<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
[ X ] Quarterly report pursuant to Section 13 or 15(d) of the Securities and
Exchange Act of 1934
For the quarter ended September 30, 1997
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities and
Exchange Act of 1934
Commission File Number 1-7615
Kirby Corporation
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Nevada 74-1884980
- ----------------------------- -----------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
1775 St. James Place, Suite 200, Houston, TX 77056-3453
- -------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(713) 435-1000
- -------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
No Change
- -------------------------------------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [ X ] No [ ]
The number of shares outstanding of the registrant's Common Stock, $.10 par
value per share, on November 4, 1997 was 24,330,636.
<PAGE> 2
PART 1 - FINANCIAL INFORMATION
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
CONDENSED BALANCE SHEETS
(Unaudited)
ASSETS
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
-------- --------
($ in thousands)
<S> <C> <C>
Current assets:
Cash and invested cash $ 3,105 1,544
Available-for-sale securities - short-term investments 21,006 18,199
Accounts and notes receivable, net of allowance for doubtful
accounts 80,286 79,866
Inventory - finished goods, at lower of average cost or market 17,398 16,361
Prepaid expenses and other 15,803 13,315
Deferred taxes 1,417 600
-------- --------
Total current assets 139,015 129,885
-------- --------
Property and equipment, at cost 531,342 518,773
Less allowance for depreciation 220,699 200,049
-------- --------
310,643 318,724
-------- --------
Investments in affiliates:
Insurance affiliate 44,302 44,554
Marine affiliates 15,404 12,697
-------- --------
59,706 57,251
-------- --------
Excess cost of consolidated subsidiaries, net of accumulated
amortization 6,809 8,316
Sundry 8,260 10,354
-------- --------
$524,433 524,530
======== ========
</TABLE>
See accompanying notes to condensed financial statements.
2
<PAGE> 3
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
CONDENSED BALANCE SHEETS
(Unaudited)
LIABILITIES AND STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
-------- --------
($ in thousands)
<S> <C> <C>
Current liabilities:
Current portion of long-term debt $ 5,333 5,333
Income taxes payable 3,692 4,027
Accounts payable 20,477 30,518
Accrued liabilities 54,430 44,511
Deferred revenues 4,033 5,302
--------- ---------
Total current liabilities 87,965 89,691
--------- ---------
Long-term debt, less current portion 164,968 176,617
Deferred taxes 48,624 45,901
Other long-term liabilities 7,418 6,567
--------- ---------
221,010 229,085
--------- ---------
Contingencies and commitments -- --
Stockholders' equity:
Preferred stock, $1.00 par value per share. Authorized
20,000,000 shares -- --
Common stock, $.10 par value per share. Authorized 60,000,000
shares, issued 30,907,000 shares 3,091 3,091
Additional paid-in capital 158,569 158,712
Unrealized net gains (losses) in value of available-for-sale
securities 343 (32)
Retained earnings 134,056 115,263
--------- ---------
296,059 277,034
Less cost of 6,579,000 shares in treasury (6,129,000 at
December 31, 1996) (80,601) (71,280)
--------- ---------
215,458 205,754
--------- ---------
$ 524,433 524,530
========= =========
</TABLE>
See accompanying notes to condensed financial statements.
3
<PAGE> 4
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
CONDENSED STATEMENTS OF EARNINGS
(Unaudited)
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
--------------------------- -------------------------
1997 1996 1997 1996
--------- -------- -------- --------
($ in thousands, except per share amounts)
<S> <C> <C> <C> <C>
Revenues:
Transportation $ 80,103 80,830 242,011 239,620
Diesel repair 18,877 19,271 59,827 48,836
Investment income and other 342 216 960 917
Gain on disposition of assets 13 19 170 1,767
--------- -------- -------- --------
99,335 100,336 302,968 291,140
--------- -------- -------- --------
Costs and expenses:
Costs of sales and operating expenses (except as
shown below) 65,950 65,778 202,807 189,805
Selling, general and administrative 11,188 11,073 33,898 31,856
Taxes, other than on income 2,006 1,683 5,884 5,512
Depreciation and amortization 8,607 8,615 26,141 26,270
--------- -------- -------- --------
87,751 87,149 268,730 253,443
--------- -------- -------- --------
Operating income 11,584 13,187 34,238 37,697
Equity in earnings of insurance affiliate 422 404 3,734 1,755
Equity in earnings of marine affiliates 778 1,141 2,172 3,055
Interest expense (3,293) (3,437) (10,117) (9,913)
--------- -------- -------- --------
Earnings before taxes on income 9,491 11,295 30,027 32,594
Provision for taxes on income (3,542) (4,189) (11,234) (12,022)
--------- -------- -------- --------
Net earnings $ 5,949 7,106 18,793 20,572
========= ======== ======== ========
Net earnings per share of common stock $ .24 .28 .76 .79
========= ======== ======== ========
</TABLE>
See accompanying notes to condensed financial statements.
4
<PAGE> 5
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
CONDENSED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Nine months
ended September 30,
----------------------
1997 1996
--------- -------
<S> <C> <C>
Cash flows from operating activities:
Net earnings $ 18,793 20,572
Adjustments to reconcile net earnings to net cash provided by operating activities:
Depreciation and amortization 26,141 26,270
Provision for deferred income taxes 1,705 4,805
Gain on disposition of assets (170) (1,767)
Deferred scheduled maintenance costs 5,823 3,213
Equity in earnings of insurance affiliate, net of redemption 766 (1,755)
Equity in earnings of marine affiliates, net of distributions (2,708) 1,028
Other 3 127
Increase (decrease) in cash flows resulting from changes in operating working capital (8,740) 9,656
-------- --------
Net cash provided by operating activities 41,613 62,149
-------- --------
Cash flows from investing activities:
Proceeds from sale and maturities of investments 1,935 1,885
Purchase of investments (4,678) (3,423)
Capital expenditures (18,480) (30,150)
Purchase of assets of diesel repair company -- (14,211)
Proceeds from disposition of assets 2,284 6,091
-------- --------
Net cash used in investing activities (18,939) (39,808)
-------- --------
Cash flows from financing activities:
Borrowings (payments) on bank revolving credit agreements, net (22,400) 8,800
Increase in long-term debt 50,000 --
Payments on long-term debt (39,249) (5,593)
Purchase of treasury stock (10,887) (26,331)
Proceeds from exercise of stock options 1,423 452
-------- --------
Net cash used in financing activities (21,113) (22,672)
-------- --------
Increase (decrease) in cash and invested cash 1,561 (331)
Cash and invested cash, beginning of year 1,544 1,457
-------- --------
Cash and invested cash, end of period $ 3,105 1,126
======== =======
Supplemental disclosures of cash flow information:
Cash paid during the period for:
Interest $ 7,203 7,194
Income taxes $ 8,311 7,448
Noncash investing and financing activity:
Assumption of liabilities in connection with purchase of assets of diesel
repair company $ -- 2,623
</TABLE>
See accompanying notes to condensed financial statements.
5
<PAGE> 6
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
NOTES TO CONDENSED FINANCIAL STATEMENTS
In the opinion of management, the accompanying unaudited condensed
financial statements of Kirby Corporation and consolidated subsidiaries (the
"Company") contain all adjustments (consisting of only normal recurring
accruals) necessary to present fairly the financial position as of September 30,
1997 and December 31, 1996, and the results of operations for the three months
and nine months ended September 30, 1997 and 1996.
(1) BASIS FOR PREPARATION OF THE CONDENSED FINANCIAL STATEMENTS
The condensed financial statements included herein have been
prepared by the Company, without audit, pursuant to the rules and regulations of
the Securities and Exchange Commission. Although the Company believes that the
disclosures are adequate to make the information presented not misleading,
certain information and footnote disclosures, including significant accounting
policies, normally included in annual financial statements, have been condensed
or omitted pursuant to such rules and regulations. In addition, certain
reclassifications have been made to reflect current presentation of financial
information. It is suggested that these condensed financial statements be read
in conjunction with the Company's latest Annual Report on Form 10-K.
(2) ADOPTION OF ACCOUNTING STANDARDS
In February 1997, the Financial Accounting Standards Board ("FASB")
issued Statement of Financial Accounting Standards ("SFAS") No. 128, "Earnings
per Share" ("SFAS No. 128"), which establishes standards for computing and
presenting earnings per share and requires, among other things, dual
presentation of basic and diluted earnings per share on the face of the
statements of earnings. In June 1997, the FASB issued SFAS No. 130, "Reporting
Comprehensive Income" ("SFAS No. 130"), which establishes standards for
reporting and display of comprehensive income and its components in a full set
of financial statements. Comprehensive income includes all changes in a
company's equity, including, among other things, foreign currency transaction
adjustments, notes receivable from employee stock ownership plans and deferred
gains (losses) on hedging activities. Also, in June 1997, the FASB issued SFAS
No. 131, "Disclosures about Segments of an Enterprise and Related Information"
("SFAS No. 131"), which establishes standards for reporting information about
operating segments in annual financial statements and requires that enterprises
report selected information about operating segments in interim reports issued
to shareholders. SFAS No. 128 is effective for financial statements for periods
ending after December 15, 1997 and will be adopted by the Company by December
31, 1997. SFAS No. 130 and SFAS No. 131 are effective for financial statements
for periods beginning after December 15, 1997. The adoption of SFAS No. 128 is
not expected to have a material impact on the Company's calculation of earnings
per share, and the adoption of SFAS No. 130 and SFAS No. 131 is not expected to
have a material impact on the Company's financial condition or results of
operations.
(3) TAXES ON INCOME
Earnings before taxes on income and details of the provision for
taxes on income for the three months and nine months ended September 30, 1997
and 1996 were as follows (in thousands):
6
<PAGE> 7
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
NOTES TO CONDENSED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
--------------------- --------------------
1997 1996 1997 1996
------- ------ ------ ------
<S> <C> <C> <C> <C>
Earnings before taxes on income:
United States $ 9,069 10,891 26,293 30,839
Foreign - Puerto Rico 422 404 3,734 1,755
------- ------ ------ ------
$ 9,491 11,295 30,027 32,594
======= ====== ====== ======
Provision for taxes on income:
United States:
Current $ 3,111 1,961 7,890 6,732
Deferred 157 2,030 1,675 4,805
State and municipal 274 198 744 485
------- ------ ------ ------
3,542 4,189 10,309 12,022
Foreign - Puerto Rico - Current -- -- 925 --
------- ------ ------ ------
$ 3,542 4,189 11,234 12,022
======= ====== ====== ======
</TABLE>
(3) LONG-TERM DEBT
On September 19, 1997, the Company agreed to new terms under its
$100,000,000 revolving credit agreement ("Credit Agreement") with Texas Commerce
Bank National Association ("TCB"), as agent bank. Under the new terms, the
Credit Agreement was extended to September 2002, reduced the margin of interest
paid on its borrowings, provided adjusted interest rates based on the Company's
senior credit rating and eliminated certain financial covenants.
The Company has on file a shelf registration on Form S-3 with the
Securities and Exchange Commission providing for the issue of up to $250,000,000
of medium term notes ("Medium Term Notes") at fixed or floating interest rates
with maturities of nine months or longer. In January 1997, the Company issued
$50,000,000 of the authorized Medium Term Notes at a fixed interest rate of
7.05%, due January 29, 2002. Proceeds from the issuance were used to retire
$34,000,000 of Medium Term Notes due March 10, 1997, with the balance used to
reduce the Company's revolving Credit Agreement. As of September 30, 1997,
$121,000,000 was available under the Medium Term Notes program and $52,000,000
was available for takedown under the Credit Agreement. Both issues are available
to provide financing for future business and equipment acquisitions and working
capital requirements.
(4) INSURANCE DISCLOSURE
The Company's investment in Universal Insurance Company
("Universal"), a property and casualty insurance company operating exclusively
in the Commonwealth of Puerto Rico, is accounted for under the equity method of
accounting. Currently, the Company owns 45% of Universal's voting common stock
and 55% is owned by Eastern America Financial Group, Inc. In March 1997,
Universal redeemed $2,000,000 of Universal's voting common stock, reducing the
Company's voting common stock investment in Universal from 47% to 45%.
7
<PAGE> 8
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
Management's Discussion and Analysis of
Financial Condition and Results of Operations
Statements contained in this Form 10-Q that are not historical
facts, including, but not limited to, any projections contained herein, are
forward-looking statements and involve a number of risks and uncertainties. Such
statements can be identified by the use of forward-looking terminology such as
"may," "will," "expect," "anticipate," "estimate," or "continue" or the negative
thereof or other variations thereon or comparable terminology. The actual
results of the future events described in such forward-looking statements in
this Form 10-Q could differ materially from those stated in such forward-looking
statements. Among the factors that could cause actual results to differ
materially are: adverse economic conditions, industry competition and other
competitive factors, adverse weather conditions such as high water, low water,
fog and ice, marine accidents, construction of new equipment by competitors,
including construction with government assisted financing, government and
environmental laws and regulations, and the timing, magnitude and number of
acquisitions made by the Company.
The Company is a provider of marine transportation services for both
the inland and offshore marine markets. The marine transportation segment is
divided into two divisions, organized around the markets they serve. The Inland
Division serves the inland industrial chemical, petrochemical, agricultural
chemical and refined products markets. The Offshore Division serves the offshore
refined products, dry-bulk, container and palletized cargo markets. The Offshore
Division also serves as managing partner of two offshore marine partnerships, of
which the Company owns a 35% and 50% interest, respectively. The partnerships
are accounted for under the equity method of accounting.
The Company is engaged through its Diesel Repair Division in the
sale, overhaul and repair of large medium-speed diesel engines in marine, power
generation and rail applications. The Company's 45% voting common stock
investment in Universal is accounted for under the equity method of accounting.
RESULTS OF OPERATIONS
The Company reported net earnings for the 1997 third quarter of
$5,949,000 or $.24 per share, on revenues of $99,335,000, compared with net
earnings of $7,106,000, or $.28 per share, on revenues of $100,336,000 for the
third quarter of 1996. Net earnings for the 1997 first nine months totaled
$18,793,000, or $.76 per share, on revenues of $302,968,000. Net earnings for
the 1996 first nine months totaled $20,572,000, or $.79 per share, on revenues
of $291,140,000.
The following tables set forth the Company's revenues from its
principal operating divisions and percentage of such revenues for the three
months and nine months ended September 30, 1997 compared with the three months
and nine months ended September 30, 1996 (dollars in thousands):
8
<PAGE> 9
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
Management's Discussion and Analysis of
Financial Condition and Results of Operations
<TABLE>
<CAPTION>
Three months ended September 30,
----------------------------------------------
1997 1996 Increase (decrease)
------------------- -------------------- ----------------------
Amounts % Amounts % Amounts %
------- ---- -------- ---- -------- ----
<S> <C> <C> <C> <C> <C> <C>
Revenues:
Inland Division $59,701 60% $58,991 59% $ 710 1 %
Offshore Division 20,402 21 21,839 22 (1,437) (7)
Diesel Repair Division 18,877 19 19,271 19 (394) (2)
Other income 355 -- 235 -- 120 51
------- ---- -------- ---- -------- ----
$99,335 100% $100,336 100% $ (1,001) (1)%
======= ==== ======== ==== ======== ====
</TABLE>
<TABLE>
<CAPTION>
Nine months ended September 30,
----------------------------------------------
1997 1996 Increase (decrease)
------------------- -------------------- ----------------------
Amounts % Amounts % Amounts %
------- ---- -------- ---- -------- ----
<S> <C> <C> <C> <C> <C> <C>
Revenues:
Inland Division $177,460 59% $173,857 60% $ 3,603 2 %
Offshore Division 64,551 21 65,763 22 (1,212) (2)
Diesel Repair Division 59,827 20 48,836 17 10,991 23
Other income 1,130 -- 2,684 1 (1,554) (58)
------- ---- -------- ---- -------- ----
$302,968 100% $291,140 100% $ 11,828 4 %
======= ==== ======== ==== ======== ====
</TABLE>
Inland Division revenue for the 1997 third quarter reflected a 1%
increase when compared with the 1996 third quarter. During the 1997 third
quarter, spot market rates reflected a modest increase and term contracts were
generally being renewed at higher rates. Chemical and petrochemical volumes were
positive, however, refined product movements softened in September. The
movements of liquid fertilizer and anhydrous ammonia by the Inland Division are
normally seasonal, coinciding with the spring and fall fertilizer season. The
1997 fall fertilizer season, normally starting in late August or early
September, did not strengthen until early October, resulting in an estimated
$1,000,000 reduction in 1997 third quarter and nine months revenue.
The Inland Division's revenue was derived from long-term contracts,
short-term contracts and spot movements of products for customers in the
chemical, petrochemical, agricultural chemical and refined products markets. As
of September 30, 1997 and 1996, approximately 80% of inland movements were under
term contracts and 20% were spot movements of products.
The Company's harbor tug operation for the 1997 third quarter and
1997 first nine months were reported within the Offshore Division. For
comparative purposes, the 1996 third quarter and 1996 first nine months results
for the harbor tug operation have been reclassified from the Inland Division to
the Offshore Division. Revenue for the harbor tug operation for the 1997 third
quarter and 1997 first nine months were $2,600,000 and $7,300,000, respectively,
compared with revenue for the 1996 third quarter and 1996 first nine months of
$2,300,000 and $6,200,000, respectively.
9
<PAGE> 10
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
Management's Discussion and Analysis of
Financial Condition and Results of Operations
Revenue for the Inland Division for the 1997 first nine months
increased 2% compared with the first nine months of 1996. Since early 1997, the
Inland Division has experienced a modest hike in utilization and spot market
rates, and contracts have generally been renewed at higher rates. Within the
past year, the Company has removed from service 25 single skin barges and have
placed into service six new double skin barges, for a net 3% reduction in inland
fleet capacity. Older vessels have historically been removed from service when
it is not prudent to continue to maintain or overhaul the vessel. In addition,
the 1997 first nine months revenue was negatively impacted by the flooding on
the Mississippi River System during the months of February through April. During
the majority of the 1997 first quarter, the upper Mississippi River and Ohio
River experienced high water and flooding conditions, with river closures in
selected areas and mandated regulatory operating restrictions. During the month
of March, and extending into April, the lower Mississippi River, the Company's
principal area of operation, experienced high water not seen in such severity
since 1983. The loss of revenue, estimated at approximately $3,450,000 for the
months of February through April, was the result of delays, diversions and
limitations on night passages, horsepower requirements and size of tows. The
effects of the flooding throughout the Mississippi River System reduced the
Company's revenues and increased its expenses, resulting in a reduction in net
earnings by an estimated $.10 per share for the 1997 first nine months.
The Offshore Division experienced a 7% reduction in revenue during
the 1997 third quarter compared with the 1996 third quarter, and a 2% reduction
for the 1997 first nine months compared with the first nine months of 1996.
Since early April, the Company's Jones Act product tanker fleet have experienced
a soft demand for their services, resulting in lower rates and the lay-up of
spot market tankers for extended periods of time. The Jones Act tanker market is
currently suffering from an overcapacity of vessels. Such additional capacity
competing for spot market movements, expanded production by Northeast and West
Coast refineries, and the movement of lower volumes of gasoline blending
components, have all contributed to the continued soft demand for offshore
refined product movements. In addition, two tankers were out of service for part
of the 1997 third quarter for scheduled overhauls.
The Company is currently reviewing alternative strategies concerning
its Jones Act product tanker fleet. Such strategies range from a direct sale of
the fleet, to alternative marketing arrangements designed to better insulate the
Company from fluctuations in the market, to continuing to operate the fleet, but
at reduced levels.
In October, the last of the Company's three preference food-aid
freighters was sold following a food-aid voyage to East Africa. In May and
September 1997, the first and second freighters were sold following food-aid
trips to North Korea. Each of the freighters were sold for scrap. Lack of
available movements and corresponding low rates have negatively impacted this
segment of the Offshore Division for several years.
The Diesel Repair Division's revenue for the 1997 third quarter
decreased 2% compared with the 1996 third quarter, while the 1997 first nine
months revenue increased 23% compared with the first nine months of 1996. During
the 1997 third quarter, as well as the 1997 first and second quarters, the
Division's Midwest market was negatively impacted by deferred overhauls by
inland towing customers due to the spring flooding and by dry cargo customers
due to slow grain exports. The Division's Gulf Coast and East Coast markets have
remained positive. In addition to the impact on revenue noted above, the 23%
increase for the 1997 first nine months over the corresponding period of the
prior year was primarily due to the inclusion of MKW Power Systems, Inc.
("MKW"), whose operating assets were acquired on July 31, 1996.
10
<PAGE> 11
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
Management's Discussion and Analysis of
Financial Condition and Results of Operations
The following tables set forth the costs and expenses and
percentage of each for the three months and nine months ended September 30,
1997 compared with the three months and nine months ended September 30, 1996
(dollars in thousands):
<TABLE>
<CAPTION>
Three months ended September 30,
----------------------------------------------------
1997 1996 Increase (decrease)
----------------------- -------------------- -------------------
Amounts % Amounts % Amounts %
------- ------- ------- ---- ------ ----
<S> <C> <C> <C> <C> <C> <C>
Costs and expenses:
Cost of sales and operating expenses $65,950 75% $65,778 75% $ 172 --%
Selling, general and administrative 11,188 13 11,073 13 115 1
Taxes, other than on income 2,006 2 1,683 2 323 19
Depreciation and amortization 8,607 10 8,615 10 (8) --
------- ------- ------- ---- ----- ----
$87,751 100% $87,149 100% $ 602 1%
======= ======= ======= ==== ===== ====
</TABLE>
<TABLE>
<CAPTION>
Nine months ended September 30,
----------------------------------------------------
1997 1996 Increase (decrease)
----------------------- -------------------- -------------------
Amounts % Amounts % Amounts %
------- ------- ------- ---- ------ ----
<S> <C> <C> <C> <C> <C> <C>
Costs and expenses:
Costs of sales and operating expenses $202,807 75% $189,805 75% $ 13,002 7%
Selling, general and administrative 33,898 13 31,856 13 2,042 6
Taxes, other than on income 5,884 2 5,512 2 372 7
Depreciation and amortization 26,141 10 26,270 10 (129) --
-------- ----- -------- ----- -------- ----
$268,730 100% $253,443 100% $ 15,287 6%
======== ===== ======== ===== ======== ====
</TABLE>
Costs of sales and operating expenses for the 1997 third quarter
remained constant compared with the third quarter of 1996, while costs of sales
and operating expenses for the 1997 first nine months increased 7% compared with
the first nine months of 1996. The 7% increase was largely due to the additional
expenses associated with the Diesel Repair Division's acquisition of MKW. In
addition, the Inland Division's operating expenses increased during February
through April 1997, reflecting the high costs and equipment utilization
associated with the flooding. During 1997, the Inland Division's labor costs
have also increased, requiring the use of external tankerman services. The
Company competes with the same labor pool as companies participating in the
increased drilling activities in the Gulf of Mexico.
Selling, general and administrative expenses increased 1% for the
1997 third quarter and 6% for the first nine months when compared with the
corresponding periods of 1996. The 6% increase was primarily due to the
additional expenses associated with the Diesel Repair Division's acquisition of
MKW, which was partially offset by lower corporate general and administrative
expenses, the result of the 1996 reorganization, which reduced administrative
costs.
11
<PAGE> 12
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
Management's Discussion and Analysis of
Financial Condition and Results of Operations
Taxes, other than on income for the 1997 third quarter increased 19%
and for the 1997 first nine months increased 7% when compared with the
corresponding 1996 periods. The increases for both periods primarily reflect
higher property taxes on new inland tank barges placed into service within the
past two years.
The following tables set forth the operating income and operating
margin by division for the three months and nine months ended September 30, 1997
compared with the three months and nine months ended September 30, 1996 (dollars
in thousands):
<TABLE>
<CAPTION>
Three months ended September 30,
-----------------------------------------------------------
1997 1996 Increase (decrease)
-------------------------- --------------------------- --------------------
Operating Operating
income Operating income Operating
(loss) margin (loss) margin Amounts %
-------- ----------- -------- --------- ------- ------
<S> <C> <C> <C> <C> <C> <C>
Inland Division $ 9,954 16.7% $ 10,431 17.7% $ (477) (5)
Offshore Division 1,011 5.0% 2,634 12.1% (1,623) (62)
Diesel Repair Division 1,500 7.9% 1,417 7.4% 83 6
Corporate, net (881) (1,295) 414 32
-------- -------- ------- ----
$ 11,584 $ 13,187 $(1,603) (12)%
======== ======== ======= ====
</TABLE>
<TABLE>
<CAPTION>
Nine months ended September 30,
-----------------------------------------------------------
1997 1996 Increase (decrease)
-------------------------- --------------------------- --------------------
Operating Operating
income Operating income Operating
(loss) margin (loss) margin Amounts %
-------- ----------- -------- --------- ------- ------
<S> <C> <C> <C> <C> <C> <C>
Inland Division $ 26,749 15.1% $ 28,272 16.3% $(1,523) (5)
Offshore Division 5,476 8.5% 7,566 11.5% (2,090) (28)
Diesel Repair Division 4,714 7.9% 3,913 8.0% 801 20
Corporate, net (2,701) (2,054) (647) (31)
-------- -------- ------- ----
$ 34,238 $ 37,697 $(3,459) (9)%
======== ======== ======= ====
</TABLE>
The following tables set forth the equity in earnings of affiliates
and interest expense for the three months and nine months ended September 30,
1997 compared with the three months and nine months ended September 30, 1996
(dollars in thousands):
12
<PAGE> 13
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
Management's Discussion and Analysis of
Financial Condition and Results of Operations
<TABLE>
<CAPTION>
Three months ended
September 30, Increase (decrease)
----------------------- -----------------
1997 1996 Amount %
------- ------- ----- ---
<S> <C> <C> <C> <C>
Equity in earnings of insurance affiliate $ 422 $ 404 $ 18 4 %
Equity in earnings of marine affiliates 778 1,141 (363) (32)
Interest expense (3,293) (3,437) (144) (4)
</TABLE>
<TABLE>
<CAPTION>
Nine months ended
September 30, Increase (decrease)
------------------------ -------------------
1997 1996 Amounts %
-------- ------- ------- ---
<S> <C> <C> <C> <C>
Equity in earnings of insurance affiliate $ 3,734 $ 1,755 $ 1,979 113 %
Equity in earnings of marine affiliates 2,172 3,055 (883) (29)
Interest expense (10,117) (9,913) 204 2
</TABLE>
The Company currently has a 45% voting common stock investment in
Universal. The amount recorded by the Company as equity in earnings for the
Company's investment in Universal is influenced to the extent that anticipated
future redemptions by Universal of its common stock exceeds the Company's
investment in Universal's stock. The Company also has a 100% investment in
Universal's nonvoting preferred stock. Because the preferred stock controls a
separate portfolio of U.S. Treasury Securities, the Company accounts for this
preferred stock under SFAS 115. Therefore, the interest earned, as well as the
realized gains from the sale of U.S. Treasury Securities collateralizing the
preferred stock, were included as part of equity in earnings of the insurance
affiliate. For the 1997 and 1996 third quarters and first nine months, the
Company recorded $272,000 and $245,000, and $784,000 and $723,000, respectively,
of interest earned from its investment in U.S. Treasury Securities, and
recognized during the 1996 first quarter $582,000 of realized gains from the
sale of such U.S. Treasury Securities, which were included in equity in earnings
of insurance affiliate.
The Company recognized in the 1997 second quarter as equity in
earnings of insurance affiliate, $2,500,000 of cash received from Universal as
the result of a resolution of a previously reserved Universal contingency for
outstanding litigation. The litigation was fully reserved on Universal's
financial records and was set aside as part of the merger in 1992 of Universal
with Eastern America.
Equity in earnings of marine affiliates, representing the Company's
investment in two offshore marine partnerships, reflected a 32% decrease for the
1997 third quarter compared with the 1996 third quarter, and a 29% decrease for
the first nine months of 1997 compared with the first nine months of 1996.
Results for the 1997 third quarter and first nine months were negatively
impacted by additional scheduled maintenance on the partnerships' vessels and by
lower coal volume requirements than the 1996 comparable periods.
13
<PAGE> 14
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
Management's Discussion and Analysis of
Financial Condition and Results of Operations
Interest expense reflected a 4% decrease for the 1997 third quarter
compared with the third quarter of 1996 and a 2% increase for the 1997 first
nine months compared with the first nine months of 1996. Long-term debt was
increased to finance the purchase of treasury stock acquired primarily in the
1997 first quarter and to finance the tank barge construction project completed
during the 1997 first quarter. Both items are discussed in more detail below.
During the 1997 second quarter and third quarter, excess cash flows from
operating activities were used to pay-down the long-term debt, resulting in the
4% decrease in interest expense for the 1997 third quarter.
FINANCIAL CONDITION, CAPITAL RESOURCES AND LIQUIDITY
BALANCE SHEET
Total assets as of September 30, 1997 were $524,433,000, relatively
unchanged compared with $524,530,000 as of December 31, 1996. The following
table sets forth the significant components of the balance sheet as of September
30, 1997 compared with December 31, 1996 (dollars in thousands):
<TABLE>
<CAPTION>
Increase (decrease)
September 30, December 31, ---------------------
1997 1996 Amount %
--------- ---------- --------- -----
<S> <C> <C> <C> <C>
Assets:
Current assets $139,015 $ 129,885 $ 9,130 7%
Property and equipment, net 310,643 318,724 (8,081) (3)
Investments in affiliates 59,706 57,251 2,455 4
Other assets 15,069 18,670 (3,601) (19)
-------- --------- -------- ---
$524,433 $ 524,530 $ (97) -- %
======== ========= ======== ---
Liabilities and Stockholders' equity:
Current liabilities $ 87,965 $ 89,691 $ (1,726) (2) %
Long-term debt 164,968 176,617 (11,649) (7)
Deferred taxes 48,624 45,901 2,723 6
Other long-term liabilities 7,418 6,567 851 13
Stockholders' equity 215,458 205,754 9,704 5
-------- --------- -------- ---
$524,433 $ 524,530 $ (97) --%
======== ========= ======== ---
</TABLE>
As of September 30, 1997, working capital increased to $51,050,000,
a 27% improvement when compared to $40,194,000 at December 31, 1996. Cash
increased to $3,105,000 at September 30, 1997 from $1,544,000 at December 31,
1996, primarily due to positive cash flow from operating activities.
Available-for-sale securities increased to $21,006,000 at September 30, 1997
from $18,199,000 at December 31, 1996. The increase in securities was the result
of positive cash flow from the Company's captive insurance operation. Inventory
levels increased to $17,398,000 from $16,361,000 during the first nine months of
1997. The increase resulted from higher inventory levels carried at the
Company's Gulf Coast diesel repair facilities to service the strong offshore
drilling market. Prepaid expenses increased to $15,803,000 from $13,315,000 at
December
14
<PAGE> 15
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
Management's Discussion and Analysis of
Financial Condition and Results of Operations
31, 1996, primarily due to the number of offshore vessels out of service during
1997 for scheduled maintenance. Such maintenance costs are charged to operating
expense over the period between such scheduled maintenance.
Accounts payable at September 30, 1997 totaled $20,477,000, down
from $30,518,000 at December 31, 1996. The depressed Jones Act tanker market,
which has resulted in the lay-up of offshore tankers, and the decreased food-aid
freighter activity contributed significantly to the decline in accounts
payables. Accrued liabilities at September 30, 1997 totaled $54,430,000, up from
$44,511,000 at December 31, 1996. The majority of the increase was higher
accruals for scheduled repair and maintenance for inland vessels, which are
charged to operating expense based on estimated annual expenditures and higher
accrued interest.
The 3% decrease in property and equipment reflected the depreciation
for the 1997 first nine months of approximately $24,400,000, partially offset by
approximately $18,500,000 of capital additions. Other assets decreased 19%
primarily for the amortization of excess costs of consolidated subsidiaries and
other intangibles of approximately $1,700,000.
Long-term debt, more fully described below, decreased 7%, reflecting
significant pay-downs on debt from the operating cash flows generated during the
1997 first nine months. Offsetting the pay-downs were additional debt incurred
with the repurchase of the Company's common stock and the recently completed
barge construction project, both of which are more fully described below.
Stockholders' equity increased 5% during the 1997 first nine months, reflecting
net earnings of $18,793,000, which was offset by the purchase of treasury stock
of $10,887,000 during the year, and a minor increase in the unrealized value of
available-for-sale securities.
LONG-TERM DEBT
On September 19, 1997, the Company agreed to new terms under its
$100,000,000 revolving credit agreement ("Credit Agreement") with Texas Commerce
Bank National Association ("TCB"), as agent bank. Under the new terms, the
Credit Agreement was extended to September 2002, reduced the margin of interest
paid on its borrowings, provided adjusted interest rates based on the Company's
senior credit rating and eliminated certain financial covenants. Proceeds from
the Credit Agreement may be used for general corporate purposes, including the
purchase of existing or new equipment or for possible business acquisitions.
In January 1997, the Company issued $50,000,000 of Medium Term Notes
at a fixed interest rate of 7.05% due January 29, 2002. Proceeds from the
issuance were used to retire the $34,000,000 of Medium Term Notes due March 10,
1997, with the balance used to reduce the Company's $100,000,000 revolving
Credit Agreement. As of September 30, 1997, $95,000,000 was outstanding under
the Medium Term Notes program and $48,000,000 was outstanding under the Credit
Agreement.
CAPITAL EXPENDITURES
The Company continued to enhance its existing operations through the
construction of new equipment. During the 1997 first quarter the final two new
inland tank barges were placed in service, completing the order of 24
double-skin 29,000 barrel capacity barges. The construction project cost
approximately $1,500,000 per barge. Funds for the construction project were
available through the Company's Credit Agreement and cash provided by operating
activities.
15
<PAGE> 16
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
Management's Discussion and Analysis of
Financial Condition and Results of Operations
TREASURY STOCK PURCHASES
During the 1997 first quarter, the Company purchased 564,450 shares
of its own common stock at a total purchase price of $10,608,000, for an average
price of $18.80 per share. In the 1997 second quarter, the Company purchased
16,200 shares of its common stock at a total purchase price of $279,000, for an
average price of $17.20 per share. As of October 30, 1997, the Company had
1,859,000 shares available under the 6,250,000 total repurchase authorization.
The treasury stock purchases were financed by borrowings under the Company's
Credit Agreement. The Company is authorized to purchase its common stock on the
New York Stock Exchange and in privately negotiated transactions. When
purchasing its common stock, the Company is subject to price, trading volume and
other market considerations. Shares purchased may be used for reissuances upon
the exercise of stock options, in future acquisitions for stock or for other
appropriate corporate purposes.
LIQUIDITY
During the last three years, inflation has had a relatively minor
effect on the financial results of the Company. The marine transportation
segment has long-term contracts which generally contain cost escalation clauses
whereby certain costs, including fuel, can be passed through to its customers,
while the transportation assets acquired and accounted for using the purchase
method of accounting were adjusted to a fair market value and, therefore, the
cumulative long-term effect on inflation was reduced. The repair portion of the
diesel repair segment is based on prevailing current market rates or on
negotiated service contracts with its customers. The Company does not presently
use financial derivatives, but uses a mix of floating and fixed rate debt. The
Company has no foreign exchange risks.
The Company has no present plan to pay dividends on its common
stock.
ACCOUNTING STANDARDS
In February 1997, the FASB issued SFAS No. 128, "Earnings per Share"
which establishes standards for computing and presenting earnings per share and
requires, among other things, dual presentation of basic and diluted earnings
per share on the face of the statements of earnings. In June 1997, the FASB
issued SFAS No. 130, "Reporting Comprehensive Income," which establishes
standards for reporting and display of comprehensive income and its components
in a full set of financial statements. Comprehensive income includes all changes
in a company's equity, including, among other things, foreign currency
transaction adjustments, notes receivable from employee stock ownership plans
and deferred gains (losses) on hedging activities. Also in June 1997, the FASB
issued SFAS No. 131, "Disclosures about Segments of an Enterprise and Related
Information," which establishes standards for reporting information about
operating segments in annual financial statements and requires that enterprises
report selected information about operating segments in interim reports issued
to shareholders. SFAS No. 128 is effective for financial statements for periods
ending after December 15, 1997 and will be adopted by the Company by December
31, 1997. SFAS No. 130 and SFAS No. 131 are effective for financial statements
for periods beginning after December 15, 1997. The adoption of SFAS No. 128 is
not expected to have a material impact on the Company's calculation of earnings
per share, and the adoption of SFAS No. 130 and SFAS No. 131 is not expected to
have a material impact on the Company's financial condition or results of
operations.
16
<PAGE> 17
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
For a detailed explanation of the material pending legal
proceedings against the Company, please refer to the
Form 10-K for the year ended December 31, 1996.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits:
10.0 Credit Agreement, dated September 19, 1997,
among Kirby Corporation, the Banks named
therein, and Texas Commerce Bank National
Association as Agent and Funds
Administrator.
11.0 Computation of Earnings per Common Share.
27.0 Financial Data Schedule
(b) Reports on Form 8-K:
There were no reports on Form 8-K filed for the nine
months ended September 30, 1997.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
Kirby Corporation
(Registrant)
By: /s/ G. Stephen Holcomb
------------------------
G. Stephen Holcomb
Vice President and Controller
Date: November 5, 1997
17
<PAGE> 18
EXHIBIT INDEX
10.0 Credit Agreement, dated September 19, 1997,
among Kirby Corporation, the Banks named
therein, and Texas Commerce Bank National
Association as Agent and Funds
Administrator.
11.0 Computation of Earnings per Common Share.
27.0 Financial Data Schedule
<PAGE> 1
EXHIBIT 10.0
===============================================================================
KIRBY CORPORATION
THE BANKS NAMED HEREIN,
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Funds Administrator
and Agent
--------------------------------------------
$100,000,000
Credit Agreement
--------------------------------------------
Dated as of September 19, 1997
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I DEFINITIONS, ETC..........................................1
Section 1.01. Certain Defined Terms...................................1
Section 1.02. Accounting Terms........................................1
Section 1.03. Computation of Time Periods.............................1
Section 1.04. References, Etc.........................................2
ARTICLE II COMMITMENTS AND TERMS OF CREDIT...........................2
Section 2.01. Commitments.............................................2
Section 2.02. Borrowing Procedures; Conversions.......................2
Section 2.03. The Notes...............................................4
Section 2.04. Reduction of the Commitments............................4
Section 2.05. Repayment of Loans......................................4
Section 2.06. Interest Accrual, Payments, Etc.........................4
Section 2.07. Prepayments.............................................6
Section 2.08. Payments and Computations...............................7
Section 2.09. Fees....................................................8
Section 2.10. Setoff, Counterclaims and Taxes.........................9
Section 2.11. Funding Losses.........................................11
Section 2.12. Change of Law..........................................12
Section 2.13. Increased Costs.......................................12
Section 2.14. Substitution of Banks..................................13
ARTICLE III CONDITIONS OF CREDIT...................................14
Section 3.01. Conditions Precedent to the Initial Borrowing..........14
Section 3.02. Conditions Precedent to All Borrowings.................15
ARTICLE IV REPRESENTATIONS AND WARRANTIES.........................16
Section 4.01. Corporate Existence; Etc...............................16
Section 4.02. Corporate Authority; Binding Obligations...............16
Section 4.03. No Conflict............................................16
Section 4.04. No Consent.............................................17
Section 4.05. No Defaults or Violations of Law.......................17
Section 4.06. Financial Position.....................................17
Section 4.07. Litigation.............................................18
Section 4.08. Use of Proceeds........................................18
Section 4.09. Governmental Regulation................................18
Section 4.10. Disclosure.............................................18
Section 4.11. ERISA..................................................19
Section 4.12. Payment of Taxes.......................................19
Section 4.13. Title and Liens........................................19
-i-
<PAGE> 3
Section 4.14. Pari Passu Ranking.....................................19
Section 4.15. Environmental Matters..................................19
ARTICLE V AFFIRMATIVE COVENANTS....................................20
Section 5.01. Reporting Requirements.................................20
Section 5.02. Taxes; Claims..........................................22
Section 5.03. Compliance with Laws...................................23
Section 5.04. Insurance..............................................23
Section 5.05. Corporate Existence; Etc...............................23
Section 5.06. Inspections; Etc.......................................23
Section 5.07. Maintenance of Properties..............................23
Section 5.08. Accounting Systems; Etc................................23
Section 5.09. Use of Loan Proceeds...................................24
Section 5.10. Further Assurances in General..........................24
ARTICLE VI NEGATIVE COVENANTS......................................24
Section 6.01. Financial Covenants....................................24
Section 6.02. Restrictions on Debt...................................25
Section 6.03. Restriction on Liens...................................26
Section 6.04. Restrictions on Negative Pledge........................27
Section 6.05. Consolidated Subsidiary Dispositions...................27
Section 6.06. Restrictions on Consolidated Subsidiary Distributions..28
Section 6.07. Mergers and Acquisitions...............................28
Section 6.08. Restricted Investments.................................28
Section 6.09. Lines of Business......................................29
Section 6.10. Transactions with Affiliates...........................29
Section 6.11. Universal Stockholders Agreement.......................29
ARTICLE VII DEFAULT..................................................29
Section 7.01. Events of Default......................................29
Section 7.02. Setoff in Event of Default.............................32
Section 7.03. No Waiver; Remedies....................................32
ARTICLE VIII THE AGENT AND THE FUNDS ADMINISTRATOR .........................32
Section 8.01. Authorization and Action..............................32
Section 8.02. Reliance, Etc.........................................33
Section 8.03. TCB and Affiliates....................................34
Section 8.04. Bank Credit Decision..................................34
Section 8.05. Indemnification.......................................34
Section 8.06. Employees of the Agent, Etc............................35
Section 8.07. Successor Agent.......................................35
Section 8.08. Successor Funds Administrator..........................36
Section 8.09. Notice of Default......................................36
-ii-
<PAGE> 4
Section 8.10. Execution of Loan Documents............................37
ARTICLE IX MISCELLANEOUS............................................37
Section 9.01. Amendments, Etc........................................37
Section 9.02. Participation Agreements and Assignments...............37
Section 9.03. Notices................................................40
Section 9.04. Costs and Expenses.....................................41
Section 9.05. Successors and Assigns.................................42
Section 9.06. Independence of Covenants..............................42
Section 9.07. Survival of Representations and Warranties.............42
Section 9.08. Separability...........................................42
Section 9.09. Captions...............................................42
Section 9.10. Limitation by Law......................................42
Section 9.11. Counterparts...........................................43
Section 9.12. Governing Law..........................................43
Section 9.13. Limitation on Interest.................................43
Section 9.14. Indemnification........................................44
Section 9.15 Submission to Jurisdiction.............................45
Section 9.16. Waiver of Jury Trial...................................45
Section 9.17. Final Agreement of the Parties.........................45
-iii-
<PAGE> 5
Annex A Defined Terms
Schedule 2.01 Commitments and Lending Offices
Schedule 4.01 Consolidated Subsidiaries and Excluded Affiliates
Exhibit A Form of Borrowing Request
Exhibit B Form of Conversion Notice
Exhibit C Form of Note
Exhibit D Form of Assignment and Acceptance
-iv-
<PAGE> 6
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of September 19, 1997 (this
"Agreement") is among KIRBY CORPORATION, a Nevada corporation (the "Borrower"),
the banks named on the signature pages hereto (together with their respective
successors and assigns in such capacity, the "Banks"), and TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as funds administrator for the Banks (together with its
successors and assigns in such capacity, the "Funds Administrator"), and as
administrative agent for the Banks (together with its successors and assigns in
such capacity, the "Agent"). Unless otherwise defined herein, all capitalized
terms used herein and defined in Article I are used herein as so defined.
PRELIMINARY STATEMENT
The Borrower, the Agent and certain banks named therein (the
"Existing Banks") have previously entered into that certain Credit Agreement
dated as of March 18, 1996 (the "Existing Credit Agreement"), pursuant to which
the Existing Banks provided the Borrower with a $100,000,000 revolving credit
facility.
The Borrower has requested that the Bank Group enter into this
Agreement and provide the Borrower with a $100,000,000 revolving credit facility
in replacement of the Existing Credit Agreement and the revolving credit
facility provided for therein, and the Bank Group has agreed to do so upon terms
and conditions set forth herein.
Accordingly, in consideration of the foregoing and the mutual
covenants set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS, ETC.
Section 1.01. Certain Defined Terms. Capitalized terms used in
this Agreement and not otherwise defined herein shall have the respective
meanings set forth in Annex A hereto (such meanings to be equally applicable to
both singular and plural forms of the terms defined).
Section 1.02. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the consolidated financial statements referred to in Section 4.06.
Section 1.03. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, unless otherwise indicated, the word "from" means "from and including" and
the words "to" and "until" each means "to but excluding."
-1-
<PAGE> 7
Section 1.04. References, Etc. The words "hereof," "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement. All references herein to Sections, Annexes, Exhibits and Schedules
shall, unless the context requires a different construction, be deemed to be
references to the Sections of this Agreement and the Annexes, Exhibits and
Schedules attached hereto and made a part hereof. In this Agreement, unless a
clear contrary intention appears, the word "including" (and with correlative
meaning "include") means including, without limiting the generality of any
description preceding such term. No provision of this Agreement shall be
interpreted or construed against any Person solely because that Person or its
legal representative drafted such provision.
ARTICLE II
COMMITMENTS AND TERMS OF CREDIT
Section 2.01. Commitments. (a) Each Bank severally agrees, on
the terms and conditions hereinafter set forth, to make loans to the Borrower
(the "Loans") from time to time on any Business Day during the period from the
Effective Date up to, but excluding, the Termination Date in an aggregate amount
outstanding for such Bank not to exceed at any time such Bank's Commitment.
Subject to the terms and conditions of this Agreement, the Borrower may borrow,
repay pursuant to Section 2.05 or prepay pursuant to Section 2.07 and reborrow
under this Section 2.01(a).
(b) Each Prime Rate Borrowing shall consist of Prime Rate
Loans made on the same day by the Banks ratably according to their respective
Commitment Percentages, and Prime Rate Borrowings may be in any amount. Each
Fixed Rate Borrowing shall be in an aggregate amount not less than $1,000,000 or
an integral multiple of $100,000 in excess thereof, and shall consist of Fixed
Rate Loans of the same Type made on the same day by the Banks ratably according
to their respective Commitment Percentages. Borrowings of more than one Type may
be outstanding at the same time, but the Borrower shall not be entitled to
request any Borrowing or to Convert Loans comprising any Borrowing into Loans of
another Type, if after giving effect to such Borrowing or Conversion, as the
case may be, any Bank would have outstanding at any one time more than four (4)
different Types of Loans.
(c) Notwithstanding any other term or provision hereof no Loan
shall be made if after giving effect thereto the aggregate principal amount of
Loans outstanding would exceed the Total Commitment.
Section 2.02. Borrowing Procedures; Conversions. (a) Each
Borrowing shall be made upon the written, telecopied or facsimile transmitted
request of the Borrower, given to the Funds Administrator not later than 11:00
a.m. (Houston time) on (i) the third Business Day prior to the proposed
Borrowing Date in the case of a Eurodollar Rate Borrowing, (ii) the second
Business Day prior to the proposed Borrowing Date in the case of an Adjusted CD
Rate Borrowing or (iii) the
-2-
<PAGE> 8
Business Day immediately preceding the proposed Borrowing Date in the case of a
Prime Rate Borrowing, and upon receipt the Funds Administrator shall give each
other member of the Bank Group prompt notice of such request by telecopier,
telex or cable. Each request for a Borrowing (a "Borrowing Request") made by the
Borrower shall be in substantially the form of Exhibit A, specifying therein (A)
the Borrowing Date for such Borrowing, (B) the Type of Loans comprising such
Borrowing, (C) the aggregate amount of such Borrowing, and (D) in the case of a
Fixed Rate Borrowing, the Interest Period for the Loans comprising such
Borrowing. Each Bank shall, before 11:30 a.m. (Houston time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to
the Funds Administrator at its address referred to in Section 9.03, in same day
funds, such Bank's ratable portion of such Borrowing. After the Funds
Administrator's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Funds Administrator will make such
funds available to the Borrower at the Funds Administrator's aforesaid address.
Each Borrowing Request shall be irrevocable and binding on the Borrower.
(b) Unless the Funds Administrator shall have received notice
from a Bank prior to any Borrowing Date that such Bank will not make available
to the Funds Administrator such Bank's ratable portion of such Borrowing, the
Funds Administrator may assume that such Bank has made such portion available to
the Funds Administrator on such Borrowing Date in accordance with Section
2.02(a) and the Funds Administrator may, in reliance upon such assumption, make
available to the Borrower on such Borrowing Date a corresponding amount. If and
to the extent that such Bank shall not have so made such ratable portion
available to the Funds Administrator, such Bank and the Borrower severally agree
to repay to the Funds Administrator forthwith on demand such corresponding
amount, together with interest thereon for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the Funds
Administrator at (i) in the case of the Borrower, the interest rate applicable
at the time to the Loans comprising such Borrowing and (ii) in the case of such
Bank, the Federal Funds Rate. If such Bank shall repay to the Funds
Administrator such corresponding amount, such amount so repaid shall constitute
such Bank's Loan as part of such Borrowing for purposes of this Agreement. The
failure of any Bank to make the Loan to be made by it as part of any Borrowing
shall not relieve any other Bank of its obligation, if any, hereunder to make
its Loan on such Borrowing Date or any subsequent Borrowing Date, but no Bank
shall be responsible for the failure of any other Bank to make the Loan to be
made by such other Bank on the date of any Borrowing.
(c) The Borrower may, subject to the terms of this Agreement,
on any Business Day, upon written, telecopied or facsimile transmitted notice to
the Funds Administrator, given not later than 11:00 a.m. (Houston time) on (i)
the third Business Day prior to the proposed Conversion Date in the case of a
Conversion of Loans into Eurodollar Rate Loans, (ii) the second Business Day
prior to the proposed Conversion Date in the case of a Conversion of Loans into
Adjusted CD Rate Loans or (iii) the Business Day immediately preceding the
proposed Conversion Date in the case of a Conversion of Loans into Prime Rate
Loans, Convert all Loans comprising one or more Borrowings into Loans of another
Type comprising a single Borrowing, and the Funds Administrator shall promptly
transmit the contents of such notice to each other member of the Bank Group by
telecopier, telex or cable. Each notice of a Conversion (a "Conversion Notice")
given by the
-3-
<PAGE> 9
Borrower shall be in substantially the form of Exhibit B, specifying therein (A)
the Conversion Date for such Conversion, (B) the Loans to be Converted, (C) the
Type of Loans to which such Loans are to be Converted and (D) in the case of a
Conversion into Fixed Rate Loans, the Interest Period for such Converted Loans.
Notwithstanding any other term or provision hereof, after giving effect to any
such Conversion, the size of all Borrowings outstanding hereunder and the number
of different Types of Loans outstanding hereunder shall conform to the
requirements of Section 2.01. In the event of any Conversion of Fixed Rate Loans
on any day other than the last day of the Interest Period applicable thereto,
the Borrower shall be obligated to reimburse the Banks in respect thereof
pursuant to Section 2.11. If the Borrower shall fail to give a timely Conversion
Notice conforming to the requirements of this Agreement with respect to any
Fixed Rate Loans prior to the expiration of the Interest Period applicable
thereto, such Fixed Rate Loans shall, automatically on the last day of such
Interest Period, be Converted into Prime Rate Loans.
Section 2.03. The Notes. The Loans made by each Bank shall be
evidenced by a single Note issued to such Bank by the Borrower (a) dated the
date of this Agreement (or such other date as may be specified in Section 9.02),
(b) payable to the order of such Bank in a principal amount equal to such Bank's
Commitment and (c) otherwise duly completed. Each Loan made by a Bank to the
Borrower and all payments made on account of the principal amount thereof shall
be entered by such Bank in its records or on the schedule (or a continuation
thereof) attached to the Note of such Bank, provided, however, that prior to any
transfer of any such Note, such Bank shall endorse the amount and maturity of
any outstanding Loans on the schedule (or a continuation thereof) attached to
such Note.
Section 2.04. Reduction of the Commitments. The Borrower shall
have the right, upon at least three Business Days' notice to the Funds
Administrator to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Banks, provided, that each partial
reduction shall be in the aggregate amount of $1,000,000 or an integral multiple
of $1,000,000 in excess thereof.
Section 2.05. Repayment of Loans. All outstanding Loans shall
be fully due and payable on the Termination Date, together with any unpaid
interest accrued thereon.
Section 2.06. Interest Accrual, Payments, Etc. (a) Subject to
the provisions of Section 9.13, the Borrower shall pay interest on the unpaid
principal amount of each Loan made by each Bank from the date of such Loan until
such principal amount shall be paid in full, on the dates and at the rates per
annum specified as follows:
(i) if such Loan is a Prime Rate Loan, a rate per annum equal
to the lesser of (A) the Highest Lawful Rate and (B) the Prime Rate in
effect from time to time plus or minus, as applicable, the Applicable
Margin in effect from time to time, and unpaid accrued interest on such
Loans shall be payable on each Quarterly Payment Date and on the date
such Prime Rate Loan shall be paid in full;
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<PAGE> 10
(ii) if such Loan is an Adjusted CD Rate Loan, a rate per
annum equal at all times during the Interest Period for such Loan to
the lesser of (A) the Highest Lawful Rate and (B) the sum of the
Adjusted CD Rate for such Interest Period plus the Applicable Margin in
effect as of the first day of such Interest Period, and unpaid accrued
interest on such Loans shall be payable on each Quarterly Payment Date
and on the last day of such Interest Period; or
(iii) if such Loan is a Eurodollar Rate Loan, a rate per annum
equal at all times during the Interest Period for such Loan to the
lesser of (A) the Highest Lawful Rate and (B) the sum of the Eurodollar
Rate for such Interest Period plus the Applicable Margin in effect as
of the first day of such Interest Period, and unpaid accrued interest
on such Loans shall be payable on each Quarterly Payment Date and on
the last day of such Interest Period.
Any amount of principal or, to the extent permitted by applicable law, interest
which is not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest from the date on which such amount is due until
such amount is paid in full, at a rate per annum (the "Default Rate") equal at
all times to the lesser of (A) the Highest Lawful Rate and (B) the Prime Rate in
effect from time to time during the applicable period plus or minus, as
applicable, the Applicable Margin in effect from time to time during such period
plus two percent (2%), payable on demand.
(b) The Borrower shall pay to each Bank additional interest on
the unpaid principal amount of each Eurodollar Rate Loan of such Bank, from the
date of such Loan until such principal amount is paid in full, at an interest
rate per annum equal at all times to the remainder obtained by subtracting (i)
the Eurodollar Rate for the Interest Period for such Loan from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Bank for such Interest Period,
payable on each date on which interest is payable on such Loan. Such additional
interest shall be calculated by such Bank and notified to the Borrower (together
with a copy of such Bank's calculations) through the Funds Administrator.
(c) (i) The Agent shall give prompt notice to the Borrower and
each other member of the Bank Group of the applicable interest rate determined
by the Agent hereunder for each Borrowing. Each determination by the Agent (or,
in the case of Section 2.06(b), by a Bank) of an interest rate hereunder shall
be conclusive and binding for all purposes, absent manifest error.
(ii) If one or more Banks holding aggregate Commitment
Percentages of at least fifty percent (50%) shall, at least one
Business Day before the date of any requested Eurodollar Rate
Borrowing, notify the Agent and the Funds Administrator that the
Eurodollar Rate applicable to such Borrowing will not adequately
reflect the cost to such Banks of making, funding or maintaining their
respective Eurodollar Rate Loans for such Borrowing, the right of the
Borrower to select Eurodollar Rate Loans for such Borrowing or any
subsequent Borrowing shall be suspended until the Agent shall notify
the Borrower and each other member of the Bank Group that the
circumstances causing such suspension no
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<PAGE> 11
longer exist, and each Loan comprising such Borrowing shall be made as,
or Converted into, as applicable, a Prime Rate Loan.
(iii) If the Agent is unable to determine the Adjusted CD Rate
in accordance with the definition thereof for any Adjusted CD Rate
Borrowing or the Eurodollar Rate in accordance with the definition
thereof for any Eurodollar Rate Borrowing, (A) the Agent shall
forthwith notify the Borrower and each other member of the Bank Group
that the interest rate cannot be determined for such Adjusted CD Rate
Borrowing or Eurodollar Rate Borrowing, as the case may be, (B) each
Adjusted CD Rate Borrowing or Eurodollar Rate Borrowing, as the case
may be, previously requested but not yet funded or Converted, as
applicable, will automatically be made as or Converted into, as
applicable, a Prime Rate Borrowing, and (C) the obligation of the Banks
to make Adjusted CD Rate Loans or Eurodollar Rate Loans, as the case
may be, shall be suspended until the Agent shall notify the Borrower
and each other member of the Bank Group that the circumstances causing
such suspension no longer exist.
(d) As used in this Agreement and the other Loan Documents,
"Applicable Margin" means, as to Loans consisting of a single Borrowing, a rate
per annum determined pursuant to the table set forth below by reference to the
two (2) highest of the Borrower's S&P Rating, Moody's Rating or Duff & Phelps
Rating (individually, a "Rating" and collectively, the "Ratings") and the Type
of Loans comprising such Borrowing, whereby (i) if the two highest Ratings are
the same, such Ratings are used, (ii) if the two highest Ratings differ by only
one step, the higher of either the S&P Rating or the Moody's Rating is used, or
(iii) if the two highest Ratings differ by more than one step, the Rating one
step above the lower Rating is used.
<TABLE>
<CAPTION>
S&P Rating or Equal to Equal to Equal to Equal to Equal to Less than
Duff & Phelps or or or or or BB+/Ba1
Rating/ Greater than Greater than Greater than Greater than Greater than or
Moody's Rating A- / A3 BBB+/Baa1 BBB/Baa2 BBB-/Baa3 BB+/Ba1 If unrated
- ------------------ ------------- -------------- -------------- ------------ -------------- -----------
<S> <C> <C> <C> <C> <C> <C>
Eurodollar Rate 0.25% 0.30% 0.35% 0.45% 0.75% 1.00%
Adjusted CD Rate 0.50% 0.55% 0.60% 0.70% 1.00% 1.25%
Prime Rate -0.50% -0.50% -0.50% -0.25% 0.00% 0.00%
</TABLE>
Section 2.07. Prepayments. (a) The Borrower may, from time to
time on any Business Day, upon at least one Business Day's notice to the Funds
Administrator stating the proposed date and aggregate principal amount thereof,
and if such notice is given, the Borrower shall, prepay the outstanding
principal amount of the Prime Rate Loans comprising part of the same Borrowing
in whole or ratably in part; provided, that any partial prepayment of such Prime
Rate Loans shall be in an aggregate principal amount of not less than $100,000.
The Borrower may from time to time upon at least three Business Days' notice to
the Funds Administrator stating the proposed date and the aggregate principal
amount thereof, and if such notice is given, the Borrower
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<PAGE> 12
shall, prepay the outstanding principal amount of the Fixed Rate Loans
comprising part of the same Borrowing in whole or ratably in part; provided,
that any partial prepayment of such Fixed Rate Loans shall be in an aggregate
principal amount of not less than $2,000,000 or an integral multiple of
$1,000,000 in excess thereof. The Borrower may apply any optional prepayment of
the Loans to such portions of the Loans as the Borrower may elect.
(b) The Borrower shall from time to time prepay the Loans
comprising part of the same Borrowing in such amounts as shall be necessary so
that at all times the aggregate amount of Loans outstanding shall not be in
excess of the Total Commitment. Any prepayment required by this Section 2.07(b)
shall be due on the date such prepayment accrues pursuant to the preceding
sentence.
(c) Each prepayment of Fixed Rate Loans shall be accompanied
by a prepayment of accrued interest to the date of such prepayment on the
principal amount prepaid. In the event of any prepayment of a Fixed Rate Loan,
the Borrower shall be obligated to reimburse the Banks in respect thereof
pursuant to Section 2.11. Unless otherwise specified by the Borrower, all
mandatory prepayments of the Loans shall first be applied to Prime Rate
Borrowings, and second to such Fixed Rate Borrowings as the Funds Administrator
may select.
Section 2.08. Payments and Computations. (a) All payments of
principal, interest, commitment fees and other amounts payable to the Banks
under the Loan Documents shall be made in Dollars to the Funds Administrator at
its address specified in Section 9.03 for the account of each of the Banks, in
immediately available funds not later than 12:00 Noon (Houston time) on the date
when due. Upon receipt of such payments, the Funds Administrator will promptly
cause to be distributed like funds relating to the payment of principal or
interest or commitment fees ratably (other than amounts payable pursuant to
Section 2.06(b), Section 2.10, Section 2.11, Section 2.12 or Section 2.13) to
the Banks for the account of their respective Applicable Lending Offices, and
like funds relating to the payment of any other amount payable to any Bank to
such Bank for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. In the event the Funds
Administrator receives any such payment in immediately available funds not later
than 12:00 Noon (Houston time) on any Business Day, but fails to distribute to
any Bank entitled thereto like funds relating to such payment by the close of
business on such Business Day, then the Funds Administrator shall pay such Bank
interest thereon at the Federal Funds Rate for each day from the date such
amount is received by the Funds Administrator until the date distributed to such
Bank.
(b) Unless the Funds Administrator shall have received notice
from the Borrower prior to the date on which any payment is due to the Banks
under the Loan Documents that the Borrower will not make such payment in full,
the Funds Administrator may assume that the Borrower has made such payment in
full to the Funds Administrator on such date and the Funds Administrator may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent the
Borrower shall not have made such payment in full to the Funds Administrator
each Bank shall repay to the Funds
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<PAGE> 13
Administrator forthwith on demand such amount distributed to such Bank, together
with interest thereon for each day from the date such amount is distributed to
such Bank until the date such Bank repays such amount to the Funds Administrator
at the Federal Funds Rate.
(c) All payments by the Borrower of the fees payable to the
Agent pursuant to the Agent's Side Letter shall be made in Dollars directly to
the Agent at its address specified in Section 9.03 in immediately available
funds not later than 12:00 Noon (Houston time) on the date when due.
(d) All computations of interest based on the Prime Rate shall
be made on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Adjusted CD Rate, the Eurodollar Rate, the
Federal Funds Rate, or Section 2.06(b), as well as commitment fees, shall be
made on the basis of a year of 360 days (unless use of a 360 day year would
cause the interest contracted for, charged or received hereunder to exceed the
Highest Lawful Rate, in which case such computations shall be made on the basis
of a year of 365 or 366 days, as the case may be), in each case for the actual
number of days (including the first day but excluding the last day) occurring in
the period for which such interest or commitment fees are payable.
(e) Whenever any payment under the Loan Documents shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Loans to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) If any Bank shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of setoff, or otherwise) on
account of the Loans made by it (other than pursuant to Section 2.06(b), Section
2.10, Section 2.11, Section 2.12 or Section 2.13) in excess of its ratable share
of payments on account of the Loans obtained by all the Banks, such Bank shall
forthwith purchase from the other Banks such participations in the Loans made by
such other Banks as shall be necessary to cause such purchasing Bank to share
the excess payment ratably with each of them. The Borrower agrees that any Bank
so purchasing a participation from another Bank pursuant to this Section 2.08(f)
may, to the fullest extent permitted by law and this Agreement, exercise all its
rights of payment (including the right of setoff) with respect to such
participation as fully as if such Bank were the direct creditor of the Borrower
in the amount of such participation.
Section 2.09. Fees. (a) Subject to the provisions of Section
9.13, the Borrower shall pay each Bank a commitment fee equal to one-eighth of
one percent (1/8%) per annum on the average unused portion of the Commitment of
such Bank as in effect from time to time for the period from the date hereof to,
but excluding, the Termination Date. Accrued commitment fees shall be due and
payable in arrears on each Quarterly Payment Date in each year, on the date of
any reduction or termination of the Commitment of such Bank and on the
Termination Date, and shall be computed for the period commencing with the day
to which such fee was last paid (or, in the case of the first
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<PAGE> 14
commitment fee payment date, for the period commencing with and including the
date hereof) to the date such fee is due and payable.
(b) Subject to the provisions of Section 9.13, the Borrower
shall pay the Agent the arrangement and administrative fees specified in that
certain letter agreement dated August 29, 1997 between the Agent and the
Borrower concerning the same (the "Agent's Side Letter").
Section 2.10. Setoff, Counterclaims and Taxes. (a) All
payments of principal, interest, expenses, reimbursements, compensation,
commitment fees, letter of credit fees, arrangement fees or administration fees
and any other amount from time to time due under any Loan Document shall be made
by the Borrower without setoff or counterclaim and shall be made free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each member of the Bank Group, taxes imposed
on its income (or a taxable base in the nature of net income, or, in lieu of
taxes so imposed or measured, on overall gross receipts and capital), and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
member of the Bank Group is organized or any political subdivision thereof and,
in the case of each Bank, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction of such Bank's Applicable Lending Office or
any political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable under any Loan Document to any member of the
Bank Group, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.10) such member of the Bank Group
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law; provided that the Borrower
shall not be required to pay any increased amount on account of Taxes to the
extent that any such Bank shall not have furnished the Borrower with such forms,
or shall not have taken such other action, as reasonably may be available to it
under applicable tax laws and any applicable tax treaty to obtain an exemption
from, or reduction of, such Taxes.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made under any Loan Document or
from the execution, delivery or registration of, or otherwise with respect to,
any Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each member of the Bank Group
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.10) paid by such member of the Bank Group (whether paid on its own
behalf or on behalf of any other member of the Bank Group) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification
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<PAGE> 15
shall be made within 30 days from the date such member of the Bank Group makes
written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Agent, at its address referred to in Section 9.03,
the original or a certified copy of a receipt evidencing payment thereof. If no
Taxes are payable in respect of any payment made under any Loan Document, upon
the request of the Agent, the Borrower will furnish to the Agent and the Funds
Administrator, at its address referred to in Section 9.03, a certificate from
each appropriate taxing authority, or an opinion of counsel acceptable to the
Agent, in either case stating that such payment is exempt from or not subject to
Taxes.
(e) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.10 shall survive the payment in full of the Loans
and all other amounts owing under the other Loan Documents. The provisions of
this Section 2.10 are in all respects subject to Section 9.13 hereof.
(f) Each Bank represents and warrants to the Agent, the Funds
Administrator and the Borrower that such Bank is either (i) a corporation
organized under the laws of the United States, a state thereof or the District
of Columbia, or (ii) entitled to complete exemption from United States
withholding tax imposed on or with respect to any payments, including fees, to
be made to it pursuant to this Agreement and the other Loan Documents (x) under
an applicable provision of a tax convention or treaty to which the United States
is a party or (y) because it is acting through a branch, agency or office in the
United States and any payment to be received by it hereunder is effectively
connected with a trade or business in the United States. Upon becoming a party
to this Agreement (whether by assignment or as an original signatory hereto),
and in any event, from time to time upon the request of the Agent, the Funds
Administrator or the Borrower, each Bank which is not a corporation organized
under the laws of the United States or any state thereof or the District of
Columbia shall deliver to the Agent, the Funds Administrator and the Borrower
such forms, certificates or other instruments as may be required by the Agent
and the Funds Administrator in order to establish that such Bank is entitled to
complete exemption from United States withholding taxes imposed on or with
respect to any payments, including fees, to be made to such Bank under this
Agreement and the other Loan Documents. Each Bank also agrees to deliver to the
Borrower, the Agent and the Funds Administrator such other supplemental forms as
may at any time be required as a result of the passage of time or changes in
applicable law or regulation in order to confirm or maintain in effect its
entitlement to exemption from U.S. withholding tax on any payments hereunder;
provided, that the circumstances of the Bank at the relevant time and applicable
laws permit it to do so. If a Bank determines, as a result of any change in
either (1) applicable law, regulation or treaty, or in any official application
thereof or (2) its circumstances, that it is unable to submit any form or
certificate that it is obligated to submit pursuant to this Section 2.10(f), or
that it is required to withdraw or cancel any such form or certificate
previously submitted, it shall promptly notify the Borrower, the Agent and the
Funds Administrator of such fact. If a Bank is organized under the laws of a
jurisdiction outside the United States, and the Borrower, the Funds
Administrator and the Agent have not received forms, certificates or other
instruments indicating to
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<PAGE> 16
their satisfaction that all payments to be made to such Bank hereunder are not
subject to United States withholding tax or the Agent otherwise has reason to
believe that such Bank is subject to U.S. withholding tax, the Borrower shall
withhold taxes from such payments at the applicable statutory rate. Each Bank
shall indemnify and hold the Borrower, the Funds Administrator and the Agent
harmless from any United States taxes, penalties, interest and other expenses,
costs and losses incurred or payable by them as a result of either (A) such
Bank's failure to submit any form or certificate that it is required to provide
pursuant to this Section 2.10(f) or (B) reliance by the Borrower, the Funds
Administrator or the Agent on any such form or certificate which such Bank has
provided to them pursuant to this Section 2.10(f).
(g) Any Bank claiming any additional amounts payable pursuant
to this Section 2.10 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by the
Borrower or to change the jurisdiction of its Applicable Lending Office if such
a filing or change would avoid the need for or reduce the amount of any such
additional amounts which may thereafter accrue and would not, in the sole
determination of such Bank, be otherwise disadvantageous to such Bank.
Section 2.11. Funding Losses. The Borrower shall indemnify
each member of the Bank Group against any loss or reasonable expense (including,
but not limited to, any loss or reasonable expense sustained or incurred or to
be sustained or incurred in liquidating or reemploying deposits from third
parties acquired to effect or maintain such Loan or any part thereof as a Fixed
Rate Loan) which such Person may sustain or incur as a consequence of (a) any
failure by the Borrower to fulfill on the date of any Borrowing hereunder the
applicable conditions set forth in Article III, (b) any failure by the Borrower
to borrow hereunder or to Convert Loans hereunder after a Borrowing Request or
Conversion Notice, respectively, has been given, (c) any payment, prepayment or
Conversion of a Fixed Rate Loan required or permitted by any other provisions of
this Agreement, including, without limitation, payments made due to the
acceleration of the maturity of the Loans pursuant to Section 7.01, or otherwise
made on a date other than the last day of the applicable Interest Period, (d)
any default in the payment or prepayment of the principal amount of any Loan or
any part thereof or interest accrued thereon, as and when due and payable (at
the due date thereof, by notice of prepayment or otherwise) or (e) the
occurrence of an Event of Default. Such loss or reasonable expense shall
include, without limitation, an amount equal to the excess, if any, as
determined by each Bank of (i) its cost of obtaining the funds for the Loan
being paid, prepaid or Converted or not borrowed or Converted (based on the
Fixed Rate applicable thereto) for the period from the date of such payment,
prepayment or Conversion or failure to borrow or Convert to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow or
Convert, the Interest Period for the Loan which would have commenced on the date
of such failure to borrow or Convert) over (ii) the amount of interest (as
estimated by such Bank) that would be realized by such Bank in reemploying the
funds so paid, prepaid or Converted or not borrowed or Converted for such period
or Interest Period, as the case may be. A certificate of each member of the Bank
Group setting forth any amount or amounts which such Person is entitled to
receive pursuant to this Section 2.11 shall be delivered to the Borrower (with a
copy to the Agent and the Funds Administrator) and shall be conclusive, if made
in good faith, absent manifest error. The Borrower
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<PAGE> 17
shall pay to the Funds Administrator for the account of each such Person the
amount shown as due on any certificate within 30 days after its receipt of the
same. Notwithstanding the foregoing, in no event shall any Bank be permitted to
receive any compensation hereunder constituting interest in excess of the
Highest Lawful Rate. Without prejudice to the survival of any other obligations
of the Borrower hereunder, the obligations of the Borrower under this Section
2.11 shall survive the termination of this Agreement and/or the payment or
assignment of any of the Notes.
Section 2.12. Change of Law. (a) If at any time any Bank
determines in good faith (which determination shall be conclusive) that any
change in any applicable law, rule or regulation or in the interpretation,
application or administration thereof makes it unlawful, or any central bank or
other Governmental Authority asserts that it is unlawful, for such Bank or its
foreign branch or branches to fund or maintain any Eurodollar Rate Loan (any of
the foregoing determinations being a "Eurodollar Event"), then, such Bank, at
its option, may: (i) declare that Eurodollar Rate Loans will no longer be made
or maintained by such Bank, whereupon the right of the Borrower to select
Eurodollar Rate Loans for any Borrowing shall be suspended until such Bank shall
notify the Funds Administrator and the Agent that the circumstances causing such
Eurodollar Event no longer exist; (ii) with respect to any Eurodollar Rate Loans
of such Bank then outstanding, require that all such Eurodollar Rate Loans be
Converted to Prime Rate Loans, in which event all such Eurodollar Rate Loans
shall automatically be Converted into Prime Rate Loans on the effective date of
notice of such Eurodollar Event and all payments or prepayments of principal
that would have otherwise been applied to repay such Converted Eurodollar Rate
Loans shall instead be applied to repay the Prime Rate Loans resulting from such
Conversion; and/or (iii) with respect to any Eurodollar Rate Loans requested of
such Bank but not yet made as or Converted into such, require that such
Eurodollar Rate Loans be made as or Converted into, as applicable, Prime Rate
Loans.
(b) Upon the occurrence of any Eurodollar Event, and at any
time thereafter so long as such Eurodollar Event shall continue, such Bank may
exercise its aforesaid option by giving written notice thereof to the Funds
Administrator, the Agent and the Borrower, such notice to be effective upon
receipt thereof by the Borrower. Any Conversion of any Eurodollar Rate Loan
which is required under this Section 2.12 shall be made, together with accrued
and unpaid interest and all other amounts payable to such Bank under this
Agreement with respect to such Converted Loan (including, without limitation,
amounts payable pursuant to Section 2.11 hereof), on the date stated in the
notice to the Borrower referred to above.
Section 2.13. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline issued or request made
after the Effective Date by any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to any Bank of agreeing to make or making, funding or maintaining Adjusted
CD Rate Loans or Eurodollar Rate Loans, then the Borrower shall from time to
time, subject to the provisions of Section 9.13, pay to the Funds Administrator
for the account of such Bank additional amounts sufficient to compensate such
Bank for such increased cost upon demand by such Bank.
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<PAGE> 18
(b) If any Bank shall have determined in good faith that any
law, rule, regulation or guideline adopted pursuant to or arising out of the
July 1988 report of the Basle Committee on Banking Regulations and Supervisory
Practices entitled "International Convergence of Capital Measurement and Capital
Standards" and becoming applicable to such Bank after the Effective Date, or
that the adoption after the Effective Date of any applicable law, rule,
regulation or guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration thereof by any central bank
or other Governmental Authority charged with the interpretation or
administration thereof, or compliance by such Bank (or any lending office of
such Bank) with any request or directive regarding capital adequacy (whether or
not having the force of law) issued after the Effective Date by any such
Governmental Authority or comparable agency, affects or would affect the amount
of capital required or expected to be maintained by such Bank or any corporation
controlling such Bank and that the amount of such capital is increased by or
based upon the existence of such Bank's Commitment hereunder and other
commitments of this type, then the Borrower shall from time to time, subject to
the provisions of Section 9.13, pay to such Bank upon demand additional amounts
sufficient to compensate such Bank or such corporation in the light of such
circumstances, to the extent that such Bank reasonably determines such increase
in capital to be allocable to the existence of such Bank's Commitment hereunder
and similar amounts are being charged generally to other borrowers with similar
commitments from such Bank.
(c) Each Bank will notify the Borrower of any event occurring
after the date of this Agreement which will entitle such Bank to compensation
pursuant to this Section 2.13 as promptly as practicable after such Bank obtains
knowledge of the occurrence of such event. In no event will the Borrower be
obligated to compensate any Bank pursuant to this Section 2.13 for any amounts
described in paragraphs (a) or (b) above that accrued more than one hundred
eighty (180) days prior to the date the notice described in the preceding
sentence is given by the party requesting such compensation, but the foregoing
shall in no way limit the right of such Bank to request compensation for amounts
accrued during such one hundred eighty (180) day period or any future period. A
certificate of such Bank setting forth in reasonable detail (i) such amount or
amounts as shall be necessary to compensate such Bank (or participating banks or
other entities pursuant to Section 9.02) as specified above and (ii) the
calculation of such amount or amounts shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall pay to such Bank
the amount shown as due on any such certificate within thirty (30) days after
its receipt of the same. The failure of any Bank to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital shall not constitute a waiver of the right of such Bank or any
other Bank, to demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on capital. The protection
of this Section 2.13 shall be available to the Banks regardless of any possible
contention of invalidity or inapplicability of law, regulation or condition
which shall have been imposed.
Section 2.14. Substitution of Banks. If one or more Banks
requests compensation pursuant to Section 2.13 or declares a Eurodollar Event
pursuant to Section 2.12 or the Borrower is required to deduct United States
withholding taxes pursuant to Section 2.10(f) from amounts payable to one or
more Banks under the Loan Documents (any such request, declaration or
withholding is
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<PAGE> 19
herein called a "Substitution Event" and any such Bank is herein called an
"Affected Bank") the Borrower may give notice to such Affected Bank (with a copy
to the Agent and the Funds Administrator) that it wishes to seek one or more
Eligible Assignees (which may be one or more of the other Banks) to assume the
Commitment of such Affected Bank and to purchase the Loans of such Affected Bank
and the other interests of such Affected Bank in the Loan Documents
(collectively, the "Affected Interests"). Each Affected Bank agrees to sell all
of its Affected Interests pursuant to Section 9.02 to any such Eligible Assignee
for an amount equal to the sum of the outstanding unpaid principal of and
accrued interest on the Loans of such Affected Bank and all commitment fees and
other fees and amounts due such Affected Bank under the Loan Documents,
calculated, in each case, to the date such Affected Interests are purchased,
whereupon such Affected Bank shall have no further Commitment or other
obligation to the Borrower under the Loan Documents. Notwithstanding the
foregoing, the Borrower may not replace any Affected Bank if (a) the Bank or
Banks involved in such Substitution Event have aggregate Commitment Percentages
in excess of thirty five percent (35%) or (b) the Borrower does not seek to
replace each Bank involved in such Substitution Event.
ARTICLE III
CONDITIONS OF CREDIT
Section 3.01. Conditions Precedent to the Initial Borrowing.
The obligation of each Bank to make its initial Loan on the occasion of the
initial Borrowing hereunder is subject to the conditions precedent that the
Agent shall have received on or before the date of such initial Borrowing all of
the following, each dated (unless otherwise indicated) the date hereof, in form
and substance reasonably satisfactory to the Bank Group and in such number of
counterparts as may be reasonably requested by the Agent:
(a) The following Loan Documents duly executed by the
Persons indicated below:
(i) this Agreement executed by the Borrower and each
member of the Bank Group,
(ii) the Notes executed by the Borrower, and
(iii) the Agent's Side Letter executed by the Borrower and the
Agent.
(b) A certificate of a Responsible Officer and of the
secretary or an assistant secretary of the Borrower certifying, inter alia, (i)
true and correct copies of resolutions adopted by the Board of Directors of the
Borrower (A) authorizing the execution, delivery and performance by the Borrower
of the Loan Documents to which it is or will be a party and the Borrowings to be
made hereunder and the consummation of the transactions contemplated thereby,
(B) approving the forms of the Loan Documents to which it is a party and which
will be delivered at or prior to the date of
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the initial Borrowing and (C) authorizing officers of the Borrower to execute
and deliver the Loan Documents to which it is or will be a party and any related
documents, (ii) true and correct copies of the articles of incorporation and
bylaws (or other similar charter documents) of the Borrower and (iii) the
incumbency and specimen signatures of the officers of the Borrower executing any
documents on behalf of it.
(c) Evidence that the commitments under the Existing Credit
Agreement have been terminated and that all principal, interest, fees and other
amounts owing thereunder by the Borrower, respectively, have been paid (or will
be terminated contemporaneously with, and will be paid with the proceeds of, the
initial Borrowing).
(d) A certificate of a Responsible Officer of the Borrower
certifying as to the satisfaction of the conditions specified in this Article
III.
(e) The favorable, signed opinion of Haynes and Boone, L.L.P.,
special counsel to the Borrower, addressed to the Bank Group, in form and
substance reasonably satisfactory to the Bank Group.
(f) The favorable, signed opinion of Andrews & Kurth, L.L.P.,
special counsel to the agent, addressed to the Bank Group, in form and substance
reasonably satisfactory to the Bank Group.
(f) Certificates of appropriate public officials as to the
existence and good standing of the Borrower in the States of Nevada and Texas.
(g) The payment to the Bank Group of the fees due to them as
of such date under the Loan Documents, the payment to the Agent of the fees due
to it as of such date under the Agent's Side Letter, and the payment of all
legal fees and expenses of Andrews & Kurth L.L.P., special counsel to the Agent,
in connection with the preparation of this Agreement and the other Loan
Documents and the closing of this transaction.
(h) Such other documents, certificates and opinions as the
Agent may reasonably request relating to this Agreement and the other Loan
Documents.
Section 3.02. Conditions Precedent to All Borrowings. The
obligation of each Bank to make any Loan shall be subject to the further
conditions precedent that (a) on the Borrowing Date of such Loan the following
statements shall be true, and the Borrower, by virtue of its delivery of a
Borrowing Request shall be deemed to have certified to the Bank Group as of such
Borrowing Date that (i) the representations and warranties contained in Article
IV are true and correct on and as of such Borrowing Date, both before and after
giving effect to such Loan, and as though made on and as of such Borrowing Date
and (ii) no Default has occurred and is continuing, or would result from such
Loan and (b) the Agent shall have received on or before such Borrowing Date such
other
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documents, certificates and opinions as the Agent may reasonably request
relating to this Agreement and the other Loan Documents, each in form and
substance reasonably satisfactory to the Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Bank Group to enter into this
Agreement, the Borrower hereby represents and warrants to the Bank Group as
follows:
Section 4.01. Corporate Existence; Etc. Each of the Borrower
and each of its Material Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and is duly qualified or licensed to transact business as a
foreign corporation and is in good standing under the laws of each jurisdiction
in which the conduct of its operations or the ownership or leasing of its
properties requires such qualification or licensing, except where the failure to
be so qualified or licensed will not have a Material Adverse Effect on either
the Borrower individually or the Borrower and its Subsidiaries taken as a whole.
Schedule 4.01 sets forth a complete list (including the Borrower's percentage
equity interest therein) as of the date hereof of (a) all Consolidated
Subsidiaries (Part A), and (b) all Excluded Affiliates (Part B).
Section 4.02. Corporate Authority; Binding Obligations. Each
of the Borrower and each of its Material Subsidiaries has all requisite power
and authority, corporate or otherwise, to conduct its business and own, operate
and encumber its property. Each of the Borrower and each of its Subsidiaries has
all requisite power and authority, corporate or otherwise, to execute, deliver
and perform all of its obligations under the Loan Documents executed by, or to
be executed by, such Person. The execution, delivery and performance of each of
the Loan Documents to which the Borrower or any of its Subsidiaries is a party
and the consummation of the transactions contemplated thereby, have been duly
authorized by all necessary corporate and shareholder action. Each of the Loan
Documents to which the Borrower or any of its Subsidiaries is a party has been
duly executed and delivered by such Person, is in full force and effect and
constitutes the legal, valid and binding obligation of such Person, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditor's rights generally and general
principles of equity.
Section 4.03. No Conflict. The execution, delivery and
performance by the Borrower or any of its Subsidiaries of each Loan Document to
which such Person is a party and the consummation of each of the transactions
contemplated thereby do not and shall not, by the lapse of time, the giving of
notice or otherwise: (a) constitute a violation of any Requirement of Law or a
breach of any provision contained in the articles or certificate of
incorporation or bylaws of such Person, or any shareholder agreement pertaining
to such Person, or contained in any material agreement, instrument or document
to which it is now a party or by which it or its properties is bound, except for
such violations or breaches that will not have a Material Adverse Effect on
either
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<PAGE> 22
the Borrower individually or the Borrower and its Subsidiaries taken as a whole;
or (b) result in or require the creation or imposition of any Lien whatsoever
upon any of the properties or assets of the Borrower or any of its Subsidiaries.
Section 4.04. No Consent. No authorization, consent, approval,
license, or exemption of or filing or registration with, any Governmental
Authority or any other Person, was, is or will be necessary for the valid
execution, delivery or performance by the Borrower or any of its Subsidiaries of
any of the Loan Documents to which it is a party and the consummation of each of
the transactions contemplated thereby other than those that the failure to
obtain, file or make will not have a Material Adverse Effect on either the
Borrower individually or the Borrower and its Subsidiaries taken as a whole.
Section 4.05. No Defaults or Violations of Law. No Default has
occurred and is continuing. No default (or event or circumstance occurred which,
but for the passage of time or the giving of notice, or both, would constitute a
default) has occurred and is continuing with respect to any note, indenture,
loan agreement, mortgage, lease, deed or other agreement to which the Borrower
or any of its Subsidiaries is a party or by which any of them or their
properties is bound, except for such defaults that will not have a Material
Adverse Effect on either the Borrower individually or the Borrower and its
Subsidiaries taken as a whole. Neither the Borrower nor any of its Subsidiaries
is in violation of any applicable Requirement of Law except for such violations
that will not have a Material Adverse Effect on either the Borrower individually
or the Borrower and its Subsidiaries taken as a whole.
Section 4.06. Financial Position. (a) The consolidated balance
sheet of the Borrower and its Subsidiaries as at December 31, 1996, and the
related consolidated statements of income, retained earnings and cash flows for
the fiscal year then ended, audited by KPMG Peat Marwick, independent public
accountants, copies of which have been furnished to the Bank Group, fairly
present the consolidated financial condition of the Borrower and its
Subsidiaries at such date and the consolidated results of their operations and
the consolidated cash flows of the Borrower and its Subsidiaries for the fiscal
period ended on such date, all in accordance with generally accepted accounting
principles applied on a consistent basis.
(b) The unaudited consolidated balance sheet of the Borrower
and its Subsidiaries as at June 30, 1997, and the related unaudited consolidated
statements of income, retained earnings and cash flows for the nine month period
then ended, copies of which have been furnished to the Bank Group, fairly
present the consolidated financial condition of the Borrower and its
Subsidiaries at such date and the consolidated results of their operations and
the consolidated cash flows of the Borrower and its Subsidiaries for the nine
month period ended on such date, all in accordance with generally accepted
accounting principles applied on a consistent basis, subject to normal year-end
adjustments.
(c) Since June 30, 1997, there has been no material adverse
change in the consolidated financial condition or operations of the Borrower and
its Subsidiaries.
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<PAGE> 23
(d) Except as fully reflected in financial statements referred
to in paragraphs (a) and (b) of this Section 4.06, as of the date hereof, there
are no liabilities or obligations of the Borrower or any of its Subsidiaries of
any nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in aggregate, would be
material to either the Borrower individually or the Borrower and its
Subsidiaries taken as a whole.
Section 4.07. Litigation. There are no actions, suits or
proceedings pending or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries, or the properties of any such
Person, before or by any Governmental Authority or other Person, which could
reasonably be expected to have a Material Adverse Effect on either the Borrower
individually or the Borrower and its Subsidiaries taken as a whole.
Section 4.08. Use of Proceeds. (a) The Borrower's uses of the
proceeds of the Loans are, and will continue to be, legal and proper corporate
uses (duly authorized by the Borrower's board of directors), and such uses are
permitted by the terms of the Loan Documents, including, without limitation,
Section 5.09, and all Requirements of Law.
(b) Neither the Borrower nor any of its Subsidiaries is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U). No part of the
proceeds of any Loan will be used, directly or indirectly, (i) to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock or (ii) for the purpose of purchasing,
carrying or trading in any securities, in either case under such circumstances
as to involve any member of the Bank Group in a violation of Regulation U or the
Borrower or any of its Subsidiaries in a violation of Regulation X. Following
the application of the proceeds of each Loan, not more than 25% of the value of
the assets of the Borrower, or of the Borrower and its Subsidiaries, which are
subject to any arrangement with any member of the Bank Group (herein or
otherwise) whereby the right or ability of the Borrower or its Subsidiaries to
sell, pledge or otherwise dispose of such assets is in any way restricted, will
be such margin stock.
Section 4.09. Governmental Regulation. Neither the Borrower
nor any of its Subsidiaries is subject to regulation under the Interstate
Commerce Act, as amended, the Investment Company Act of 1940, as amended, or any
other Requirement of Law such that the ability of any such Person to incur
indebtedness is limited or its ability to consummate the transactions
contemplated by this Agreement, the other Loan Documents or any document
executed in connection therewith is impaired.
Section 4.10. Disclosure. The schedules, documents, exhibits,
reports, certificates and other written statements and information furnished by
or on behalf of the Borrower or any of its Subsidiaries to the Bank Group do not
contain any material misstatement of fact, or omit to state a material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. Neither the Borrower
nor any of its Subsidiaries has intentionally withheld any fact known to it
which has or is reasonably likely to have
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<PAGE> 24
a Material Adverse Effect on either the Borrower individually or the Borrower
and its Subsidiaries taken as a whole.
Section 4.11. ERISA. The Borrower and its ERISA Affiliates are
in compliance in all material respects with ERISA and all Requirements of Law
related thereto. No Reportable Event has occurred and is continuing with respect
to any Plan. Neither the Borrower nor any of its ERISA Affiliates has any
accumulated funding deficiency (as defined in Section 302(a)(2) of ERISA) under
any Plan.
Section 4.12. Payment of Taxes. The Borrower has filed, and
has caused each of its Material Subsidiaries to file, all federal, state and
local tax returns and other reports that the Borrower and each such Material
Subsidiary are required by law to file and have paid all taxes and other similar
charges that are due and payable pursuant to such returns and reports, except to
the extent any of the same may be contested in good faith by appropriate
proceedings promptly initiated and diligently conducted, and with respect to
which adequate reserves have been set aside on the books of such Person in
accordance with generally accepted accounting principles.
Section 4.13. Title and Liens. Each of the Borrower and its
Material Subsidiaries has good and marketable title to each of the material
properties and assets of such Person. All properties of the Borrower and its
Material Subsidiaries and such Person's use thereof comply with applicable
zoning and use restrictions, except where the failure to so comply will not have
a Material Adverse Effect upon any such Person.
Section 4.14. Pari Passu Ranking. The obligations of the
Borrower to pay the principal of and interest on the Loans and all other amounts
payable under the Loan Documents will rank at least pari passu as to payment
with all other Debt of the Borrower now existing or hereafter incurred.
Section 4.15. Environmental Matters. The Borrower and each of
its Subsidiaries possess all environmental, health and safety licenses, permits,
authorizations, registrations, approvals and similar rights necessary under law
or otherwise for such Person to conduct its operations as now being conducted,
each of such licenses, permits, authorizations, registrations, approvals and
similar rights is valid and subsisting, in full force and effect and enforceable
by such Person, and such Person is in compliance with all terms, conditions or
other provisions of such permits, authorizations, registrations, approvals and
similar rights except for such noncompliance that will not have a Material
Adverse Effect on either the Borrower individually or the Borrower and its
Subsidiaries taken as a whole. Neither the Borrower nor any of its Subsidiaries
has received any notices of any violation of, noncompliance with, or remedial
obligation under, Requirements of Environmental Laws, and there are no writs,
injunctions, decrees, orders or judgments outstanding, or lawsuits, claims,
proceedings, investigations or inquiries pending or, to the knowledge of the
Borrower, threatened, relating to the ownership, use, condition, maintenance, or
operation of, or conduct of business related to, any property owned, leased or
operated by the Borrower or any of its Subsidiaries, or other assets of the
Borrower or any of its Subsidiaries, other than those violations,
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<PAGE> 25
instances of noncompliance, obligations, writs, injunctions, decrees, orders,
judgments, lawsuits, claims, proceedings, investigations or inquiries that will
not have a Material Adverse Effect on either the Borrower individually or the
Borrower and its Subsidiaries taken as a whole. There are no material
obligations, undertakings or liabilities arising out of or relating to
Environmental Laws to which the Borrower or any of its Material Subsidiaries has
agreed to, assumed or retained, or by which the Borrower or any of its Material
Subsidiaries is adversely affected, by contract or otherwise. Neither the
Borrower nor any of its Material Subsidiaries has received a written notice or
claim to the effect that such Person is or may be liable to any Person as the
result of a Release or threatened Release of a Hazardous Material.
ARTICLE V
AFFIRMATIVE COVENANTS
So long as any principal amount of any Loan, any amount of
interest accrued under any Loan Document, or any commitment, facility or other
fee, expense, compensation or any other amount payable to any member of the Bank
Group under the Loan Documents shall remain unpaid or outstanding or any Bank
shall have any Commitment hereunder:
Section 5.01. Reporting Requirements. The Borrower shall
deliver or cause to be delivered to the Agent (with sufficient copies for the
Agent to distribute the same to the other members of the Bank Group):
(a) As soon as available and in any event within forty five
(45) days after the end of each calendar quarter (other than the fourth
quarter):
(i) copies of the consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries as of the end of such
period, and consolidated and consolidating statements of income and
retained earnings and a statement of cash flows of the Borrower and its
Subsidiaries for that fiscal period and for the portion of the fiscal
year ending with such period, in each case setting forth in comparative
form (on a consolidated, but not a consolidating basis) the figures for
the corresponding period of the preceding fiscal year, all in
reasonable detail; and
(ii) a certificate of a Responsible Officer of the Borrower
(A) stating that such financial statements fairly present the
consolidated financial position and results of operations of the
Borrower and its Subsidiaries in accordance with generally accepted
accounting principles consistently applied, subject to normal year-end
adjustments, (B) stating that no Default has occurred and is continuing
or, if any Default has occurred and is continuing, the action the
Borrower is taking or proposes to take with respect thereto, (C)
setting forth calculations demonstrating compliance by the Borrower
with Section 6.01 and Section 6.08, accompanied by a summary (on an
entity-by-entity basis) of Investments in Excluded Affiliates and
Funded Debt of the Borrower and its Consolidated Subsidiaries,
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<PAGE> 26
as well as any Funded Debt or Fixed Charges resulting from a Guaranty
of Debt of an Excluded Affiliate, and (D) identifying any changes in
the Consolidated Subsidiaries and Excluded Affiliates since the date of
the most recent certificate delivered pursuant to Section 5.01(a)(ii)
or Section 5.01(b)(ii) (or in the case of the initial certificate, any
changes from those specified in Schedule 4.01).
(b) As soon as available and in any event within ninety (90)
days after the end of each calendar year:
(i) copies of the consolidated and consolidating balance sheet
of the Borrower and its Subsidiaries as of the close of such calendar
year and consolidated and consolidating statements of income and
retained earnings and a statement of cash flows of the Borrower and its
Subsidiaries for such calendar year, in each case setting forth in
comparative form (on a consolidated basis) the figures for the
preceding calendar year, all in reasonable detail and accompanied by an
opinion thereon (which shall not be qualified by reason of any
limitation imposed by the Borrower) of independent accountants of
recognized national standing selected by the Borrower and reasonably
satisfactory to the Majority Banks, to the effect that such
consolidated financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied (except
for changes in which such accountants concur) and that the examination
of such accounts in connection with such financial statements has been
made in accordance with generally accepted auditing standards; and
(ii) a certificate of a Responsible Officer of the Borrower
(A) stating that no Default has occurred and is continuing or, if any
Default has occurred and is continuing, the action the Borrower is
taking or proposes to take with respect thereto, (B) setting forth
calculations demonstrating compliance by the Borrower with Section 6.01
and Section 6.08, accompanied by a summary (on an entity-by-entity
basis) of Investments in Excluded Affiliates and Funded Debt of the
Borrower and its Consolidated Subsidiaries, as well as any Funded Debt
or Fixed Charges resulting from a Guaranty of Debt of an Excluded
Affiliate, and (C) identifying any changes in the Consolidated
Subsidiaries and Excluded Affiliates since the date of the most recent
certificate delivered pursuant to Section 5.01(a)(ii) or Section
5.01(b)(ii).
(c) Promptly after the sending or filing thereof, copies of
all proxy statements and reports which the Borrower or any of its Subsidiaries
sends to any holders of its respective securities, and copies of all regular,
periodic and special reports and all registration statements which the Borrower
or any of its Subsidiaries files with the Securities and Exchange Commission or
any national securities exchange.
(d) Promptly after the receipt thereof, copies of any reports
or notices that the Borrower may receive from the PBGC or the U. S. Department
of Labor indicating that a Reportable Event has occurred or an accumulated
funding deficiency (as defined in Section 302(a)(2) of ERISA)
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<PAGE> 27
exists under any Plan or that any such Person or its ERISA Affiliates has failed
to comply in all material respects with ERISA and all Requirements of Law
related thereto.
(e) As soon as possible and in any event within ten (10) days
after a Responsible Officer of the Borrower becomes aware of the occurrence of a
Default, a certificate of a Responsible Officer of the Borrower setting forth
details of such Default and the action which has been taken or is to be taken
with respect thereto.
(f) As soon as possible and in any event within ten (10) days
after a Responsible Officer of the Borrower becomes aware thereof, written
notice from a Responsible Officer of the Borrower of (i) the institution of or
threat of, any action, suit, proceeding, governmental investigation or
arbitration by any Governmental Authority or other Person against or affecting
the Borrower or any of its Subsidiaries that could have a Material Adverse
Effect on the Borrower or any of its Material Subsidiaries and that has not
previously disclosed in writing to the Bank Group pursuant to this Section
5.01(f) or (ii) any material development in any action, suit, proceeding,
governmental investigation or arbitration already disclosed to the Bank Group
pursuant to this Section 5.01(f).
(g) Promptly upon a Responsible Officer of the Borrower
obtaining knowledge thereof, notice of (i) any violation of, noncompliance with,
or remedial obligations under, Requirements of Environmental Laws that could
have a Material Adverse Effect on the Borrower or any of its Material
Subsidiaries, (ii) any Release or threatened Release affecting any property
owned, leased or operated by the Borrower or any of its Subsidiaries that could
have a Material Adverse Effect on the Borrower or any of its Material
Subsidiaries, (iii) the amendment or revocation of any permit, authorization,
registration, approval or similar right that could have a Material Adverse
Effect on the Borrower or any of its Material Subsidiaries or (iv) new or
proposed changes to Requirements of Environmental Laws that could have a
Material Adverse Effect on the Borrower or any of its Material Subsidiaries.
(h) Such other information as any member of the Bank Group may
from time to time reasonably request respecting the business, properties,
operations or condition, financial or otherwise, of the Borrower or any of its
Subsidiaries.
Section 5.02. Taxes; Claims. The Borrower will pay and
discharge, and will cause each of its Subsidiaries to pay and discharge, all
taxes, assessments and governmental charges or levies imposed upon such Person
or upon its income or profits, or upon any properties belonging to such Person,
prior to the date on which penalties attach thereto, and all lawful claims
which, if unpaid, might become a Lien upon any properties of the Borrower or any
of its Material Subsidiaries, other than any such tax, assessment, charge, levy
or claim which is being contested in good faith by appropriate proceedings
promptly initiated and diligently conducted, and with respect to which adequate
reserves are set aside on the books of such Person in accordance with generally
accepted accounting principles.
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Section 5.03. Compliance with Laws. The Borrower will comply,
and will cause each of its Subsidiaries to comply, with all applicable
Requirements of Law imposed by, any Governmental Authority, noncompliance with
which might have a Material Adverse Effect on the Borrower or any of its
Material Subsidiaries. Without limitation of the foregoing, the Borrower shall,
and shall cause each of its Subsidiaries to, comply with all Requirements of
Environmental Laws, operate its properties and conduct its business in
accordance with good environmental practices, and handle, treat, store and
dispose of Hazardous Materials in accordance with such practices, except where
the failure to do so will not have a Material Adverse Effect on the Borrower or
any of its Material Subsidiaries.
Section 5.04. Insurance. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain, with financially sound, responsible
and reputable insurance companies or associations, insurance, or self-insure
against such risks, and in such amounts (and with co-insurance and deductibles),
as are usually insured against by Persons of established reputation engaged in
the same or similar businesses and similarly situated.
Section 5.05. Corporate Existence; Etc. The Borrower will
preserve and maintain, and (except as otherwise permitted by Section 6.05) will
cause each of its Material Subsidiaries to preserve and maintain, its existence,
rights, franchises and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified, and cause each of its Material Subsidiaries to
qualify and remain qualified, as a foreign corporation in each jurisdiction in
which such qualification is material to the business and operations of such
Person or the ownership or leasing of the properties of such Person.
Section 5.06. Inspections; Etc. From time to time during
regular business hours upon reasonable prior notice, the Borrower will permit,
and will cause each of its Subsidiaries to permit, any agents or representatives
of any member of the Bank Group to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, the Borrower
and its Subsidiaries and to discuss the affairs, finances and accounts of any
such Person with any of their respective independent public accountants,
officers or directors, all at the expense of the Borrower.
Section 5.07. Maintenance of Properties. The Borrower will
maintain and preserve, and will cause each of its Material Subsidiaries to
maintain and preserve, all of its material properties necessary for the proper
conduct of its business in good working order and condition, ordinary wear and
tear excepted.
Section 5.08. Accounting Systems; Etc. The Borrower will keep,
and will cause each of its Subsidiaries to keep, adequate records and books of
account in which complete entries will be made in accordance with generally
accepted accounting principles consistently applied (subject to year end
adjustments), reflecting all financial transactions of such Person. The Borrower
shall maintain or cause to be maintained a system of accounting established and
administered in accordance with sound business practices to permit preparation
of financial statements in conformity
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with generally accepted accounting principles, and each of the financial
statements described herein shall be prepared from such system and records.
Section 5.09. Use of Loan Proceeds. The Borrower will use the
proceeds of all Loans hereunder for the following purposes: (a) for general
corporate purposes of the Borrower and its Consolidated Subsidiaries, (b)
payment of all amounts owing by the Borrower under the Existing Credit
Agreement, (c) to fund any cash consideration payable by the Borrower or any of
its Consolidated Subsidiaries in connection with a merger or acquisition which
is not prohibited by Section 6.07 or Section 6.08, or (d) to fund Investments in
Excluded Affiliates permitted by Section 6.08; provided that such uses are, at
the time made, otherwise consistent with the terms of this Agreement and all
Requirements of Law and no Default would result therefrom.
Section 5.10. Further Assurances in General. The Borrower at
its expense shall, and shall cause each of its Subsidiaries to, promptly execute
and deliver all such other and further documents, agreements and instruments in
compliance with or accomplishment of the covenants and agreements of the
Borrower or any of its Subsidiaries in the Loan Documents, including, without
limitation, the accomplishment of any condition precedent that may have been
waived by the Banks prior to the initial Borrowing or any subsequent Borrowings.
ARTICLE VI
NEGATIVE COVENANTS
So long as any principal amount of any Loan, any amount of
interest accrued under any Loan Document, or any commitment, facility or other
fee, expense, compensation or any other amount payable to any member of the Bank
Group under the Loan Documents shall remain unpaid or outstanding or any Bank
shall have any Commitment hereunder:
Section 6.01. Financial Covenants. The Borrower will not:
(a) Fixed Charge Coverage Ratio. Permit the ratio of (i) Net
Cash Flow to (ii) Fixed Charges, measured as of the last day of any calendar
quarter for the twelve month period then ended, to be less than 1.25 to 1.0.
(b) Debt Coverage Ratio. Permit the ratio of (i) Funded Debt
as of the last day of any calendar quarter to (ii) Modified Net Cash Flow for
the twelve month period then ended, to equal or exceed 3.5 to 1.0.
(c) Minimum Net Worth. Permit Net Worth, measured as of the
last day of any calendar quarter, to be less than the sum of (i) $175,000,000,
plus (ii) the lesser of (A) fifty percent (50%), if positive, zero percent (0%),
if negative, of Net Income for any fiscal year ending after the date hereof and
(B) $75,000,000.
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Section 6.02. Restrictions on Debt. (a) The Borrower will not,
and will not permit any of its Consolidated Subsidiaries to, create, incur,
assume or suffer to exist, any Debt other than:
(i) Debt of the Borrower under the Loan Documents, and, prior
to the initial Borrowing hereunder, the loans outstanding under the
Existing Credit Agreement;
(ii) Debt in respect of reimbursement obligations under
letters of credit or similar instruments not exceeding $5,000,000;
(iii) unsecured Debt owing by the Borrower to any Consolidated
Subsidiary;
(iv) unsecured Debt owing by any Consolidated Subsidiary to
the Borrower or any other Consolidated Subsidiary so long as such Debt
ranks pari passu with all other Debt of such Consolidated Subsidiary
(except as contemplated by Section 6.02(d));
(v) Debt (other than Derivative Obligations) of Consolidated
Subsidiaries, so long as (A) no Default or Event of Default exists on
the date such Debt is incurred or would result from the incurrence of
such Debt, and (B) the aggregate amount of such Debt does not exceed
twenty percent (20%) of Net Worth;
(vi) Debt (other than Derivative Obligations) of the Borrower,
so long as (A) such Debt is not Guaranteed by any Subsidiary of the
Borrower and (B) no Default or Event of Default exists on the date such
Debt is incurred or would result from the incurrence of such Debt; and
(vii) Derivative Obligations of the Borrower and its
Consolidated Subsidiaries, so long as (A) no Default or Event of
Default exists on the date such Derivative Obligations are incurred or
would result from the incurrence thereof and (B) the aggregate amount
of such Derivative Obligations do not exceed ten percent (10%) of Net
Worth.
(b) The Borrower will not, and will not permit any of its
Consolidated Subsidiaries to, create, incur, assume or suffer to exist, any
Guaranties or other contingent liabilities other than (i) Guaranties by
Consolidated Subsidiaries that constitute Debt permitted by Section 6.02(a)(v),
(ii) Guaranties by the Borrower that constitute Debt permitted by Section
6.02(a)(vi), (iii) other contingent liabilities (including undrawn letters of
credit) in an amount not exceeding $5,000,000 at any time, and (iv) contingent
liabilities arising under guaranties by the Borrower or its Subsidiaries of the
obligations of the Borrower's Subsidiaries under Environmental Laws, including
the Comprehensive Environmental Response, Compensation and Liability Act, as
amended, and the Oil Pollution Act of 1990, as amended.
(c) The Borrower will not permit any Excluded Affiliate to
create, incur, assume or suffer to exist any Debt unless the agreements
evidencing or providing for such Debt contain a provision to the effect that the
holders of such Debt shall have no recourse against the Borrower or
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any of its Consolidated Subsidiaries, or any of their respective assets, for the
payment of such Debt; provided, however, that the foregoing shall not apply to
any such Debt of an Excluded Affiliate that is covered by a Guaranty from the
Borrower or a Consolidated Subsidiary permitted by Section 6.02(b).
(d) The Borrower shall not permit Dixie to create, incur,
assume or suffer to exist any Debt or other obligation that would constitute
"Senior Obligations" (as such term is defined in that certain Revolving Credit
Loan Agreement dated as of July 31, 1990, as amended, between Dixie, as
borrower, and the Borrower, as lender) other than Debt arising under the Dixie
Note Purchase Agreement.
Section 6.03. Restriction on Liens. The Borrower will not, and
will not permit any of its Consolidated Subsidiaries to, create, incur, assume
or suffer to be created, assumed or incurred or to exist, any Lien upon any of
their property or assets, whether now owned or hereafter acquired other than:
(a) Liens arising after the date hereof pursuant to Section
6.9 of the Dixie Note Purchase Agreement;
(b) Liens against assets of the Borrower or a Consolidated
Subsidiary securing Debt of such Person, so long as (i) the aggregate amount of
all such secured Debt does not exceed $5,000,000, and (ii) such secured Debt is
otherwise permitted by Section 6.02(a)(vi), in the case of the Borrower, or
Section 6.02(a)(v), in the case of a Consolidated Subsidiary;
(c) Liens imputed to Capital Leases under which a Consolidated
Subsidiary is the lessee, so long as the Debt of such Consolidated Subsidiary in
respect of such Capital Lease is permitted by Section 6.02(a)(v);
(d) Liens on property of any Consolidated Subsidiary that
attach concurrently with such Consolidated Subsidiary's purchase thereof, and
securing only Debt of such Consolidated Subsidiary permitted by Section
6.02(a)(v) and incurred to finance all or part of the purchase price of such
property, and any extensions and renewals of such Liens so long as the Debt
secured thereby is not greater than the Debt secured immediately prior to such
extension and renewal and such Debt is permitted by Section 6.02(a)(v) at the
time of such extension and renewal;
(e) Liens for taxes, assessments or governmental charges or
levies if the same shall at the time not be delinquent or thereafter may be paid
without penalty, or the validity of which are being contested in good faith by
appropriate proceedings promptly initiated and diligently conducted and as to
which adequate reserves shall have been set aside on the books of the Borrower
in accordance with generally accepted accounting principles;
(f) carriers', warehousemen's and mechanics' liens and other
similar Liens which arise in the ordinary course of business, do not materially
impair the use or value of its properties
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or assets or the conduct of its business, and secure obligations that are not
yet due and payable or are being contested in good faith by appropriate
proceedings promptly initiated and diligently conducted and as to which adequate
reserves shall have been set aside on the books of the Borrower in accordance
with generally accepted accounting principles or as to which adequate bonds
shall have been obtained;
(g) pledges or deposits to secure obligations under workmen's
compensation laws or similar legislation or to secure public or statutory
obligations of the Borrower;
(h) Liens created in favor of a Governmental Authority to
secure partial, progress, advance or other contractual payments pursuant to any
agreement or statute;
(i) attachment, judgment and other similar Liens arising in
connection with court proceedings, provided the execution or other enforcement
of such Liens is effectively stayed and the claims secured thereby are being
actively contested in good faith and by appropriate proceedings in such manner
as not to have the property subject to such Liens forfeitable; and
(j) easements, rights-of-way, reservations, exceptions, minor
encroachments, restrictions and similar charges created or incurred in the
ordinary course of business which in the aggregate do not materially interfere
with the business operations of the Borrower and its Subsidiaries taken as a
whole, and which were not incurred in connection with the borrowing of money.
Section 6.04. Restrictions on Negative Pledge. The Borrower
will not, and will not permit any of its Subsidiaries to, enter into any
agreement prohibiting or having the effect of prohibiting the Borrower and its
Subsidiaries from granting a Lien against or otherwise disposing of the capital
stock, promissory notes or other equity or debt interests of any Consolidated
Subsidiary, other than (i) this Agreement, and, prior to the initial Borrowing
hereunder, the Existing Credit Agreement, and (ii) in the case of Dixie, the
provisions of Section 7.4 of the Dixie Note Purchase Agreement as in effect on
April 23, 1993 and as thereafter amended to lessen or eliminate the restrictions
contained therein.
Section 6.05. Consolidated Subsidiary Dispositions. The
Borrower will not, and will not permit any of its Subsidiaries to, sell,
transfer or otherwise dispose of (i) any capital stock or other equity interests
of any Consolidated Subsidiary or (ii) all or substantially all of the assets of
any Consolidated Subsidiary (whether in a single transaction or series of
transactions), other than (A) any such disposition made to the Borrower or a
wholly-owned Consolidated Subsidiary, (B) any disposition of capital stock or
other equity interests in Dixie so long as after giving effect to such
disposition the Borrower owns (either directly or indirectly through a
wholly-owned Consolidated Subsidiary) at least 90% of the capital stock or other
equity interests of Dixie and (C) the disposition of the capital stock of
Mariner Reinsurance Company, a company organized under the laws of Bermuda and a
Consolidated Subsidiary, arising out of the liquidation and dissolution of such
entity.
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Section 6.06. Restrictions on Consolidated Subsidiary
Distributions. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any agreement restricting the ability of any
Consolidated Subsidiary to (a) pay dividends or make other distributions on the
capital stock or other equity interests of such Consolidated Subsidiary or (b)
make loans or advances to the Borrower or any Subsidiary of the Borrower, other
than (i) this Agreement, and (ii) in the case of Dixie, the provisions of
Section 7.4 of the Dixie Note Purchase Agreement as in effect on April 23, 1993
and as thereafter amended to lessen or eliminate the restrictions contained
therein.
Section 6.07. Mergers and Acquisitions. The Borrower will not,
and will not permit any of its Consolidated Subsidiaries to, acquire (whether in
one transaction or a series of transactions) all or substantially all of the
assets of any Person or the capital stock or securities of any Person, or
consolidate with or merge into any Person or permit any Person to consolidate or
merge into it, unless: (a) in the case of an acquisition, such acquisition is
not a Hostile Acquisition; (b) any business acquired in such transaction is
similar or related to the businesses engaged in by the Borrower and its
Consolidated Subsidiaries on the date hereof; (c) in the case of a merger (i) if
the Borrower is a party to such merger, the Borrower is the surviving entity and
the management of the Borrower shall be substantially unchanged and (ii) if a
Consolidated Subsidiary is a party to such merger, either the Borrower or a
Consolidated Subsidiary is the surviving entity; (d) immediately after giving
effect and pro forma effect thereto, no Default shall exist; and (e) if the
Borrower incurs Funded Debt in excess of $25,000,000 to finance, or otherwise in
connection with, any acquisition or merger otherwise permitted by this
Agreement, then (i) the ratio of (A) the total consideration given by the
Borrower and its Subsidiaries in connection therewith to (B) the projected net
cash flow from the assets acquired pursuant to such transaction for the
twelve-month period immediately following the closing of such transaction, must
not be greater than 8.00 to 1.00 (for purposes of this clause (a), "projected
net cash flow" shall mean the Borrower's estimate of the operating earnings from
the assets acquired pursuant to such transaction for the twelve (12) month
period immediately following the closing of such transaction, before tax, plus
any depreciation and amortization included in such estimated operating earnings,
all determined in accordance with generally accepted accounting principles and
based upon such assumptions as are reasonably acceptable to the Majority Banks)
and (ii) the Agent shall have received (A) a certificate of a Responsible
Officer of the Borrower showing satisfaction of the condition set forth in
Section 6.07(e)(i), and (B) such other documents, opinions and information that
the Agent or the Majority Banks may reasonably request in order to substantiate
the same.
Section 6.08. Restricted Investments. (a) The Borrower will
not, and will not permit any Consolidated Subsidiary to, make, or enter into any
commitment to make, any Restricted Investment if a Default exists either before
or after giving effect thereto.
(b) The Borrower will not, and will not permit any
Consolidated Subsidiary to, make, or enter into any commitment to make, or
permit to exist any Restricted Investment other than (i) the Existing Universal
Investment and (ii) other Restricted Investments that do not in the aggregate
exceed twenty percent (20%) of Net Worth.
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(c) The Borrower will not permit the sum (without duplication)
of (i) all Restricted Investments, made by the Borrower and its Consolidated
Subsidiaries (excluding the Existing Universal Investment), plus (ii) all
commitments by the Borrower and its Consolidated Subsidiaries to make Restricted
Investments, plus (iii) all Debt (other than Derivative Obligations) of
Consolidated Subsidiaries, to at any time exceed thirty-five percent (35%) of
Net Worth.
Section 6.09. Lines of Business. The Borrower will not, and
will not permit any of its Consolidated Subsidiaries to, directly or indirectly
engage to a material extent in any business other than those in which it is
presently engaged or that are directly related thereto, or discontinue any of
its existing lines of business or substantially alter its method of doing
business.
Section 6.10. Transactions with Affiliates. Neither the
Borrower, nor any of its Consolidated Subsidiaries, will enter into any
transaction with an Affiliate other than (a) transactions entered into in the
ordinary course of business and upon terms no less favorable than those that the
Borrower or its Consolidated Subsidiary, as applicable, could obtain in an arms
length transaction with a Person that is not an Affiliate and (b) transactions
between the Borrower and any of its Consolidated Subsidiaries, or between such
Consolidated Subsidiaries, that do not and will not, either directly or
indirectly, cause a Default.
Section 6.11. Universal Stockholders Agreement. The Borrower
will not agree to, or otherwise permit, any amendment or other modification to
the Universal Stockholders Agreement.
ARTICLE VII
DEFAULT
Section 7.01. Events of Default. If any of the following
events (each an "Event of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay when due any installment
of principal of the Loans; or
(b) the Borrower shall fail to pay any interest on any Loan or
any arrangement fee, commitment fee, administration fee, commission, expense,
compensation, reimbursement or other amount when due, or any Person (other than
a member of the Bank Group) shall fail to pay any amount payable by such Person
hereunder or under any other Loan Document or other agreement or security
document contemplated by or delivered pursuant to or in connection with this
Agreement when due, and, in either event, such failure shall continue for five
(5) Business Days; or
(c) the Borrower shall fail to perform any term, covenant or
agreement contained in Article VI or Section 5.01(e) of this Agreement; or
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(d) the Borrower shall fail to perform any term, covenant or
agreement contained in this Agreement (other than those referenced in
subsections (a), (b) and (c) of this Section 7.01) and such failure shall not
have been remedied within ten (10) days after the earlier of (i) notice thereof
from the Agent to the Borrower or (ii) discovery thereof by the Borrower; or
(e) any Person (other than a member of the Bank Group) shall
fail to perform any term, covenant or agreement contained in any Loan Document
(other than those referenced in subsections (a), (b), (c) and (d) of this
Section 7.01) to which it is a party and such failure shall not have been
remedied within thirty (30) days after the earlier of (i) notice thereof from
the Agent to the Borrower or (ii) discovery thereof by the Borrower; or
(f) any representation or warranty made by any Person (other
than a member of the Bank Group), or any such Person's officers, in any Loan
Document to which it is a party or in any certificate, agreement, instrument or
statement contemplated by or delivered pursuant to, or in connection with, any
Loan Document shall prove to have been incorrect in any material respect when
made; or
(g) the Borrower or any of its Subsidiaries shall (i) default
in the payment of any Debt (other than the amounts referred to in subsections
(a) and (b) of this Section 7.01) owing by such Person that constitutes Material
Debt as of the date of such default, or any interest or premium thereon, when
due (or, if permitted by the terms of the relevant document, within any
applicable grace period), whether such Debt shall become due by scheduled
maturity, by required prepayment, by acceleration, by demand or otherwise; or
(ii) fail to perform any term, covenant or condition on its part to be performed
under any agreement or instrument evidencing, securing or relating to any such
Debt, when required to be performed, and such failure shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if
the effect of such failure is to accelerate, or to permit the holder or holders
of such Debt to accelerate, the maturity of such Debt; or
(h) any Loan Document shall (other than with the consent of
the Majority Banks), at any time after its execution and delivery and for any
reason, cease to be in full force and effect (except for such provisions that
the Majority Banks determine are not material either individually or in the
aggregate), or shall be declared to be null and void, or the validity or
enforceability thereof shall be contested by any Person party to the Loan
Documents or any such Person shall deny that it has any or further liability or
obligation under any Loan Document; or
(i) any Reportable Event that might constitute grounds for the
termination of any Plan, or for the appointment by an appropriate United States
district court of a trustee to administer any Plan, shall have occurred and be
continuing for at least thirty (30) days, or any Plan shall be terminated, or a
trustee shall be appointed by an appropriate United States district court to
administer any Plan, or the PBGC shall institute proceedings to terminate any
Plan or to appoint a trustee to administer any Plan, and, in any such event, the
then-current value of such Plan's benefits guaranteed under Title IV of ERISA at
the time shall exceed by more than $5,000,000 the then-current value of such
Plan's assets allocable to such benefits at such time; or
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(j) the Borrower or any of its Subsidiaries shall be
adjudicated insolvent, or shall make a general assignment for the benefit of
creditors, or any proceeding shall be instituted by any such Person seeking to
adjudicate it insolvent, seeking liquidation, winding-up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial part
of its property, or the Borrower or any of its Subsidiaries shall take any
action in furtherance of any of the actions set forth above in this Section
7.01(j); or
(k) any proceeding of the type referred to in Section 7.01(j)
is filed, or any such proceeding is commenced against the Borrower or any of its
Subsidiaries or any such Person by any act indicates its approval thereof,
consent thereto or acquiescence therein, or an order for relief is entered in an
involuntary case under the bankruptcy law of the United States, or an order,
judgment or decree is entered appointing a trustee, receiver, custodian,
liquidator or similar official or adjudicating any such Person insolvent, or
approving the petition in any such proceedings, and such order, judgment or
decree remains in effect for sixty (60) days; or
(l) a final judgment or order for the payment of money in
excess of $5,000,000 (net of acknowledged, uncontested insurance coverage from a
financially sound, responsible and reputable insurance company or association)
shall be rendered against the Borrower or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) a stay of enforcement of such judgment or order by
reason of a pending appeal or otherwise, shall not be in effect for any period
of thirty (30) consecutive days; or
(m) a Change of Control occurs with respect to the Borrower;
then, (i) upon the occurrence of any Event of Default described in Section
7.01(j) or Section 7.01(k), (A) the Commitments shall automatically terminate
and (B) the entire unpaid principal amount of all Loans, all interest accrued
and unpaid thereon, and all other amounts payable by the Borrower or any other
Person under this Agreement, the Notes and the other Loan Documents shall
automatically become immediately due and payable, without presentment for
payment, demand, protest, notice of intent to accelerate, notice of acceleration
or further notice of any kind, all of which are hereby expressly waived by the
Borrower and each other Person, and (ii) upon the occurrence of any Event of
Default, the Agent may, and upon the direction of the Majority Banks shall, by
notice to the Borrower (A) declare the Commitments to be terminated, whereupon
the same shall forthwith terminate and (B) declare the entire unpaid principal
amount of all Loans, all interest accrued and unpaid thereon, and all other
amounts payable by the Borrower or any other Person under this Agreement, the
Notes and the other Loan Documents, to be forthwith due and payable, whereupon
all such amounts shall become and be forthwith due and payable, without
presentment for payment, demand, protest, notice of intent to accelerate, notice
of acceleration or further notice of any kind, all of which are hereby expressly
waived by the Borrower and each other Person.
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Section 7.02. Setoff in Event of Default. Upon the occurrence
and during the continuance of any Event of Default, each member of the Bank
Group is hereby authorized, at any time and from time to time, without notice to
the Borrower (any such notice being expressly waived by the Borrower) and to the
fullest extent permitted by applicable law, to setoff and apply any and all
deposits at any time held and other indebtedness at any time owing by such
member of the Bank Group (or any branch, subsidiary or affiliate of such member
of the Bank Group) to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower or any other Person, now or
hereafter existing under this Agreement, the Notes or the other Loan Documents,
irrespective of whether or not such member of the Bank Group shall have made any
demand for satisfaction of such obligations and although such obligations may be
unmatured. Any member of the Bank Group exercising such right agrees to notify
the Borrower promptly after any such setoff and application made by such Person;
provided, that the failure to give such notice shall not affect the validity of
such setoff and application. The rights of the Bank Group under this Section
7.02 are in addition to other rights and remedies (including, without
limitation, other rights of setoff) which the Bank Group may have hereunder or
under any applicable law.
Section 7.03. No Waiver; Remedies. No failure on the part of
any member of the Bank Group to exercise, or any delay in exercising, any right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies provided in this Agreement are
cumulative and not exclusive of any remedies provided in any of the other Loan
Documents or by applicable law.
ARTICLE VIII
THE AGENT AND THE FUNDS ADMINISTRATOR
Section 8.01. Authorization and Action. Each Bank hereby
appoints and authorizes the Agent and the Funds Administrator to take such
action in such capacity on such Bank's behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to the Agent and
the Funds Administrator, as the case may be, by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes or of amounts owing under the
other Loan Documents), the Agent and the Funds Administrator shall not be
required to exercise any discretion or take any action, but such Person shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Banks,
and such instructions shall be binding upon all Banks and any other holders of
Notes; provided, however, that the Agent and the Funds Administrator shall not
be required to take any action which exposes such Person to personal liability
or which is contrary to the Loan Documents or applicable law. Each of the Agent
and the Funds Administrator is hereby expressly authorized on behalf of the
other members of the Bank Group, (a) to receive on behalf of each of the other
members of the Bank Group any payment of principal of or interest on the Loans
outstanding hereunder and all other amounts accrued hereunder
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paid to such Persons, and promptly to distribute to each other member of the
Bank Group its proper share of all payments so received; (b) in the case of the
Agent only, to give notice within a reasonable time on behalf of each other
member of the Bank Group to the Borrower of any Default of which the Agent has
actual knowledge as provided in Section 8.09; (c) to distribute to the other
members of the Bank Group copies of all notices, agreements and other material
as provided for in this Agreement as received by such Person; and (d) to
distribute to the Borrower any and all requests, demands and approvals received
by such Person from any other member of the Bank Group. Nothing herein contained
shall be construed to constitute either the Agent or the Funds Administrator as
a trustee for any holder of the Notes or of a participation therein, nor to
impose on any such Person any duties or obligations other than those expressly
provided for in the Loan Documents.
Section 8.02. Reliance, Etc. The Agent, the Funds
Administrator and their respective directors, officers, agents or employees
shall not be liable for any action taken or omitted to be taken by it or them
under or in connection with this Agreement, except for such acts or omissions of
such Person constituting gross negligence or willful misconduct on the part of
such Person (IT BEING THE EXPRESS INTENTION OF THE PARTIES THAT THE AGENT, THE
FUNDS ADMINISTRATOR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS SHALL HAVE NO LIABILITY FOR ACTIONS AND OMISSIONS HEREUNDER RESULTING
THAT CONSTITUTE ORDINARY NEGLIGENCE, WHETHER SOLE OR CONTRIBUTORY) OR RESULT IN
STRICT LIABILITY. Without limitation of the generality of the foregoing, each of
the Agent and the Funds Administrator: (a) may treat the payee of any Note as
the holder thereof until the Agent receives and accepts an Assignment and
Acceptance entered into by the Bank which is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.02,
and the Agent notifies such Person thereof; (b) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any Bank and
shall not be responsible to any Bank for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement or the other Loan Documents; (d) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms, covenants
or conditions of this Agreement or the other Loan Documents on the part of the
Borrower or any other Person or to inspect the property (including the books and
records) of the Borrower or any other Person; (e) shall not be responsible to
any Bank for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document, any collateral provided for therein,
or any other instrument or document furnished pursuant thereto; and (f) shall
incur no liability under or in respect of this Agreement by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
telecopier, telegram, cable or telex) believed by it to be genuine and signed or
sent by the proper party or parties. The Agent, the Funds Administrator and
their respective directors, officers, employees or agents shall not have any
responsibility to the Borrower on account of the failure or delay in performance
or breach by any Bank of any of its obligations hereunder or to any Bank on
account of the failure of or delay in performance or breach
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by any other Bank or the Borrower of any of their respective obligations
hereunder or in connection herewith.
Section 8.03. TCB and Affiliates. Without limiting the right
of any other Bank to engage in any business transactions with the Borrower or
any of its Affiliates, with respect to its Commitment, the Loans made by it, the
Note issued to it, and its interest in the Loan Documents, TCB shall have the
same rights and powers under this Agreement as any other Bank and may exercise
the same as though it were not the Funds Administrator or the Agent; and the
term "Bank" or "Banks" shall, unless otherwise expressly indicated, include TCB
in its individual capacity. TCB, or any of its Affiliates, may be engaged in, or
may hereafter engage in, one or more loan, letter of credit, leasing or other
financing activities not the subject of the Loan Documents (such financing
activities of TCB being, collectively, the "Other Financings") with the Borrower
or any of its Affiliates, or may act as trustee on behalf of, or depositary for,
or otherwise engage in other business transactions with the Borrower or any of
its Affiliates (all Other Financings and other such business transactions of TCB
being, collectively, the "Other Activities") with no responsibility to account
therefor to the Banks. Without limiting the rights and remedies of the Banks
specifically set forth in the Loan Documents, no other Bank shall have any
interest in (a) any Other Activities, (b) any present or future guarantee by or
for the account of the Borrower not contemplated or included in the Loan
Documents, (c) any present or future offset exercised by the Agent or the Funds
Administrator in respect of any such Other Activities, (d) any present or future
property taken as security for any such Other Activities or (e) any property now
or hereafter in the possession or control of the Agent or the Funds
Administrator which may be or become security for the obligations of the
Borrower under the Loan Documents by reason of the general description of
indebtedness secured, or of property, contained in any other agreements,
documents or instruments related to such Other Activities; provided, however,
that if any payment in respect of such guarantees or such property or the
proceeds thereof shall be applied to reduction of the obligations evidenced
hereunder and by the Notes, then each Bank shall be entitled to share in such
application according to its pro rata portion of such obligations.
Section 8.04. Bank Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon any other member of the
Bank Group and based on the financial statements referred to in Section 4.06 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon any other
member of the Bank Group and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
Section 8.05. Indemnification. The Banks agree to indemnify
each of the Agent and the Funds Administrator (to the extent not reimbursed by
the Borrower), ratably according to their respective Commitment Percentages,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Agent or the Funds Administrator, as the case may be, in any way
relating to or arising out of this Agreement or the
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other Loan Documents or any action taken or omitted by the Agent or the Funds
Administrator under this Agreement or the other Loan Documents, provided, that
no Bank shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Person's gross negligence or willful
misconduct. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT THE AGENT AND
THE FUNDS ADMINISTRATOR SHALL BE INDEMNIFIED AND HELD HARMLESS AGAINST ANY AND
ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND ARISING OUT OF OR RESULTING
FROM THE ORDINARY NEGLIGENCE (WHETHER SOLE OR CONTRIBUTORY) OR STRICT LIABILITY
OF SUCH PERSON. The Agent and the Funds Administrator shall not be required to
do any act hereunder or under any other document or instrument delivered
hereunder or in connection herewith or take any action toward the execution or
enforcement of the agencies hereby created, or to prosecute or defend any suit
in respect of this Agreement or the Loan Documents or any collateral security,
unless indemnified to its satisfaction by the holders of the Notes against loss,
cost, liability, and expense. If any indemnity furnished to the Agent or the
Funds Administrator for any purpose is, in the opinion of such Person
insufficient or becomes impaired, such Person may call for additional indemnity
and not commence or cease to do the acts indemnified against until such
additional indemnity is furnished. Without limitation of the foregoing, each
Bank agrees to reimburse the Agent and the Funds Administrator promptly upon
demand for its ratable share of any out-of-pocket expenses (including counsel
fees) incurred by such Person in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement and the other Loan
Documents, to the extent that the Agent and the Funds Administrator are not
reimbursed for such expenses by the Borrower.
Section 8.06. Employees of the Agent, Etc. Each of the Agent
and the Funds Administrator may execute any of their respective duties under
this Agreement, the other Loan Documents and any instrument, agreement or
document executed, issued or delivered pursuant hereto or thereto or in
connection herewith or therewith, by or through employees, agents and
attorneys-in-fact, and shall not be answerable for the default or misconduct of
any such employee, agent or attorney-in-fact selected by it with reasonable
care. Each of the Agent and the Funds Administrator may, and upon the written
instruction of the Majority Banks shall, enforce on behalf of the Banks any
claims which the Agent, the Funds Administrator and/or the Banks may have
against any such employee, agent or attorney-in-fact, and any recovery therefrom
shall be applied for the pro rata benefit of the Banks.
Section 8.07. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the other members of the Bank Group and
the Borrower and may be removed at any time with or without cause by the
Majority Banks. Upon any such resignation or removal, the Majority Banks shall
have the right to appoint a successor Agent. If no successor Agent shall have
been so appointed by the Majority Banks, and shall have accepted such
appointment, within thirty (30) days after the retiring Agent's giving of notice
of resignation or the Majority Banks' removal
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of the retiring Agent, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as 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 retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement, subject to the
requirement that such retiring Agent will execute such documents and take such
actions as may be necessary or desirable to cause the successor Agent to be
vested with all such rights, powers, privileges and duties. After any retiring
Agent's resignation or removal hereunder as Agent, the provisions of this
Article VIII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement. All costs and expenses
incurred by the Bank Group in connection with any amendments or other
documentation required by this Section 8.07 shall be paid by the Borrower
pursuant to Section 9.04 hereof.
Section 8.08. Successor Funds Administrator. The Funds
Administrator may resign at any time by giving written notice thereof to the
other members of the Bank Group and the Borrower and may be removed at any time
with or without cause by the Majority Banks. Upon any such resignation or
removal, the Majority Banks shall have the right to appoint a successor Funds
Administrator. If no successor Funds Administrator shall have been so appointed
by the Majority Banks, and shall have accepted such appointment, within thirty
(30) days after the retiring Funds Administrator's giving of notice of
resignation or the Majority Banks' removal of the retiring Funds Administrator,
then the retiring Funds Administrator may, on behalf of the Banks, appoint a
successor Funds Administrator, which shall be a commercial bank organized under
the laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Funds Administrator hereunder by a successor Funds
Administrator, such successor Funds Administrator shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Funds Administrator, and the retiring Funds Administrator shall be discharged
from its duties and obligations under this Agreement, subject to the requirement
that such retiring Funds Administrator will execute such documents and take such
actions as may be necessary or desirable to cause the successor Funds
Administrator to be vested with all such rights, powers, privileges and duties.
After any retiring Funds Administrator's resignation or removal hereunder as
Funds Administrator, the provisions of this Article VIII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Funds
Administrator under this Agreement. All costs and expenses incurred by the Bank
Group in connection with any amendments or other documentation required by this
Section 8.08 shall be paid by the Borrower pursuant to Section 9.04 hereof.
Section 8.09. Notice of Default. Neither the Agent nor the
Funds Administrator shall be deemed to have knowledge or notice of the
occurrence of any Default unless such Person shall have received notice from a
Bank or the Borrower referring to this Agreement, describing such Default and
stating that such notice is a "notice of default" or "notice of event of
default," as applicable. If the Agent receives such a notice from the Borrower,
the Agent shall give notice thereof to the other members of the Bank Group and,
if such notice is received from a Bank, the
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Agent shall give notice thereof to the other members of the Bank Group and the
Borrower. The Agent shall be entitled to take action or refrain from taking
action with respect to such Default as provided in this Article VIII.
Section 8.10. Execution of Loan Documents. Each member of the
Bank Group hereby authorizes and directs the Agent and the Funds Administrator
to execute and deliver each Loan Document (including, without limitation, those
specified in Section 3.01) to be executed by the Agent or the Funds
Administrator on or about the Effective Date pursuant to the terms of this
Agreement and the other Loan Documents.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, any Note or any other Loan Document, or consent to
any departure by any Person herefrom or therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Borrower and the
Majority Banks, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Banks, do any of the following: (a) waive or amend any of the
conditions specified in Article III, (b) increase the Commitments of the Banks
or subject the Banks to any additional obligations, (c) reduce the principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, (d)
postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, (e) release the Borrower
or any other Person from its payment obligations to the Bank Group, regardless
of whether such obligations are those of a primary obligor, a guarantor or
surety, or otherwise, (f) take action which expressly requires the signing of
all the Banks pursuant to the terms of this Agreement, (g) change the Commitment
Percentages or the aggregate unpaid principal amount of the Notes, or the number
of Banks, as the case may be, required for the Agent, the Funds Administrator or
the Banks or any of them to take any action under this Agreement or amend the
definition of Majority Banks or (h) amend Article II or this Section 9.01;
provided, further, that no amendment, waiver or consent shall (1) unless in
writing and signed by the Agent in addition to the Banks required above to take
such action, affect the rights or duties of the Agent under this Agreement or
any other Loan Document, and (2) unless in writing and signed by the Funds
Administrator in addition to the Banks required above to take such action,
affect the rights or duties of the Funds Administrator under this Agreement or
any other Loan Document. No notice to or demand on Borrower or any other Person
in any case shall entitle them to any other or further notice or demand in
similar or other circumstances.
Section 9.02. Participation Agreements and Assignments. (a)
(i) Subject to Section 9.02(a)(ii), each Bank may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Loans
owing to it and the Note held by it) and the other Loan Documents;
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provided, however, that (A) no such assignment shall be made unless such
assignment and assignee have been approved by the Agent and, so long as no
Default exists, the Borrower, such approvals not to be unreasonably withheld,
provided that such approvals shall not be required if the assignee is an
Affiliate of the assignor Bank, (B) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations of the assignor
under this Agreement and the other Loan Documents, and no assignment shall be
made unless it covers a pro rata share of all rights and obligations of such
assignor under this Agreement and the other Loan Documents, (C) the amount of
the Commitment of the assigning Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall, unless otherwise agreed to by the Agent, in
no event be less than $5,000,000 and shall be an integral multiple of
$1,000,000, (D) each such assignment shall be to an Eligible Assignee and (E)
the parties to each such assignment shall execute and deliver to the Agent, for
its acceptance and recording in the Register (defined below), an Assignment and
Acceptance, together with any Note subject to such assignment. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (1) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations under the Loan
Documents have been assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Bank under the Loan Documents and (2) the
assigning Bank thereunder shall, to the extent that rights and obligations under
the Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto).
(ii) In the event any Bank desires to transfer all or any
portion of its rights and obligations under the Loan Documents to any Person
other than an Affiliate of such Bank, it shall give the Borrower and the Agent
prior written notice of the identity of such transferee and the terms and
conditions of such transfer (a "Transfer Notice"). So long as no Default has
occurred and is continuing, the Borrower may, no later than ten (10) days
following receipt of such Transfer Notice, designate an alternative transferee
and such Bank shall thereupon be obligated to sell the interests specified in
such Transfer Notice to such alternative transferee, subject to the following:
(A) such transfer shall be made on the same terms and conditions outlined in
such Transfer Notice, (B) such transfer shall otherwise comply with the terms
and conditions of the Loan Documents (including Section 9.02(a)(i)), and (C)
such alternative transferee must be an Eligible Assignee approved by the Agent.
If the Borrower shall fail to designate an alternative transferee within such
ten (10) day period, such Bank shall, subject to compliance with the other terms
and provisions hereof, be free to consummate the transfer described in such
Transfer Notice.
(b) By executing and delivering an Assignment and Acceptance,
the assigning Bank thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan
Documents or
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the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement and the
other Loan Documents, together with copies of the financial statements referred
to in Section 4.06 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon any member of the Bank Group (including such assigning Bank) and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent and the Funds
Administrator to take such action on its behalf and to exercise such powers
under this Agreement and the other Loan Documents as are delegated to such
Person by the terms thereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement and the other Loan Documents are required to be performed by it as a
Bank.
(c) The Agent shall maintain at its address referred to in
Section 9.03 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the Banks
and the Commitment of, and principal amount of the Loans owing to, each Bank
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Borrower
and each member of the Bank Group may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any member of the
Bank Group at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an assignee representing that it is an Eligible
Assignee, together with any Note subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit D and satisfies all other requirements set forth in this Section
9.02, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and the other members of the Bank Group. Within five (5) Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Agent, in exchange for the surrendered Notes, new
Notes to the order of such Eligible Assignee in an amount corresponding to the
Commitment assumed by such Eligible Assignee pursuant to such Assignment and
Acceptance and, if the assigning Bank has retained a Commitment hereunder, new
Notes to the order of the assigning Bank in an amount corresponding to the
Commitment retained by it hereunder. Such new Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Notes, shall be dated
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the effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form prescribed by Section 2.03 hereto.
(e) Each Bank may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement and the other Loan Documents (including, without limitation, all
or a portion of its Commitment and the Loans owing to it); provided, however,
that (i) such Bank's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) and the other Loan
Documents shall remain unchanged, (ii) such Bank shall remain solely responsible
to the other parties hereto for the performance of such obligations, and the
participating banks or other entities shall not be considered a "Bank" for
purposes of the Loan Documents, (iii) the participating banks or other entities
shall be entitled to the cost protection provisions contained in Section 2.10
through Section 2.13 and the rights of setoff contained in Section 7.02, in each
case to the same extent that the Bank from which such participating bank or
other entity acquired its participation would be entitled to the benefit of such
cost protection provisions and rights of setoff and (iv) the Borrower and the
other members of the Bank Group shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement and the other Loan Documents, and such Bank shall retain the sole
right to enforce the obligations of the Borrower relating to the Loans and to
approve any amendment, modification or waiver of any provision of this Agreement
(other than amendments, modifications or waivers with respect to the amounts of
any fees payable hereunder or the amount of principal of or the rate at which
interest is payable on the Loans, or the dates fixed for payments of principal
or interest on the Loans).
(f) Anything in this Section 9.02 to the contrary
notwithstanding, any Bank may at any time, without the consent of the Borrower
or the Agent, assign and pledge all or any portion of its Commitment and the
Loans owing to it to any Federal Reserve Bank (and its transferees) as
collateral security pursuant to Regulation A of the Federal Reserve Board and
any Operating Circular issued by such Federal Reserve Bank. No such assignment
shall release the assigning Bank from its obligations hereunder.
(g) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.02, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Bank by
or on behalf of the Borrower; provided that prior to any such disclosure, each
such assignee or participant or proposed assignee or participant shall agree
(subject to customary exceptions) to preserve the confidentiality of any
confidential information relating to the Borrower received from such Bank.
Section 9.03. Notices. All correspondence, statements,
notices, requests and demands (collectively "Communications") shall be in
writing (including telegraphic Communications) and mailed, telegraphed,
telecopied, facsimile transmitted or delivered as follows:
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if to the Borrower --
Kirby Corporation
1775 St. James Place, Suite 200
Houston, Texas 77056
Attention: Chief Financial Officer
Telecopier: (713) 435-1010
if to the Funds Administrator or the Agent--
Texas Commerce Bank National Association
712 Main Street
Houston, Texas 77002
Attention: Houston Diversified Industries
Telecopier: (713) 216-6004
with a copy to --
Texas Commerce Bank National Association
1111 Fannin, 9th Floor M.S. 46
Houston, Texas 77002
Attention: Syndications Department
Telecopier: (713) 750-3810
if to any Bank, at its Domestic Lending Office, or as to each such party, at
such other address as such party shall designate in a written Communication to
each of the other parties hereto. All such Communications shall be effective, in
the case of written or telegraphed Communications, when deposited in the mails
or delivered to the telegraph company, respectively, and, in the case of a
Communication by telecopy or facsimile transmission, when telecopied or
transmitted against receipt of a confirmation, in each case addressed as
aforesaid, except that Communications to any member of the Bank Group pursuant
to Article II and Article VIII shall not be effective until received by such
Persons.
Section 9.04. Costs and Expenses. The Borrower agrees to pay
on demand (a) all reasonable costs and expenses of the Agent and the Funds
Administrator incurred in connection with the preparation, execution, delivery,
filing, administration and recording of the Loan Documents and any other
agreements or security documents delivered in connection with or pursuant to any
of the Loan Documents and the syndication of this Agreement both before and
after the date hereof, including, without limitation, the reasonable fees and
out-of-pocket expenses of Andrews & Kurth L.L.P., special counsel to the Agent,
and local counsel who may be retained by such special counsel, with respect
thereto, and (b) all reasonable costs and expenses of the Agent and the Funds
Administrator, and during the existence of an Event of Default any Bank,
incurred in connection with the enforcement of the Loan Documents and any other
agreements or security documents
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executed in connection with or pursuant to any of the Loan Documents, including,
but not limited to, the reasonable fees and out-of-pocket expenses of counsel to
the Agent, and local counsel who may be retained by such counsel, with respect
thereto, and the costs and expenses in connection with the custody,
preservation, use or operation of, or the sale of, or collection from, or other
realization upon the sale of, or collection from, or other realization upon any
collateral covered by any of the Loan Documents or any other documents executed
in connection with or pursuant to any of the Loan Documents. The agreements of
Borrower contained in this Section 9.04 shall survive the termination of the
Commitments and the payment of all other amounts owing hereunder or under any of
the other Loan Documents.
Section 9.05. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Borrower, the Agent, the Funds
Administrator, the Banks and their respective successors and assigns, except
that the Borrower may not assign or transfer its rights hereunder without the
prior written consent of the Banks.
Section 9.06. Independence of Covenants. All covenants
contained in the Loan Documents shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that such action or condition would be permitted by an exception to, or
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
Section 9.07. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement and the other Loan
Documents or made in writing by the Borrower in connection herewith or
therewith, shall survive the execution and delivery of this Agreement, the Notes
and the other Loan Documents and the repayment of the Loans. Any investigation
by any member of the Bank Group shall not diminish in any respect whatsoever its
right to rely on such representations and warranties.
Section 9.08. Separability. Should any clause, sentence,
paragraph, subsection, Section or Article of this Agreement be judicially
declared to be invalid, unenforceable or void, such decision will not have the
effect of invalidating or voiding the remainder of this Agreement, and the
parties hereto agree that the part or parts of this Agreement so held to be
invalid, unenforceable or void will be deemed to have been stricken herefrom by
the parties hereto, and the remainder will have the same force and effectiveness
as if such stricken part or parts had never been included herein.
Section 9.09. Captions. The captions in this Agreement have
been inserted for convenience only and shall be given no substantive meaning or
significance whatsoever in construing the terms and provisions of this
Agreement.
Section 9.10. Limitation by Law. All provisions of this
Agreement and the other Loan Documents are intended to be subject to all
applicable mandatory provisions of law which may be controlling and to be
limited to the extent necessary so that they will not render this Agreement
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or any other Loan Document invalid or unenforceable, in whole or in part, or not
entitled to be recorded, registered or filed under the provisions of any
applicable law.
Section 9.11. Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which taken together shall constitute one and the same agreement.
Section 9.12. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Texas and
applicable federal law; provided, however, notwithstanding the foregoing or any
other provision of this Agreement, nothing in this Agreement, the Notes or the
other Loan Documents shall be deemed to constitute a waiver of any rights which
any Bank may have under federal legislation relating to the rate of interest
which such Bank may contract for, take, reserve, receive or charge in respect of
any Debt owing to such Bank hereunder. Chapter 15, Subtitle 3, Title 79, of the
Revised Civil Statutes of Texas, 1925, as amended (relating to revolving loan
and revolving triparty accounts), shall not apply to this Agreement or the Notes
or the transactions contemplated hereby.
Section 9.13. Limitation on Interest. Each provision in this
Agreement and each other Loan Document is expressly limited so that in no event
whatsoever shall the amount paid, or otherwise agreed to be paid, by the
Borrower for the use, forbearance or detention of the money to be loaned under
this Agreement or any other Loan Document or otherwise (including any sums paid
as required by any covenant or obligation contained herein or in any other Loan
Document which is for the use, forbearance or detention of such money), exceed
that amount of money which would cause the effective rate of interest thereon to
exceed the Highest Lawful Rate, and all amounts owed under this Agreement and
each other Loan Document shall be held to be subject to reduction to the effect
that such amounts so paid or agreed to be paid which are for the use,
forbearance or detention of money under this Agreement or such Loan Document
shall in no event exceed that amount of money which would cause the effective
rate of interest thereon to exceed the Highest Lawful Rate. To the extent that
the Highest Lawful Rate applicable to a Bank is at any time determined by Texas
law, such rate shall be the "indicated rate ceiling" described in Section (a)(1)
of Article 1.04 of Chapter 1, Subtitle 1, Title 79, of the Revised Civil
Statutes of Texas, 1925, as amended; provided, however, to the extent permitted
by such Article, the Banks from time to time by notice from the Agent to
Borrower may revise the aforesaid election of such interest rate ceiling as such
ceiling affects the then-current or future balances of the Loans outstanding
under the Notes. Notwithstanding any provision in this Agreement or any other
Loan Document to the contrary, if the maturity of the Notes or the obligations
in respect of the other Loan Documents are accelerated for any reason, or in the
event of prepayment of all or any portion of the Notes or the obligations in
respect of the other Loan Documents by the Borrower or in any other event,
earned interest on the Loans and such other obligations of the Borrower may
never exceed the maximum amount permitted by applicable law, and any unearned
interest otherwise payable under the Notes or the obligations in respect of the
other Loan Documents that is in excess of the maximum amount permitted by
applicable law shall be cancelled automatically as of the date of such
acceleration or prepayment or
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other such event and, if theretofore paid, shall be credited on the principal of
the Notes or, if the principal of the Notes has been paid in full, refunded to
the Borrower. In determining whether or not the interest paid or payable, under
any specific contingency, exceeds the Highest Lawful Rate, the Borrower and the
Banks shall, to the maximum extent permitted by applicable law, amortize,
prorate, allocate and spread, in equal parts during the period of the actual
term of this Agreement, all interest at any time contracted for, charged,
received or reserved in connection with the Loan Documents.
Section 9.14. Indemnification. The Borrower agrees to
indemnify, defend and hold each member of the Bank Group, as well as their
respective officers, employees, agents, Affiliates, directors and shareholders
(collectively, "Indemnified Persons") harmless from and against any and all
loss, liability, damage, judgment, claim, deficiency or reasonable expense
(including interest, penalties, reasonable attorneys' fees and amounts paid in
settlement) incurred by or asserted against any Indemnified Person arising out
of, in any way connected with, or as a result of (i) the execution and delivery
of this Agreement and the other documents contemplated hereby, the performance
by the parties hereto and thereto of their respective obligations hereunder and
thereunder (including but not limited to the making of the Loans by each Bank)
and consummation of the transactions contemplated hereby and thereby, (ii) the
actual or proposed use of the proceeds of the Loans, (iii) any violation by the
Borrower or any of its Subsidiaries of any Requirement of Law, including but not
limited to Environmental Laws, (iv) any member of the Bank Group being deemed an
operator of any real or personal property of the Borrower or any of its
Subsidiaries in circumstances in which no member of the Bank Group is generally
operating or generally exercising control over such property, to the extent such
losses, liabilities, damages, judgments, claims, deficiencies or expenses arise
out of or result from any Hazardous Materials located in, on or under such
property or (v) any claim, litigation, investigation or proceeding relating to
any of the foregoing, whether or not any Indemnified Person is a party thereto;
provided that such indemnity shall not apply to any such losses, claims,
damages, liabilities or related expenses that are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of, or willful violation of the Loan
Documents by, such Indemnified Person. WITHOUT LIMITING ANY PROVISION OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, IT IS THE EXPRESS INTENTION OF THE
BORROWER THAT EACH INDEMNIFIED PERSON SHALL BE INDEMNIFIED AND HELD HARMLESS
AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DEFICIENCIES, JUDGMENTS OR
REASONABLE EXPENSES ARISING OUT OF OR RESULTING FROM THE ORDINARY NEGLIGENCE
(WHETHER SOLE OR CONTRIBUTORY) OR STRICT LIABILITY OF SUCH INDEMNIFIED PERSON.
Each Indemnified Person will attempt to consult with the Borrower prior to
entering into any settlement of any lawsuit or proceeding that could give rise
to a claim for indemnity under this Section 9.14, although nothing herein shall
give the Borrower the right to direct or control any such settlement
negotiations or any related lawsuit or proceeding on behalf of such Indemnified
Party. The obligations of the Borrower under this Section 9.14 shall survive the
termination of this Agreement.
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<PAGE> 50
Section 9.15 Submission to Jurisdiction. The Borrower hereby
irrevocably submits to the jurisdiction of any Texas state or federal court
sitting in Houston, Texas over any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents, and the Borrower
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such Texas state or federal court; provided, however,
nothing in this Section 9.15 is intended to waive the right of any member of the
Bank Group to remove any such action or proceeding commenced in any such Texas
state court to an appropriate Texas federal court to the extent the basis for
such removal exists under applicable law. The Borrower irrevocably consents to
the service of any and all process in any such action or proceeding by the
mailing by certified mail of copies of such process to it at its address
specified herein. The Borrower agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Section 9.15 shall affect the right of any member of the Bank Group to serve
legal process in any other manner permitted by law or affect the right of any
member of the Bank Group to bring any action or proceeding against any of the
Borrower, or such person's properties, in the courts of any other jurisdiction.
Section 9.16. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE BORROWER AND THE BANK GROUP HEREBY IRREVOCABLY
AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF THE BANK GROUP IN THE
NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF.
Section 9.17. FINAL AGREEMENT OF THE PARTIES. THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS CONSTITUTE A LOAN AGREEMENT FOR PURPOSES OF SECTION
26.02(a) OF THE TEXAS BUSINESS AND COMMERCE CODE, AND REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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<PAGE> 51
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first above written.
KIRBY CORPORATION
By: /s/ Brian K. Harrington
------------------------
Brian K. Harrington
Senior Vice President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Funds Administrator,
as Agent, and individually as one of
the Banks
By: /s/ Michael Ondruch
------------------------
Michael Ondruch
Vice President
ABN AMRO BANK N.V.
By:
------------------------
Name:
Title:
By:
------------------------
Name:
Title:
<PAGE> 52
CITIBANK, N.A.
By: /s/ Illegible
------------------------
Name:
Title:
CORESTATES BANK, N.A.
By: /s/ S. Scott Gates
------------------------
Name: S. Scott Gates
Title: Vice President
DEPOSIT GUARANTY NATIONAL BANK
By: /s/ Davvid L. Castilaw
------------------------
Name: David L. Castilaw
Title: Senior Vice President
WELLS FARGO BANK
By: /s/ Nipul Patel
------------------------
Name: Nipul Patel
Title: Relationship Manager
<PAGE> 53
ANNEX A
DEFINITIONS
"Adjusted CD Rate" means, for any Interest Period for each
Adjusted CD Rate Loan comprising part of the same Borrowing, an interest rate
per annum equal to the sum of: (a) the rate per annum obtained by dividing (i)
the rate of interest determined by the Agent to be the arithmetic average
(rounded upward to the nearest whole multiple of 1/100 of 1% per annum, if such
average is not such a multiple) of the consensus bid rate determined by the
Agent for the bid rates per annum, on or about 9:00 A.M. (Houston time) (or as
soon thereafter as practicable) one Business Day before the first day of such
Interest Period, of certificate of deposit dealers of recognized standing
selected by the Agent for the purchase at face value of certificates of deposit
of the Agent in an amount approximately equal to the Adjusted CD Rate Loan to be
made by the Agent in its capacity as a Bank and comprising part of such
Borrowing and with a maturity equal to such Interest Period, by (ii) a
percentage equal to 100% minus the Adjusted CD Rate Reserve Percentage for such
Interest Period, plus (b) the Assessment Rate in effect from time to time during
such Interest Period.
"Adjusted CD Rate Borrowing" means a Borrowing consisting of
Adjusted CD Rate Loans.
"Adjusted CD Rate Loan" means a Loan that the Borrower has
designated, or is deemed to have designated, as such in accordance with Article
II.
"Adjusted CD Rate Reserve Percentage" means, for the Interest
Period for each Adjusted CD Rate Loan comprising part of the same Borrowing, the
reserve percentage applicable one Business Day before the first day of such
Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in Houston, Texas with deposits exceeding one billion
dollars with respect to liabilities consisting of or including (among other
liabilities) U.S. dollar nonpersonal time deposits in the United States with a
maturity equal to such Interest Period.
"Adjusted Net Income" means, for any period, Net Income for
such period; less, to the extent otherwise included in such Net Income (a) any
gain or loss arising from the sale of capital assets of the Borrower and its
Consolidated Subsidiaries; (b) any gain arising from any write-up of assets of
the Borrower and its Consolidated Subsidiaries; (c) earnings of any other
Person, substantially all of the assets of which have been acquired by the
Borrower or any of its Consolidated Subsidiaries in any manner, to the extent
that such earnings were realized by such other Person prior to the date of such
acquisition; (d) net earnings of any Person (other than a Consolidated
Subsidiary) in which the Borrower or any of its Consolidated Subsidiaries has an
ownership interest, except for the portion of such net earnings that have been
distributed to the Borrower or a Consolidated Subsidiary; (e) the earnings of
any Person to which assets of the Borrower or any of its Consolidated
Subsidiaries shall have been sold, transferred or disposed of, to the extent
that such earnings arise
<PAGE> 54
after the date of such transaction; (f) the earnings of any Person into which
the Borrower or any of its Consolidated Subsidiaries shall have merged, to the
extent that such earnings arise prior to the date of such merger; (g) any gain
arising from the acquisition of any securities of the Borrower or any of its
Consolidated Subsidiaries; and (h) the taxes, if any, included in the
calculation of the consolidated net earnings, if any, described in clauses (a)
through (g); plus, to the extent not otherwise included in such Net Income, all
distributions, other than returns of capital, which have been made to the
Borrower or a Consolidated Subsidiary by any Person, other than a Consolidated
Subsidiary, in which Borrower or any of its Consolidated Subsidiaries has an
ownership interest.
"Affected Bank" has the meaning specified in Section 2.14.
"Affected Interests" has the meaning specified in Section
2.14.
"Affiliate" means, when used with respect to any Person, (a)
any other Person (including any member of the immediate family of any such
natural person) who directly or indirectly beneficially owns or controls five
percent (5%) or more of the total voting power of shares of capital stock of
such Person having the right to vote for directors (or other individuals
performing similar functions) under ordinary circumstances, (b) any Person
controlling, controlled by or under common control with any such Person (within
the meaning of Rule 405 under the Securities Act of 1933) and (c) any director
or executive officer of such Person.
"Agent" has the meaning specified in the introduction to this
Agreement.
"Agent's Side Letter" has the meaning specified in Section
2.09.
"Agreement" means this Credit Agreement, as the same may from
time to time be amended, supplemented or modified and in effect.
"Applicable Lending Office" means, with respect to each Bank,
such Bank's Domestic Lending Office in the case of a Prime Rate Loan, such
Bank's CD Lending Office in the case of an Adjusted CD Rate Loan and such Bank's
Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
"Applicable Margin" has the meaning specified in Section
2.06(d).
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day which is payable by a member of the Bank Insurance
Fund classified as well capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. ss.327.4 (or any successor provision) to the Federal Deposit Insurance
Corporation (or any successor thereto) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the United
States. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Assessment Rate.
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<PAGE> 55
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Bank and an Eligible Assignee and accepted by the Agent, in
substantially the form of Exhibit D.
"Bank Group" means, collectively, the Agent, the Funds
Administrator and the Banks.
"Banks" has the meaning specified in the introduction to this
Agreement.
"Borrower" has the meaning specified in the introduction to
this Agreement.
"Borrowing" means a group of Loans of a single Type made by
the Banks, or Converted into such, as applicable, on a single date and as to
which a single Interest Period is in effect.
"Borrowing Date" means, with respect to the initial funding of
any Borrowing, the date on which the proceeds of such Borrowing are to be made
available to the Borrower.
"Borrowing Request" has the meaning specified in Section 2.02.
"Business Day" means a day of the year on which banks are not
required or authorized to close in Houston, Texas and, if the applicable
Business Day relates to any Eurodollar Rate Loans, on which dealings are carried
on in the applicable eurodollar interbank market.
"Capital Expenditures" means, for any period, the expenditures
and costs made by the Borrower and its Consolidated Subsidiaries (on a
consolidated basis) during such period (whether paid in cash or accrued as
liabilities during that period and including that portion of Capital Leases that
is capitalized on the consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries) that, in accordance with generally accepted
accounting principles consistently applied, are required to be included in or
reflected by the property, plant or equipment or similar fixed asset accounts
reflected in the consolidated balance sheet of the Borrower.
"Capital Lease" means, as to any Person, any lease or rental
agreement in respect of which such Person's obligations as lessee under such
lease or rental agreement, constitute obligations which shall have been or
should be, in accordance with generally accepted accounting principles
consistently applied, capitalized on the balance sheet of such Person.
"CD Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "CD Lending Office" on Schedule 2.01 (or,
if no such office is specified, its Domestic Lending Office), or such other
office of such Bank as such Bank may from time to time specify to the Borrower,
the Agent and the Funds Administrator.
"Change of Control" means any of (a) the acquisition by any
Person or two or more Persons (excluding underwriters in the course of their
distribution of voting stock in an underwritten
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<PAGE> 56
public offering) acting in concert, of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission) of 25% or more of the
outstanding shares of voting stock of the Borrower, (b) 30% or more of the
members of the Board of Directors of the Borrower on any date shall not have
been (i) members of the Board of Directors of the Borrower on the date 12 months
prior to such date or (ii) approved by Persons who constitute at least a
majority of the members of the Board of Directors of the Borrower as constituted
on the date 12 months prior to such date, (c) all or substantially all of the
assets of the Borrower are sold in a single transaction or series or related
transactions to any Person or (d) the Borrower merges or consolidates with or
into any other Person, with the effect that immediately after such transaction
the stockholders of the Borrower immediately prior to such transaction hold less
than 75% of the total voting power entitled to vote in the election of
directors, managers or trustees of the Person surviving such transaction.
"Commitment" means, as to any Bank, the amount of such Bank's
Commitment set forth on Schedule 2.01, as such Commitment may be reduced or
terminated pursuant to Section 2.04 or Section 7.01.
"Commitment Percentage" means, as to any Bank, a percentage
determined pursuant to the following formula: (C / T) x 100 = CP; where C is
such Bank's Commitment (without giving effect to any termination of the
Commitments pursuant to Section 7.01), T is the Total Commitment (without giving
effect to any termination of the Commitments pursuant to Section 7.01) and CP is
such percentage.
"Communications" has the meaning specified in Section 9.03.
"Consolidated Subsidiary" means, as of any date, any
Subsidiary of the Borrower that, in accordance with generally accepted
accounting principles, would be included in the consolidated financial
statements of the Borrower prepared as of such date.
"Conversion Date" means, when used with respect to the
Conversion of any group of Loans, the date such Loans are to be Converted into
Loans of another Type pursuant to Section 2.02 or otherwise in accordance with
Article II.
"Conversion Notice" has the meaning specified in Section 2.02.
"Convert," "Conversion" and "Converted" each refers to a
conversion of Loans of one Type into Loans of another Type pursuant to Section
2.02 or otherwise in accordance with Article II.
"Current Liabilities" means, as of any date, all liabilities
(including, without limitation, accounts payable incurred for services rendered
and property purchased in the ordinary course of business) which would be
reflected as current liabilities on a consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries prepared as of such date in accordance with
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<PAGE> 57
generally accepted accounting principles consistently applied, but excluding
current maturities of Funded Debt of the Borrower and its Consolidated
Subsidiaries as of such date.
"Debt" of any Person shall mean, without duplication: (a) any
obligation of such Person for borrowed money, (b) any obligation of such Person
evidenced by bonds, debentures, notes or other similar debt instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person, (d) any obligation of
such Person for the deferred purchase price of any property or services, except
accounts payable arising in the ordinary course of such Person's business that
have been outstanding less than ninety (90) days since the date of the related
invoice, (e) the present value (discounted at the implicit rate, if known, or
ten percent (10%) per annum otherwise) of all Capital Leases of such Person, (f)
any Derivative Obligations of such Person, (g) any reimbursement obligations of
such Person in respect of drawings under a letter of credit or similar
instrument, and (h) any indebtedness or obligations of others of the type
described in clauses (a) through (g) that is Guaranteed by such Person or
secured by a Lien on any asset of such Person.
"Default" means an Event of Default or an event which with the
giving of notice or the lapse of time or both could, unless cured or waived,
become an Event of Default.
"Default Rate" has the meaning specified in Section 2.06.
"Derivative Obligations" means, with respect to any Person,
payment obligations with respect to foreign exchange transactions and interest
rate, currency and commodity swaps, caps, floors, collars, forward sale
contracts, other similar obligations and combinations of the foregoing
(collectively, "swaps"). For the purposes of this Agreement, the amount of any
Derivative Obligations shall be the amount determined in respect thereof as of
the end of the then most recently ended fiscal quarter of such Person, based on
the assumption that all swaps had terminated at the end of such fiscal quarter,
and in making such determination, if any agreement relating to any such swap
provides for the netting of amounts payable by and to such Person thereunder or
if any such agreement provides for the simultaneous payment of amounts by and to
such Person, then in each such case, the amount of such obligation shall be the
net amount so determined.
"Dixie" means Dixie Carriers, Inc., a Delaware corporation.
"Dixie Note Purchase Agreement" shall mean the Note Purchase
Agreement dated as of August 12, 1992 among Dixie and the note purchasers named
therein, relating to Dixie's $50,000,000 8.22% Senior Notes due June 30, 2002,
as amended, supplemented or otherwise modified from time to time.
"Dollars" and "$" each means lawful money of the United
States.
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"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office" on Schedule 2.01,
or such other office of such Bank as such Bank may from time to time specify to
the Borrower, the Agent and the Funds Administrator.
"Duff & Phelps Rating" means the rating classification of the
Borrower's senior debt, classified according to risk, issued by Duff & Phelps
Credit Rating Co.
"Effective Date" means the date on which the conditions to
effectiveness set forth in Article III to this Agreement are first satisfied.
"Eligible Assignee" means (a) any Bank or any Affiliate of any
Bank; (b) a commercial bank organized under the laws of the United States, or
any state thereof, and having total assets in excess of $1,000,000,000 and
having deposits rated in either of the two highest generic letter rating
categories (without regard to subcategories) from either Standard & Poor's
Rating Group or Moody's Investors Service, Inc.; (c) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development ("OECD"), or a political subdivision of any
such country, and having total assets in excess of $1,000,000,000, provided that
such bank is acting through a branch or agency located in the country in which
it is organized or another country which is also a member of the OECD; (d) the
central bank of any country which is a member of the OECD; and (e) any other
financial institution approved by the Agent.
"Environmental Laws" means federal, state or local laws, rules
or regulations, and any judicial, arbitral or administrative interpretations
thereof, including, without limitation, any judicial, arbitral or administrative
order, judgment, permit, approval, decision or determination pertaining to
health, safety or the environment in effect at the time in question, including,
without limitation, the Clean Air Act, as amended, the Oil Pollution Act of
1990, as amended, the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, the Federal Water Pollution Control Act, as amended,
the Occupational Safety and Health Act, as amended, the Resource Conservation
and Recovery Act, as amended, the Safe Drinking Water Act, as amended, the Toxic
Substances Control Act, as amended, the Superfund Amendment and Reauthorization
Act of 1986, as amended, the Hazardous Materials Transportation Act, as amended,
comparable state and local laws, and other environmental conservation and
protection laws.
"ERISA" means the Employee Retirement Income Security Act of
1974, and any successor statute of similar import, together with the regulations
thereunder, in each case as in effect from time to time. References to sections
of ERISA shall be construed to also refer to any successor sections.
"ERISA Affiliate" means any (i) corporation which is a member
of the same controlled group of corporations (within the meaning of Section
414(b) of the Internal Revenue Code) as the Borrower, (ii) partnership or other
trade or business (whether or not incorporated) under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the
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<PAGE> 59
Borrower, (iii) member of the same affiliated service group (within the meaning
of Section 414(m) of the Internal Revenue Code) as the Borrower, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above or (iv) other Person required to be aggregated with the
Borrower or an ERISA Affiliate thereof, as defined above, pursuant to Section
414(o) of the Internal Revenue Code.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Event" has the meaning specified in Section 2.12.
"Eurodollar Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Eurodollar Lending Office" on Schedule
2.01 (or, if no such office is specified, its Domestic Lending Office), or such
other office of such Bank as such Bank may from time to time specify to the
Borrower, the Agent and the Funds Administrator.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Rate Loan comprising part of the same Borrowing, an interest rate per
annum equal to the average (rounded upward to the nearest whole multiple of 1/16
of 1% per annum, if such average is not such a multiple) of the rates per annum
at which deposits in U.S. dollars are offered to the Agent by prime banks in
whatever eurodollar interbank market may be selected by the Agent in its sole
discretion, acting in good faith, on or about 9:00 a.m. (Houston time) (or as
soon thereafter as practicable) two Business Days before the first day of such
Interest Period, and in accordance with the then existing practice in such
eurodollar interbank market for delivery of such deposits on the first day of
such Interest Period in immediately available funds, in an amount substantially
equal to the Eurodollar Rate Loan to be made by the Agent in its capacity as a
Bank and comprising part of such Borrowing and for a period equal to such
Interest Period.
"Eurodollar Rate Borrowing" means a Borrowing consisting of
Eurodollar Rate Loans.
"Eurodollar Rate Loan" means a Loan that the Borrower has
designated, or is deemed to have designated, as such in accordance with Article
II.
"Eurodollar Rate Reserve Percentage" means, as to any Bank for
the Interest Period for any Eurodollar Rate Loan, the reserve percentage
applicable during such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Bank with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities having a term equal
to such Interest Period.
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"Events of Default" has the meaning specified in Section 7.01.
"Excluded Affiliate" means (a) any Subsidiary of the Borrower
other than a Consolidated Subsidiary, and (b) all Persons, other than
Subsidiaries, in which the Borrower, directly or indirectly, owns or controls
five percent (5%) or more of the equity interests of such Person.
"Existing Credit Agreement" has the meaning specified in the
preliminary statement to this Agreement.
"Existing Universal Investment" means the aggregate Investment
of the Borrower in Universal as of June 30, 1997, less the aggregate amount of
such Investment returned to the Borrower after the date hereof (whether by way
of redemption, repurchase, liquidation or otherwise, but excluding any
non-liquidating dividends paid on such Investment).
"Fair Market Value" shall mean (a) with respect to any asset
(other than Dollars) the price at which a willing buyer would buy and a willing
seller would sell such asset in an arms' length transaction and (b) with respect
to Dollars, the amount of such Dollars.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of Dallas, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Charges" means, for any period, (without duplication)
the sum of (a) all Interest Expense for such period, plus (b) the aggregate
rentals paid by the Borrower and its Consolidated Subsidiaries (on a
consolidated basis) under Capital Leases during such period, plus (c) all
Capital Expenditures made by the Borrower and its Consolidated Subsidiaries
during such period (excluding any Capital Expenditures made after the Effective
Date for the expansion of such Person's fleet of marine barges, boats and other
operating equipment, as opposed to the mere replacement of such Person's
existing fleet of marine barges, boats and other operating equipment), plus (d)
the aggregate amount of (i) all scheduled principal payments required or made
during such period on account of Funded Debt that provides for scheduled
principal payments prior to final maturity, (ii) in the case of any Funded Debt
(other than Debt under revolving credit facilities) that has an original term in
excess of three years and does not provide for scheduled principal payments
prior to its final maturity, an amount equal to one-sixtieth (1/60th) per
calendar quarter of the average outstanding principal balance thereof, and (iii)
in the case of any Funded Debt under revolving credit facilities (such as this
Agreement) that does not have any scheduled principal payments during such
period, an amount equal to one-twentieth (1/20th) per calendar quarter of the
average outstanding principal balance thereof, provided, however, that to the
extent such Funded Debt is attributable to a Guaranty by the Borrower or a
Consolidated Subsidiary of a limited portion of any Debt of an
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<PAGE> 61
Excluded Affiliate, the amount included in Fixed Charges pursuant to this clause
(d) shall be limited to the Borrower's proportionate share of such Debt (based
upon the amount so Guaranteed relative to the total amount of such Debt).
"Fixed Rate" means the Adjusted CD Rate or the Eurodollar
Rate.
"Fixed Rate Borrowing" means an Adjusted CD Rate Borrowing or
a Eurodollar Rate Borrowing.
"Fixed Rate Loan" means an Adjusted CD Rate Loan or a
Eurodollar Rate Loan.
"Funded Debt" means, as of any date, the sum of the following:
(a) all Debt of the Borrower and its Consolidated Subsidiaries on a consolidated
basis as of such date, less (b) to the extent included in the amount described
in clause (a), the sum of the following (without duplication): (i) all Current
Liabilities (other than Current Liabilities that represent Debt for borrowed
money or Capital Leases) on a consolidated basis as of such date, (ii) any Debt
of any Consolidated Subsidiary in excess of the Borrower's proportionate share
thereof (based on its direct or indirect equity interest therein), (iii) all
other deferred long term liabilities that do not represent Debt for borrowed
money or Capital Leases, including deferred compensation, deferred revenue and
other deferred items classified as other liabilities of the Borrower and its
Consolidated Subsidiaries on a consolidated basis as of such date, and (iv) all
Derivative Obligations of the Borrower and its Consolidated Subsidiaries as of
such date; plus (c) to the extent not otherwise included in the amount described
in clause (a), the sum of the following (without duplication): (i) all Debt of
the Borrower and its Consolidated Subsidiaries outstanding under a revolving
credit or similar agreement, (ii) the present value (discounted at the implicit
rate, if known, or ten percent (10%) per annum otherwise) of all obligations in
respect of Capital Leases of the Borrower and its Consolidated Subsidiaries, and
(iii) all obligations of the Borrower and its Consolidated Subsidiaries under
Guaranties of Debt.
"Funds Administrator" has the meaning specified in the
introduction to this Agreement.
"Governmental Authority" means any nation or government, any
federal, state, province, city, town, municipality, county, local or other
political subdivision thereof or thereto and any court, tribunal, department,
commission, board, bureau, instrumentality, agency or other entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guaranties" means, as to any Person, all obligations (other
than endorsements in the ordinary course of business of negotiable instruments
for deposit or collection) of such Person guaranteeing or, in effect,
guaranteeing any Debt of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including all obligations incurred through an
agreement, contingent or otherwise, by such Person: (a) to purchase such Debt or
any property or assets constituting security therefor, (b) to advance or supply
funds (i) for the purchase or payment of such
-9-
<PAGE> 62
Debt or (ii) to maintain working capital or other balance sheet conditions or
otherwise to advance or make available funds for the purchase or payment of such
Debt, (c) to lease property or to purchase securities or other property or
services primarily for the purpose of assuring the owner of such Debt of the
ability of the primary obligor to make payment of the Debt or (d) otherwise to
assure the owner of the Debt of the primary obligor against loss in respect
thereof.
"Hazardous Materials" means any pollutant, contaminant, solid
waste, asbestos, petroleum product, crude oil or a fraction thereof, any toxic
or hazardous substance, material or waste, any flammable, explosive or
radioactive material, any chemical which causes cancer or reproductive effects,
or any other material or substance not mentioned above which is regulated under
any Environmental Law.
"Highest Lawful Rate" means, as to any Bank, at the particular
time in question, the maximum nonusurious rate of interest which, under
applicable law, such Bank is then permitted to charge the Borrower on the Loans
or the other obligations of the Borrower under the Loan Documents, and as to any
other Person, at the particular time in question, the maximum nonusurious rate
of interest which, under applicable law, such Person is then permitted to charge
with respect to the obligation in question. If the maximum rate of interest
which, under applicable law, the Banks are permitted to charge the Borrower on
the Loans or the other obligations of the Borrower under the Loan Documents
shall change after the date hereof, the Highest Lawful Rate shall be
automatically increased or decreased, as the case may be, as of the effective
time of such change without notice to the Borrower or any other Person.
"Hostile Acquisition" shall mean any transaction or series of
transactions in which the Borrower or any of its Subsidiaries, directly or
indirectly, purchases or acquires, or offers to purchase or acquire, an
aggregate of five percent (5%) or more of the equity securities or controlling
interest of any Person, for any type of consideration, without the prior written
consent of such Person's Board of Directors or other controlling body.
"Interest Expense" means, for any period, the aggregate of all
interest expense deducted in the calculation of the Net Income of the Borrower
for such period, determined in accordance with generally accepted accounting
principles.
"Interest Period" means, for each Loan comprising part of the
same Borrowing, the period commencing on the date of such Loan or the date of
the Conversion of such Loan, as applicable, and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be (a) in the case of an Adjusted CD Rate
Loan, 30, 60, 90 or 180 days, (b) in the case of a Prime Rate Loan, a period
ending on the Termination Date, and (c) in the case of a Eurodollar Rate Loan,
1, 2, 3 or 6 months; provided, however, that:
(i) the Borrower may not select any Interest Period for a
Loan that ends after the Termination Date;
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<PAGE> 63
(ii) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
and
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, in the case of any Interest Period for a
Eurodollar Rate Loan, that if such extension would cause the last day
of such Interest Period to occur in the next following calendar month,
the last day of such Interest Period shall occur on the next preceding
Business Day.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time (or any successor statute), and the
regulations promulgated thereunder.
"Investment" means any direct or indirect investment by one
Person (the "investor") in another Person (the "investee"), including, without
limitation, (a) any loan or advance, whether initially funded by the investor or
acquired by the investor from a third party, (b) any acquisition of equity
interests by the investor, whether directly from the investee or from a third
party by way of share purchase, merger or otherwise, (c) any capital or other
contribution to the investee, whether made in cash or other assets, or by
contributing a promissory note payable by the investor to the investee, (d) any
Guarantee by the investor of Debt of the investee, and (e) the Fair Market Value
of any assets or services transferred to the investee less the Fair Market Value
of any consideration received by the investor in exchange therefor; provided,
however, that the term "Investment" shall not include undistributed earnings on
an Investment; and the amount of an "Investment," for purposes of Section 6.08
hereof, shall be reduced by the amount of capital returned to the investor by
the investee. The amount of any Investment that is made by transferring property
other than Dollars shall be the Fair Market Value of the property so
transferred.
"Lien" means, when used with respect to any Person, any
mortgage, lien, charge, pledge, security interest or encumbrance of any kind
(whether voluntary or involuntary, and whether imposed or created by operation
of law or otherwise) upon, or pledge of, any of its property or assets, whether
now owned or hereafter acquired, or any conditional sale agreement, Capital
Lease or other title retention agreement.
"Loan" has the meaning specified in Section 2.01.
"Loan Documents" shall mean this Agreement, the Notes, the
Agent's Side Letter and all other agreements, instruments and documents,
including, without limitation, security agreements, notes, warrants, guaranties,
mortgages, deeds of trust, subordination agreements, pledges, powers of
attorney, consents, assignments, collateral assignments, letter agreements,
contracts, notices, leases, amendments, financing statements, letter of credit
applications and reimbursement agreements, and all other writings heretofore,
now, or hereafter executed by or on behalf of the Borrower, any of its
Affiliates or any other Person in connection with or relating to this
-11-
<PAGE> 64
Agreement, together with all agreements, instruments and documents referred to
therein or contemplated thereby.
"Majority Banks" means at any time Banks holding at least
sixty six and two-thirds percent (662/3%) of the then aggregate unpaid principal
amount of the Loans or, if no Loans are outstanding, Banks having Commitment
Percentages in the aggregate equal to at least sixty six and two-thirds percent
(662/3%).
"Material Adverse Effect" means, as to any Person, a material
adverse effect on the business, property, assets, operations or condition,
financial or otherwise, of such Person or on the ability of such Person to
perform its obligations under the Loan Documents to which it is a party or to
consummate the transactions contemplated thereby.
"Material Debt" means, as at any date, an amount equal to five
percent (5%) of the Borrower's Funded Debt as of such date.
"Material Subsidiaries" means, collectively, each Consolidated
Subsidiary of the Borrower that meets any of the following conditions: (a) the
aggregate Investment of the Borrower and its other Consolidated Subsidiaries in
such Consolidated Subsidiary exceeds five percent (5%) of the total assets of
the Borrower and its Consolidated Subsidiaries as of the end of the most
recently completed calendar year; or (b) the Borrower and its other Consolidated
Subsidiaries' proportionate share of the total assets (after intercompany
eliminations) of such Consolidated Subsidiary exceeds five percent (5%) of the
total assets of the Borrower and its Consolidated Subsidiaries as of the end of
the most recently completed calendar year; or (c) the Borrower and its other
Consolidated Subsidiaries' equity in the income from continuing operations
before income taxes, extraordinary items and cumulative effect of a change in
accounting principle of such Consolidated Subsidiary exceeds five percent (5%)
of Net Income for the most recently completed calendar year.
"Modified Net Cash Flow" means, for any period, (without
duplication) the sum of (a) Net Cash Flow for such period plus (b) the amount of
any current tax expense deducted from gross income in determining Net Cash Flow
for such period, plus (c) to the extent not included in Net Cash Flow for such
period by reason of clause (c) of the definition Adjusted Net Income, Net Cash
Flow, adjusted in the manner described in clause (b) of this definition, for
such period of any Person acquired by the Borrower or any of its Consolidated
Subsidiaries during such period.
"Moody's Rating" means the rating classification of the
Borrower's senior debt, classified according to risk, issued by Moody's
Investors Service.
"Net Cash Flow" means, for any period, the sum of the
following: (a) Adjusted Net Income for such period, plus (b) all non-cash
charges (such as deferred taxes, depreciation expense and amortization of
intangibles) which were deducted from gross income in determining Adjusted
-12-
<PAGE> 65
Net Income for such period, plus (c) the amount of Interest Expense which was
deducted in the calculation of Adjusted Net Income for such period.
"Net Income" means, for any period, the consolidated net
earnings of the Borrower and its Consolidated Subsidiaries for such period,
determined in accordance with generally accepted accounting principles.
"Net Worth" means, as of any date, the total shareholder's
equity (including capital stock, additional paid-in capital and retained
earnings after deducting treasury stock) which would appear on a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries prepared as of
such date in accordance with generally accepted accounting principles.
"Note" means a promissory note of the Borrower payable to the
order of a Bank, in substantially the form of Exhibit C, evidencing the
aggregate indebtedness of the Borrower to such Bank resulting from the Loans
made by such Bank, together with all modifications, extensions, renewals and
rearrangements thereof from time to time in effect.
"Other Taxes" has the meaning specified in Section 2.10.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any successor
thereto.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or other entity, or Governmental
Authority.
"Plan" means any employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code, and in respect of which the Borrower,
or any ERISA Affiliate is an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means, as of any particular date, a rate per
annum equal to the higher of (a) the Federal Funds Rate plus one-half of one
percent (1/2%), and (b) the prime rate per annum most recently announced by the
Agent as its prime rate of interest per annum and thereafter entered in the
minutes of the Agent's loan and discount committee, automatically fluctuating
upward or downward, as the case may be, on the day of each announcement without
special notice to the Borrower or any other Person. The Borrower acknowledges
that the prime rate referred to in clause (b) of the preceding sentence may not
be the Agent's best or lowest rate, or favored rate, and any statement,
representation or warranty in that regard or to that effect is hereby expressly
disclaimed by the Agent.
"Prime Rate Borrowing" means a Borrowing consisting of Prime
Rate Loans.
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<PAGE> 66
"Prime Rate Loan" means a Loan that the Borrower has
designated, or is deemed to have designated, as such in accordance with Article
II.
"Quarterly Payment Date" means each of September 30, December
31, March 31 and June 30 of each year.
"Register" has the meaning specified in Section 9.02.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System (respecting margin credit extended by banks), as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System (respecting borrowers who obtain margin credit) as
the same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing into the environment (including the abandonment or discarding of
barrels, containers and other closed receptacles).
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder.
"Requirements of Environmental Laws" means the requirements of
any applicable Environmental Law relating to or affecting the Borrower or any of
its Subsidiaries or the condition or operation of such Person's business or its
properties, both real and personal.
"Requirements of Law" shall mean any federal, state or local
law, rule or regulation, permit or other binding determination of any
Governmental Authority.
"Responsible Officer" means, as to any Person, the Chief
Executive Officer, the President, the Chief Financial Officer or the Treasurer
of such Person, or any employee of such Person designated in writing as a
Responsible Officer by the Chief Executive Officer of such Person.
"Restricted Investment" means (a) any Investment by the
Borrower or a Consolidated Subsidiary in an Excluded Affiliate and (b) any
payment by the Company or any Consolidated Subsidiary of Debt of any Excluded
Affiliate to the extent the Company or such Consolidated Subsidiary is not
legally obligated to make such payment under the terms of such Debt.
"S&P Rating" means the rating classification of the Borrower's
senior debt, classified according to risk, issued by Standard & Poor's Rating
Services, a division of The McGraw-Hill Companies, Inc.
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<PAGE> 67
"Subsidiary" means, with respect to any Person, each other
Person of which or in which such Person and its other Subsidiaries own, hold or
control, directly or indirectly, securities or other ownership interests having
ordinary voting power, in the absence of contingencies, to elect a majority of
the board of directors of such other Person, or other persons performing similar
functions for such Person, or, if there are no such directors or persons, having
general voting power with respect to the activities of such Person, it being
understood that the power to elect exactly 50% of the board of directors or such
other persons does not constitute a "majority" as used herein. Unless the
context otherwise requires, all references to a Subsidiary shall be considered
to be references to Subsidiaries of the Borrower.
"Substitution Event" has the meaning specified in Section
2.14.
"Taxes" has the meaning specified in Section 2.10.
"TCB" means Texas Commerce Bank National Association.
"Termination Date" means September 19, 2002 or the earlier
termination in whole of the Commitments pursuant to Section 2.04 or Section
7.01.
"Total Commitment" means an amount equal to the sum of the
Banks' Commitments.
"Transfer Notice" has the meaning specified in Section 9.02.
"Type" means, with respect to any Loan, the type of interest
rate applicable to such Loan pursuant to this Agreement, and refers to an
Adjusted CD Rate Loan, a Prime Rate Loan or a Eurodollar Rate Loan, each of
which shall is a "Type" of Loan. Loans having different Interest Periods,
regardless of whether they commence on the same date or have the same type of
interest rate, shall be considered different Types of Loans.
"Universal" means Universal Insurance Company, a corporation
organized under the laws of the Commonwealth of Puerto Rico.
"Universal Stockholders Agreement" means that certain
Stockholders Agreement dated September 25, 1992 among Universal, the Borrower
and Eastern America Financial Group, Inc., as amended and in effect on the date
hereof.
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<PAGE> 68
SCHEDULE 2.01
COMMITMENTS AND LENDING OFFICES
1. Texas Commerce Bank National Association
Commitment: ..............................................$30,000,000.00
Domestic Lending Office,
CD Lending Office and
Eurodollar Lending Office:
Texas Commerce Bank National Association
712 Main Street
Houston, Texas 77002
Attention: Houston Commercial Lending Group
Telecopier: (713) 236-6004
Telex: 166-350 (Answerback TCB-HOU)
with a copy to:
Texas Commerce Bank National Association
1111 Fannin, 9th Floor M.S. 46
Houston, Texas 77002
Attention: Syndications Department
Telecopier: (713) 750-3810
Telex: 166-350 (Answerback TCB-HOU)
2. ABN AMRO Bank N.V.
Commitment: .............................................$30,000,000.00
Domestic Lending Office,
CD Lending Office and
Eurodollar Lending Office:
ABN AMRO Bank N.V.
135 South LaSalle Street
Suite 625
Chicago, Illinois 60603
Attention: Loan Administration
Telephone: (312) 904-8865
Telecopier: (312) 904-6893
<PAGE> 69
3. CoreStates Bank, N.A.
Commitment: .............................................$15,000,000.00
Domestic Lending Office,
CD Lending Office and
Eurodollar Lending Office:
CoreStates Bank, N.A.
1500 Market Street West Tower
Philadelphia, Pennsylvania 19101-7558
Telecopier: (215) 786-7704
4. Citibank, N.A.
Commitment: .............................................$15,000,000.00
Domestic Lending Office,
CD Lending Office and
Eurodollar Lending Office:
Citibank, N.A.
399 Park Avenue
New York, New York 10043
Attention: Paul B. Griffith
Telecopier: (212) 793-3588
5. Deposit Guaranty National Bank
Commitment: .............................................$10,000,000.00
Domestic Lending Office
CD Lending Office and
Eurodollar Lending Office:
Deposit Guaranty National Bank
201 East Capitol Street
Jackson, Mississippi 39215-1200
Attention: Greg Moore
Telecopier: (601) 354-8412
-2-
<PAGE> 70
6. Wells Fargo Bank
Commitment: .............................................$15,000,000.00
Domestic Lending Office,
CD Lending Office and
Eurodollar Lending Office:
Wells Fargo Bank
1000 Louisiana, 3rd Floor
Houston, Texas 77002
Attention: David Anderson
Telecopier: (713) 250-7029
Total Commitment: ......................................$100,000,000.00
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<PAGE> 71
Schedule 4.01
KIRBY CORPORATION
CONSOLIDATED SUBSIDIARIES AND EXCLUDED AFFILIATES
Part A - Consolidated Subsidiaries
Number of Percentage
Entity Shares Owned Shares Owned
------ ------------ ------------
AFRAM Carriers, Inc. 10,000 100%
Americas Marine Express, Inc. 1,000 100%
Brent Transportation Corporation 1,000 100%
Chotin Carriers, Inc. 1,000 100%
Dixie Bulk Transport, Inc. 10 100%
Dixie Carriers, Inc. 44,950 100%
Dixie Marine, Inc. 100 100%
Dixie Offshore Transportation Company 1,000 100%
Dixie Security Corporation 1,000 100%
Engine Systems, Inc. 1,000 100%
General Energy Corporation 1,000 100%
Kirby Exploration Company of Texas 1,000 100%
Kirby Marine Transportation Corporati 10,000 100%
Kirby Pioneer, Inc. 1,000 100%
Kirby Tankships, Inc. 10,000 100%
Kirby Terminals, Inc. 1,000 100%
Marine Systems, Inc. 1,000 100%
Mariner Reinsurance Company Limited 1,000,000 100%
Oceanic Insurance Limited 120,000 100%
OMR Transportation Company 10,000 100%
Rail Systems, Inc. 1,000 100%
Sabine Marine Transportation Company 1,000 100%
Sabine Transportation Company 10,000 100%
TPT Transportation Company 11,000 100%
Western Towing Company 10,000 100%
Part B - Excluded Affiliates
Equity Percent Equity
Entity Interest Owned Interest Owned
------ -------------- --------------
Bolivar Terminal Co., Inc. 120 Shares Common Stock 50%
Dixie Fuels II, Limited Partnership Interest 50%
Dixie Fuels Limited Partnership Interest 35%
Universal Insurance Company 111,658 Shares Common Stock 45%
<PAGE> 72
EXHIBIT A
FORM OF BORROWING REQUEST
<PAGE> 73
EXHIBIT B
FORM OF CONVERSION NOTICE
<PAGE> 74
EXHIBIT C
NOTE
<PAGE> 75
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
<PAGE> 76
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
DATED________, 19__
<PAGE> 1
EXHIBIT 11.0
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
--------------------- --------------------
1997 1996 1997 1996
------- ------ ------ ------
($ and shares in thousands, except per share amount)
<S> <C> <C> <C> <C>
Net earnings $ 5,949 7,106 18,793 20,572
======= ====== ====== ======
Shares:
Weighted average number of common
shares outstanding 24,313 24,941 24,405 25,827
Common equivalent shares for dilutive
effect of assumed exercise of stock
options 336 301 304 315
------- ------ ------ ------
24,649 25,242 24,709 26,142
======= ====== ====== ======
Net earnings per share of common stock $ .24 .28 .76 .79
======= ====== ====== ======
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONDENSED
CONSOLIDATED BALANCE SHEETS AND STATEMENTS OF EARNINGS AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 3,105
<SECURITIES> 21,006
<RECEIVABLES> 80,967
<ALLOWANCES> 681
<INVENTORY> 17,398
<CURRENT-ASSETS> 139,015
<PP&E> 531,342
<DEPRECIATION> 220,699
<TOTAL-ASSETS> 524,433
<CURRENT-LIABILITIES> 87,965
<BONDS> 164,968
3,091
0
<COMMON> 0
<OTHER-SE> 212,367
<TOTAL-LIABILITY-AND-EQUITY> 524,433
<SALES> 51,229
<TOTAL-REVENUES> 302,968
<CGS> 36,230
<TOTAL-COSTS> 202,807
<OTHER-EXPENSES> 65,923
<LOSS-PROVISION> 3
<INTEREST-EXPENSE> 10,117
<INCOME-PRETAX> 30,027
<INCOME-TAX> 11,234
<INCOME-CONTINUING> 18,793
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 18,793
<EPS-PRIMARY> .76
<EPS-DILUTED> .76
</TABLE>
