior
notice to the Agent. The Borrower may from time to time pay, subject to
the payment of any funding indemnification amounts required by Section
3.4 but without penalty or premium, all outstanding Eurodollar Advances,
or, in a minimum aggregate amount of $1,000,000 or any integral multiple
of $100,000 in excess thereof, any portion (or the full outstanding
balance of all Eurodollar Advances, if less than such minimum) of the
outstanding Eurodollar Advances upon five Business Days' prior notice to
the Agent.
2.7.2. MANDATORY PREPAYMENTS. (a) EQUITY ISSUANCE. The Borrower
shall make prepayments of the outstanding amount of the Revolving Loan
(and the aggregate Revolving Loan Commitment shall be permanently
reduced), upon one Business Days' prior notice to the Agent, in amounts
equal to 50% of the net sale proceeds (total proceeds less reasonable
costs of issuance) received by the Borrower or any Subsidiary (in the
form of cash or cash equivalents) from the issuance of shares of capital
stock (except in the case where a Subsidiary issues additional shares of
capital stock to the Borrower or to another of its Subsidiaries). Such
payment (and reduction in the aggregate Revolving Loan Commitment) shall
be made not later than 15 days after the consummation of the stock
issuance. If such payment constitutes a repayment of a Eurodollar
Advance on a date which is not the last day of a Eurodollar Interest
Period, the Borrower shall not be required to pay any amounts that would
otherwise be due under this Agreement (including without limitation,
Section 3.4) for the repayment of a Eurodollar Rate Advance prior to the
last day of the Eurodollar Interest Period.
(b) OVERADVANCE. If at any time the outstanding principal balance
of the Revolving Loans (PLUS 100% of the principal amount of all
outstanding Financial Letters of Credit, PLUS 25% of the principal
amount of all outstanding Performance Letter of Credit) exceeds the
Borrowing Base as shown on the most recently timely submitted Borrowing
Base Certificate, the Borrower shall, on or before the last day of the
month in which the Borrowing Base Certificate is timely delivered,
prepay the Revolving Loans in an amount sufficient to reduce the
outstanding principal balance of the Revolving Loans (PLUS 100% of the
principal amount of all outstanding Financial Letters of Credit, PLUS
25% of the principal amount of all outstanding Performance Letter of
Credit) to the Borrowing Base as shown on such Borrowing Base
Certificate.
2.8. METHOD OF SELECTING TYPES AND EURODOLLAR INTEREST PERIODS FOR
NEW ADVANCES. The Borrower shall select the Type of Advance and, in the
case of each Eurodollar Advance, the Eurodollar Interest Period
applicable thereto from time to time. The Borrower shall give the Agent
irrevocable notice (a "Borrowing Notice") not later than 10:00 a.m. (New
Orleans time) at least one Business Day before the Borrowing Date of
each Floating Rate Advance and three Business Days before the Borrowing
Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Eurodollar
Interest Period applicable thereto.
Not later than noon (Central time) on each Borrowing Date, each Lender
shall make available its Loan or Loans in funds immediately available in
New Orleans to the Agent at its address specified pursuant to Article
XIII. The Agent will make the funds so received from the Lenders
available to the Borrower at the Agent's aforesaid address.
The Borrower shall not be entitled to more than three Eurodollar
Rate tranches and one Floating Rate tranche at any one time on the
Revolving Loan.
2.9. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES. Floating
Rate Advances shall continue as Floating Rate Advances unless and until
such Floating Rate Advances are converted into Eurodollar Advances
pursuant to this Section 2.9 or are repaid. Each Eurodollar Advance
shall continue as a Eurodollar Advance until the end of the then
applicable Eurodollar Interest Period therefor, at which time such
Eurodollar Advance shall be automatically converted into a Floating Rate
Advance unless (x) such Eurodollar Advance is or was repaid in
accordance with Section 2.7 or 2.1.2 or (y) the Borrower shall have
given the Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Eurodollar Interest Period, such
Eurodollar Advance continue as a Eurodollar Advance for the same or
another Eurodollar Interest Period. Subject to the terms of Section
2.6, the Borrower may elect from time to time to convert all or any part
of a Floating Rate Advance into a Eurodollar Advance. The Borrower
shall give the Agent irrevocable notice (a "Conversion/Continuation
Notice") of each conversion of a Floating Rate Advance into a Eurodollar
Advance or continuation of a Eurodollar Advance not later than 10:00
a.m. (New Orleans time) at least three Business Days prior to the date
of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the
Eurodollar Interest Period applicable thereto.
2.10. CHANGES IN INTEREST RATE, ETC. Each Floating Rate Advance
shall bear interest on the outstanding principal amount thereof, for
each day from and including the date such Advance is made or is
automatically converted from a Eurodollar Advance into a Floating Rate
Advance pursuant to Section 2.9, to but excluding the date it is paid or
is converted into a Eurodollar Advance pursuant to Section 2.9 hereof,
at a rate per annum equal to the Floating Rate for such day. Changes in
the rate of interest on that portion of any Advance maintained as a
Floating Rate Advance will take effect simultaneously with each change
in the Alternate Base Rate. Each Eurodollar Advance shall bear interest
on the outstanding principal amount thereof from and including the first
day of the Eurodollar Interest Period applicable thereto to (but not
including) the last day of such Eurodollar Interest Period at the
interest rate determined by the Agent as applicable to such Eurodollar
Advance based upon the Borrower's selections under Sections 2.8 and 2.9
and otherwise in accordance with the terms hereof. No Eurodollar
Interest Period with respect to any Revolving Loan may end after the
Revolving Loan Termination Date.
2.11. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to
the contrary contained in Section 2.8 or 2.9, during the continuance of
a Default or Unmatured Default the Required Lenders may, at their
option, by notice to the Borrower (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of Section
8.2 requiring unanimous consent of the Lenders to changes in interest
rates), declare that no Advance may be made as, converted into or
continued as a Eurodollar Advance. During the continuance of a Default
the Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent
of the Lenders to changes in interest rates), declare that (i) each
Eurodollar Advance shall bear interest for the remainder of the
applicable Eurodollar Interest Period at the rate otherwise applicable
to such Eurodollar Interest Period plus 3% per annum and (ii) each
Floating Rate Advance shall bear interest at a rate per annum equal to
the Floating Rate in effect from time to time plus 3% per annum,
PROVIDED that, during the continuance of a Default under Section 7.6 or
7.7, the interest rates set forth in clauses (i) and (ii) above shall be
applicable to all Advances without any election or action on the part of
the Agent or any Lender.
2.12. METHOD OF PAYMENT. All payments of the Secured Obligations
hereunder shall be made, without setoff, deduction, or counterclaim, in
immediately available funds to the Agent at the Agent's address
specified pursuant to Article XIII, or at any other Lending Installation
of the Agent specified in writing by the Agent to the Borrower, by noon
(Central time) on the date when due and shall be applied ratably by the
Agent among the Lenders. Each payment delivered to the Agent for the
account of any Lender shall be delivered promptly by the Agent to such
Lender in the same type of funds that the Agent received at its address
specified pursuant to Article XIII or at any Lending Installation
specified in a notice received by the Agent from such Lender. The Agent
is hereby authorized to charge the account of the Borrower maintained
with the Agent for each payment of principal, interest and fees as it
becomes due hereunder.
2.13. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS. (i) Each
Lender shall maintain in accordance with its usual practice an account
or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(ii) The Agent shall also maintain accounts in which it will
record (a) the amount of each Loan made hereunder, the Type thereof and
the Eurodollar Interest Period with respect thereto, (b) the amount of
any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (c) the amount of any sum
received by the Agent hereunder from the Borrower and each Lender's
share thereof.
(iii) The entries maintained in the accounts maintained pursuant
to paragraphs (i) and (ii) above shall be PRIMA FACIE evidence of the
existence and amounts of the Obligations therein recorded; PROVIDED,
HOWEVER, that the failure of the Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Obligations in accordance with
their terms.
(iv) Any Lender may request that its Revolving Loans be evidenced
by a Note. In such event, the Borrower shall execute and deliver to
such Lender a Note for such Loans payable to the order of such Lender in
a form supplied by the Agent and acceptable to such Lender. Thereafter,
the Loans evidenced by such Note and interest thereon shall at all times
(including after any assignment pursuant to Section 12.3) be represented
by one or more Notes payable to the order of the payee named therein or
any assignee pursuant to Section 12.3, except to the extent that any
such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as
described in paragraphs (i) and (ii) above.
2.14. TELEPHONIC NOTICES. The Borrower hereby authorizes the
Lenders and the Agent to extend, convert or continue Advances, effect
selections of Types of Advances and to transfer funds based on
telephonic notices made by any person or persons the Agent or any Lender
in good faith believes to be acting on behalf of the Borrower, it being
understood that the foregoing authorization is specifically intended to
allow Borrowing Notices and Conversion/Continuation Notices to be given
telephonically. The Borrower agrees to deliver promptly to the Agent a
written confirmation, if such confirmation is requested by the Agent or
any Lender, of each telephonic notice signed by an Authorized Officer.
If the written confirmation differs in any material respect from the
action taken by the Agent and the Lenders, the records of the Agent and
the Lenders shall govern absent manifest error.
2.15. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest
accrued on each Floating Rate Advance shall be payable on each Payment
Date, commencing with the first such date to occur after the date hereof
and at maturity. Interest accrued on each Eurodollar Advance shall be
payable on the last day of its applicable Eurodollar Interest Period, on
any date on which the Eurodollar Advance is prepaid, whether by
acceleration or otherwise, and at maturity. Interest and commitment
fees shall be calculated for actual days elapsed on the basis of a
360-day year. Interest shall be payable for the day an Advance is made
but not for the day of any payment on the amount paid if payment is
received prior to noon (local time) at the place of payment. If any
payment of principal of or interest on an Advance shall become due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection
with such payment.
2.16. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Agent will
notify each Lender of the contents of each Aggregate Revolving Loan
Commitment reduction notice, Borrowing Notice, Conversion/Continuation
Notice, and repayment notice received by it hereunder. The Agent will
notify each Lender of the interest rate and Eurodollar Interest Period
applicable to each Eurodollar Advance promptly upon determination of
such interest rate and will give each Lender prompt notice of each
change in the Alternate Base Rate.
2.17. LENDING INSTALLATIONS. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply
to any such Lending Installation and the Loans and any Notes issued
hereunder shall be deemed held by each Lender for the benefit of any
such Lending Installation. Each Lender may, by written notice to the
Agent and the Borrower in accordance with Article XIII, designate
replacement or additional Lending Installations through which Loans will
be made by it and for whose account Loan payments are to be made.
2.18. NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on
which it is scheduled to make payment to the Agent of (i) in the case of
a Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a
payment of principal, interest or fees to the Agent for the account of
the Lenders, that it does not intend to make such payment, the Agent may
assume that such payment has been made. The Agent may, but shall not be
obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the
Agent, the recipient of such payment shall, on demand by the Agent,
repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date
such amount was so made available by the Agent until the date the Agent
recovers such amount at a rate per annum equal to (x) in the case of
payment by a Lender, the Federal Funds Effective Rate for such day for
the first three days and, thereafter, the interest rate applicable to
the relevant Loan or (y) in the case of payment by the Borrower, the
interest rate applicable to the relevant Loan.
2.19 COLLATERAL. The Secured Obligations shall be secured by the
following: (i) first priority mortgage, security agreement and
assignment of leases and rents covering all of the immovable (real)
property owned, or leased by the Borrower or any Domestic Subsidiary,
including any such property acquired after the Closing Date; (ii) first
priority perfected security interest in all inventory, accounts,
equipment, instruments, chattel paper, documents, general intangibles
(and proceeds thereof and in the case of inventory, all products
thereof) of the Borrower or any Domestic Subsidiary; (iii) first
priority perfected security interest in all outstanding shares of stock
or partnership or membership interests, as the case may be, of each
Subsidiary (except in the case of any direct Subsidiary of the Borrower
or any Domestic Subsidiary incorporated outside of the United States,
the security interest shall extend to 66% of the outstanding shares
thereof); and (iv) solidary (joint and several) guaranties by each of
the Domestic Subsidiaries, including any Domestic Subsidiaries acquired
or created after the Closing Date. The Borrower covenants and agrees
to cause any Domestic Subsidiary acquired or created after the Closing
Date to execute a guaranty of the Secured Obligations and to execute
appropriate Collateral Documents concerning the assets of the Domestic
Subsidiary to further secure the Obligations, within 60 days after the
acquisition or creation of such Domestic Subsidiary. In addition, the
Borrower covenants and agrees to execute a security agreement granting a
first priority security interest in all of the outstanding capital stock
or membership or partnership interest of any Domestic Subsidiary
acquired or created after the Closing Date, or 66% of the outstanding
capital stock or membership or partnership interest of any direct
foreign Subsidiary acquired or created after the Closing Date, in each
case to further secure the Secured Obligations, within 60 days after the
acquisition or creation of such Subsidiary.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. YIELD PROTECTION. If, on or after the date of this
Agreement, the adoption of any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law), or any change in the
interpretation or administration thereof by any governmental or quasi-
governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any
Lender or applicable Lending Installation with any request or directive
(whether or not having the force of law) of any such authority, central
bank or comparable agency:
(i) subjects any Lender or any applicable Lending Installation to
any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender in respect
of its Eurodollar Loans, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining its Eurodollar Loans or
reduces any amount receivable by any Lender or any applicable
Lending Installation in connection with its Eurodollar Loans,
or requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of
Eurodollar Loans held or interest received by it, by an amount
deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such
Lender or applicable Lending Installation of making or maintaining its
Eurodollar Loans or Commitment or to reduce the return received by such
Lender or applicable Lending Installation in connection with such
Eurodollar Loans or Commitment, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or
reduction in amount received.
3.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender
determines the amount of capital required or expected to be maintained
by such Lender, any Lending Installation of such Lender or any
corporation controlling such Lender is increased as a result of a
Change, then, within 15 days of demand by such Lender, the Borrower
shall pay such Lender the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital
which such Lender determines is attributable to this Agreement, its
Loans or its Commitment to make Loans hereunder (after taking into
account such Lender's policies as to capital adequacy). "Change" means
(i) any change after the date of this Agreement in the Risk-Based
Capital Guidelines or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law)
after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending
Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including
transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices Entitled "International Convergence
of Capital Measurements and Capital Standards," including transition
rules, and any amendments to such regulations adopted prior to the date
of this Agreement.
3.3. AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation, or
directive, whether or not having the force of law, or if the Required
Lenders determine that (i) deposits of a type and maturity appropriate
to match fund Eurodollar Advances are not available or (ii) the interest
rate applicable to Eurodollar Advances does not accurately reflect the
cost of making or maintaining Eurodollar Advances, then the Agent shall
suspend the availability of Eurodollar Advances and require any affected
Eurodollar Advances to be repaid or converted to Floating Rate Advances,
subject to the payment of any funding indemnification amounts required
by Section 3.4.
3.4. FUNDING INDEMNIFICATION. If any payment of a Eurodollar
Advance occurs on a date which is not the last day of the applicable
Eurodollar Interest Period, whether because of acceleration, prepayment
or otherwise (but excluding a mandatory prepayment under Section 2.7.2),
or a Eurodollar Advance is not made on the date specified by the
Borrower for any reason other than default by the Lenders, the Borrower
will indemnify each Lender for any loss or cost incurred by it resulting
therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such
Eurodollar Advance.
3.5. TAXES. (i) All payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any Note shall be
made free and clear of and without deduction for any and all Taxes. If
the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or the Agent, (a) the
sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 3.5) such Lender or the Agent (as the case
may be) receives an amount equal to the sum it would have received had
no such deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount deducted to the
relevant authority in accordance with applicable law and (d) the
Borrower shall furnish to the Agent the original copy of a receipt
evidencing payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property
taxes, charges or similar levies which arise from any payment made
hereunder or under any Note or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent and each
Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under
this Section 3.5) paid by the Agent or such Lender and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto. Payments due under this indemnification shall be made
within 30 days of the date the Agent or such Lender makes demand
therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof (each a "Non-U.S. Lender")
agrees that it will, not less than ten Business Days after becoming a
party to this Agreement, (i) deliver to each of the Borrower and the
Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, certifying in either case that such Lender is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, and (ii) deliver
to each of the Borrower and the Agent a United States Internal Revenue
Form W-8 or W-9, as the case may be, and certify that it is entitled to
an exemption from United States backup withholding tax. Each Non-U.S.
Lender further undertakes to deliver to each of the Borrower and the
Agent (x) renewals or additional copies of such form (or any successor
form) on or before the date that such form expires or becomes obsolete,
and (y) after the occurrence of any event requiring a change in the most
recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower or the Agent.
All forms or amendments described in the preceding sentence shall
certify that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal
income taxes, UNLESS an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such
forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form or amendment with respect to it
and such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or withholding of
United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to
provide the Borrower with an appropriate form pursuant to clause (iv),
above (unless such failure is due to a change in treaty, law or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, occurring subsequent to the date
on which a form originally was required to be provided), such Non-U.S.
Lender shall not be entitled to indemnification under this Section 3.5
with respect to Taxes imposed by the United States; PROVIDED that,
should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its
failure to deliver a form required under clause (iv), above, the
Borrower shall take such steps as such Non-U.S. Lender shall reasonably
request to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction
of withholding tax with respect to payments under this Agreement or any
Note pursuant to the law of any relevant jurisdiction or any treaty
shall deliver to the Borrower (with a copy to the Agent), at the time or
times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered or properly
completed, because such Lender failed to notify the Agent of a change in
circumstances which rendered its exemption from withholding ineffective,
or for any other reason), such Lender shall indemnify the Agent fully
for all amounts paid, directly or indirectly, by the Agent as tax,
withholding therefor, or otherwise, including penalties and interest,
and including taxes imposed by any jurisdiction on amounts payable to
the Agent under this subsection, together with all costs and expenses
related thereto (including attorneys fees and time charges of attorneys
for the Agent, which attorneys may be employees of the Agent). The
obligations of the Lenders under this Section 3.5(vii) shall survive the
payment of the Obligations and termination of this Agreement.
3.6. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Loans to reduce any
liability of the Borrower to such Lender under Sections 3.1, 3.2 and 3.5
or to avoid the unavailability of Eurodollar Advances under Section 3.3,
so long as such designation is not, in the judgment of such Lender,
disadvantageous to such Lender. Each Lender shall deliver a written
statement of such Lender to the Borrower (with a copy to the Agent) as
to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such
written statement shall set forth in reasonable detail the calculations
upon which such Lender determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with
a Eurodollar Loan shall be calculated as though each Lender funded its
Eurodollar Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining
the Eurodollar Rate applicable to such Loan, whether in fact that is the
case or not. Unless otherwise provided herein, the amount specified in
the written statement of any Lender shall be payable on demand after
receipt by the Borrower of such written statement. The obligations of
the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment
of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. INITIAL ADVANCE. The Lenders shall not be required to make
the initial Advance hereunder unless the Borrower has furnished to the
Agent with sufficient copies for the Lenders (or has otherwise satisfied
the Agent):
(i) Copies of the articles of incorporation of the Borrower and
the corresponding organization documents of all of its
Domestic Subsidiaries, together with all amendments, and a
certificate of good standing, each certified by the
appropriate governmental officer in its jurisdiction of
incorporation, and copies of the articles of incorporation of
any foreign Subsidiary, together with all amendments certified
by the secretary of said Subsidiary.
(ii) Copies, certified by the Secretary or Assistant Secretary of
the Borrower and the authorized person for each Subsidiary, of
its Board of Directors' resolutions or consent of members or
partners, and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which the
Borrower or any Subsidiary is a party.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by
name and title and bear the signatures of the Authorized
Officers and any other officers of the Borrower authorized to
sign the Loan Documents to which the Borrower is a party, upon
which certificate the Agent and the Lenders shall be entitled
to rely until informed of any change in writing by the
Borrower.
(iv) A written opinion of the Borrower's counsel, addressed to the
Lenders, in form and substance satisfactory to the Agent.
(v) This Agreement executed by the Borrower, Agent and Lenders.
(vi)Any Notes requested by a Lender pursuant to Section 2.13 payable to
the order of each such requesting Lender.
(vii)The Collateral Documents executed by the Borrower and/or all of its
Domestic Subsidiaries, together with the stock certificates
affected by the security interests described in Section 2.19.
(viii)Lien searches covering the Collateral evidencing no
liens or encumbrances against the Collateral, except for liens
and encumbrances securing Indebtedness that will be refinanced
in full with the proceeds of the initial Advances on the Loans
and for Permitted Liens.
(ix)A title insurance policy issued by First American Title
Insurance Company insuring all mortgages (as first priority
mortgages) by the Borrower or any Domestic Subsidiary bearing
against all immovable (real) property owned by the Borrower
and all Domestic Subsidiaries (including copies of all
proposed exceptions).
(x)Letter from each creditor of the Borrower and all of its
Subsidiaries whose Indebtedness will be refinanced with
proceeds of the initial Advances on the Loan stating the full
amount due such creditor as of the Closing Date and agreeing
to execution, cancellation or termination of any security
interest in assets of the Borrower and its Subsidiaries,
promptly upon receipt of payment in full of such Indebtedness.
(xi) Written money transfer instructions addressed to the Agent and
signed by an Authorized Officer, together with such other
related money transfer authorizations as the Agent may have
reasonably requested.
(xii) Information satisfactory to the Agent and the Required Lenders
regarding the Borrower's Year 2000 Program.
(xiii) For any Collateral that constitutes leasehold interest,
copies of the leases, together with estoppel certificates from
each landlord in favor of the Agent in form and substance
satisfactory to the Agent.
(xiv) A Phase I environmental survey for any immovable
property owned by the Borrower and any of its Subsidiaries, in
form and substance satisfactory to the Agent and the Lenders.
(xv)One or more insurance certificates evidencing the insurance
required to be maintained by the Borrower and the Domestic
Subsidiaries pursuant to this Agreement and the Collateral
Documents.
(xvi)Audited consolidated financial statements of the Borrower and
its Subsidiaries for the fiscal year ended March 31, 2000,
accompanied by the unqualified opinion of the Borrower's
independent certified public accountants; and interim
unaudited consolidated financial statements of the Borrower
and its Subsidiaries for the fiscal quarter ended June 30,
2000, certified by the chief financial officer of the
Borrower, all in form and substance satisfactory to the Agent
and the Lenders.
(xvii)Projections of the Borrower giving effect to all completed
acquisitions and the closing of the Loan, together with such
information as the Agent may reasonably require to confirm the
tax, legal and business assumptions made in the financial
statements provided to the Agent, in form and substance
satisfactory to the Agent and the Lenders.
(xviii)Accounts receivable aging report for the Borrower and each of
its Subsidiaries as of August 31, 2000, in form and substance
satisfactory to the Agent (including notations indicating
which accounts receivable are supported by letters of credit
or insurance).
(xix) An environmental indemnity agreement executed by the Borrower.
(xx) Such other documents as any Lender or its counsel may have
reasonably requested.
(xxi)Payment to the Agent of an amendment fee of $30,000 to be
shared ratably by the Lenders.
4.2.EACH ADVANCE. The Lenders shall not be required to make any Advance
unless on the applicable Borrowing Date:
(i)There exists no Default or Unmatured Default.
(ii)The representations and warranties contained in Article V are true
and correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall have been true
and correct in all material respects on and as of such earlier date.
(iii)All matters incident to the making of such Advance shall be
satisfactory to the Lenders and their counsel.
(iv) No Material Adverse Effect relating to the Borrower and its
Subsidiaries has occurred since the Closing Date or the date
of any financial statements of the Borrower submitted
subsequent to the Closing Date.
Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the
conditions contained in Sections 4.2(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. EXISTENCE AND STANDING. The Borrower is a corporation and
each of its Subsidiaries is a corporation, partnership or limited
liability company duly and properly incorporated or organized, as the
case may be, validly existing and (to the extent such concept applies to
such entity) in good standing under the laws of its jurisdiction of
incorporation or organization and has all requisite authority to conduct
its business in each jurisdiction in which its business is conducted.
5.2. AUTHORIZATION AND VALIDITY. Each of the Borrower and its
Subsidiaries has the power and authority and legal right to execute and
deliver the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery by the Borrower and
its Subsidiaries of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by
proper corporate proceedings, and the Loan Documents to which the
Borrower and its Subsidiaries is a party constitute legal, valid and
binding obligations of the Borrower and its Subsidiaries enforceable
against the Borrower and Subsidiaries in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally.
5.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by the Borrower and its Subsidiaries of the Loan Documents to
which it is a party, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree
or award binding on the Borrower or any of its Subsidiaries or (ii) the
Borrower's or any Subsidiary's articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating or other management
agreement, as the case may be, or (iii) the provisions of any indenture,
instrument or agreement to which the Borrower or any of its Subsidiaries
is a party or is subject, or by which it, or its Property, is bound, or
conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the
Property of the Borrower or a Subsidiary pursuant to the terms of any
such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, or other action
in respect of any governmental or public body or authority, or any
subdivision thereof, which has not been obtained by the Borrower or any
of its Subsidiaries, is required to be obtained by the Borrower or any
of its Subsidiaries in connection with the execution and delivery of the
Loan Documents, the borrowings under this Agreement, the payment and
performance by the Borrower of the Obligations or the legality,
validity, binding effect or enforceability of any of the Loan Documents.
5.4. FINANCIAL STATEMENTS. The March 31, 2000 and June 30, 2000
consolidated financial statements of the Borrower and its Subsidiaries
heretofore delivered to the Lenders were prepared in accordance with
generally accepted accounting principles in effect on the date such
statements were prepared and fairly present the consolidated financial
condition and operations of the Borrower and its Subsidiaries at such
date and the consolidated results of their operations for the period
then ended.
5.5. MATERIAL ADVERSE CHANGE. Since June 30, 2000 there has been
no change in the business, Property, prospects, condition (financial or
otherwise) or results of operations of the Borrower and its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect.
5.6. TAXES. The Borrower and its Subsidiaries have filed all
United States federal tax returns and all other tax returns which are
required to be filed and have paid all taxes due pursuant to said
returns or pursuant to any assessment received by the Borrower or any of
its Subsidiaries, except such taxes, if any, as are being contested in
good faith and as to which adequate reserves have been provided in
accordance with Agreement Accounting Principles and as to which no Lien
exists. The United States income tax returns of the Borrower and its
Subsidiaries have been audited (or are no longer subject to audit) by
the Internal Revenue Service through the fiscal year ended
______________, ____. No tax liens have been filed and no claims are
being asserted with respect to any such taxes. The charges, accruals
and reserves on the books of the Borrower and its Subsidiaries in
respect of any taxes or other governmental charges are adequate.
5.7. LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending
or, to the knowledge of any of their officers, threatened against or
affecting the Borrower or any of its Subsidiaries which could reasonably
be expected to have a Material Adverse Effect or which seeks to prevent,
enjoin or delay the making of any Loans. Other than any liability
incident to any litigation, arbitration or proceeding which could not
reasonably be expected to have a Material Adverse Effect, the Borrower
has no material contingent obligations not provided for or disclosed in
the financial statements referred to in Section 5.4.
5.8. SUBSIDIARIES. Schedule 3 contains an accurate list of all
Subsidiaries of the Borrower as of the Closing Date, setting forth their
respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the
Borrower or other Subsidiaries. All of the issued and outstanding
shares of capital stock or other ownership interests of such
Subsidiaries have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are
fully paid and non-assessable.
5.9. ERISA. Each Plan complies in all material respects with all
applicable requirements of law and regulations, no Reportable Event has
occurred with respect to any Plan, and the Borrower has not withdrawn
from any Plan or initiated steps to do so, and no steps have been taken
to reorganize or terminate any Plan.
5.10. ACCURACY OF INFORMATION. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Agent or to
any Lender in connection with the negotiation of, or compliance with,
the Loan Documents contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to make the
statements contained therein not misleading.
5.11. REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower
and its Subsidiaries which are subject to any limitation on sale,
pledge, or other restriction hereunder.
5.12. MATERIAL AGREEMENTS. Neither the Borrower nor any of its
Subsidiaries is a party to any agreement or instrument or subject to any
charter or other corporate restriction which could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor
any of its Subsidiaries is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained
in (i) any agreement to which it is a party, which default could
reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
5.13. COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries have
complied with all laws, rules, regulations, orders and restrictions of
any domestic or foreign government or any instrumentality or agency
thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property, including,
without limitation, Regulation U, T and X of the Board of Governors of
the Federal Reserve System, and all Environmental Laws, except for any
failure to comply with any of the foregoing which could not reasonably
be expected to have a Material Adverse Effect.
5.14. OWNERSHIP OF PROPERTIES. On the date of this Agreement, the
Borrower and its Subsidiaries will have good title, free of all Liens
other than Permitted Liens, to all of the Property and assets reflected
in the Borrower's most recent consolidated financial statements provided
to the Agent as owned by the Borrower and its Subsidiaries.
5.15. PLAN ASSETS; PROHIBITED TRANSACTIONS. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R.
<section> 2510.3-101 of an employee benefit plan (as defined in Section
3(3) of ERISA) which is subject to Title I of ERISA or any plan (within
the meaning of Section 4975 of the Code), and neither the execution of
this Agreement nor the making of Loans hereunder gives rise to a
prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Code.
5.16. ENVIRONMENTAL MATTERS. In the ordinary course of its
business, the officers of the Borrower consider the effect of
Environmental Laws on the business of the Borrower and its Subsidiaries,
in the course of which they identify and evaluate potential risks and
liabilities accruing to the Borrower due to Environmental Laws. On the
basis of this consideration, the Borrower has concluded that there is no
non-compliance with the Environmental Laws that could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor
any of its Subsidiaries has received any notice to the effect that its
operations are not in material compliance with any of the requirements
of applicable Environmental Laws or are the subject of any federal or
state investigation evaluating whether any remedial action is needed to
respond to a release of any toxic or hazardous waste or substance into
the environment, which non-compliance or remedial action could
reasonably be expected to have a Material Adverse Effect.
5.17. INVESTMENT COMPANY ACT. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act
of 1940, as amended.
5.18. PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor
any of its Subsidiaries is a "holding company" or a "subsidiary company"
of a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
5.19. SOLVENCY. (i) Immediately after the consummation of the
transactions to occur on the date hereof and immediately following the
making of each Loan, if any, made on the date hereof and after giving
effect to the application of the proceeds of such Loans, (a) the fair
value of the assets of the Borrower and its Subsidiaries on a
consolidated basis, at a fair valuation, will exceed the debts and
liabilities, subordinated, contingent or otherwise, of the Borrower and
its Subsidiaries on a consolidated basis; (b) the present fair saleable
value of the Property of the Borrower and its Subsidiaries on a
consolidated basis will be greater than the amount that will be required
to pay the probable liability of the Borrower and its Subsidiaries on a
consolidated basis on their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become
absolute and matured; (c) the Borrower and its Subsidiaries on a
consolidated basis will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured; and (d) the Borrower and its Subsidiaries
on a consolidated basis will not have unreasonably small capital with
which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the
date hereof. The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its Subsidiaries
will, incur debts beyond its ability to pay such debts as they mature,
taking into account the timing of and amounts of cash to be received by
it or any such Subsidiary and the timing of the amounts of cash to be
payable on or in respect of its Indebtedness or the Indebtedness of any
such Subsidiary.
5.20 REGULATION O. To the best of the Borrower's knowledge, (i) no
Person is a director or executive officer of the Borrower or any of its
Subsidiaries, owning more than 10% of any class of voting securities of
the Borrower, and (ii) no Person owning more than 10% of any class of
voting securities of the Borrower and is the largest shareholder of that
class of securities of the Borrower, is a director, executive officer or
principal shareholder of any Lender or any Affiliate of any Lender.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders
shall otherwise consent in writing:
6.1. FINANCIAL REPORTING. The Borrower will maintain, for itself
and for each Subsidiary, a system of accounting established and
administered in accordance with Agreement Accounting Principles, and
furnish to the Lenders:
(i) Within 90 days after the end of each of Borrower's fiscal
years (ending December 31), an unqualified audit report
certified by independent certified public accountants
acceptable to the Lenders, prepared in accordance with
Agreement Accounting Principles on a consolidated and
consolidating basis (consolidating statements need not be
certified by such accountants) for Borrower and its
Subsidiaries, including balance sheets as of the end of such
period, related profit and loss statement, statement of
changes in shareholders equity and statement of cash flows,
accompanied by a certificate of said accountants that, in the
course of their examination necessary for their certification
of the foregoing, they have obtained no knowledge of any
Default or Unmatured Default, or if, in the opinion of such
accountants, any Default or Unmatured Default shall exist,
stating the nature and status thereof.
(ii) Within 45 days after the end of each calendar month,
consolidated and consolidating unaudited balance sheets as at
the end of such month and consolidated and consolidating
profit and loss statements, for the period from the beginning
of such fiscal year to the end of such month, all certified by
its chief financial officer.
(iii) Together with the financial statements required under Sections
6.1(i) and (ii) (but only quarterly), a Compliance
Certificate.
(iv)Within 20 days after the end of each calendar month (or
within 5 days after any request by the Agent), a Borrowing
Base Certificate with respect to the Borrower and its
Subsidiaries, accompanied by such supporting detail and
documentation as shall be requested by the Agent.
(v)Within 20 days after the end of each calendar month, a report
of the work in progress inventory of the Borrower and each
Subsidiary as of the end of such month, in form and substance
satisfactory to the Agent.
(vi) Within 20 days after the end of each calendar month, an
accounts receivable aging report for the Borrower and each of
its Subsidiaries as of the end of such month, in form and
substance satisfactory to the Agent (including notations
indicating which accounts receivable are supported by letters
of credit issued or confirmed by banks located in the United
States).
(vii)Within 45 days of the end of each calendar month, a report of
the backlog/jobs in progress of the Borrower and each
Subsidiary as of the end of such month, in form and substance
satisfactory to the Agent.
(viii)Within 45 days after the end of each calendar month, an
accounts payable report for the Borrower and each of its
Subsidiaries as of the end of such month, in form and
substance satisfactory to the Agent.
(ix)As soon as available, but in any event within 30 days after
the beginning of each of Borrower's fiscal year, a copy of the
plan and forecast (including a projected consolidated and
consolidating balance sheet, income statement and funds flow
statement) of the Borrower and its Subsidiaries for each
fiscal quarter of such fiscal year and for such fiscal year as
a whole.
(x) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with
respect to any Plan, a statement signed by the chief financial
officer of the Borrower, describing said Reportable Event and
the action which the Borrower proposes to take with respect
thereto.
(xi)As soon as possible and in any event within 10 days after
receipt by the Borrower, a copy of (a) any notice or claim to
the effect that the Borrower or any of its Subsidiaries is or
may be liable to any Person as a result of the release by the
Borrower, any of its Subsidiaries, or any other Person of any
toxic or hazardous waste or substance into the environment,
and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries, which,
in either case, could reasonably be expected to have a
Material Adverse Effect.
(xii) Promptly upon the furnishing thereof to the shareholders of
the Borrower, copies of all financial statements, reports and
proxy statements so furnished.
(xiii) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or
other regular reports which the Borrower or any of its
Subsidiaries files with the Securities and Exchange
Commission.
(xiv) Such other information (including non-financial information)
as the Agent or any Lender may from time to time reasonably
request.
6.2. USE OF PROCEEDS. The Borrower will, and will cause each
Subsidiary to use the proceeds of the Revolving Loan for one or more of
the following: (i) to refinance existing indebtedness of the Borrower
and its Subsidiaries existing on the Closing Date, (ii) for Capital
Expenditures and acquisitions of shares or assets of other Persons
permitted by this Agreement and incurred after November 30, 1999, up to
the aggregate amount of $5,000,000, and (iii) for general corporate
purposes. The Borrower will not, nor will it permit any of its
Subsidiaries to, use any of the proceeds of the Advances to purchase or
carry any "margin stock" (as defined in Regulation U).
6.3. NOTICE OF DEFAULT. The Borrower will (a) give prompt notice
in writing to the Lenders of the occurrence of any Default or Unmatured
Default and of any other development, financial or otherwise which could
reasonably be expected to have a Material Adverse Effect, and (b)
promptly advise by written notice to the Agent of any material
inaccuracy in any representation or warranty set forth in Article V
which occurs due to events or circumstances arising after the Closing
Date (whether or not the subject of such inaccuracy could reasonably be
expected to cause or give rise to a Material Adverse Effect).
6.4. CONDUCT OF BUSINESS. The Borrower will, and will cause each
of its Subsidiaries to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of
enterprise as it is presently conducted and do all things necessary to
remain duly incorporated or organized, validly existing and (to the
extent such concept applies to such entity) in good standing as a
domestic corporation, partnership or limited liability company in its
jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
6.5. TAXES. The Borrower will, and will cause each of its
Subsidiaries to, timely file complete and correct United States federal
and applicable foreign, state and local tax returns required by law and
pay when due all taxes, assessments and governmental charges and levies
upon it or its income, profits or Property, except those which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves have been set aside in accordance with Agreement
Accounting Principles.
6.6. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurance
companies insurance on all their Property in such amounts and covering
such risks as is consistent with sound business practice, or as
otherwise provided in the Collateral Documents, and the Borrower will
furnish to any Lender upon request full information as to the insurance
carried.
6.7. COMPLIANCE WITH LAWS; ENVIRONMENTAL MATTERS. (a) The
Borrower will, and will cause each of its Subsidiaries to, comply with
all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it or its Property may be subject including,
without limitation, Regulations U, T, and X of the Board of Governors of
the Federal Reserve System, and also including, without limitation,
ERISA and Environmental Laws.
(b) The Borrower will, and will cause each of its Subsidiaries to,
and will use its best efforts to cause each of their agents, contractors
and sub-contractors (while such Persons are acting within the scope of
their contractual relationship with the Borrower or the Subsidiaries) to
comply in all material respects with all applicable Environmental Laws,
and to prevent the unauthorized release, discharge, disposal, escape or
spill of hazardous substances on or about the properties owned or
operated by the Borrower or the Subsidiaries.
(c) Attached as Schedule 5 hereto is the Borrower's response to
findings ("Response") of the environmental engineer who prepared the
Phase I environmental study on the land owned by the Borrower at the
Port of Iberia. The Borrower will, and will cause any applicable
subsidiary to, complete all of the items listed under the column
"Solution" on the Responses within the time periods listed under the
column "Timing" on the Responses.
6.8. MAINTENANCE OF PROPERTIES. The Borrower will, and will cause
each of its Subsidiaries to, do all things necessary to maintain,
preserve, protect and keep its Property in good repair, working order
and condition, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may
be properly conducted at all times.
6.9. INSPECTION. The Borrower will, and will cause each of its
Subsidiaries to, permit the Agent and the Lenders, by their respective
representatives and agents, to inspect any of the Property, books and
financial records of the Borrower and each of its Subsidiaries, to
examine and make copies of the books of accounts and other financial
records of the Borrower and each of its Subsidiaries, and to discuss the
affairs, finances and accounts of the Borrower and each of its
Subsidiaries with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals, subject to prior
reasonable notice and during business hours, as the Agent or any Lender
may designate.
6.10. DIVIDENDS. The Borrower will not, nor will it permit any of
its Subsidiaries to, declare or pay any dividends or make any
distributions on its capital stock (other than dividends payable in its
own capital stock) or redeem, repurchase or otherwise acquire or retire
any of its capital stock at any time outstanding, except that any
Subsidiary may declare and pay dividends or make distributions to the
Borrower or to a Wholly-Owned Subsidiary.
6.11. INDEBTEDNESS. The Borrower will not, nor will it permit any
of its Subsidiaries to, create, incur or suffer to exist any
Indebtedness, except:
(i) The Loans.
(ii) Indebtedness arising under Rate Management Transactions
related to the Loans.
(iii)Trade credit or other contractual obligations to acquire goods,
supplies, and services, including, without limitation,
obligations incurred to employees for compensation for
services rendered in the ordinary course of business, or
merchandise on terms similar to those granted to purchasers in
similar lines of business as Borrower as of the date hereof
and incurred in the ordinary course of business.
(iv)Rental payments on Operating Leases.
(v)Deferred taxes.
(vi)Unfunded pension fund and other employee benefit plan obligations
and liabilities, but only to the extent they are permitted to
remain unfunded under applicable law.
(vii) Indebtedness to secure the unpaid purchase price of
equipment used in the operations of the Borrower and its
Subsidiaries up to the aggregate amount of $500,000 at
any one time.
(viii)Endorsements for collection, deposits or negotiation and
warranties or products or services, in each case incurred in
the ordinary course of business.
(ix) Indebtedness in respect of performance, surety or appeal bonds
obtained in the ordinary course of Borrower's or any
Subsidiary' business.
(x) Indebtedness from the Borrower in favor of one or more of its
Subsidiaries or from one or more of its Subsidiaries in favor
of the Borrower.
6.12. MERGER. The Borrower will not, nor will it permit any of its
Subsidiaries to, merge or consolidate with or into any other Person,
except that a Subsidiary may merge into the Borrower or a Wholly-Owned
Subsidiary, the Borrower or a Subsidiary may merge with another Person
to affect an Acquisition permitted by Section 6.14.
6.13. SALE OF ASSETS. The Borrower will not, nor will it permit
any of its Subsidiaries to, lease, sell or otherwise dispose of its
Property to any other Person, except:
(i) Sales of inventory in the ordinary course of business.
(ii)Leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other
than inventory in the ordinary course of business) as
permitted by this Section during the twelve-month period
ending with the month in which any such lease, sale or other
disposition occurs, do not constitute a Substantial Portion of
the Property of the Borrower and its Subsidiaries.
(iii)Transfers of Property among the Borrower and its Subsidiaries.
(iv) A sale of assets which are promptly replaced thereafter by
assets of a similar type and value.
(v) Obsolete or worn-out equipment sold in the ordinary course of
business.
6.14. INVESTMENTS AND ACQUISITIONS. The Borrower will not, nor
will it permit any of its Subsidiaries to, make or suffer to exist any
Investments or to make any Acquisition of any Person, except:
(i) Short-term obligations of, or fully guaranteed by, the United
States of America, commercial paper rated A-1 or better by S&P
or P-1 or better by Moody's, demand deposit accounts
maintained in the ordinary course of business, and
certificates of deposit issued by, and time deposits with,
commercial banks (whether domestic or foreign) having capital
and surplus in excess of $100,000,000 or with any Lender;
PROVIDED in each case that the same provides for payment of
both principal and interest (and not principal alone or
interest alone) and is not subject to any contingency
regarding the payment of principal or interest.
(ii) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described as follows:
(iii)Future acquisitions of substantially all of the shares or assets of
another Person in a single transaction, for a total
consideration of not more than $5,000,000 for each
transaction.
(iv)Acquisition of current assets or liabilities arising from the sale
or lease or goods, the rendition of services or the
extension of credit in the ordinary course of business of the
Borrowers and its Subsidiaries, including, without limitation,
investments in accounts, contract rights, chattel paper and
notes receivable.
(v)Advances to officers, shareholders, and employees of Borrower not
to exceed $100,000 in the aggregate at any one time.
(vi)Rate Management Obligations in favor of any Lender.
(vii)Advances or Investments by the Borrower in or to any one or more of
its Subsidiaries or by any Subsidiary in or to the Borrower or
any other Subsidiary.
6.15.LIENS. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, or suffer to exist any Lien in, of or on
the Property of the Borrower or any of its Subsidiaries, except for the
following (collectively, the "Permitted Liens"):
(i)Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent
or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings and for
which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
(ii)Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its
books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use
thereof in the business of the Borrower or its Subsidiaries.
(v)Liens in favor of the Agent, for the benefit of the Lenders,
granted pursuant to any Collateral Document.
(vi) Liens constituting purchase money security interests in
equipment securing Indebtedness permitted by Section 6.11
(vii).
(vii)Attachment, judgment and other similar, non-tax Liens in
connection with court proceedings, but only if and for so long as the
execution or other enforcement of such Liens is and continues to be
effectively stayed and bonded on appeal in a manner reasonably
satisfactory to Lenders for the full amount of such Liens, the validity
and amount of the claims secured thereby are being actively contested in
good faith and by appropriate lawful proceedings, such Liens do not, in
the aggregate, materially detract from the value of the Property of the
Borrower or any of its Subsidiaries or materially impair the use thereof
in the operation of the Borrower's or any of its Subsidiaries' business
and such Liens are and remain junior in priority to the Liens in favor
of the Lender.
6.16.YEAR 2000. [Intentionally Omitted]
6.17. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any transaction
(including, without limitation, the purchase or sale of any Property or
service) with, or make any payment or transfer to, any Affiliate except
in the ordinary course of business and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Borrower or such
Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction.
6.18 APPRAISALS. The Agent shall have the right to retain one or more
nationally recognized firms to prepare appraisals of the Assets of the
Borrower and its Subsidiaries and to conduct field audits of the
Borrower and its Subsidiaries, as of June 30 of each year, at the
Borrower's expense. The Borrower shall cooperate with the Agent and the
appraiser so as to facilitate the delivery of the appraisal within 45
days after the Agent's request therefor.
6.19 FINANCIAL COVENANTS.
6.19.1 MAXIMUM FUNDED INDEBTEDNESS TO TANGIBLE NET WORTH RATIO. The
Borrower will not permit the ratio, determined as of the end of each
fiscal quarter, of (i) Funded Indebtedness to (ii) Tangible Net Worth to
be greater than the following:
PERIOD MAXIMUM RATIO
Closing Date through December 31, 2001 1.00 to 1.00
January 1, 2002 through December 31, 2002 0.75 to 1.00
January 1, 2003 and thereafter 0.50 to 1.00
6.19.2 MAXIMUM FUNDED INDEBTEDNESS TO EBITDA RATIO. The Borrower will
not permit the ratio, determined as of the end of each fiscal quarter,
of (i) Funded Indebtedness to (ii) EBITDA for the then most-recently
ended four fiscal quarters (except as noted below), be greater than the
following:
PERIOD MAXIMUM RATIO
January 1, 2001 through March 31, 2001 4.50 to 1.00
April 1, 2001 through June 30, 2001 4.50 to 1.00
July 1, 2001 through September 30, 2001 4.00 to 1.00
October 1, 2001 through December 31, 20013.50 to 1.00
January 1, 2002 through March 31, 2002 3.25 to 1.00
April 1, 2002 through June 30, 2002 3.00 to 1.00
July 1, 2002 through September 30, 2002 2.75 to 1.00
October 1, 2002 and thereafter 2.50 to 1.00
Notwithstanding the foregoing, for the fiscal quarter ending March 31,
2001, EBITDA shall be calculated on the basis of that fiscal quarter
annualized; for the fiscal quarter ending June 30, 2001, EBITDA shall be
calculated on the basis of the two fiscal quarters ending June 30, 2001
annualized; for the fiscal quarter ending September 30, 2001, EBITDA
shall be calculated on the basis of the three fiscal quarters ending
September 30, 2001 annualized.
6.19.3 MINIMUM FIXED CHARGE COVERAGE RATIO. (a) The Borrower will not
permit the ratio, determined as of the last day of each fiscal quarter,
of (i) the sum of EBITDA PLUS Capitalized Lease Expenses, PLUS Rental
Expense, MINUS cash Income Taxes actually paid, MINUS cash dividends
actually paid, to (ii) the sum of Capitalized Lease Expenses, PLUS
Rental Expense, PLUS Interest Expense, in each case for the then most
recently ended quarter to be less than the following:
PERIOD MINIMUM RATIO
Closing Date through December 31, 2000 1.25 to 1.00
(b) The Borrower will not permit the ratio, determined as of the end of
each fiscal quarter, of (i) the sum of EBITDA PLUS Capitalized Lease
Expenses, PLUS Rental Expense, MINUS cash Income Taxes actually paid,
MINUS cash dividends actually paid, MINUS Capital Expenditures actually
incurred to maintain the then current level of operation of the Borrower
and its Subsidiaries, or $250,000 per year (whichever is greater), to
(ii) the sum of Capitalized Lease Expenses, PLUS Rental Expense, PLUS
Interest Expense, plus scheduled principal payments (excluding any
mandatory prepayments) made on Funded Indebtedness, in each case for the
then most recently ended four fiscal quarters, to be less than the
following:
PERIOD MINIMUM RATIO
January 1, 2001 and
thereafter2.00 to 1.00
Notwithstanding the foregoing, for the fiscal quarter ending March 31,
2001, the fixed charge ratio shall be calculated on the basis of that
fiscal quarter annualized; for the fiscal quarter ending June 30, 2001,
the fixed charge coverage ratio shall be calculated on the basis of the
two fiscal quarters ending June 30, 2001 annualized; for the fiscal
quarter ending September 30, 2001, the fixed charge coverage ratio shall
be calculated on the basis of the three fiscal quarters ending September
30, 2001 annualized.
6.19.4 MINIMUM CURRENT RATIO. The Borrower will not permit the ratio,
determined as of the end of each fiscal quarter, of current assets to
current liabilities to be less than 1.50 to 1.00.
6.19.5 ADJUSTMENT TO FINANCIAL COVENANTS. The Agent and the Lenders
reserve the right to modify the foregoing financial and/or additional
other financial covenants in the event that the Borrower obtains
additional equity in excess of 10% of its shareholders equity
immediately preceding the closing of such equity issuance.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1.Any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries to the Lenders or the Agent
under or in connection with this Agreement, any Loan, or any certificate
or information delivered in connection with this Agreement or any other
Loan Document shall be materially false on the date as of which made.
7.2.Nonpayment of any interest or principal on the Loan, or nonpayment
of any commitment fee or other obligations under any of the Loan
Documents, or nonpayment of any Rate Management Obligations to any
Lender, or nonpayment of any reimbursement obligations to a Lender under
any Letter of Credit, in each case within five days after the same
becomes due.
7.3.The breach by the Borrower of any of the terms or provisions of
Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.17, 6.18 and 6.19.
7.4.The breach by the Borrower (other than a breach which constitutes a
Default under another Section of this Article VII) of any of the terms
or provisions of this Agreement or any other Loan Document which is not
remedied within 30 days after written notice from the Agent or any
Lender.
7.5.Failure of the Borrower or any of its Subsidiaries to pay when due
any Indebtedness to any Person other than the Lenders aggregating in
excess of $500,000 ("Material Indebtedness"); or the default by the
Borrower or any of its Subsidiaries in the performance (beyond the
applicable grace period with respect thereto, if any) of any term,
provision or condition contained in any agreement under which any such
Material Indebtedness was created or is governed, or any other event
shall occur or condition exist, the effect of which default or event is
to cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due prior to
its stated maturity; or any Material Indebtedness of the Borrower or any
of its Subsidiaries shall be declared to be due and payable or required
to be prepaid or repurchased (other than by a regularly scheduled
payment) prior to the stated maturity thereof; or the Borrower or any of
its Subsidiaries shall not pay, or admit in writing its inability to
pay, its debts generally as they become due.
7.6.The Borrower or any of its Subsidiaries shall (i) have an order for
relief entered with respect to it under the Federal bankruptcy laws as
now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any Substantial Portion of its Property, (iv)
institute any proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (v) take any corporate or partnership action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or
(vi) fail to contest in good faith any appointment or proceeding
described in Section 7.7.
7.7.Without the application, approval or consent of the Borrower or any
of its Subsidiaries, a receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower or any of its
Subsidiaries or any Substantial Portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the Borrower or
any of its Subsidiaries and such appointment continues undischarged or
such proceeding continues undismissed or unstayed for a period of 30
consecutive days.
7.8.Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of, all or any
portion of the Property of the Borrower and its Subsidiaries which, when
taken together with all other Property of the Borrower and its
Subsidiaries so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in
which any such action occurs, constitutes a Substantial Portion.
7.9.The Borrower or any of its Subsidiaries shall fail within 60 days
to pay, bond or otherwise discharge one or more (i) judgments or orders
for the payment of money in excess of $100,000 (or the equivalent
thereof in currencies other than U.S. Dollars) in the aggregate, or (ii)
nonmonetary judgments or orders which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect, which
judgment(s), in any such case, is/are not stayed on appeal or otherwise
being appropriately contested in good faith.
7.10. Any Change in Control shall occur.
7.11. Any Collateral Document shall for any reason fail to create a
valid and perfected first priority security interest in any Substantial
Portion of the collateral purported to be covered thereby, except as
permitted by the terms of any Collateral Document, or any Collateral
Document shall fail to remain in full force or effect or any action
shall be taken to discontinue or to assert the invalidity or
unenforceability of any Collateral Document, or the Borrower shall fail
to comply with any of the terms or provisions of any Collateral
Document.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1.ACCELERATION. If any Default described in Section 7.6 or 7.7 occurs
with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the
part of the Agent or any Lender. If any other Default occurs, the
Required Lenders (or the Agent with the consent of the Required Lenders)
may terminate or suspend the obligations of the Lenders to make Loans
hereunder, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which
the Borrower hereby expressly waives.
If, within 30 days after acceleration of the maturity of the Obligations
or termination of the obligations of the Lenders to make Loans hereunder
as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Borrower) and before any judgment
or decree for the payment of the Obligations due shall have been
obtained or entered, the Required Lenders (in their sole discretion)
shall so direct, the Agent shall, by notice to the Borrower, rescind and
annul such acceleration and/or termination.
8.2.AMENDMENTS. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the
Required Lenders) and the Borrower may enter into agreements
supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights of
the Lenders or the Borrower hereunder or waiving any Default hereunder;
PROVIDED, HOWEVER, that no such supplemental agreement shall, without
the consent of each Lender affected thereby:
(i) Extend the maturity of Loan, or extend or postpone any payment
of principal and/or interest due under any Loan, or forgive
all or any portion of the principal amount of any Loan, or
reduce the rate or extend the time of payment of interest or
fees thereon, or forebear in the collection of any Loan, or
grant a payment moratorium on any Loan; or amend the
definitions of "Alternate Base Rate," "Applicable Margin",
"Eurodollar Base Rate", "Eurodollar Interest Period," or
"Eurodollar Rate" or amend the Pricing Schedule.
(ii) Reduce the percentage specified in the definition of Required
Lenders or any other percentage of Lenders specified to be the
applicable percentage in this Agreement to act on specified
matters, or amend the definitions of "Required Lenders" or
"Pro Rata Share".
(iii) Extend the Revolving Loan Termination Date, or increase or
reduce the amount of the Aggregate Revolving Loan Commitment
or of the Revolving Loan Commitment of any Lender hereunder,
or permit the Borrower to assign its rights under this
Agreement.
(iv) Amend this Section 8.2.
(v) Except as provided in the Collateral Documents, release all or
any Substantial Portion of the Collateral (including any
guarantor of the Secured Obligations); provided, however, that
the Agent may release any Collateral in order to give effect
to, or otherwise in connection with, any asset sale, lease or
other disposition, or secured financing or other financing
transaction permitted by this Agreement, in which case the
Lenders authorize the Agent to execute and deliver any and all
related release documents without the further consent of any
Lender.
(vi)Waive any Default if the practical effect of such waiver allows the
Agent and/or Required Lenders to effectuate any of the items
or matters listed in clauses (i) through (v) of this Section
8.2 (except that any waiver or amendments of the financial
covenants set forth in Section 6.19 shall require the consent
of the Required Lenders).
No amendment of any provision of this Agreement relating to the Agent
shall be effective without the written consent of the Agent. The Agent
may waive payment of the fee required under Section 12.3.2 without
obtaining the consent of any other party to this Agreement.
8.3.PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a
Default or the inability of the Borrower to satisfy the conditions
precedent to such Loan shall not constitute any waiver or acquiescence.
Any single or partial exercise of any such right shall not preclude
other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in
writing signed by the Lenders required pursuant to Section 8.2, and then
only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative
and all shall be available to the Agent and the Lenders until the
Secured Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1.SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Borrower contained in this Agreement shall survive the making of the
Loans herein contemplated.
9.2.GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend
credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
9.3.HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation
of any of the provisions of the Loan Documents.
9.4.ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agent and the Lenders and
supersede all prior agreements and understandings among the Borrower,
the Agent and the Lenders relating to the subject matter thereof other
than the fee letter described in Section 10.13.
9.5.SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the extent
to which the Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder. This Agreement
shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement and their respective
successors and assigns, PROVIDED, HOWEVER, that the parties hereto
expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically
set forth therein and shall have the right to enforce such provisions on
its own behalf and in its own name to the same extent as if it were a
party to this Agreement.
9.6.EXPENSES; INDEMNIFICATION. (i) The Borrower shall reimburse the
Agent and the Arranger for any costs, internal charges and out-of-pocket
expenses (including attorneys' fees and time charges of attorneys for
the Agent, which attorneys may be employees of the Agent) paid or
incurred by the Agent or the Arranger in connection with the
preparation, negotiation, execution, delivery, syndication, review,
amendment, modification, and administration of the Loan Documents. The
Borrower also agrees to reimburse the Agent, the Arranger and the
Lenders for any costs, internal charges and out-of-pocket expenses
(including attorneys' fees and time charges of attorneys for the Agent,
the Arranger and the Lenders, which attorneys may be employees of the
Agent, the Arranger or the Lenders) paid or incurred by the Agent, the
Arranger or any Lender in connection with the collection and enforcement
of the Loan Documents. Expenses being reimbursed by the Borrower under
this Section include, without limitation, the cost and expense of
obtaining an appraisal of each parcel of real property or interest in
real property described in the relevant Collateral Documents, which
appraisal shall be in conformity with the applicable requirements of any
law or any governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law), or any interpretation thereof,
including, without limitation, the provisions of Title XI of the
Financial Institutions Reform, Recovery and Enforcement Act of 1989, as
amended, reformed or otherwise modified from time to time, and any rules
promulgated to implement such provisions, and costs and expenses
incurred in connection with the Reports described in the following
sentence. The Borrower acknowledges that from time to time the Agent
may prepare and may distribute to the Lenders (but shall have no
obligation or duty to prepare or to distribute to the Lenders) certain
audit reports (the "Reports") pertaining to the Borrower's assets for
internal use by the Agent from information furnished to it by or on
behalf of the Borrower, after the Agent has exercised its rights of
inspection pursuant to this Agreement.
(ii) The Borrower hereby further agrees to indemnify the Agent, the
Arranger, each Lender, their respective affiliates, and each of their
directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether
or not the Agent, the Arranger, any Lender or any affiliate is a party
thereto) which any of them may pay or incur arising out of or relating
to this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Loan hereunder except to the extent
that they are determined in a final non-appealable judgment by a court
of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the party seeking indemnification. The
obligations of the Borrower under this Section 9.6 shall survive the
termination of this Agreement.
9.7.NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
9.8.ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement
Accounting Principles.
9.9.SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction
or the operation, enforceability, or validity of that provision in any
other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
9.10.NONLIABILITY OF LENDERS. The relationship between the Borrower on
the one hand and the Lenders and the Agent on the other hand shall be
solely that of borrower and lender. Neither the Agent, the Arranger nor
any Lender shall have any fiduciary responsibilities to the Borrower.
Neither the Agent, the Arranger nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of any
matter in connection with any phase of the Borrower's business or
operations. The Borrower agrees that neither the Agent, the Arranger
nor any Lender shall have liability to the Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by the Borrower in
connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by
a court of competent jurisdiction that such losses resulted from the
gross negligence or willful misconduct of the party from which recovery
is sought. Neither the Agent, the Arranger nor any Lender shall have
any liability with respect to, and the Borrower hereby waives, releases
and agrees not to sue for, any special, indirect or consequential
damages suffered by the Borrower in connection with, arising out of, or
in any way related to the Loan Documents or the transactions
contemplated thereby.
9.11.CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this
Agreement in confidence, except for disclosure (i) to its Affiliates and
to other Lenders and their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or to a
Transferee, (iii) to regulatory officials, (iv) to any Person as
requested pursuant to or as required by law, regulation, or legal
process, (v) to any Person in connection with any legal proceeding to
which such Lender is a party, (vi) to such Lender's direct or indirect
contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, and
(vii) permitted by Section 12.4.
9.12.NONRELIANCE. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System) for the repayment of
the Loans provided for herein.
9.13.DISCLOSURE The Borrower and each Lender hereby (i) acknowledge and
agree that the Agent and/or its Affiliates from time to time may hold
investments in, make other loans to or have other relationships with the
Borrower and its Affiliates, and (ii) waive any liability of the Agent
or such Affiliate of the Agent to the Borrower or any Lender,
respectively, arising out of or resulting from such investments, loans
or relationships other than liabilities arising out of the gross
negligence or willful misconduct of the Agent or its Affiliates.
ARTICLE X
THE AGENT
10.1.APPOINTMENT; NATURE OF RELATIONSHIP. Bank One, Louisiana, National
Association is hereby appointed by each of the Lenders as its
contractual representative (herein referred to as the "Agent") hereunder
and under each other Loan Document, and each of the Lenders irrevocably
authorizes the Agent to act as the contractual representative of such
Lender with the rights and duties expressly set forth herein and in the
other Loan Documents. The Agent agrees to act as such contractual
representative upon the express conditions contained in this Article X.
Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other
Loan Document and that the Agent is merely acting as the contractual
representative of the Lenders with only those duties as are expressly
set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does
not hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105 of
the Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents.
Each of the Lenders hereby agrees to assert no claim against the Agent
on any agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Lender hereby waives.
10.2.POWERS. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the
terms of each thereof, together with such powers as are reasonably
incidental thereto; PROVIDED, HOWEVER in the event of a conflict between
the terms and provisions of any Loan Document (other than this
Agreement) and this Agreement, the terms and conditions of this
Agreement shall control. The Agent shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action thereunder
except any action specifically provided by the Loan Documents, subject
to any limitation contained in this Agreement, to be taken by the Agent.
10.3.GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it
or them hereunder or under any other Loan Document or in connection
herewith or therewith except to the extent such action or inaction is
determined in a final non-appealable judgment by a court of competent
jurisdiction to have arisen from the gross negligence or willful
misconduct of such Person.
10.4.NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into, or verify (a) any
statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or observance
of any of the covenants or agreements of any obligor under any Loan
Document, including, without limitation, any agreement by an obligor to
furnish information directly to each Lender; (c) the satisfaction of any
condition specified in Article IV, except receipt of items required to
be delivered solely to the Agent; (d) the existence or possible
existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in connection
therewith; (f) the value, sufficiency, creation, perfection or priority
of any Lien in any collateral security; or (g) the financial condition
of the Borrower or any guarantor of any of the Obligations or of any of
the Borrower's or any such guarantor's respective Subsidiaries. The
Agent shall have no duty to disclose to the Lenders information that is
not required to be furnished by the Borrower to the Agent at such time,
but is voluntarily furnished by the Borrower to the Agent (either in its
capacity as Agent or in its individual capacity).
10.5.ACTION ON INSTRUCTIONS OF LENDERS. Except as may otherwise be
provided in Section 8.2, the Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder and under any other
Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure
to act pursuant thereto shall be binding on all of the Lenders. The
Lenders hereby acknowledge that the Agent shall be under no duty to take
any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement or any other Loan Document unless it shall
be requested in writing to do so by the Required Lenders. The Agent
shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6.EMPLOYMENT OF AGENTS AND COUNSEL. Except as may otherwise be
provided in Section 8.2, the Agent may execute any of its duties as
Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its
authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent shall
be entitled to advice of counsel concerning the contractual arrangement
between the Agent and the Lenders and all matters pertaining to the
Agent's duties hereunder and under any other Loan Document.
10.7.RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons,
and, in respect to legal matters, upon the opinion of counsel selected
by the Agent, which counsel may be employees of the Agent.
10.8.AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their
respective Pro Rata Shares (i) for any amounts not reimbursed by the
Borrower for which the Agent is entitled to reimbursement by the
Borrower under the Loan Documents, (ii) for any other expenses incurred
by the Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the
Loan Documents (including, without limitation, for any expenses incurred
by the Agent in connection with any dispute between the Agent and any
Lender or between two or more of the Lenders) and (iii) for any
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for
any such amounts incurred by or asserted against the Agent in connection
with any dispute between the Agent and any Lender or between two or more
of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, PROVIDED that (a) no Lender
shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Agent and (b) any indemnification required
pursuant to Section 3.5(vii) shall, notwithstanding the provisions of
this Section 10.8, be paid by the relevant Lender in accordance with the
provisions thereof. The obligations of the Lenders under this Section
10.8 shall survive payment of the Obligations and termination of this
Agreement.
10.9.NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or
the Borrower referring to this Agreement describing such Default or
Unmatured Default and stating that such notice is a "notice of default".
In the event that the Agent receives such a notice, the Agent shall give
prompt notice thereof to the Lenders.
10.10.RIGHTS AS A LENDER. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Term Loan Commitment, its Revolving Loan
Commitment and its Loans as any Lender and may exercise the same as
though it were not the Agent, and the term "Lender" or "Lenders" shall,
at any time when the Agent is a Lender, unless the context otherwise
indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan
Document, with the Borrower or any of its Subsidiaries in which the
Borrower or such Subsidiary is not restricted hereby from engaging with
any other Person.
10.11.LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any
other Lender and based on the financial statements prepared by the
Borrower and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into
this Agreement and the other Loan Documents. Each Lender also
acknowledges that it will, independently and without reliance upon the
Agent, the Arranger 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 other Loan Documents.
10.12.SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation
to be effective upon the appointment of a successor Agent or, if no
successor Agent has been appointed, forty-five days after the retiring
Agent gives notice of its intention to resign. The Agent may be removed
at any time with or without cause by written notice received by the
Agent from the Required Lenders, such removal to be effective on the
date specified by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint, on behalf
of the Borrower and the Lenders, a successor Agent. If no successor
Agent shall have been so appointed by the Required Lenders within thirty
days after the resigning Agent's giving notice of its intention to
resign, then the resigning Agent may appoint, on behalf of the Borrower
and the Lenders, a successor Agent. Notwithstanding the previous
sentence, the Agent may at any time without the consent of the Borrower
or any Lender, appoint any of its Affiliates which is a commercial bank
as a successor Agent hereunder. If the Agent has resigned or been
removed and no successor Agent has been appointed, the Lenders may
perform all the duties of the Agent hereunder and the Borrower shall
make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No
successor Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such successor Agent
shall be a commercial bank having capital and retained earnings of at
least $100,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the resigning or removed Agent. Upon the effectiveness of the
resignation or removal of the Agent, the resigning or removed Agent
shall be discharged from its duties and obligations hereunder and under
the Loan Documents. After the effectiveness of the resignation or
removal of an Agent, the provisions of this Article X shall continue in
effect for the benefit of such Agent in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent hereunder and
under the other Loan Documents.
10.13.AGENT'S FEE. The Borrower agrees to pay to the Agent and the
Arranger, for their own accounts, the fees agreed to by the Borrower,
the Agent and the Arranger pursuant to that certain letter agreement
dated October 6, 1999, or as otherwise agreed from time to time.
10.14.DELEGATION TO AFFILIATES. The Borrower and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of
its Affiliates. Any such Affiliate (and such Affiliate's directors,
officers, agents and employees) which performs duties in connection with
this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the
Agent is entitled under Articles IX and X.
10.15.EXECUTION OF COLLATERAL DOCUMENTS. The Lenders hereby empower and
authorize the Agent to execute and deliver to the Borrower on their
behalf the Collateral Documents and all related financing statements and
any financing statements, agreements, documents or instruments as shall
be necessary or appropriate to effect the purposes of the Collateral
Documents.
10.16.COLLATERAL RELEASES. The Lenders hereby empower and authorize the
Agent to execute and deliver to the Borrower on their behalf any
agreements, documents or instruments as shall be necessary or
appropriate to effect any releases of Collateral which shall be
permitted by the terms hereof or of any other Loan Document or which
shall otherwise have been approved by the Required Lenders (or, if
required by the terms of Section 8.2, all of the Lenders) in writing.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1.SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent,
however evidenced, or any Default occurs, any and all deposits
(including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at any
time held or owing by any Lender or any Affiliate of any Lender to or
for the credit or account of the Borrower may be offset and applied
toward the payment of the Obligations owing to such Lender, whether or
not the Obligations, or any part hereof, shall then be due.
11.2.RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received
pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon
demand, to purchase a portion of the Loans held by the other Lenders so
that after such purchase each Lender will hold its ratable proportion of
Loans. If any Lender, whether in connection with setoff or amounts
which might be subject to setoff or otherwise, receives collateral or
other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take
such action necessary such that all Lenders share in the benefits of
such collateral ratably in proportion to their Loans. In case any such
payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
If an amount to be setoff is to be applied to permitted Indebtedness of
the Borrower to a Lender other than Obligations under this Agreement,
such amount shall be applied ratably to such other Indebtedness and to
the Obligations.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1.SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower
and the Lenders and their respective successors and assigns, except that
(i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents and (ii) any assignment by any
Lender must be made in compliance with Section 12.3. The parties to
this Agreement acknowledge that clause (ii) of this Section 12.1 relates
only to absolute assignments and does not prohibit assignments creating
security interests, including, without limitation, any pledge or
assignment by any Lender of all or any portion of its rights under this
Agreement and any Note to a Federal Reserve Bank; PROVIDED, HOWEVER,
that no such pledge or assignment creating a security interest shall
release the transferor Lender from its obligations hereunder unless and
until the parties thereto have complied with the provisions of Section
12.3. The Agent may treat the Person which made any Loan or which holds
any Note as the owner thereof for all purposes hereof unless and until
such Person complies with Section 12.3; PROVIDED, HOWEVER, that the
Agent may in its discretion (but shall not be required to) follow
instructions from the Person which made any Loan or which holds any Note
to direct payments relating to such Loan or Note to another Person. Any
assignee of the rights to any Loan or any Note agrees by acceptance of
such assignment to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the
time of making such request or giving such authority or consent is the
owner of the rights to any Loan (whether or not a Note has been issued
in evidence thereof), shall be conclusive and binding on any subsequent
holder or assignee of the rights to such Loan.
12.2.PARTICIPATIONS
12.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities ("Participants")
participating interests in any Obligations owing to such Lender, any
Note held by such Lender, any Revolving Loan Commitment of such Lender
or any other interest of such Lender under the Loan Documents, or any
Letter of Credit issued by said Lender. In the event of any such sale
by a Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the owner of
its Loans and the holder of any Note issued to it in evidence thereof
for all purposes under the Loan Documents, all amounts payable by the
Borrower under this Agreement shall be determined as if such Lender had
not sold such participating interests, and the Borrower and the Agent
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2. VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees payable
with respect to any such Loan or Commitment, extends the Revolving Loan
Termination Date, postpones any date fixed for any regularly-scheduled
payment of principal of, or interest or fees on, any such Loan or
Revolving Loan Commitment, releases any guarantor of any such Loan or
releases all or a Substantial Portion all of the collateral, if any,
securing any such Loan.
12.2.3. BENEFIT OF SETOFF. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, PROVIDED that each Lender shall retain the right of
setoff provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as if
each Participant were a Lender.
12.3. ASSIGNMENTS
12.3.1. PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all or
any part of its rights and obligations under the Loan Documents. Such
assignment shall be substantially in the form of EXHIBIT B or in such
other form as may be agreed to by the parties thereto. The consent of
the Borrower and the Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender or
an Affiliate thereof; PROVIDED, HOWEVER, that if a Default has occurred
and is continuing, the consent of the Borrower shall not be required.
Any required consent of the Borrower shall not be unreasonably withheld
or delayed. Each such assignment with respect to a Purchaser which is
not a Lender or an Affiliate thereof shall (unless each of the Borrower
and the Agent otherwise consents) be in an amount not less than the
lesser of (i) $5,000,000 or (ii) the remaining amount of the assigning
Lender's Commitment (calculated as at the date of such assignment) or
outstanding Loans (if the applicable Commitment has been terminated).
Furthermore, the assigning Lender shall pay the Agent an assignment fee
of $3,500 for each assignment.
12.3.2. EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent of
an assignment, together with any consents required by Section 12.3.1,
and (ii) payment of a $3,500 fee to the Agent for processing such
assignment (unless such fee is waived by the Agent), such assignment
shall become effective on the effective date specified in such
assignment. The assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the
purchase of the Revolving Loan Commitment and Loans under the applicable
assignment agreement constitutes "plan assets" as defined under ERISA
and that the rights and interests of the Purchaser in and under the Loan
Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes
be a Lender party to this Agreement and any other Loan Document executed
by or on behalf of the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as
if it were an original party hereto, and no further consent or action by
the Borrower, the Lenders or the Agent shall be required to release the
transferor Lender with respect to the percentage of the Aggregate
Revolving Loan Commitment and Loans assigned to such Purchaser. Upon
the consummation of any assignment to a Purchaser pursuant to this
Section 12.3.2, the transferor Lender, the Agent and the Borrower shall,
if the transferor Lender or the Purchaser desires that its Loans be
evidenced by Notes, make appropriate arrangements so that new Notes or,
as appropriate, replacement Notes are issued to such transferor Lender
and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their respective
Revolving Loan Commitments, as adjusted pursuant to such assignment.
12.4. DISSEMINATION OF INFORMATION. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in
such Lender's possession concerning the creditworthiness of the Borrower
and its Subsidiaries, including without limitation any information
contained in any Reports; PROVIDED that each Transferee and prospective
Transferee agrees to be bound by Section 9.11 of this Agreement.
12.5. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section
3.5(iv).
ARTICLE XIII
NOTICES
13.1. NOTICES. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices, requests and other
communications to any party hereunder shall be in writing (including
electronic transmission, facsimile transmission or similar writing) and
shall be given to such party: (x) in the case of the Borrower or the
Agent, at UNIFAB International, Inc., 500 Port Road, New Iberia, LA
70562, Facsimile (337) 373-5627 or Bank One, Louisiana, N.A., 600
Jefferson Street, Lafayette, LA 70521, Facsimile (337) 265-3248, (y) in
the case of any Lender, at its address or facsimile number set forth
below its signature hereto or (z) in the case of any party, at such
other address or facsimile number as such party may hereafter specify
for the purpose by notice to the Agent and the Borrower in accordance
with the provisions of this Section 13.1. Each such notice, request or
other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this
Section and confirmation of receipt is received, (ii) if given by mail,
72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, or (iii) if given by any
other means, when delivered (or, in the case of electronic transmission,
received) at the address specified in this Section; PROVIDED that
notices to the Agent under Article II shall not be effective until
received.
13.2. CHANGE OF ADDRESS. The Borrower, the Agent and any Lender
may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
14.1 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Agreement by
signing any such counterpart. This Agreement shall be effective when it
has been executed by the Borrower, the Agent and the Lenders and each
party has notified the Agent by facsimile transmission or telephone that
it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF LOUISIANA,
BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL
OR LOUISIANA STATE COURT SITTING IN NEW ORLEANS, LOUISIANA IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE
BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR
THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY THE BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY
AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY
LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW ORLEANS,
LOUISIANA.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT
OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
BORROWER: UNIFAB INTERNATIONAL, INC.
By: /S/ PETER J. ROMAN
-------------------------------
Name: Peter J. Roman
Title: Chief Financial Officer
AGENT: BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION, as Agent
By: /S/ ROSE M. MILLER
--------------------------------
Name: Rose M. Miller
Title: First Vice President
LENDERS: BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION
By: /S/ ROSE M. MILLER
--------------------------------
Name: Rose M. Miller
Title: First Vice President
IBERIABANK
By: /S/ KEITH SHORT
--------------------------------
Name: Keith Short
Title: Senior Vice President
REGIONS BANK
By: /S/ JEROME WEBER
-----------------------------
Name: Jerome Weber
Title: Senior Vice President
WHITNEY NATIONAL BANK
By: /S/ WILLIAM A. HENDRIX
-----------------------------
Name: William A. Hendrix
Title: Vice President
SCHEDULE I
COMMITMENT AMOUNTS OF THE LENDERS
<TABLE>
<CAPTION>
Name and Address of Lender Revolving Pro
Loan Rata
Commitment
Share
<S> <C> <C>
Bank One, Louisiana, N.A.
600 Jefferson Street $15,000,000 50.0%
Lafayette, LA 70501
Attention: Market Manager
Telephone: (318) 265-3216
Facsimile: (318) 265-3248
Regions Bank $3,750,000
800 South Lewis Street 12.5%
New Iberia, LA 70560
Attention: Jerome Weber, SVP
Telephone: (318) 373-1203
Facsimile: (318) 373-1386
IberiaBank $3,750,000
2110 West Pinhook 12.5%
Lafayette, LA 70508
Attention: Lafayette City
President
Telephone: (318) 268-4000
Facsimile: (318) 268-5190
Whitney National Bank $7,500,000
91 Lee Avenue, 2nd Floor 25.0%
Lafayette, LA 70501
Attention: William A. Hendrix
Telephone: (337) 593-6057
Facsimile: (337) 593-6030
Aggregate Commitments
$30,000,000 100.00%
</TABLE>
SCHEDULE 2
PRICING SCHEDULE
<TABLE>
<CAPTION>
APPLICABLE MARGIN (LOAN) Level Level Level Level
I II III IV
Status Status Status Status
<S> <C> <C> <C> <C>
Eurodollar Rate 2.00% 2.75% 3.50% 4.00%
Floating Rate 0.00% 0.75% 1.25% 1.50%
</TABLE>
<TABLE>
<CAPTION>
APPLICABLE FEE RATE Level Level Level Level
I II III IV
Status Status Status Status
<S> <C> <C> <C> <C>
COMMITMENT FEE 0.25% 0.30% 0.375% 0.50%
</TABLE>
<TABLE>
<CAPTION>
APPLICABLE Level Level Level Level
LETTER OF CREDIT FEE RATE I II III IV
Status Status Status Status
<S> <C> <C> <C> <C>
Financial Letter of Credit Fee Rate
2.00% 2.75% 3.50% 4.00%
Performance Letter of Credit Fee Rate 1.25% 2.00% 2.50% 2.75%
</TABLE>
For the purposes of this Pricing Schedule, the following terms have
the following meanings, subject to the final paragraph of this Pricing
Schedule:
"Financials" means the annual, quarterly or monthly financial
statements of the Borrower delivered pursuant to Section 6.1(i) or (ii).
"Level I Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent
Financials, the Leverage Ratio is less than or equal to 2.00 to 1.00.
"Level II Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent
Financials, (i) the Borrower has not qualified for Level I Status and
(ii) the Leverage Ratio is less than or equal to 3.00 to 1.00.
"Level III Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent
Financials, (i) the Borrower has not qualified for Level I Status or
Level II Status and (ii) the Leverage Ratio is less than or equal to
4.00 to 1.00.
"Level IV Status" exists at any date if the Borrower has not
qualified for Level I Status, Level II Status or Level III Status.
"Leverage Ratio" means, as of any date of calculation, the ratio of
(i) Funded Indebtedness outstanding on such date to (ii) EBITDA for the
four fiscal quarters ended on such date. Notwithstanding the foregoing
(i) the Leverage Ratio as of June 30, 2000 shall be based on EBITDA for
the one fiscal quarter ended on June 30, 2000 annualized; (ii) the
Leverage Ratio as of September 30, 2000 shall be based on EBITDA for the
two fiscal quarters ended on September 30, 2000 annualized; and (iii)
the Leverage Ratio as of December 31, 2000 shall be based on EBITDA for
the three fiscal quarters ended on December 31, 2000 annualized.
"Status" means either Level I Status, Level II Status, Level III
Status or Level IV Status.
The Applicable Margin, Applicable Fee Rate and Applicable Letter of
Credit Fee Rates shall be determined in accordance with the foregoing
table based on the Borrower's Status as reflected in the then most
recent Financials. Adjustments, if any, to the Applicable Margin,
Applicable Fee Rate, or Applicable Letter of Credit Fee Rates shall be
effective 5 Business Days after the Agent has received the applicable
Financials, except that the Applicable Margin on a Eurodollar Rate
Advance shall be adjusted after the last day of the then current
Eurodollar Interest Period. If the Borrower fails to deliver the
Financials to the Agent at the time required by Section 6.1, then the
Applicable Margin, Applicable Fee Rate and Applicable Letter of Credit
Fee Rates shall be the highest Applicable Margin, Applicable Fee Rate
and Applicable Letter of Credit Fee Rates set forth in the foregoing
table until 5 days after such Financials are so delivered.
SCHEDULE 3
LIST OF BORROWER'S SUBSIDIARIES
<TABLE>
<CAPTION>
SUBSIDIARY JURISDICTION OF ORGANIZATION OWNED PERCENT
NAME ORGANIZATION TYPE BY OWNERSHIP
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Universal Fabricators L.L.C. LA LLC Borrower 100%
UNIFAB International West, LLC LA LLC Borrower 100%
Allen Process Systems, L.L.C. LA LLC Borrower 100%
Oil Barges, Inc. LA Corp. Borrower 100%
Latoka U.S.A. Inc. LA Corp. Borrower 100%
Superior Derrick Services of Texas, L.L.C. TX LLC Oil Barges, Inc. 100%
Allen Process Systems Limited UK Corp. Latoka U.S.A. Inc. 100%
</TABLE>
SCHEDULE 4
ELIGIBLE ACCOUNTS AND ELIGIBLE FIXED ASSETS
I. ELIGIBLE ACCOUNTS
Based on the most recent Borrowing Base Certificate delivered to
the Agent and on other information available to the Agent, the Agent
shall in its reasonable credit judgment determine which Accounts of
Borrowers shall be "ELIGIBLE ACCOUNTS" for purposes of this Agreement.
"ACCOUNTS" means all amounts owed to the Borrower or its Subsidiaries on
account of sales, leases or rentals of equipment or services rendered in
the ordinary course of the Borrower's trade or business, net of (i) any
reserve for bad debts, and (ii) unearned interest, discounts or finance
charges. In determining whether a particular Account constitutes an
Eligible Account, the Agent shall not include any such Account to which
any of the exclusionary criteria set forth below applies. The Agent
reserves the right, at any time and from time to time after the Closing
Date, to adjust any such criteria, to establish new criteria and to
adjust advance rates with respect to Eligible Accounts, in its
reasonable credit judgment, subject to the approval of the Required
Lenders in the case of adjustments or new criteria or changes in advance
rates which have the effect of making more credit available. Eligible
Accounts shall not include any Account of the Borrower and its
Subsidiaries:
(a) which does not arise from the sale of goods, leasing of assets
or property or the performance of services by the Borrower or its
Subsidiaries in the ordinary course of its business;
(b) upon which (i) the Borrower's and its Subsidiaries' right to
receive payment is not absolute, is not then due and payable, or is
contingent upon the fulfillment of any condition whatsoever or (ii) the
Borrower or its Subsidiaries are not able to bring suit or otherwise
enforce its remedies against the Account Debtor through judicial
process;
(c) that is not a true and correct statement of bona fide
indebtedness incurred in the amount of the Account for merchandise sold
or assets or property leased to or services rendered and accepted by the
applicable Account Debtor;
(d) with respect to which an invoice or other notice of amounts
owing has not been sent to the applicable Account Debtor;
(e) that (i) is not owned by the Borrower or its Subsidiaries or
(ii) is subject to any rights, claim, security interest or other
interest of any other Person, other than Liens in favor of the Agent, on
behalf of itself and Lenders;
(f) that arises from a sale to any director, officer, other
employee or affiliate of the Borrower;
(g) that is the obligation of an Account Debtor that is the United
States government or a political subdivision thereof, or any state or
municipality or department, agency or instrumentality thereof unless the
Agent, in its sole discretion, has agreed to the contrary in writing and
the Borrower or its Subsidiaries, if necessary or desirable, has
complied with the Federal Assignment of Claims Act of 1940, and any
amendments thereto, or any applicable state statute or municipal
ordinance of similar purpose and effect, with respect to such
obligation;
(h) that is the obligation of an Account Debtor located in a
foreign country, unless payment thereof is assured by a letter of credit
or insurance satisfactory to the Agent as to form, amount and issuer;
(i) to the extent the Borrower or its Subsidiaries is liable for
goods sold or services rendered by the applicable Account Debtor to the
Borrower or its Subsidiaries, but only to the extent of the potential
offset;
(j) that arises with respect to goods which are delivered on a
bill-and-hold, cash-on-delivery basis or placed on consignment,
guaranteed sale or other terms by reason of which the payment by the
Account Debtor is or may be conditional;
(k) that is in default; PROVIDED, THAT, without limiting the
generality of the foregoing, an Account shall be deemed in default upon
the occurrence of any of the following:
(i) it is not paid within the earlier of: ninety (90) days
following its original invoice date in the case of Account Debtors other
than major oil and gas companies (defined as companies integrate to a
substantial degree, that is, engaged in production, refining,
transportation and marketing of oil and gas) and one hundred twenty
(120) days following its original invoice date in the case of Account
Debtors that are major oil companies;
(ii) if any Account Debtor obligated upon such Account
suspends business, makes a general assignment for the benefit of
creditors or fails to pay its debts generally as they come due; or
(iii) if any petition is filed by or against any Account
Debtor obligated upon such Account under any bankruptcy law or any other
federal, state or foreign (including any provincial) receivership,
insolvency relief or other law or laws for the relief of debtors;
(l) which is the obligation of an Account Debtor that is not a
major oil and gas company if ten percent (10%) or more of the dollar
amount of all Accounts owing by that Account Debtor are ineligible under
the other criteria set forth in this SCHEDULE 4.
(m) which is the obligation of an Account Debtor that is a major
oil and gas company if twenty percent (20%) or more of the dollar amount
of all Accounts owing by that Account Debtor are ineligible under the
other criteria set forth in this SCHEDULE 4.
(n) as to which the Agent's interest, on behalf of itself and
Lenders, therein is not a first priority perfected security interest;
(o) as to which any of the representations or warranties
pertaining to Accounts set forth in this Agreement or the Collateral
Documents is untrue;
(p) to the extent such Account is evidenced by a judgment,
instrument or chattel paper;
(q) which is payable in any currency other than United States
Dollars; or
(r) which is unacceptable to the Agent in its reasonable credit
judgment.
For the purposes hereof, "Account Debtor" means any Person who may
become obligated to the Borrower or its Subsidiaries under, with respect
to, or on account of, an Account.
II. ELIGIBLE FIXED ASSETS
Based on the most recent Borrowing Base Certificate delivered to
the Agent and on appraisals and other information available to the
Agent, the Agent shall in its reasonable credit judgment determine which
Fixed Assets of Borrowers shall be "ELIGIBLE FIXED ASSETS" for purposes
of this Agreement. "FIXED ASSETS" means the appraised fair market value
of all real estate owned by the Borrower and its Subsidiaries, and the
appraised orderly liquidation value of equipment owned by the Borrower
and its Subsidiaries. In determining whether a particular type of fixed
asset constitutes Eligible Fixed Assets, the Agent shall not include any
such fixed asset to which any of the exclusionary criteria set forth
below applies. The Agent reserves the right, at any time and from time
to time after the Closing Date, to adjust any such criteria, to
establish new criteria and to adjust advance rates with respect to
Eligible Fixed Assets, in its reasonable credit judgment, subject to the
approval of the Required Lenders in the case of adjustments or new
criteria or changes in advance rates which have the effect of making
more credit available. Eligible Fixed Assets shall not include any
fixed asset of the Borrower and its Subsidiaries:
(a) that is not subject to a perfected Lien in favor the Agent and
Lenders;
(b) that is located outside of the United States of America; and
(c) that is obsolete or worn beyond normal wear and tear in light
of the intended uses of such equipment.
<PAGE>
SCHEDULE 5
RESPONSES TO PHASE I STUDY
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Photo Location Finding Solution Timing
-----------------------------------------------------------------------------------------------
Wastewater
----------
1&2 Mechanic Hand sink Connect hand December
Shop discharges to sink drain to
storm water sewerage system
drain
Spill
Control
Program
----------
none Diesel Containment Install containment 60-90 days
Storage pan is pan of appropriate
Tank insufficient specifications
for 4,500 gal
fuel tank
none Paint Secondary Organize stored containers and 60-90 days
Storage containment provide secondary containment
Warehouse is not pans in compliance with
provided SPCC and SPC requirements
4&5 Paint Significant This build up was from Complete
Storage waste a specific job and has since
Warehouse -- storage been disposed of
exterior outside
designated
area
6, 7&8 Mechanic Storage of Organize stored containers 60-90 days
Shop oil drums and under roof and provide secondary
containers containment pans in compliance
outside with SPCC and SPC requirements
containment
area
10 Mechanic Storage of a) Replace covers and monitor a) Complete
Shop grease in on a daily basis; b) 30-60 days
uncovered b) determine whether
containers covered storage area is
available, provide cover
to this area if needed
None SPCC / General Review contingency 30-60 days
SPC Plan Comment plan to assure
General compliance with SPCC
Comment and SPC requirements
Solid
Waste
Management
----------
15&16 Main Fab Oil spill General cleanup and 30-60 days
Shop, cleanup maintenance procedure
Mechanic materials is being developed
Shop should be
containerized
for off site
recycling or
disposal
2, 4, 5, 9 Various Contaminated Addressed above 60-90 days
&10 locations storm water
generated by
rainfall into
uncovered
secondary
containment
areas
3, 6, 7, Various Sealed, Inventory and mark all drums 60-90 days
8, locations unmarked on facility
9, 15 drums
18&19 Blasting Spills and a) General cleanup a) 60-90 days
Area contaminated and maintenance b) 30-60 days
Mechanic soils procedure is being
Shop developed
b) Spent blasting sand
disposal procedure
has been initiated
None Various General Trash General cleanup and maintenance 60-90 days
locations on site procedure is being developed
</TABLE>
<PAGE>
EXHIBIT A
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Amended and Restated Credit Agreement dated as of September 30, 2000 (as
amended, modified, renewed or extended from time to time, the "Credit
Agreement") among UNIFAB International, Inc. (the "Borrower"), Bank One,
Louisiana, National Association, as Agent, and the Lenders party
thereto. Unless otherwise defined herein, capitalized terms used in
this Compliance Certificate have the meanings defined in the Credit
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of the Borrower;
2. I have reviewed the terms of the Credit Agreement and I have
made, or have caused to be made under my supervision, a detailed review
of the transactions and conditions of the Borrower and each of its
Subsidiaries during the accounting period covered by the attached
financial statements;
3. The examinations described in paragraph 2 did not disclose, and
I have no knowledge of, the existence of any condition or event which
constitutes a Default or Unmatured Default during or at the end of the
accounting period covered by the attached financial statements or as of
the date of this Certificate, except as set forth below; and
4. SCHEDULE I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants
of the Credit Agreement, all of which data and computations are true,
complete and correct.
5. SCHEDULE I, ITEM B hereto sets forth the determination of the
Applicable Margin, Applicable Fee Rate and Applicable Letter of Credit
Fee Rates, commencing on the fifth Business Day following the delivery
hereof.
Described below are the exceptions, if any, to Paragraph 3 by
listing, in detail, the nature of the condition or event, the period
during which it has existed and the action which the Borrower has taken,
is taking, or proposes to take with respect to each such condition or
event:
__________________________________________________________________________
____________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
The foregoing certifications, together with the computations set
forth in SCHEDULE I hereto and the financial statements delivered with
this Certificate in support hereof, are made and delivered this day
of , .
<PAGE>
SCHEDULE I TO COMPLIANCE CERTIFICATE
BORROWER'S FINANCIAL COVENANTS
(AS OF ____________)
A. FUNDED INDEBTEDNESS TO TANGIBLE NET WORTH RATIO
Funded Indebtedness $____________
Tangible Net Worth $____________
Ratio (actual) _____ to 1.00
Ratio (required) _____ to 1.00
B. FUNDED INDEBTEDNESS TO EBITDA RATIO
Funded Indebtedness $____________
Net Income $____________
Plus Interest Expense ____________
Plus Taxes ____________
Plus Depreciation and
Amortization _____________
EBITDA $____________
Ratio (actual) _____ to 1.00
Ratio (required) _____ to 1.00
C. FIXED CHARGE COVERAGE RATIO
EBITDA (see B above) $____________
Plus Capitalized Lease Expenses ____________
Plus Rental Expenses ____________
Minus Income Taxes (cash) ____________
Minus Dividends (cash) ____________
Minus Capitalized Expenses
(maintenance; $250,000
minimum) ____________
Adjusted Cash Flow $____________
Capitalized Lease Expenses $____________
Plus Rental Expenses ____________
Plus Interest Expense ____________
Plus Scheduled Principal
Payments on Funded
Indebtedness ____________
Total Fixed Charges $____________
Ratio (actual) _____ to 1.00
Ratio (required) _____ to 1.00
D. MINIMUM CURRENT RATIO
Current Assets $____________
Current Liabilities _____________
Ratio (actual) _____ to 1.00
Ratio (required) _____ to 1.00
EXHIBIT B
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
(the "Assignor") and (the
"Assignee") is dated as of , 19 . The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
Agreement (which, as it may be amended, modified, renewed or extended
from time to time is herein called the "Credit Agreement") described in
Item 1 of SCHEDULE 1 attached hereto ("Schedule 1"). Capitalized terms
used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and
assigns to the Assignee, and the Assignee hereby purchases and assumes
from the Assignor, an interest in and to the Assignor's rights and
obligations under the Credit Agreement and the other Loan Documents,
such that after giving effect to such assignment the Assignee shall have
purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents
relating to the facilities listed in Item 3 of SCHEDULE 1. The
aggregate Commitment (or Loans, if the applicable Commitment has been
terminated) purchased by the Assignee hereunder is set forth in Item 4
of SCHEDULE 1.
3. EFFECTIVE DATE. The effective date of this Assignment
Agreement (the "Effective Date") shall be the later of the date
specified in Item 5 of SCHEDULE 1 or two Business Days (or such shorter
period agreed to by the Agent) after this Assignment Agreement, together
with any consents required under the Credit Agreement, are delivered to
the Agent. In no event will the Effective Date occur if the payments
required to be made by the Assignee to the Assignor on the Effective
Date are not made on the proposed Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and
assignment of Loans hereunder, the Assignee shall pay the Assignor, on
the Effective Date, the amount agreed to by the Assignor and the
Assignee. On and after the Effective Date, the Assignee shall be
entitled to receive from the Agent all payments of principal, interest
and fees with respect to the interest assigned hereby. The Assignee
will promptly remit to the Assignor any interest on Loans and fees
received from the Agent which relate to the portion of the Commitment or
Loans assigned to the Assignee hereunder for periods prior to the
Effective Date and not previously paid by the Assignee to the Assignor.
In the event that either party hereto receives any payment to which the
other party hereto is entitled under this Assignment Agreement, then the
party receiving such amount shall promptly remit it to the other party
hereto.
5. RECORDATION FEE. The Assignor and Assignee each agree to pay
one-half of the recordation fee required to be paid to the Agent in
connection with this Assignment Agreement unless otherwise specified in
Item 6 of SCHEDULE 1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it
hereunder, (ii) such interest is free and clear of any adverse claim
created by the Assignor and (iii) the execution and delivery of this
Assignment Agreement by the Assignor is duly authorized. It is
understood and agreed that the assignment and assumption hereunder are
made without recourse to the Assignor and that the Assignor makes no
other representation or warranty of any kind to the Assignee. Neither
the Assignor nor any of its officers, directors, employees, agents or
attorneys shall be responsible for (i) the due execution, legality,
validity, enforceability, genuineness, sufficiency or collectability of
any Loan Document, including without limitation, documents granting the
Assignor and the other Lenders a security interest in assets of the
Borrower or any guarantor, (ii) any representation, warranty or
statement made in or in connection with any of the Loan Documents, (iii)
the financial condition or creditworthiness of the Borrower or any
guarantor, (iv) the performance of or compliance with any of the terms
or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrower, (vi) the validity,
enforceability, perfection, priority, condition, value or sufficiency of
any collateral securing or purporting to secure the Loans or (vii) any
mistake, error of judgment, or action taken or omitted to be taken in
connection with the Loans or the Loan Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee
(i) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements requested by the
Assignee and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
this Assignment Agreement, (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and
based on such documents and information at it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under the Loan Documents, (iii) appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably
incidental thereto, (iv) confirms that the execution and delivery of
this Assignment Agreement by the Assignee is duly authorized, (v) agrees
that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (vi) agrees that its payment instructions
and notice instructions are as set forth in the attachment to SCHEDULE
1, (vii) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits
and interests in and under the Loan Documents will not be "plan assets"
under ERISA, (viii) agrees to indemnify and hold the Assignor harmless
against all losses, costs and expenses (including, without limitation,
reasonable attorneys' fees) and liabilities incurred by the Assignor in
connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment
Agreement, and (ix) if applicable, attaches the forms prescribed by the
Internal Revenue Service of the United States certifying that the
Assignee is entitled to receive payments under the Loan Documents
without deduction or withholding of any United States federal income
taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by
the internal law, and not the law of conflicts, of the State of
Louisiana.
9. NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Credit Agreement. For the
purpose hereof, the addresses of the parties hereto (until notice of a
change is delivered) shall be the address set forth in the attachment to
SCHEDULE 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement
may be executed in counterparts. Transmission by facsimile of an
executed counterpart of this Assignment Agreement shall be deemed to
constitute due and sufficient delivery of such counterpart and such
facsimile shall be deemed to be an original counterpart of this
Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties
hereto have executed this Assignment Agreement by executing SCHEDULE 1
hereto as of the date first above written.
SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1. Description and Date of Amended and Restated Credit Agreement:
Credit Agreement dated as of September 30, 2000 among UNIFAB
International, Inc., Bank One, Louisiana, National Association, as
Agent, and the Lenders party thereto.
2. Date of Assignment Agreement: , _________
3. Amounts Outstanding (As of Date of Item 2 above):
Term Loan Revolving Loan
FACILITY FACILITY
a. Assignee's percentage
of each Facility purchased
under the Assignment
Agreement % %
b. Amount of each Facility
purchased under the
Assignment Agreement $ $
4. Assignee's Revolving
Loan Commitment purchased
hereunder: $
5. Proposed Effective Date:
6. Non-standard Recordation Fee
Arrangement
ACCEPTED AND CONSENTED TO/BY ACCEPTED AND CONSENTED TO/BY
UNIFAB INTERNATIONAL, INC., BANK ONE, LOUISIANA, NATIONAL
ASSOCIATION
By: By:
Name: Name:
Title: Title:
ATTACHMENT TO SCHEDULE 1 TO ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name: Telephone No.:
Fax No.:
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:
Account Name & Number for Wire Transfer:
Other Instructions:
ADDRESS FOR NOTICES FOR ASSIGNOR:
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name: Telephone No.:
Fax No.:
KEY OPERATIONS CONTACTS:
Booking Installation: Booking Installation:
Name: Name:
Telephone No.: Telephone No.:
Fax No.: Fax No.:
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:
Account Name & Number for Wire Transfer:
Other Instructions:
ADDRESS FOR NOTICES FOR ASSIGNEE:
AGENT INFORMATION
Assignee will be called promptly upon receipt of the signed agreement.
INITIAL FUNDING CONTACT: SUBSEQUENT OPERATIONS CONTACT:
Name: Name:
Telephone No.: Telephone No.:
Fax No.: Fax No.:
INITIAL FUNDING STANDARDS:
Cibor - Fund 2 days after rates are set.
AGENT WIRE INSTRUCTIONS:
ADDRESS FOR NOTICES FOR AGENt:
<PAGE>
EXHIBIT C
BORROWING BASE CERTIFICATE
FAX TO BANK ONE - COMMERCIAL CLIENT SUPPORT: (337) 265-3516 TODAY'S DATE
_____________
<TABLE>
<CAPTION>
(000's) FABRICATORS ALLEN PROCESS, LLC OBI ALLEN PROCESSING, LTD UNIFAB WEST
----------- ------------------ --- --------------------- -----------
<S> <C> <C> <C> <C> <C>
Total A/R $0 $0 $0 $0 $0
Less over 120 days for Majors $0 $0 $0 $0 $0
Less over 90 days for all $0 $0 $0 $0 $0
others $0 $0 $0 $0 $0
Less Sold/Current of 20% for $0 $0 $0 $0 $0
Majors $0 $0 $0 $0 $0
Less Sold/Current of 10% for $0 $0 $0 $0 $0
all others $0 $0 $0 $0 $0
Less Inter-Company $0 $0 $0 $0 $0
Less Contra Accts * $0 $0 $0 $0 $0
----------- ------------------ --- --------------------- -----------
Total Eligible A/R $0 $0 $0 $0 $0
Total Consolidated, Eligible A/R $0
Advance Rate 80%
A/R Borrowing Base $0
A/V of Real Estate (excl Lk Charles) $15,321 (Lewis Derbes, MAI on May 15, 2000)
A/V of Lake Charles Real Estate $5,175 (Russ Wilson, MAI on September 22, 2000)
OLV of equipment $8,539 (Revpro, March 9-15, 2000)
Sub Total $29,035
Advance Rate 50%
Fixed Assets Borrowing Base $14,518
(Subject to the $15MM SUB-LIMIT) $15,000
TOTAL CURRENT BORROWING BASE $14,518
Less tranches o/s on the line $0
Less Financial L/C issued (@ 100%) $0
Less Performance L/C's issued (@25%) $0
Total Available (deficit) to draw based on the proposed
borrowing base $14,518
Amount of today's draw request $0
Available after today's draw $14,518
</TABLE>
* I certify that the above borrowing base certificate is true and
correct to the best of my knowledge, and that the attached accounts
receivable aging is a true and valid representation of
receivables at ______________________. I further certify that currently
there are no contra accounts, and I understand that each foreign
receivable that is included in the above borrowing base will be backed
by either a letter of credit or appropriate insurance, copies of
which have been sent to the bank. Finally, this collateral is pledged to
the Bank One in Lafayette, LA.
Sincerely Yours,
_______________________________________
Pete Roman, CFO, Unifab International, Inc.
