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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) November 30, 1994
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TIDEWATER INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 1-6311 72-0487776
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification
Incorporation) Number)
1440 Canal Street, Suite 2100, New Orleans, Louisiana 70112
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (504) 568-1010
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NOT APPLICABLE
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Former name, former address and former fiscal year, if changed since
last report.
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On November 30, 1994, Tidewater Inc. completed its acquisition of the
natural gas compression assets (the "Assets") of Halliburton Company and
Halliburton Canada Inc. (hereinafter collectively referred to as
"Halliburton"). The Assets were acquired by Tidewater Inc.'s wholly-owned
subsidiary, Tidewater Compression Service, Inc. (hereinafter together with
Tidewater Inc. collectively referred to as the "Company"). The purchase price
paid by the Company was approximately $205 million which is subject to
adjustment based on a final balance sheet prepared as of the closing date.
Consideration for the acquisition was arrived at by arms-length negotiations
between the Company and Halliburton.
The terms and conditions of the acquisition are set forth in full in
the Purchase and Sale Agreement dated October 18, 1994 by and between the
Company and Halliburton, which was filed as Exhibit 10 to Tidewater Inc.'s
Report on Form 10-Q for the quarterly period ended September 30, 1994 and is
incorporated herein by reference.
The tangible assets acquired as a result of the merger primarily
consisted of 1,545 natural gas compressor units with a combined horsepower of
approximately 235,300. Prior to the closing date of the acquisition, the
compressors were principally used by Halliburton to provide natural gas
compression services to customers in the production of oil and gas. The
existing agreements entered into by Halliburton for the rental of these
compressors have been assumed by the Company who will carry out their terms.
The Company intends to continue to devote the use of the compressors to the
purpose for which they had been used prior to the closing date of the
acquisition.
With the completion of the acquisition of the Halliburton Assets, the
Company will own and operate approximately 2,900 natural gas compressors with a
combined horsepower of approximately 480,000. The Company believes that the
acquisition provides an opportunity to realize significant and substantial
growth due to the size of the Halliburton fleet, the type of equipment, the
existing customer profile, and the geographic distribution of operations.
The source of the funds used for the acquisition consisted of working
capital and borrowing of $150 million under a Revolving Credit and Term Loan
Agreement among Tidewater Inc. and certain of its domestic subsidiaries, as
borrowers, and First National Bank of Commerce, The First National Bank of
Boston, Texas Commerce Bank National Association, AmSouth Bank of Alabama,
Whitney National Bank, Hibernia National Bank, and Premier Bank National
Association, as lenders.
There is no material relationship between Halliburton, its affiliates,
directors or officers and the Company, its affiliates, directors or officers.
After the closing of the acquisition, certain employees of the Compression
Services Division of Halliburton were offered and accepted employment by the
Company.
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Item 7 below contains a list of certain exhibits required to be filed
with respect to the Halliburton Assets.
ITEM 7. EXHIBITS
10(a) $250 Million Revolving Credit and Term Loan Agreement
10(b) The Halliburton financial statements required by Item 7 of Form 8-K
are impracticable to provide at the time of this report. The
Halliburton financial statements will be filed on Form 8 as soon as
practicable as they become available.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TIDEWATER INC.
(Registrant)
Date: December 2, 1994 /s/ Victor I. Koock
Victor I. Koock
Senior Vice President, Secretary, and
Co-General Counsel
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
10(a) $250 Million Revolving Credit and Term Loan Agreement
10(b) The Halliburton financial statements required by Item 7 of Form 8-K
are impracticable to provide at the time of this report. The
Halliburton financial statements will be filed on Form 8 as soon as
practicable as they become available.
</TABLE>
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Exhibit 10(a)
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AMONG
TIDEWATER INC., TIDEWATER COMPRESSION SERVICE, INC., ET AL
(as Companies)
FIRST NATIONAL BANK OF COMMERCE
(as Administrative Agent)
FIRST NATIONAL BANK OF COMMERCE
THE FIRST NATIONAL BANK OF BOSTON
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(as Agents)
and
FIRST NATIONAL BANK OF COMMERCE,
AMSOUTH BANK OF ALABAMA,
THE FIRST NATIONAL BANK OF BOSTON,
WHITNEY NATIONAL BANK,
HIBERNIA NATIONAL BANK,
PREMIER BANK NATIONAL ASSOCIATION
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(as Lenders)
__________
$250,000,000.00
__________
Dated: November 30, 1994
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
Introduction...................................... 1
Section 1. Commitment of Lenders................. 2
1.1 Credit Facility........................... 2
1.2 Borrowing Procedure Under the Credit
Facility................................ 3
1.3 Compression Term Loan..................... 3
1.4 Use of Proceeds........................... 4
Section 2. Promissory Notes; Guaranty............ 4
2.1 Line of Credit Notes...................... 4
2.2 Working Capital Term Notes................ 4
2.3 Compression Term Notes.................... 5
Section 3. Interest and Fees..................... 5
3.1 Interest - Line of Credit................. 5
3.2 Interest - Working Capital Term Loan...... 6
3.3 Interest - Compression Term Loan.......... 6
3.4 Interest - Administrative Agent's
Determination........................... 7
3.5 Payment Dates; Late Payment............... 10
3.6 Commitment Fee; Facility Fee;
Agents' Fee............................. 11
3.7 Method of Calculating Interest and Fees... 12
Section 4. Payments, Reduction or Termination of
the Credit and Prepayments............ 12
4.1 Place of Payment.......................... 12
4.2 Reduction of Credit under the Line of
Credit; Prepayments..................... 12
4.3 Prepayments of Term Notes................. 13
4.4 Pro Rata Payments......................... 13
Section 5. Representations and Warranties of
the Companies......................... 13
5.1 Corporate Existence....................... 13
5.2 Authorization; Validity................... 14
5.3 Conflicting Agreements and Other Matters.. 14
5.4 Financial Statements...................... 14
5.5 Litigation and Contingent Liabilities..... 15
5.6 Outstanding Debt.......................... 15
5.7 Title to Properties....................... 15
5.8 Purpose................................... 16
5.9 Margin Stock.............................. 16
5.10 ERISA..................................... 16
5.11 Consents.................................. 16
</TABLE>
(i)
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<TABLE>
<S> <C>
5.12 Tax Returns; Taxes........................ 17
5.13 Compliance with Laws...................... 17
5.14 Foreign Assets Control Regulations........ 17
5.15 Disclosure................................ 17
5.16 Environmental Matters..................... 18
Section 6. Covenants of the Companies............ 18
6.1 Financial Statements...................... 18
6.2 Inspection of Property.................... 22
6.3 Covenant to Secure Notes Equally.......... 22
6.4 Guaranteed or Collateralized Obligations.. 22
6.5 Maintenance of Insurance.................. 23
6.6 Maintenance of Corporate Existence/
Compliance with Law/Preservation
of Property............................. 23
6.7 Compliance with Environmental Laws........ 23
6.8 Consolidated Current Assets Requirement... 24
6.9 Dividend, Payment, Redemption and Other
Limitations............................. 24
6.10 Liens, Debt and Other Restrictions........ 25
6.11 Stock Transactions by Subsidiaries........ 30
6.12 ERISA..................................... 30
6.13 Federal Reserve Regulations, etc.......... 30
6.14 Environmental Matters..................... 31
6.15 Taxes..................................... 31
Section 7. Conditions Precedent to Credit
Facility Advances..................... 31
7.1 Default................................... 31
7.2 Representations and Warranties............ 31
Section 8. Conditions Precedent to the Credit.... 31
8.1 Resolutions of the Companies.............. 31
8.2 Organization Documents; Good Standing..... 32
8.3 Incumbency................................ 32
8.4 Officer's Certificate..................... 32
8.5 Notes..................................... 33
8.6 Opinion................................... 33
Section 9. Events of Default; Remedies; Set Offs. 33
9.1 Events of Default......................... 33
9.2 Remedies.................................. 35
9.3 Waiver of Set-Offs........................ 36
Section 10. The Agents............................ 37
10.1 Appointment and Authorization............. 37
10.2 Agents' Reliance.......................... 37
10.3 Acts by Administrative Agent
after Default, etc...................... 38
10.4 Lender Credit Decision.................... 38
</TABLE>
(ii)
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<TABLE>
<S> <C>
10.5 Agents.................................... 39
10.6 Assignments and Participations............ 39
Section 11. General.............................. 40
11.1 Definitions............................... 40
11.2 Financial Terms........................... 52
11.3 Delay..................................... 52
11.4 Notices................................... 52
11.5 Costs, Expenses and Taxes................. 54
11.6 Severability.............................. 55
11.7 Counterparts.............................. 55
11.8 Law....................................... 55
11.9 Successors................................ 56
11.10 Singular and Plural....................... 56
11.11 Amendments................................ 56
11.12 Entire Agreement.......................... 56
Signatures........................................ 57
</TABLE>
Exhibit A List of Domestic Subsidiaries
Exhibit B Form of Line of Credit Note
Exhibit C Form of Working Capital Term Note
Exhibit D Form of Compression Term Note
Exhibit E Form of Assignment and Acceptance
Schedule 1 Intentionally Omitted
Schedule 2 List of Liens pursuant to
Section 6.10(a)(iv) and (v)
Schedule 3 Intentionally Omitted
Schedule 4 List of Permitted Transactions
pursuant to Section 6.10(d)
Schedule 5 List of Debt pursuant to
Section 5.6
Schedule 6 Intentionally Omitted
Schedule 7 List of Environmental Matters
pursuant to Section 5.16
(iii)
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AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
(the "Agreement") dated the 30th day of November, 1994, by and among Tidewater
Inc., a Delaware corporation (the "Company"), Tidewater Compression Service,
Inc., a Texas corporation ("Compression"), the Domestic Subsidiaries (as
hereinafter defined and including Compression) of the Company named on Exhibit
"A", attached hereto and made a part hereof, the respective state of
incorporation of each of which Domestic Subsidiaries being set forth opposite
its name and which Domestic Subsidiaries constitute all of the Domestic
Subsidiaries of the Company (herein together with the Company and including
Compression called the "Companies"), and First National Bank of Commerce, a
national banking association, as administrative agent (the "Administrative
Agent"), First National Bank of Commerce, The First National Bank of Boston and
Texas Commerce Bank National Association, as agents (the "Agents"), and First
National Bank of Commerce, AmSouth Bank of Alabama, The First National Bank of
Boston, Whitney National Bank, Hibernia National Bank, Premier Bank National
Association and Texas Commerce Bank National Association (the "Lenders").
RECITALS
A. Pursuant to an Amended and Restated Revolving Credit and Term
Loan Agreement dated February 23, 1994 (the "Existing Loan Agreement"), the
Companies and the Lenders have heretofore entered into an agreement to provide
for line of credit advances up to the aggregate principal amount of
$130,000,000 through September 30, 1995, after which the line of credit
converts to a four-year term loan.
B. The Companies wish (i) to extend the maturity date of the line
of credit to September 30, 1996, after which the line of credit converts to a
four-year term loan, and (ii) obtain a new term loan to Compression in the
aggregate principal amount of $120,000,000. In order to do so, the Agents have
arranged for the existing Lenders to increase the amount of their respective
commitments. The Companies and the Lenders wish to provide for the foregoing
pursuant to this amendment and restatement of the Existing Loan Agreement.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants,
agreements and undertakings herein contained, Lenders
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and the Companies hereby agree to amend and restate the Existing Loan Agreement
as follows:
Section 1. Commitment of Lenders. Subject to the terms and
conditions hereof, each Lender severally agrees to make a loan to the
Companies, on the terms and conditions set forth in this Agreement, in the
following aggregate principal amount (the "Commitments"):
<TABLE>
<CAPTION>
Compression
Line of Credit Term Loan
Lender Maximum Commitment Commitment
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<S> <C> <C>
First National Bank $ 23,400,000 $ 21,600,000
of Commerce
The First National 23,400,000 21,600,000
Bank of Boston
Texas Commerce Bank 23,400,000 21,600,000
National Association
AmSouth Bank of Alabama 18,200,000 16,800,000
Whitney National Bank 15,600,000 14,400,000
Hibernia National Bank 13,000,000 12,000,000
Premier Bank National 13,000,000 12,000,000
Association
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Total $130,000,000 $120,000,000
============ ============
</TABLE>
1.1 Credit Facility. The Lenders shall establish a revolving line
of credit (the "Line of Credit") which may be drawn upon by the Companies on
any Business Day during the period from the date hereof until and including
September 30, 1996, in such amounts (but not less than $5,000,000 per Credit
Facility Advance and above $5,000,000 in even multiples of $1,000,000) as the
Companies may from time to time request (individually, a "Credit Facility
Advance" and, collectively, the "Credit Facility Advances"), but not exceeding
the Line of Credit Commitments (the "Credit Facility"), which amount
outstanding under said Line of Credit as of the close of business on September
30, 1996, shall then convert on the following day to a four (4) year term loan
(the "Working Capital Term Loan") with principal payable quarterly on a four
(4) year amortization schedule. The Credit available to the Companies from
time to time under the Line of Credit within the Credit
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Facility shall be reduced by the aggregate of the face amount of any and all
unpaid Credit Facility Advances made by the Lenders to the Companies pursuant
to this Agreement and shall constitute the "Unused Credit Facility Credit."
Irrespective of the Company or Companies who directly or indirectly receive the
amounts funded on Credit Facility Advances, each of the Companies shall be
liable jointly and severally and solidarily to the Lenders for all amounts
outstanding from time to time under the Credit Facility.
1.2 Borrowing Procedure Under the Credit Facility. Credit
Facility Advances shall be made as follows: (i) in the case of a Prime Rate
Advance, on notice from the Company to the Administrative Agent received by the
Administrative Agent no later than 10:00 A.M. (Central time) on the date of
such proposed Credit Facility Advance, specifying the amount thereof; and (ii)
in the case of a LIBO Rate Advance, on notice from the Company to the
Administrative Agent at least three (3) Business Days prior to the date of such
proposed Credit Facility Advance. The Administrative Agent will use its best
efforts to give telephone notice of a proposed Credit Facility Advance on the
same day such notice is received by the Administrative Agent from the Company.
Not later than 2:00 P.M. (Central time) on the date of such Credit Facility
Advance and upon fulfillment of the applicable conditions set forth in Section
7, the Lenders will make such Credit Facility Advance available to the
Administrative Agent, which shall make such total Credit Facility Advance
available to the Company in same day funds at the Administrative Agent's office
at 210 Baronne Street, New Orleans, Louisiana. The request for a Credit
Facility Advance shall constitute a certification by the Companies that all of
the representations and warranties contained in Section 5 are true and correct
as of the date of such request. Subject to the provisions of Section 9.2
hereof, the Lenders shall be obligated to fund Credit Facility Advances in
proportion to their Commitments. The obligations of the Lenders under this
Agreement shall be separate and several and not joint and several or solidary;
none of the Lenders shall be responsible or liable for the acts or omissions of
any of the other Lenders.
1.3 Compression Term Loan. The Lenders shall make a seven (7)
year term loan to Compression (the "Compression Term Loan") in an amount not to
exceed the Compression Term Loan Commitments with principal payable quarterly.
Inasmuch as Compression will receive all of the amounts funded on the
Compression Term Loan, each of the other Companies hereby irrevocably
guarantees, jointly and severally and solidarily with Compression and with each
of the other Companies, all amounts outstanding from time to time under the
Compression Term Loan. Each of the Companies (other than Compression) hereby
agrees that its guaranty obligations hereunder shall be absolute and
unconditional and shall be unaffected by any failure to enforce the provisions
of this Agreement or any of the
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Compression Term Notes, any waiver, modification or indulgence granted by the
Lenders to the Company with respect thereto, or any other circumstances which
might otherwise constitute a legal or equitable discharge of a surety or
guarantor. The Companies (other than Compression) hereby waive diligence,
presentment, filing of claims with the Court in the event of a merger or
bankruptcy of Compression, any right to require proceeding first against
Compression, the benefit of discussion, protest or notice with respect to the
indebtedness under the Compression Term Notes and all demands whatsoever. The
Companies (other than Compression) further agree that they shall not be
entitled to, and hereby irrevocably waive, any right of subrogation in relation
to the Lenders for so long as any portion of the Compression Term Loan remains
unpaid.
1.4 Use of Proceeds. The Companies shall use the proceeds of the
Credit Facility and Working Capital Term Loan only for general corporate
purposes not inconsistent with the provisions of this Agreement, including the
acquisition of the gas compression division of Halliburton Company.
Compression shall use the proceeds of the Compression Term Loan only for the
acquisition of the gas compression division of Halliburton Company.
Section 2. Promissory Notes; Guaranty.
2.1 Line of Credit Notes. The Credit Facility shall be evidenced
by promissory notes of the Companies, each in the form of Exhibit "B" to this
Agreement, dated the date of this Agreement, and payable to each Lender
respectively (together with any and all renewals, extensions, rearrangements
and/or modifications thereof, the "Line of Credit Notes"), in the amount of the
Lenders' respective maximum Line of Credit Commitments, with appropriate
insertions, and payable in full on September 30, 1996.
2.2 Working Capital Term Notes. The Working Capital Term Loan
shall be evidenced by promissory notes of the Companies in the form of Exhibit
"C" to this Agreement, dated October 1, 1996, payable to the order of each
Lender respectively (together with any and all renewals, extensions,
rearrangements and/or modifications thereof, the "Working Capital Term Notes"),
in the Lenders' respective proportionate amount of the Working Capital Term
Loan, with appropriate insertions, and payable in full on September 30, 2000.
The Working Capital Term Notes shall provide for payment of quarterly
installments of principal in an amount equal to one-sixteenth (1/16th) of the
initial principal balance thereof. Once the Working Capital Term Loan is
initially funded, the Lenders shall not fund any additional Credit Facility
Advances under the Working Capital Term Loan.
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2.3 Compression Term Notes. The Compression Term Loan shall be
evidenced by promissory notes of Compression in the form of Exhibit "D" to this
Agreement, dated the date on which the Compression Term Loan is funded, payable
to the order of each Lender respectively (together with any and all renewals,
extensions, rearrangements and/or modifications thereof, the "Compression Term
Notes"), in the Lenders' respective Compression Term Loan Commitments. The
Compression Term Notes shall provide for payment of quarterly installments of
principal in the aggregate amount of $3,000,000 for the first twenty-seven (27)
quarters after the date of the Compression Term Notes, with the balance of all
principal due at maturity on the last day of the twenty-eighth (28th) quarter
after the date of the Compression Term Notes.
Section 3. Interest and Fees.
3.1 Interest - Line of Credit. The unpaid principal of the Line
of Credit Notes shall bear interest at one (or both) of the following interest
rates, at the Company's option: (i) Prime Rate plus three-eighths of one
percent (0.375%) or (ii) LIBO Rate plus one and one-half percent (1.50%);
provided, however, if and for as long as the Company's Senior Debt maintains an
investment grade indicative long-term rating by Moody's Investor Services, Inc.
(currently Baa3 or better) and an investment grade indicative senior credit
rating by Standard & Poor's (currently BBB- or better), the interest rate on
the Line of Credit shall be one (or both) of the following interest rates, at
the Company's option: (i) Prime Rate plus three-eighths of one percent
(0.375%) or (ii) LIBO Rate plus one and one-quarter percent (1.25%). The
Company shall select the interest rate applicable to each Tranche at the time
of funding each Credit Facility Advance, and the selected interest rate shall
continue as to said Tranche until changed in accordance with the following.
The Company shall notify the Administrative Agent of the Company's desire to
change the interest rate on Credit Facility Advances (or any portion thereof)
not less than three (3) Business Days prior to the date on which such change
shall be effective. The Company may change from Prime Rate Advances to LIBO
Rate Advances at any time without payment of premium or penalty, but the
Company may change from LIBO Rate Advances to Prime Rate Advances only as of
the last day of a LIBOR Interest Period without payment of premium or penalty.
In the absence of any specific rate election by the Company, the Line of Credit
Notes shall bear interest at the Prime Rate plus three-eighths of one percent
(0.375%). Not more than twelve (12) Line of Credit LIBO Rate Tranches shall be
permitted at any time, and no Line of Credit Tranche may have a principal
amount of less than $1,000,000. Each Tranche shall be proportionately the same
on each Line of Credit Note.
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3.2 Interest - Working Capital Term Loan. The unpaid principal of
the Working Capital Term Notes shall bear interest at one (or both) of the
following interest rates, at the Company's option: (i) Prime Rate plus
three-eighths of one percent (0.375%) or (ii) LIBO Rate plus one and one-half
percent (1.50%); provided, however, if and for as long as the Company's Senior
Debt maintains an investment grade indicative long-term rating by Moody's
Investor Services, Inc. (currently Baa3 or better) and an investment grade
indicative senior credit rating by Standard & Poor's (currently BBB- or
better), the interest rate on the Working Capital Term Loan shall be one (or
both) of the following interest rates, at the Company's option: (i) Prime Rate
plus three-eighths of one percent (0.375%) or (ii) LIBO Rate plus one and
one-quarter percent (1.25%). The Company shall notify the Administrative Agent
of the Company's desire to change the interest rate on the Working Capital Term
Notes (or any portion thereof) not less than three (3) Business Days prior to
the date on which such change shall be effective. The Company may change from
Prime Rate Advances to LIBO Rate Advances at any time without payment of
premium or penalty, but the Company may change from LIBO Rate Advances to Prime
Rate Advances only as of the last day of a LIBOR Interest Period without
payment of premium or penalty. In the absence of any specific interest rate
election by the Company, the Working Capital Term Notes shall bear interest at
the Prime Rate plus three-eighths of one percent (0.375%). Not more than two
(2) Working Capital Term Loan LIBO Rate Tranches shall be permitted at any
time, and no Working Capital Term Loan Tranche may have a principal amount of
less than $1,000,000. Each Tranche shall be proportionately the same on each
Working Capital Term Note.
3.3 Interest - Compression Term Loan. The unpaid principal of the
Compression Term Notes shall bear interest at one (or both) of the following
interest rates, at the Company's option: (i) Prime Rate plus three-eighths of
one percent (0.375%) or (ii) LIBO Rate plus one and one-half percent (1.50%);
provided, however, if and for as long as the Company's Senior Debt maintains an
investment grade indicative long-term rating by Moody's Investor Services, Inc.
(currently Baa3 or better) and an investment grade indicative senior credit
rating by Standard & Poor's (currently BBB- or better), the interest rate on
the Compression Term Loan shall be one (or both) of the following interest
rates, at the Company's option: (i) Prime Rate plus three-eighths of one
percent (0.375%) or (ii) LIBO Rate plus one and one-quarter percent (1.25%).
The Company shall notify the Administrative Agent of the Company's desire to
change the interest rate on the Compression Term Notes (or any portion thereof)
not less than three (3) Business Days prior to the date on which such change
shall be effective. The Company may change from Prime Rate Advances to LIBO
Rate Advances at any time without payment of premium or penalty, but the
Company may change from LIBO Rate Advances to Prime Rate
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Advances only as of the last day of a LIBOR Interest Period without payment of
premium or penalty. In the absence of any specific interest rate election by
the Company, the Compression Term Notes shall bear interest at the Prime Rate
plus three-eighths of one percent (0.375%). Not more than two (2) Compression
Term Loan LIBO Rate Tranches shall be permitted at any time, and no Compression
Term Loan Tranche may have a principal amount of less than $1,000,000. Each
Tranche shall be proportionately the same on each Compression Term Note.
3.4 Interest - Administrative Agent's Determination. (a) The
Administrative Agent shall determine the amount of interest payable on each
Tranche, and its determination shall be conclusive in the absence of manifest
error. The Administrative Agent shall endeavor to notify the Company of the
amount of any interest payment prior to the date on which an interest payment
is due: provided that the failure of the Administrative Agent to provide such
notice shall not affect the Companies' obligation to pay interest on such date.
(b) If the Administrative Agent gives notice to the Company that
no LIBO Rate is quoted to the Administrative Agent for the applicable LIBOR
Interest Period or in the applicable amounts, then (i) the obligation of the
Lenders to make a LIBO Rate Advance and the ability of the Company to select
the LIBO Rate for a Tranche shall be suspended, and (ii) the Companies shall
either prepay all LIBO Rate Tranches for which an interest rate is to be
determined on such date or the Notes shall thereafter bear interest at the
Prime Rate plus three-eighths of one percent (0.375%).
(c) If any applicable domestic or foreign law, treaty, rule or
regulation (whether now in effect or hereinafter enacted or promulgated,
including Regulation D of the Board of Governors of the Federal Reserve System)
or any interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not
having the force of law):
(i) changes the basis of taxation of payments to the Lenders
of any principal, interest, or other amounts attributable to any LIBO
Rate Tranche (other than taxes imposed on the overall net income of
the Lenders or any lending office of the Lenders by any jurisdiction
in which the Lenders or any such lending office is located);
(ii) changes, imposes, modifies, applies or deems applicable
any reserve, special deposit, insurance assessments or similar
requirements in respect of any such LIBO Rate Tranche (excluding those
for which the Lenders are fully compensated pursuant to adjustments
made in the definition of LIBO Rate) or against assets
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of, deposits with or for the account of, or credit extended by, the
Lenders; or
(iii) imposes on the Lenders or the interbank eurocurrency
deposit and transfer market any other condition affecting any such
LIBO Rate Tranche,
and the result of any of the foregoing is to increase the cost to the Lenders
of funding or maintaining any such LIBO Rate Tranche (other than costs for
which the Lenders are fully compensated pursuant to adjustments made in the
definition of LIBO Rate) or to reduce the amount of any sum receivable by the
Lenders in respect of any such LIBO Rate Tranche by an amount deemed by the
Lenders to be material, then the Administrative Agent shall promptly notify the
Companies in writing (such writing including the necessary calculations in
reasonable detail) of the happening of such event and the Companies shall upon
demand pay to the Lenders such additional amount or amounts as will compensate
the Lenders for such additional cost or reduction accrued as of the time of
such notice and thereafter, the Companies may either continue to pay to the
Lenders such additional amount as will compensate the Lenders for the
additional cost or reduction of LIBO Rate Tranches, or the Companies may elect,
by giving to the Administrative Agent not less than three Business Days'
notice, to change the interest rate applicable to such Tranche from the LIBO
Rate to the Prime Rate plus three-eighths of one percent (0.375%).
(d) Notwithstanding any other provision hereof, if any change in
applicable laws, treaties, rules or regulations or in the interpretation or
administration thereof of or in any jurisdiction whatsoever, domestic or
foreign, shall make it unlawful or impracticable for the Lenders to maintain
LIBO Rate Tranches bearing interest at the LIBO Rate, or shall materially
restrict the authority of the Lenders to purchase, sell or take certificates of
deposit or offshore deposits of dollars, then all LIBO Rate Tranches which are
then outstanding and which cannot lawfully or practicably be maintained shall
immediately cease to bear interest at the LIBO Rate and shall commence to bear
interest at the Prime Rate plus three-eighths of one percent (0.375%). The
Companies agree to indemnify the Lenders and hold them harmless against all
costs, expenses, claims, penalties, liabilities and damages which may result
from any such change in law, treaty, rule, regulation, interpretation or
administration, arising out of or in connection with this Agreement and the
Loans.
(e) The Companies will indemnify the Lenders against, and
reimburse each Lender on demand for, any loss or expense incurred or sustained
by the Lenders (including without limitation, any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by the Lenders to fund or maintain
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<PAGE> 13
LIBO Rate Tranches) as a result of (i) any payment or prepayment (whether
authorized or required hereunder or otherwise) of all or a portion of any such
Tranche on a day other than the day on which the applicable LIBOR Interest
Period ends, (ii) any payment or prepayment, whether required hereunder or
otherwise, of LIBO Rate Tranches made after the delivery, but before the
effective date, of an election to have the LIBO Rate apply to a LIBO Rate
Tranche, if such payment or prepayment prevents such election from becoming
fully effective, or (iii) the failure of any LIBO Rate Tranche to be made by
the Lenders or of any such election to become effective due to any condition
precedent to a LIBO Rate Tranche not being satisfied or due to any other action
or inaction of the Companies. For purposes of this Subsection, funding losses
arising by reason of liquidation or reemployment of deposits or other funds
acquired by the Lenders to fund or maintain LIBO Rate Tranches shall be
calculated as (A) the remainder, if a positive number, obtained by subtracting
(1) the yield (reflecting both stated interest rate and discount, if any) to
maturity of obligations of the United States Treasury as determined by the
Administrative Agent in an amount equal or comparable to such advance for the
period of time commencing on the date of the payment, prepayment or change of
rate as provided above and ending on the last day of the subject LIBOR Interest
Period, from (2) the LIBO Rate of the subject LIBOR Interest Period, (B) times
the number of days from the date of payment, prepayment or change of rate to
the last day of the LIBOR Interest Period, divided by 360, (C) times the amount
of the applicable LIBO Rate Tranche. Any payment due under this section will
be paid to the Administrative Agent within five days after the Administrative
Agent delivers to the Company a certificate setting forth in reasonable detail
the amount of such payment, which certificate shall be conclusive in the
absence of manifest error.
(f) The Companies covenant and agree that:
(i) The Companies will pay, when due and on an after-tax
basis, all present and future income, stamp and other taxes, levies,
costs and charges whatsoever imposed, assessed, levied or collected on
or in respect of any LIBO Rate Tranche (other than taxes, levies,
costs or charges imposed on or measured by the overall net income of
the Lenders, or any lending office of the Lenders by any jurisdiction
in which the Lenders or any such lending office is located) (all such
non-excluded taxes, levies, costs and charges being collectively
called "Reimbursable Taxes"). Promptly after the date on which
payment of any Reimbursable Taxes is due pursuant to applicable law,
the Companies will, at the request of the Administrative Agent,
furnish to the Lenders evidence in form and substance satisfactory to
the Lenders that
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the Companies have met their obligation under this subsection.
(ii) The Companies will indemnify the Administrative Agent
and the Lenders against, and reimburse the Administrative Agent and
the Lenders on demand for, any Reimbursable Taxes paid by the
Administrative Agent and the Lenders and any loss, liability, claim or
expense, including interest, penalties and legal fees, that the
Administrative Agent and the Lenders may incur at any time arising out
of or in connection with the failure of the Companies to make any
payment of Reimbursable Taxes when due. Any payment due under this
subsection will be paid to the Administrative Agent within five days
after demand therefor by the Administrative Agent.
(iii) All payments on account of the principal of, and
interest on, LIBO Rate Tranches and all other amounts payable by the
Companies to the Lenders hereunder shall be made free and clear of and
without reduction by reason of any Reimbursable Taxes.
(iv) If the Companies are ever required to pay any
Reimbursable Taxes with respect to any LIBO Rate Tranches, the
Companies may elect, by giving to the Administrative Agent not less
than three (3) Business Days' notice, to change the interest rate
applicable to any such advance from the LIBO Rate to the Prime Rate
plus three-eighths of one percent (0.375%), but such election shall
not diminish the Companies' obligation to pay all Reimbursable Taxes
theretofore imposed, assessed, levied or collected.
(g) If any applicable law or regulation, or the action of any
applicable regulatory requirement increases the reserves or capital required
for the Credit, the Administrative Agent shall promptly deliver a certificate
to the Company specifying in reasonable detail the additional amount as will
compensate the Lenders for the additional costs, which certificate shall be
conclusive in the absence of manifest error. The Companies shall pay the
amount specified in such certificate promptly upon receipt.
3.5 Payment Dates; Late Payment. Interest on Prime Rate Advances
under any of the Loans shall be payable quarterly in arrears on the last day of
each March, June, September and December, beginning December 31, 1994; interest
on LIBO Rate Advances shall be payable on the last day of each LIBOR Interest
Period (1 month, 3 months or 6 months), and in the case of 6-month LIBOR
Interest Periods, also at the end of the first 3 months
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<PAGE> 15
thereof. Interest after maturity of the Notes for any reason whatsoever shall
be increased to the Prime Rate plus three percent (3%) and shall be payable on
demand. Principal on the Line of Credit Notes shall be payable on September
30, 1996. Principal on the Working Capital Term Loan shall be payable in 16
equal successive quarterly installments, each equal to 1/16th of the
outstanding principal balance of the Line of Credit on September 30, 1996,
beginning December 31, 1996; the balance of all outstanding principal and
accrued but unpaid interest shall be payable at maturity on September 30, 2000.
Principal on the Compression Term Loan shall be payable in 27 equal successive
quarterly installments, each in the amount of $3,000,000, beginning March 31,
1995; the balance of all outstanding principal and accrued but unpaid interest
shall be payable at maturity on December 31, 2001. Principal payments under
each respective Loan shall be allocated first to Prime Rate Tranches, then to
LIBO Rate Tranches having a LIBOR Interest Period ending on the quarterly
installment payment date, and then to LIBO Rate Tranches having a LIBOR
Interest Period ending subsequent to the quarterly installment payment date (in
which case the Companies shall pay any loss or expense incurred or sustained by
the Lenders as specified in Section 3.4(e) hereof).
3.6 Commitment Fee; Facility Fee; Agents' Fee.
(a) A commitment fee of $150,000 (one-eighth of one percent
(0.125%) of the Compression Term Loan Commitments of $120 million) shall be
payable by the Companies to the Administrative Agent who shall pay said
commitment fee to the Lenders on the date of this Agreement, as follows:
First National Bank of Commerce $ 25,000
The First National Bank of Boston 31,250
Texas Commerce Bank National Association 37,500
AmSouth Bank of Alabama 18,750
Whitney National Bank 12,500
Hibernia National Bank 12,500
Premier Bank National Association 12,500
--------
Total $150,000
(b) A facility fee equal to three-eighths of one percent (0.375%)
per annum on the average Unused Credit Facility Credit shall be payable by the
Companies quarterly in arrears on the last day of each March, June, September
and December, beginning December 31, 1994 through and including September 30,
1996; provided, that if the average Unused Credit Facility Credit during any
quarter is less than $65,000,000, the facility fee shall be reduced to
one-fourth of one percent (0.250%) per annum on the average Unused Credit
Facility Credit for that quarter.
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<PAGE> 16
(c) An Agents' fee for the Credit Facility and Compression Term
Loan of $75,000 per year shall be payable by the Companies to the Agents (which
shall be shared equally and retained by the Agents) in advance on the date of
this Agreement and each succeeding anniversary date hereof until the Loans are
paid in full and this Agreement is terminated. If the Compression Term Loan is
repaid in full, the annual Agents' fee shall thereafter be $40,000 per year
beginning on the anniversary date of this Agreement next occurring after the
date of such repayment in full.
3.7 Method of Calculating Interest and Fees. Interest and the
facility fee shall be computed on the basis of a year consisting of 360 days
and a month consisting of 30 days and paid for actual days elapsed.
Section 4. Payments, Reduction or Termination of the Credit and
Prepayments.
4.1 Place of Payment. All payments hereunder (including payments
of interest, principal and fees with respect to the Line of Credit Notes and
the Term Notes) shall be made by the Companies to the Administrative Agent in
immediately available funds, prior to 1:00 p.m. (Central time) at its offices
at 210 Baronne Street, New Orleans, Louisiana 70112, or at such other place as
may be designated by Administrative Agent to the Companies in writing. Any
payment received after 1:00 p.m. (Central time) shall be deemed received on the
next Business Day. Whenever any payment to be made hereunder or under the Line
of Credit Notes or the Term Notes fall on a date other than a Business Day,
such payment may be made on the next succeeding Business Day, and such
extension of time shall be included in the computation of payment of interest
or any fees.
4.2 Reduction of Credit under the Line of Credit; Prepayments.
(a) The Companies may from time to time (in the case of Prime Rate Tranches) or
at the end of any LIBOR Interest Period (in the case of LIBO Rate Tranches),
upon at least three (3) Business Days's prior telephonic notice (confirmed in
writing) to Administrative Agent, permanently reduce the amount of the
Commitments available under the Line of Credit (which Commitments shall be
reduced proportionately by the Lenders), but only upon payment of the
outstanding principal amount of the Line of Credit Notes in excess of the then
reduced amount of the Commitments available under the Line of Credit. Any such
reduction shall be in an amount of $10,000,000.00 or an integral multiple
thereof. The Companies may at any time (in the case of Prime Rate Tranches) or
at the end of any LIBOR Interest Period (in the case of LIBO Rate Tranches), on
like notice, terminate the Commitments available under the Line of Credit upon
payment in full of the Line of Credit Notes and other liabilities of the
Companies hereunder (excluding
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<PAGE> 17
the Compression Term Loan). In the case of either a reduction or termination
of the Commitments, the Companies shall thereafter have no right to increase or
restore the Commitments.
(b) The Companies may from time to time (in the case of Prime Rate
Tranches) or at the end of any LIBOR Interest Period (in the case of LIBO Rate
Tranches) prepay the principal of the Line of Credit Notes in whole or in part
without premium; provided, however, any partial prepayment of principal shall
be in an amount of $1,000,000.00 or any integral multiple thereof. Any
prepayment of the principal of the Line of Credit Note shall include accrued
interest to the date of prepayment on the principal amount being prepaid.
4.3 Prepayments of Term Notes. The Companies may from time to
time (in the case of Prime Rate Tranches) or at the end of any LIBOR Interest
Period (in the case of LIBO Rate Tranches), upon at least one Business Day's
prior telephonic notice (confirmed in writing) to the Administrative Agent,
prepay the principal of the Term Notes in whole or in part without premium;
provided, however, any partial prepayment of principal shall be in an amount of
$1,000,000.00 or an integral multiple thereof. Any prepayment of the principal
of the Term Notes shall include accrued interest to the date of prepayment on
the principal amount being prepaid. All prepayments when made shall be applied
to unpaid installments of principal in the inverse order of maturity. All
prepayments shall be in addition to and not in lieu of, and shall not relieve
the Companies from the obligation to pay, scheduled installments of principal
in accordance with the Term Notes.
4.4 Pro Rata Payments. All payments and prepayments of principal,
interest, fees (except the Agents' fee described in Section 3.6(c) hereof) and
other amounts paid by the Companies to the Administrative Agent from time to
time under this Agreement shall be promptly wired by the Administrative Agent
to the Lenders in proportion to their Commitments.
Section 5. Representations and Warranties of the Companies.
The Companies represent and warrant to the Lenders that:
5.1 Corporate Existence. Each of the Companies is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated and is duly qualified and in good
standing in all jurisdictions wherein the property it owns or the business it
transacts make such qualification necessary as a foreign corporation, except
where the failure to so qualify would not materially impair the ability of the
Company or any of its Subsidiaries to operate its business or
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<PAGE> 18
own its assets; and each of the Companies has and will continue to have all
necessary corporate power and authority to acquire, own and hold the property
and all other properties it purports to own and hold and to carry on its
business as now conducted. The Domestic Subsidiaries listed on Exhibit "A"
attached hereto constitute all of the Domestic Subsidiaries of the Company.
5.2 Authorization; Validity. Each of the Companies is and/or has
been duly authorized to execute and deliver this Agreement, the Line of Credit
Notes and the Term Notes and is and will continue to be duly authorized to
borrow monies hereunder and to perform its obligations under this Agreement,
the Line of Credit Notes and the Term Notes, as the case may be. This
Agreement, the Line of Credit Notes and the Term Notes, as executed and when
delivered, shall constitute the legal, valid and binding obligations of each of
the Companies, enforceable in accordance with their respective terms.
5.3 Conflicting Agreements and Other Matters. Neither the Company
nor any of its Subsidiaries is a party to any contract or agreement or subject
to any charter or other corporate restriction which materially and adversely
affects the business, property, assets, or financial condition of the Company
and its Subsidiaries, taken as a whole. Neither the execution nor delivery of
this Agreement or the Notes, nor fulfillment of nor compliance with the terms
and provisions hereof and of the Notes will conflict with, or result in a
breach of the terms, conditions or provisions of, or constitute a default
under, the charter or by-laws of the Company or any of its Subsidiaries, any
award of any arbitrator or any agreement (including any agreement with
stockholders) or instrument to which the Company or any of its Subsidiaries is
now a party, or result in the creation of any Lien on any property or assets of
the Company or any of its Subsidiaries, or constitute a violation of any law,
statute, rule, regulation, order, judgment or decree to which the Company or
any of its Subsidiaries is subject. Neither the Company nor any of its
Subsidiaries is a party to, or otherwise subject to any provision contained in,
any instrument evidencing indebtedness of the Company or such Subsidiary, any
agreement relating thereto or any other contract or agreement (including its
charter) which (i) limits the amount of, or otherwise imposes restrictions on
the incurring of, Debt of the Companies of the type to be evidenced by the
Credit, or (ii) which imposes restrictions on the granting of Liens by the
Companies on otherwise unencumbered assets of the Companies as security for the
Credit.
5.4 Financial Statements. The Company has furnished the Lenders
with the consolidated balance sheets of the Company and its Subsidiaries as at
fiscal year end in each of the years 1992 through 1994, inclusive, and for the
six-month period ending September 30, 1994 and a consolidated statement of
income and statement of cash flows for each such fiscal year and such six-
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<PAGE> 19
month period, all identified by a principal financial officer of such Company
and all (other than any financial information for such six-month period)
certified by KPMG Peat Marwick LLP (or its predecessor). Such financial
statements (including any related schedules and/or notes) are true and correct
in all material respects (subject, as to interim statements, to changes
resulting from audits and normal year-end adjustments) and have been prepared
in accordance with generally accepted accounting principles, and, unless
otherwise set forth therein, consistently followed throughout the periods
involved and show all liabilities, direct and contingent, of the Company and
its Subsidiaries required to be shown in accordance with such principles. The
balance sheets fairly present the condition of the Company and its Subsidiaries
as at the dates thereof, and the related statements of earnings, stockholders'
equity and cash flows fairly present the results of the operations of the
Company and its Subsidiaries for the periods indicated. There has been no
material adverse change in the business, condition or operations (financial or
otherwise) of the Company and its Subsidiaries taken as a whole, since
September 30, 1994.
5.5 Litigation and Contingent Liabilities. No litigation or
governmental proceedings are pending or threatened against the Company or any
of its Subsidiaries, the results of which are likely to materially adversely
affect the financial condition or operations of the Company and its
Subsidiaries on a consolidated basis, except as provided for or disclosed in
the financial statements referred to in Section 5.4 hereof. Other than any
liability incident to such litigation or proceedings provided for or disclosed
in the financial statements referred to in Section 5.4 hereof, or any other
material contingent liabilities provided for or disclosed in the financial
statements referred to in Section 5.4 hereof, the Company and its Subsidiaries,
on a consolidated basis, do not have any material contingent liabilities.
5.6 Outstanding Debt. Neither the Company nor any of its
Subsidiaries has outstanding any Debt except as permitted by Section 6.10(b)
and as set forth on Schedule 5 attached hereto and made a part hereof. There
exists no default under the provisions of any instrument evidencing Debt or of
any agreement relating thereto.
5.7 Title to Properties. Except for assets which are the subject
of capitalized lease obligations, the Company and its Subsidiaries each have
and will continue to have good and marketable title to their respective
properties and assets, including the properties and assets reflected in the
financial statements described in Section 5.4 hereof, subject to no Lien of any
kind except Liens permitted by Section 6.10(a) hereof. All leases necessary in
any material respect for the conduct of the
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<PAGE> 20
respective businesses of the Company and its Subsidiaries are valid and
subsisting and are in full force and effect.
5.8 Purpose. The proceeds of the Loan will be used by the
Companies only for the purposes specified in Section 1.4 hereof.
5.9 Margin Stock. Neither the Company nor any of its Subsidiaries
is engaged in the business of purchasing or selling margin stock (as defined in
any regulation of the Board of Governors of the Federal Reserve System) or
extending credit to others for the purpose of purchasing or carrying margin
stock and no part of the proceeds of any borrowing hereunder will be used to
purchase or carry any margin stock or for any other purpose which would violate
any of the margin regulations of such Board of Governors.
5.10 ERISA. No accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code), whether or not waived,
exists with respect to any Plan (other than a Multiemployer Plan). No
liability to the PBGC has been or is expected by the Company to be incurred
with respect to any Plan (other than a Multiemployer Plan) by the Company or
any of its Subsidiaries which is or would be materially adverse to the Company
and its Subsidiaries taken as a whole. Neither the Company nor any of its
Subsidiaries has incurred or presently expects to incur any withdrawal of
liability under Title IV of ERISA with respect to any Multiemployer Plan which
is or would be materially adverse to the Company and its Subsidiaries taken as
a whole. The execution and delivery of this Agreement will not, and the
delivery of the Notes will not, involve any transaction which is subject to the
prohibitions of Section 406 of ERISA or in connection with which a tax could be
imposed pursuant to Section 4975 of the Code. The term "Code" shall mean the
Internal Revenue Code of 1986, as amended; the term "Plan" shall mean an
"employee pension benefit plan" (as defined in Section 3 of ERISA) which is or
has been established or maintained, or to which contributions are or have been
made, by the Company or by any trade or business, whether or not incorporated,
which, together with the Company, is under common control, as described in
Section 414(b) or (c) of the Code; and the term "Multiemployer Plan" shall mean
any plan which is a "multiemployer plan" (as such term is defined in Section
4001(a)(3) of ERISA).
5.11 Consents. No consent, approval or authorization of, or
registration or declaration with, any federal or state governmental authority
or other regulatory agent for the validity of the execution and delivery or for
the performance by any of the Companies of this Agreement, the Line of Credit
Notes and the Term Notes or any agreement or instrument executed in connection
herewith is or will be required.
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<PAGE> 21
5.12 Tax Returns; Taxes. The Company has and each of its
Subsidiaries have filed all federal, state, foreign and other income tax
returns which, to the knowledge of the officers of the Company, are required to
be filed by any jurisdiction, and each has paid and will pay all taxes which
have or subsequently become due pursuant to said returns or pursuant to any
assessments, except those contested in good faith by appropriate proceedings
and for which sufficient reserves have been or will be established.
5.13 Compliance with Laws. The Company and each of its Subsidiaries
is in substantial compliance with all laws and regulations applicable to the
Companies and the businesses conducted by them (including without limitation,
laws and regulations relating to pollution and environmental control, equal
employment opportunity and employer safety) in all jurisdictions in which the
Company and each of its Subsidiaries is presently doing business, and the
Company will substantially comply and cause each of its Subsidiaries to
substantially comply with all such laws and regulations which may be legally
imposed in the future in jurisdictions in which the Company or any Subsidiary
may then be doing business.
5.14 Foreign Assets Control Regulations. Neither the borrowing by
the Companies hereunder nor their use of the proceeds thereof will violate the
Foreign Assets Control Regulations, the Cuban Assets Control Regulations, the
Rhodesian Sanctions Regulations, the Iranian Assets Control Regulations, the
Nicaraguan Trade Control Regulations, the South African Transactions
Regulations, the Libyan Sanctions Regulations, the Iranian Transactions
Regulations, the Panamanian Transactions Regulations, Iraqi Sanctions
Regulations, the Kuwaiti Assets Control Regulations, the Haitian Transactions
Regulations or the Federal Republic of Yugoslavia (Serbia and Montenegro)
Sanctions Regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V), or the Comprehensive Anti-Apartheid Act of 1986 (P.L.
99-440), or any similar asset control regulations now existing or hereafter
promulgated by the United States Treasury Department.
5.15 Disclosure. Neither this Agreement nor any other document,
certificate or statement furnished to the Lenders by or on behalf of the
Company and the Subsidiaries in connection herewith contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein and therein not misleading.
There is no fact peculiar to the Company or any of its Subsidiaries which
materially adversely affects or in the future may (so far as the Company can
now foresee) materially adversely affect the business, property or assets, or
financial condition, of the Company and any of its Subsidiaries, taken as a
whole, and which has not been set forth in
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this Agreement or in the other documents, certificates and statements furnished
to you by or on behalf of the Company prior to the date hereof in connection
with the transactions contemplated hereby.
5.16 Environmental Matters. (i) Neither the Company nor any
Subsidiary is subject to any Environmental Liability or Environmental
Requirement which could reasonably be expected to have a material adverse
effect on the business, financial condition, operations or prospects of the
Company and its Subsidiaries, taken as a whole.
(ii) Except as set forth on Schedule 7-Part 1, neither the Company
nor any Subsidiary has been designated as a potentially responsible party under
CERCLA or under any state statute similar to CERCLA. None of the Properties
has been identified on any current or proposed National Priorities List under
40 C.F.R. Section 300 or any list arising from a state statute similar to
CERCLA. None of the Properties has been identified on any CERCLIS list.
(iii) No Hazardous Materials have been or are being used, produced,
manufactured, processed, generated, stored, disposed of, released, managed at
or shipped or transported to or from the Properties or are otherwise present
at, on, in or under the Properties or, to the best knowledge of the Companies,
at or from any adjacent site or facility, except for Hazardous Materials used,
produced, manufactured, processed, generated, stored, disposed of, released and
managed in the ordinary course of business in compliance with all applicable
Environmental Requirements, except where failure to comply could not reasonably
be expected to have a material adverse affect on the business, operations, or
financial condition of the Company and its Subsidiaries, taken as a whole.
(iv) Except as set forth in Schedule 7-Part 2, the Company and each
of its Subsidiaries has procured all permits, licenses or authorizations (or
any variances or waivers) necessary under Environmental Requirements for the
conduct of its business.
Section 6. Covenants of the Companies.
From the date of this Agreement and thereafter until the expiration or
termination of the Credit Facility and until the Line of Credit Notes and the
Term Notes and other liabilities of the Companies hereunder are paid in full:
6.1 Financial Statements: The Company agrees that it will furnish
to the Administrative Agent one copy for each of the Lenders of the following:
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<PAGE> 23
(a) as soon as practicable and in any event within forty-five (45)
days after the end of each quarterly period (other than the
last quarterly period) in each fiscal year, a consolidated
balance sheet of the Company and its Subsidiaries as at the
end of such quarterly period and the related statement of
earnings and cash flows for the period from the beginning of
the current fiscal year to the end of such quarterly period,
setting forth in each case in comparative form figures for the
corresponding period in the preceding fiscal year, all in
reasonable detail and certified by an authorized financial
officer of the Company, subject to changes resulting from year
end adjustments; provided, however, that delivery pursuant to
clause (c) below of copies of the Quarterly Report on Form
10-Q of the Company for such quarterly period filed with the
Securities and Exchange Commission shall be deemed to satisfy
the requirements of this clause (a);
(b) as soon as practicable and in any event within ninety (90)
days after the end of each fiscal year, a consolidated balance
sheet of the Company and its Subsidiaries as at the end of
such year and the related statements of earnings,
stockholders' equity and cash flow for such year, setting
forth in each case in comparative form corresponding
consolidated figures from the preceding annual audit, all in
accordance with generally accepted accounting principles and
unrestricted in audit scope and certified as to consolidated
statements of the Company by independent public accountants of
recognized standing selected by the Company whose certificate
shall be in scope and substance satisfactory to Lenders;
provided, however, that delivery pursuant to clause (c) below
of copies of the Annual Report on Form 10-K of the Company for
such fiscal year filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this
clause (b);
(c) promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as
the Company shall send to its public stockholders and copies
of all registration statements (without exhibits) and all
reports which the Company files with the Securities and
Exchange Commission (or any governmental body
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<PAGE> 24
or agency succeeding to the functions of the Securities and
Exchange Commission);
(d) promptly upon receipt thereof, a copy of each other report
submitted to the Company or any of its Subsidiaries by
independent accountants in connection with any annual, interim
or special audit made by them of the books of the Company or
any of its Subsidiaries and which the Company or any of its
Subsidiaries shares with the audit committee of the Board of
Directors of the Company;
(e) with reasonable promptness, such other financial data as
Lenders may reasonably request;
(f) as soon as practicable and in any event within ninety (90)
days after the end of each fiscal year, a copy of the
Company's internal statement of operations by area; and
(g) as soon as practicable but in any event not later than ninety
(90) days after the beginning of each fiscal year, a
consolidated budget of the Company and its Subsidiaries for
the ensuing fiscal year, setting forth the anticipated
revenues and expenses for such year, the incurrence and
repayment of Debt during such year, and such other matters as
the Lenders may reasonably require.
Together with each delivery of financial statements required by clauses (a) and
(b) above, the Company will deliver to the Administrative Agent seven originals
of an Officer's Certificate demonstrating (with computations in reasonable
detail) compliance with Sections 6.8, 6.9, 6.10(b) and 6.10(f), stating that
there exists no Event of Default or Default, or, if any such Event of Default
or Default exists, specifying the nature thereof, the period of existence
thereof and what action the Company proposes to take with respect thereto.
Together with each delivery of financial statements required by clause (b)
above, the Company will also deliver to the Administrative Agent seven
originals of a certificate of said accountants stating that, in making the
audit necessary to the certification of such financial statements, they have
obtained no knowledge of any Default or any Event of Default, or, if any such
Event of Default or Default exists, specifying the nature and period of
existence thereof. Such accountants, however, shall not be liable to anyone by
reason of their failure to obtain knowledge of any such Event of Default or
Default which would not be disclosed in the course of an audit conducted in
accordance with generally accepted auditing standards.
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<PAGE> 25
The Companies also agree that forthwith upon the chief executive
officer, principal financial officer or principal accounting officer of the
Company obtaining knowledge of:
(i) an Event of Default or Default;
(ii) a material adverse change in the financial condition,
business or operations of the Company and its
Subsidiaries, taken as a whole;
(iii) the institution of legal proceedings against the
Company and/or any Subsidiary, which is likely to
materially adversely affect the financial condition,
business or operations of the Company and its
Subsidiaries, taken as a whole, or which in any
manner draws into question the validity of or is
likely to impair the ability of the Companies to
perform their obligations under this Agreement or the
Notes;
(iv) the occurrence of any default (after the passage of
any grace period) by a Company under any agreement or
note evidencing borrowed money for an aggregate
initial principal amount equal to or greater than
$1,000,000;
(v) the occurrence of any other event that is likely to
impair the ability of the Companies to meet their
obligations hereunder; or
(vi) any (A) Environmental Liability which is likely to
materially adversely affect the financial condition,
business or operations of the Company and its
Subsidiaries, taken as a whole, (B) pending,
threatened or anticipated Environmental Proceedings,
which is likely to materially adversely affect the
financial condition, business or operations of the
Company and its Subsidiaries, taken as a whole, (C)
Environmental Notice which is likely to materially
adversely affect the financial condition, business or
operations of the Company and its Subsidiaries, taken
as a whole, (D) Environmental Judgment or Order which
is likely to materially adversely affect the
financial condition, business or operations of the
Company and its Subsidiaries, taken as a whole, or
(E) Environmental Releases at, on, in, under or in
any way materially affecting the Properties;
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the Company will deliver to the Administrative Agent an Officer's Certificate
specifying the nature and period of existence thereof and what action the
Company has taken, is taking or proposes to take with respect thereto.
The Administrative Agent will promptly distribute to the Lenders,
originals (to the extent available) or copies of the financial statements and
reports, the Officer's Certificates and all other documents received by the
Administrative Agent from the Borrower pursuant to this Section 6.1.
6.2 Inspection of Property. The Companies agree that they will
permit the Administrative Agent, each Lender (with prior notice to the
Administrative Agent) and any Person designated by the Administrative Agent in
writing, at Administrative Agent's (or Lender's) expense, to visit and inspect
any of the properties of the Company and its Subsidiaries, to examine the
corporate books and financial records of the Companies and make copies thereof
or extracts therefrom, and to discuss the affairs, finances and accounts of any
of such corporations with the principal officers of each of the Companies and
their respective independent public accountants, all at such reasonable times
and as often as Administrative Agent or the Lenders may reasonably request.
6.3 Covenant to Secure Notes Equally. (a) The Companies agree
that if the Company or any Subsidiary shall create or assume any Lien of any
kind upon any of its property or assets, whether now owned or hereafter
acquired, other than Liens permitted by the provisions of Section 6.10(a)
(unless prior written consent to the creation or assumption thereof shall have
been obtained), they will make or cause to be made effective provisions whereby
the Notes will be secured by such Lien equally and ratably with any and all
other Debt thereby secured, as long as any such other Debt shall be so secured.
(b) The Companies agree not to become a party to, or otherwise be
subject to, any provision contained in any instrument evidencing indebtedness
of any of the Companies which imposes restrictions on the granting of Liens by
the Companies on otherwise unencumbered assets of the Companies as security for
the Notes, except as set forth herein.
6.4 Guaranteed or Collateralized Obligations. The Company agrees
that if it or any of its Subsidiaries incurs or permits to exist any Debt in
any event in excess of an aggregate principal amount equal to $5,000,000
guaranteed or collateralized (except as permitted by Section 6.10(a)(ix)
hereof) in any other manner by any Person (other than any governmental entity,
or other than in connection with (y) bonds, letters of credit, letters of
undertaking, or other instruments related to litigation, or the
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<PAGE> 27
avoidance thereof, involving the Company or its Subsidiaries, including the
release of assets of the Company or its Subsidiaries in connection with such
litigation, or (z) performance bonds, surety bonds, letters of credit, bank
guaranties, and other instruments related to the conduct of the business of the
Company or its Subsidiaries, excluding any obligation for borrowed money), it
will simultaneously cause such Person to execute and deliver to the Lenders a
guaranty agreement or collateral agreement, as the case may be, in form and
substance satisfactory to the Lenders either (i) guaranteeing payment of the
principal amount of the Notes and any premium and interest thereon, which bears
the same ratio to the total unpaid principal amount of the Notes as the amount
of such other obligation which is guaranteed bears to the total unpaid
principal amount of such other obligation or (ii) collateralizing the Notes
equally and ratably with such other obligation, as the case may be. Nothing
contained in the foregoing shall be deemed to permit the Companies to incur
Liens to Persons other than the Lenders in excess of those permitted by Section
6.10(a) hereof.
6.5 Maintenance of Insurance. Each Company agrees that it and
each Subsidiary will maintain, with responsible insurers, insurance with
respect to its properties and business against such casualties and
contingencies (including, but not limited to, public liability, larceny,
embezzlement or other criminal misappropriation, pollution and war risks) and
in such amounts as is customary in the case of similarly situated corporations
engaged in the same or similar businesses.
6.6 Maintenance of Corporate Existence/Compliance with
Law/Preservation of Property. Except as allowed under Sections 6.10(d) and
6.10(e), each Company covenants that it and each Subsidiary will do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect the corporate existence of such Company and its Subsidiaries and comply
in all material respects with all laws and regulations (including, without
limitation, laws and regulations relating to equal employment opportunity and
employee safety) applicable to it and its Subsidiaries, the failure with which
to comply is likely to materially adversely affect the business, operations or
financial condition of such Company and its Subsidiaries, taken as a whole; at
all times maintain, preserve and protect all material intellectual property of
such Company and its Subsidiaries, and preserve all the remainder of its
material property used or useful in the conduct of its business and keep the
same in good repair, working order and condition.
6.7 Compliance with Environmental Laws. Each of the Companies
will, and the Company will cause each of its Subsidiaries to, comply in a
timely fashion with, or operate pursuant to valid
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<PAGE> 28
waivers of the provisions of, all Environmental Requirements including, without
limitation, requirements with respect to the emission of wastewater effluent,
solid and hazardous waste and air pollution, and any other applicable
requirements for conducting, on a timely basis, periodic tests and monitoring
for contamination of ground water, surface water, air and land and for
biological toxicity of the aforesaid, and comply with any applicable
regulations (except to the extent such regulations are waived by appropriate
governmental authorities) of the Environmental Protection Agency or other
relevant federal, state or local governmental authority, except where the
failure to do so is not likely to materially adversely affect the business,
operations or financial condition of the Company and the Subsidiaries, taken as
a whole. To the fullest extent permitted by applicable law, each Company
agrees to indemnify and hold the Agents, the Lenders, their officers, agents
and employees harmless from any loss, liability, claim or expense that they may
incur or suffer as a result of a breach by the Company or any of the
Subsidiaries, as the case may be, of this covenant. No Company shall be deemed
to have breached or violated this Section 6.7 if such Company or Subsidiary is
challenging in good faith by appropriate proceedings diligently pursued the
application or enforcement of such Environmental Requirements for which
adequate reserves have been established in accordance with generally accepted
accounting principles.
6.8 Consolidated Current Assets Requirement. The Companies agree
that they will not permit Consolidated Current Assets to be less than 150% of
Consolidated Current Liabilities at any time.
6.9 Dividend, Payment, Redemption and Other Limitations. The
Company agrees that it will not (i) pay or declare any dividend on any class of
its stock; (ii) make any other distribution on account of any class of its
stock; (iii) redeem, purchase or otherwise acquire, directly or indirectly, any
shares of its stock; (iv) make any payments of principal of, or retire, redeem,
purchase or otherwise acquire, any Subordinated Debt; or (v) permit any
Subsidiary to make any payment on account of, or purchase or otherwise acquire,
any shares of stock of any of the Companies or make any Restricted Investments
(all of the foregoing clauses (i) through (v) being herein called "Restricted
Payments") except in all such cases out of Consolidated Net Earnings Available
for Restricted Payments; provided, however, the Company will not, and will not
permit any Subsidiary to, make any Restricted Payment if a Default or Event of
Default then exists or if such Restricted Payment would cause a Default or an
Event of Default to exist. There shall not be included in Restricted Payments
or in any computation of Consolidated Net Earnings Available for Restricted
Payments: (w) dividends paid by a Domestic Subsidiary to another Domestic
Subsidiary or to the Company or dividends paid by a Foreign Subsidiary to
another Subsidiary or to any of the Companies; (x) dividends paid, or
distributions made, in stock of
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<PAGE> 29
the Company; (y) exchanges of stock of one or more classes of the Company,
except to the extent that cash or other value is involved in such exchange; or
(z) dividends of purchase rights pursuant to the Shareholder Rights Agreement,
as amended and restated on December 17, 1993, and redemption of any rights that
may be distributed pursuant to such Shareholder Rights Agreement to the extent
that the aggregate of all amounts paid by the Company for the redemption of
such rights do not exceed $1,250,000. The term, "stock", as used in this
Section 6.9 shall include warrants or options to purchase stock.
6.10 Liens, Debt and Other Restrictions. The Companies agree that
they will not and will not permit any Subsidiary to:
(a) Liens. Create, assume or suffer to exist any Lien
upon any of their respective property or assets, whether now owned or
hereafter acquired (whether or not provision is made for the equal and
ratable securing of the Credit in accordance with the provisions of
Section 6.3) except:
(i) Liens for taxes (including ad valorem and property
taxes) not yet due or which are being contested in
good faith by appropriate proceedings;
(ii) Liens incidental to the conduct of their businesses
or the ownership of their property and assets which
were not incurred in connection with the borrowing of
money or the obtaining of advances of credit, and
which do not in the aggregate materially detract from
the value of their property or assets or materially
impair the use thereof in the operation of their
business;
(iii) presently existing Liens on property or assets of any
of the Subsidiaries to secure obligations of any of
such Subsidiaries to the Company or another
Subsidiary;
(iv) presently existing Liens on property or assets of any
Foreign Subsidiary consisting of marine mortgages on
new vessels under construction or on vessels already
constructed, which Liens were required as a condition
of new vessel financing from non-United States
sources, all of which Liens (other than Liens which
are incidental and do not materially affect such
property or assets) are set forth on Schedule 2-Part
1 attached hereto and made a part hereof;
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<PAGE> 30
(v) any presently existing Lien which existed on any real
or personal property of any corporation at the time
it became a Subsidiary, or which existed prior to the
time of acquisition upon any real or personal
property acquired by the Company or any Subsidiary
through purchase, merger or consolidation or
otherwise, whether or not assumed by the Company or
any Subsidiary, or placed upon real or personal
property acquired by the Company or any Subsidiary,
in connection with the purchase thereof, all of which
Liens (other than Liens which are incidental and do
not materially affect such property) are set forth on
Schedule 2-Part 2 attached hereto and made a part
hereof, provided that any such Lien shall not
encumber any other property of the Company or any
Subsidiary;
(vi) any Lien renewing, extending or refunding any Lien
permitted by clause (v) above, provided that the
principal amount secured is not increased and the
Lien is not extended to other property;
(vii) Liens to secure up to $10,000,000 of letters of
credit obligations of the Company to the extent
permitted by Section 6.10(b)(A);
(viii) any common law right of set off or banker's lien
arising in the ordinary course of business in
connection with deposit arrangements maintained by
the Company and its Subsidiaries with its banks or
other financial institution, other than a Lender in
connection with this Agreement (which such rights
have been waived pursuant to Section 9.3 hereof); and
(ix) Liens on assets covered by financing arrangements,
including lease financing arrangements which would be
characterized as capitalized leases in accordance
with generally accepted accounting principles, if the
indebtedness for all such agreements does not in the
aggregate exceed fifteen percent (15%) of
Consolidated Tangible Net Worth.
(b) Debt.
A. Create, incur or guarantee any Debt, unless on the
first day after the creating, incurrence or guaranteeing of any such Debt,
Consolidated Debt does not exceed 60% of Consolidated Tangible Net Worth;
provided, however, the foregoing shall not restrict the incurrence of Debt by
any of the Companies to any
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<PAGE> 31
Subsidiary or by any Subsidiary to any of the Companies or to any other
Subsidiary that arises in the ordinary course of the business of such
Subsidiary.
B. Permit any Debt to exist, if at any time
(i) Consolidated Debt exceeds 85% of Consolidated
Tangible Net Worth; or
(ii) The sum of (a) Consolidated Net Income or
Consolidated Net Loss, as the case may be, plus
income taxes for the immediately preceding four
quarters plus (b) Pro Forma Interest for the
succeeding four quarters plus (c) Lease Rental
Expenses for the succeeding four quarters, does not
exceed 150% of the total of Pro Forma Interest plus
Lease Rental Expenses for the succeeding four
quarters.
provided, however, the foregoing shall not restrict the incurrence of Debt by
any of the Companies to any Subsidiary or by any Subsidiary to any of the
Companies or to any other Subsidiary that arises in the ordinary course of the
business of such Subsidiary.
C. At any time permit (1) the sum of Consolidated Net
Income for the immediately preceding consecutive 12-month period plus the
aggregate amount of depreciation and amortization for such period plus
Projected Fixed Charges to be less than (2) 220% of Projected Fixed Charges.
(c) Permitted Investments. Make any investment in, or any loan or
advance to, or own, purchase or acquire (other than as allowed in Section
6.10(e)) any stock or securities of, any Person (all of the foregoing being
herein called "Restricted Investments") except out of Consolidated Net Earnings
Available For Restricted Payments, except that:
(i) the Company or any of its Subsidiaries may own,
purchase or acquire (A) direct obligations of the
United States of America or any of its agencies or
obligations guaranteed by the United States of
America or any of its agencies and having maturities
not in excess of one year from the date of purchase
or acquisition, (B) prime commercial paper rated A1
or P1 and having maturities not in excess of one year
from the date of purchase or acquisition, (C)
certificates of deposit issued by any banks with a
net worth of at least $100,000,000 and a rating by
either Moody's Investor Services, Inc. or Standard &
Poors of at least A or better
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<PAGE> 32
and having maturities not in excess of one year from
the date of purchase or acquisition; provided,
however, that in the case of any Lender or Lenders
whose rating is less than A, the maximum amount of
the certificates of deposit issued by such Lender or
Lenders shall not exceed $3,000,000 individually or
$12,000,000 in the aggregate;
(ii) any Canadian Subsidiary may own, purchase or acquire
direct obligations of the Canadian Government having
maturities not in excess of one year from the date of
purchase or acquisition;
(iii) the Company or any of its Subsidiaries may (A) make
or permit to remain outstanding loans or advances to
the Company or any Subsidiary, (B) own, purchase or
acquire stock or securities of a Subsidiary or of a
corporation which immediately after such purchase or
acquisition will be a Subsidiary, or (C) acquire and
own stock or securities received in a settlement of
debts created in the ordinary course of business and
owed to the Company or any Subsidiary;
(iv) any Foreign Subsidiary may own, purchase or acquire
certificates of deposit having maturities not in
excess of one year from the date of purchase or
acquisition and issued by foreign banks or by the
foreign branches of United States banks if each such
foreign bank or foreign branch has a net worth of at
least $100,000,000 and a rating by either Moody's
Investor Services, Inc. or Standard & Poors of at
least A or better; and
(v) the Company or any Subsidiary may make loans or
advances to or own, purchase or acquire stock or
securities or an interest in any joint venture
entity; provided, however, that the aggregate amount
of all such loans, advances and investments in joint
venture entities at any time outstanding shall not
exceed $87,000,000.
The foregoing restrictions on investments by the Companies shall not apply to
funds maintained in rabbi trusts established by the Companies for supplemental
executive retirement plans and early retirement incentive programs.
(d) Dispositions of Stock and Debt. Sell or otherwise dispose of
any shares of stock or Debt of any Subsidiary, except (i) to the Company or
another Subsidiary, (ii) a sale of shares of
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<PAGE> 33
a Subsidiary in connection with the creation of a joint venture (subject to the
limitations on investments set forth in Subsections 6.10(c)(v) and (iii) except
that all shares of stock and Debt of any Subsidiary at the time owned by or
owed to the Company or any of its Subsidiaries may be sold as an entirety for a
cash consideration which represents the fair value (as determined in good faith
by the Board of Directors of the Company) at the time of sale of the shares and
Debt so sold; provided that the assets of such Subsidiary do not constitute a
substantial part of the consolidated assets of the Company and its
Subsidiaries; and provided further that, at the time of such sale, such
Subsidiary shall not own, directly or indirectly, any Debt of the Company or
any shares of stock or Debt of any other Subsidiary (unless all of the shares
of stock and Debt of such other Subsidiary owned, directly or indirectly by the
Company and all Subsidiaries are simultaneously being sold as permitted by this
Section 6.10(d) hereof; provided, further, that the Company may sell 70% of the
stock of Tidewater (Malaysia) Sdn.Bhd. to citizens of Malaysia; provided,
however, that the transactions described on Schedule 4 are also expressly
permitted hereunder.
(e) Mergers and Consolidations. Merge or consolidate with any
other corporation or sell, lease or transfer or otherwise dispose of all or a
substantial part of its assets to any Person, except that provided no Default
has occurred and is continuing and further provided that no Default will occur
as a result thereof:
(i) any Subsidiary may merge or consolidate with the
Company (provided that the Company shall be the
continuing or surviving corporation) or with any one
or more other Subsidiaries;
(ii) any Subsidiary may sell, lease, transfer or otherwise
dispose of any of its assets to the Company or
another Subsidiary;
(iii) any Subsidiary may sell or otherwise dispose of all
or substantially all of its assets subject to the
conditions specified in Section 6.10(d) with respect
to a sale of the stock of such Subsidiary;
(iv) the Company may merge or consolidate with any
corporation provided that the Company shall be the
continuing or surviving corporation; and
(v) any Subsidiary may merge or consolidate with any
corporation provided such continuing or surviving
corporation shall remain or become a Subsidiary of
the Company.
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<PAGE> 34
(f) Minimum Tangible Net Worth. Permit at any time Consolidated
Tangible Net Worth to be less than $425,000,000, plus 30% of cumulative
positive Consolidated Net Earnings after March 31, 1993.
(g) Transactions with Related Party. Effect any transaction with
any Affiliate or Subsidiary by which any asset or services of a Company or a
Subsidiary is transferred to such Affiliate or Subsidiary, or from such
Affiliate or Subsidiary or enter into any other transaction with an Affiliate
or Subsidiary, on terms less favorable to such Company or such Subsidiary than
would be reasonably expected to be given in a similar transaction with an
unrelated entity. The foregoing restrictions shall not apply to transactions
between the Company and a Subsidiary or a Subsidiary and another Subsidiary.
6.11 Stock Transactions by Subsidiaries. The Company agrees that it
will not permit any Subsidiary to issue, sell or dispose of any shares of any
class of its stock (other than directors' qualifying shares or shares which are
effectively controlled by the Company) except to the Company or another
Subsidiary or as permitted by Section 6.10(d).
6.12 ERISA. The Company agrees that it will not, and will not
permit any Subsidiary to:
(i) terminate or withdraw from any Plan so as to result in
any material liability to the PBGC;
(ii) engage in or permit any Person to engage in any
prohibited transaction (as defined in Section 4975 of the Code) involving any
Plan (other than a Multiemployer Plan) which would subject the Company or any
Subsidiary to any material tax, penalty or other Liability;
(iii) incur or suffer to exist any material accumulated
funding deficiency (as defined in Section 302 of ERISA and Section 412 of the
Code), whether or not waived, involving any Plan (other than a Multiemployer
Plan); or
(iv) allow or suffer to exist any risk or condition, which
presents a material risk of incurring a material liability to the PBGC.
6.13 Federal Reserve Regulations, etc. The Company agrees that it
will not, and will not permit any Subsidiary or any agent acting on behalf of
the Company or any Subsidiary, to take any action which might cause this
Agreement or the Notes to violate Regulation U or any other regulation of the
Board of Governors of the Federal Reserve System or to violate the Securities
Exchange
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<PAGE> 35
Act of 1934, as amended, in each case as in effect now or as the same may
hereafter be in effect.
6.14 Environmental Matters. Each of the Companies agrees that it
will not, and will not permit any Third Party to, use, produce, manufacture,
process, generate, store, dispose of, manage at, or ship or transport to or
from the Properties any Hazardous Materials except for Hazardous Materials
used, produced, manufactured, processed, generated, stored, disposed of,
released or managed in the ordinary course of business in compliance with all
applicable Environmental Requirements and except for Hazardous Materials
released in amounts which do not require remediation pursuant to applicable law
or regulation, and which do not present any danger to health, safety or the
environment, or unless any liability resulting from such remediation is not
likely to materially adversely affect the business, operations or financial
condition of the Company and its Subsidiaries, taken as a whole.
6.15 Taxes. The Company agrees that it will pay when due, and cause
each of its Subsidiaries to pay when due, all taxes, assessments, and other
liabilities, other than for borrowed money, except and so long as contested in
good faith.
Section 7. Conditions Precedent to Credit Facility Advances. The
obligation of the Lenders to make any Credit Facility Advance under the Credit
Facility is subject to the satisfaction of each of the following conditions
precedent:
7.1 Default. Before and after giving effect to such Credit
Facility Advance under the Credit Facility, no Default shall have occurred and
be continuing.
7.2 Representations and Warranties. Before and after giving
effect to such Credit Facility Advance under the Credit Facility, the
representations and warranties in Section 5 hereof shall be true and correct as
though made on the date of such Credit Facility Advance under the Credit
Facility, except for such changes as are specifically permitted hereunder.
Section 8. Conditions Precedent to the Credit. In addition to the
applicable conditions precedent set forth in Section 7 above, the obligation of
the Lenders to extend credit to the Companies under this Agreement is subject
to the receipt by the Administrative Agent of the following by the date of this
Agreement:
8.1 Resolutions of the Companies. Copies, duly certified by the
secretary or assistant secretary of each of the Companies, of
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<PAGE> 36
(a) the resolutions of the Board of Directors of each of the Companies
authorizing the borrowings hereunder and the execution and delivery of this
Agreement and the Line of Credit Notes, (b) all documents evidencing other
necessary corporate action, and (c) all approvals, or consents, if any, with
respect to this Agreement and the Line of Credit Notes. Copies, duly certified
by the secretary or assistant secretary of each of the Companies, of (a) the
resolutions of the Board of Directors of Compression authorizing the borrowings
hereunder and the execution and delivery of the Compression Term Notes, (b) the
resolutions of the Board of Directors of each of the Companies (other than
Compression) authorizing the guaranty of the borrowings by Compression under
the Compression Term Notes, and (c) all approvals, or consents, if any, with
respect to this Agreement and the Compression Term Notes.
8.2 Organization Documents; Good Standing. Copies of (a) the
certificate of incorporation of the Company (certified as of a recent date by
the Secretary of State of Delaware) and Compression (certified as of a recent
date by the Secretary of State of Texas), (b) the by-laws of the Company and
Compression, certified by the secretary or assistant secretary of the Company
and Compression, (c) the certificate of incorporation and by-laws of each
Identified Subsidiary (other than Compression), certified by the secretary or
assistant secretary of such Identified Subsidiary (other than Compression), in
each case as in effect on the date of closing, (d) certificates of good
standing for the Company and each of the Identified Subsidiaries, issued by the
Secretary of State of their respective states of incorporation, (e) certificate
of qualification to do business of the Company and Compression issued by the
Secretary of State of the State of Louisiana.
8.3 Incumbency. Certificates of the secretary or assistant
secretary of each of the Companies, certifying the name of the officers of each
of the Companies, respectively, authorized to execute this Agreement, the Line
of Credit Notes and the Compression Term Notes, and all other documents or
certificates to be delivered hereunder, together with the true signatures of
such officers.
8.4 Officer's Certificate. A certificate of the president or
chief financial officer of the Company certifying that immediately after the
execution of this Agreement (a) no Event of Default shall have occurred, (b)
the representations and warranties in Section 5 hereof shall be true and
correct, (c) neither the Company nor any of its Subsidiaries shall have
outstanding any Current Debt or any Funded Debt except as described in Section
5.6 hereof, and (d) no material adverse change in the financial condition,
business, operations or prospects of the Company or its Subsidiaries has
occurred since September 30, 1994.
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<PAGE> 37
8.5 Notes. The duly executed Line of Credit Notes of the
Companies payable to the respective Lenders, and the duly executed Compression
Term Notes of Compression payable to the respective Lenders.
8.6 Opinion. The opinion of Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P., special counsel to the Company, addressed to the
Lenders, to the effect that (a) each of the Company and the Identified
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and is duly
qualified and in good standing as a foreign corporation in all jurisdictions
wherein the property it owns or the business it transacts makes such
qualification necessary, except where the failure to so qualify would not
impair the ability of Company or any of the Identified Subsidiaries to operate
its business or own its assets; (b) each of the Companies has full power to
execute, deliver and perform its obligations under this Agreement and the Line
of Credit Notes; (c) Compression has full power to execute, deliver and perform
its obligations under the Compression Term Notes; (d) such actions have been
duly authorized by all necessary corporate action, and are not in conflict with
any provision of law or of the charter or by-laws of any of the Companies, nor
in conflict with any agreement binding upon the Company or any of the
Identified Subsidiaries; (e) this Agreement and the Line of Credit Notes are
the legal and binding obligations of the Companies, enforceable in accordance
with their respective terms, except as enforcement may be limited by applicable
bankruptcy, reorganization, moratorium or similar laws; (f) the Compression
Term Notes are the legal and binding obligations of Compression, enforceable in
accordance with their respective terms, except as enforcement may be limited by
applicable bankruptcy, reorganization, moratorium or similar laws; and (g) no
consent or approval of the shareholders of the Company or of any governmental
authority is required as a condition to the validity or enforceability of this
Agreement or the Notes.
Section 9. Events of Default; Remedies; Set Offs.
9.1 Events of Default. Any one of the following events shall
constitute Events of Default hereunder and under the Credit Facility, the Line
of Credit Notes and the Term Notes, individually and collectively:
(a) The Companies default in the payment of any principal on any
Note when the same shall become due, either by the terms thereof or otherwise
as herein provided.
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<PAGE> 38
(b) The Companies default in the payment of any interest on any
Note or any other amount due hereunder for more than 10 days after the date
due.
(c) The Company or any Subsidiary defaults in any payment of
principal or of interest on any other obligation for borrowed money (including,
but not limited to, any Capitalized Lease Obligation, any obligation under a
conditional sale or other title retention agreement, any obligation issued or
assumed as full or partial payment for property whether or not secured by a
purchase money mortgage or any obligation under notes payable or drafts
accepted representing extensions of credit) beyond any period of grace provided
with respect thereto, or in the performance or observance of any other
agreement, term or condition contained in any agreement under which any such
obligation is created if the effect of such default is to cause, or permit the
holder or holders of such obligation (or a trustee on behalf of such holder or
holders) to cause, such obligation to become due (or to be defeased or
repurchased by the Company or any Subsidiary) prior to its stated maturity,
provided that the aggregate amount of all obligations as to which such payment
default shall occur and be continuing or such failure (or defeasance or resale)
or other event causing or permitting acceleration shall occur and be continuing
exceeds $1,000,000, individually or in the aggregate.
(d) Any representation or warranty made by the Companies herein or
in any writing furnished in connection with or pursuant to this Agreement shall
be false in any material respect on the date as of which made.
(e) The Companies default in the performance or observance of any
agreement or covenant contained in Sections 6.8 through 6.15 of this Agreement.
(f) The Companies default in the performance or observance of any
other agreement, covenant, term or condition contained herein and such default
shall not have been remedied within 30 days after the earlier to occur of (i)
the date on which the President, the Treasurer or the Chief Financial Officer
of the Company obtains actual knowledge thereof or (ii) the date on which
written notice thereof shall have been received by the Company from the
Administrative Agent.
(g) The Company or any Subsidiary makes an assignment for the
benefit of creditors or is generally not paying its debts as such debts become
due.
(h) Any decree or order for relief in respect of the Company or
any Subsidiary is entered under any bankruptcy, reorganization, compromise,
arrangement, insolvency, readjustment of debt,
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dissolution or liquidation or similar law, whether now or hereinafter in
effect (herein called "Bankruptcy Law"), of any jurisdiction.
(i) The Company or any Subsidiary petitions or applies to any
tribunal for, or consents to the appointment of, or taking possession by, a
trustee, receiver, custodian, liquidator or similar official, of the Company or
any Subsidiary, or of any substantial part of the assets of the Company or any
Subsidiary, or commences a voluntary case under the Bankruptcy Law of the
United States or any proceedings (other than proceedings for the voluntary
liquidation and dissolution of a Subsidiary) relating to the Company or any
Subsidiary under the Bankruptcy Law of any other jurisdiction.
(j) Any such petition or application (described in Section 9.1(i)
is filed, or any such proceedings are commenced, against the Company or any
Subsidiary, and the Company or such Subsidiary by any act indicates its
approval thereof, consent thereto, or acquiescence therein, or an order,
judgment or decree is entered appointing any such trustee, receiver, custodian,
liquidator or similar official, or approving the petition in any such
proceedings, and such order, judgment or decree remains unstayed and in effect
for more than 60 days.
(k) Any order, judgment or decree is entered in any proceedings
against the Company decreeing the dissolution of the Company and such order
remains in effect for more than 60 days.
(l) Any order, judgment or decree is entered in any proceedings
against the Company or any Subsidiary, as the case may be, decreeing a split-up
of the Company or such Subsidiary which requires the divestiture of assets
representing a substantial part, or the divestiture of the stock of a
Subsidiary whose assets represent a substantial part, of the Consolidated
Current Assets of the Company and its Subsidiaries or which requires the
divestiture of assets, or stock of a Subsidiary, which shall have contributed a
substantial part of the Consolidated Net Income of the Company and its
Subsidiaries for any of the three (3) fiscal years then most recently ended,
and such order, judgment or decree remains unstayed and in effect for more than
60 days.
(m) A final judgment in an amount in excess of $1,000,000 is
rendered against the Company or any Subsidiary and, within 60 days after entry
thereof, such judgment is not discharged or execution thereof stayed pending
appeal, or within 60 days after the expiration of any such stay, such judgment
is not discharged.
9.2 Remedies. (a) If any Event of Default specified in
Sub-Sections 9.1(h), 9.1(i) or 9.1(j) occurs, the Credit Facility
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(if then outstanding) shall automatically be deemed terminated and the
outstanding Notes shall automatically become immediately due and payable, and
the Credit (if then outstanding) shall immediately terminate, all without
presentment, demand, protest or notice of any kind, all of which are hereby
waived by the Companies.
(b) If an Event of Default shall occur under any other sub-section
of Section 9.1, the Required Lenders may, at their option, and in addition to
any right, power or remedy provided by law or equity, by notice in writing to
the Company, declare the Credit Facility (if then outstanding) to be
terminated, and/or the outstanding Notes to be immediately due and payable,
whereupon the Credit (if then outstanding) shall immediately terminate, and/or
the Notes shall become immediately due and payable, as the case may be, without
presentment, demand, protest or notice of any kind, all of which are hereby
waived by the Companies.
(c) In addition to the remedies specified above, if any Default
occurs under Section 9.1 (which with notice, the passage of time and/or the
happening of any further condition or act would constitute an Event of Default)
and is continuing uncured, the Lenders shall have no obligation to make
additional advances under the Credit Facility or the Line of Credit Notes
unless and until such Default is cured prior to the occurrence of an Event of
Default.
(d) In addition to the remedies specified above, if any Event of
Default shall occur, the Administrative Agent (with the direction of the
Required Lenders) may (i) proceed to protect and enforce the Lenders' rights
under this Agreement and the outstanding Notes by exercising such remedies as
are available to the Administrative Agent or the Lenders in respect thereof
under applicable law (except to the extent waived by Section 9.3 hereof),
either by suit in equity or by action at law, or both, whether for specific
performance of any covenant or other agreement contained in this Agreement or
in aid for the exercise of any power granted in this Agreement, and (ii) give
notice of the occurrence of an Event of Default to the trustees for or holders
of any Subordinated Debt. No remedy conferred in this Agreement upon the
Administrative Agent or the Lenders is intended to be exclusive of any other
remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy conferred herein or now or hereafter existing at
law or in equity or by statute or otherwise, except to the extent waived by
Section 9.3 hereof.
9.3 Waiver of Set-Offs. The Administrative Agent, each Agent and
each Lender hereby specifically waive (i) the right to set-off any funds of any
of the Companies in possession of the Administrative Agent, each Agent or any
Lender against the
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<PAGE> 41
obligation of the Companies to the Administrative Agent, each Agent or any
Lender pursuant to this Agreement, or (ii) any counterclaim against, security
interest in or banker's or other lien on, any of such funds or accounts of the
Companies.
Section 10. The Agents.
10.1 Appointment and Authorization. Each Lender appoints and
authorizes the Administrative Agent to receive all payments of principal,
interest, fees and other amounts payable by the Companies under this Agreement
and to remit same immediately to the Lenders, to disburse the Credit Facility
Advances and the Compression Term Loan from the Lenders, and to take such
action and to exercise such powers under this Agreement and the Notes as are
delegated to the Administrative Agent by the Lenders from time to time. Any
requests by the Company for consent by the Lenders or waiver or amendment of
provisions of the Agreement shall be delivered by the Company to the
Administrative Agent, but favorable action on such requests shall require the
approval of the Required Lenders. The Administrative Agent shall promptly
distribute to the Lenders upon receipt all payments and prepayments of
principal, interest, fees and other amounts paid by the Companies under this
Agreement (except for the Agents' fee described in Section 3.6(c) hereof), in
proportion to the Lenders' Commitments. Similarly, the Lenders shall be
obligated to fund Credit Facility Advances and the Compression Term Loan in
proportion to their Commitments. The Administrative Agent may resign at any
time by written notice to the Lenders; the successor Administrative Agent shall
be selected by the Required Lenders from between the remaining Agents.
10.2 Agents' Reliance. Neither the Agents nor any of their
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it or them under or in connection with this
Agreement and the Notes, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, the
Agents: (i) may treat the payee of any of the Notes as the holder thereof
until the Administrative Agent receives written notice of the assignment or
transfer thereof, signed by such payee and in form satisfactory to the
Administrative Agent; (ii) may consult with legal counsel (including counsel
for the Company), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, warranties or representations
made in or in connection with this Agreement and the Notes; (iv) shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants
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or conditions of this Agreement and the Notes or to inspect any property
(including the books and records) of the Companies; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement and the
Notes or any other instrument or document furnished pursuant thereto; and (vi)
shall incur no liability under or in respect to this Agreement and the Notes by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by facsimile, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
10.3 Acts by Administrative Agent after Default, etc. In the event
that the Administrative Agent shall have been notified in writing by any of the
Companies or the Lenders of any Event of Default (or in the event that the
officer of the Administrative Agent responsible for the Borrower's account
obtains actual knowledge of an Event of Default), the Administrative Agent (a)
shall immediately notify the Lenders; (b) shall take such action and assert
such rights under this Agreement as it is expressly required to do pursuant to
the terms of this Agreement with the consent of the Required Lenders; (c) may
take such other actions and assert such other rights as it deems advisable, in
its discretion, for the protection of the interests of the Lenders pursuant to
applicable laws with the consent of the Required Lenders; and (d) shall inform
all the Lenders of the taking of action or assertion of rights pursuant to this
Section. Each Lender agrees with the Administrative Agent and the other
Lenders that the decisions and determinations of the Required Lenders in
enforcing this Agreement and the Notes and guiding the Administrative Agent in
those matters shall be binding upon all the Lenders, including, without
limitation, authorizing the Administrative Agent at the pro rata expense of all
the Lenders (to the extent not reimbursed by the Companies) to retain attorneys
to seek judgment on this Agreement and the Notes. Each Lender agrees with the
other Lenders that it will not, without the consent of the other Lenders,
separately seek to institute any legal action with respect to the Loan;
provided that following the maturity of the Notes (whether by acceleration or
at stated maturity), each Lender may, without the concurrence of the other
Lenders, separately seek to institute any legal action with respect to the
Loan.
10.4 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agents or any other Lender and
based on the financial statements referred to in Section 5.4 hereof and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agents
or any other Lender and based on such documents and information as it
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shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement and the Notes.
10.5 Agents. Agents shall have the same rights and powers under
this Agreement and the Notes as any other Lender and may exercise the same as
though it were not the Agents; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include Agents in its individual capacity.
Agents may accept deposits from, lend money to, act as trustee under indentures
of, and generally engage in any kind of business with the Company as if Agents
were not the Agents and without any duty to account therefor to the Lenders.
10.6 Assignments and Participations. (a) No Lender may assign to
any other Person any portion of its interests, rights and obligations under
this Agreement (including, without limitation, any portion of its Commitment or
the Loan at the time owing to it and Note held by it) unless each of the
following conditions is or has been satisfied: (i) the Administrative Agent
has given its prior written consent (which consent will not be unreasonably
withheld), (ii) the Company has given its prior written consent, (iii) each
such assignment is of a constant, and not a varying, percentage of all the
assigning Lender's rights and obligations under this Agreement, (iv) the
parties to such assignment have executed and delivered to the Administrative
Agent an Assignment and Acceptance, substantially in the form of Exhibit "E"
hereto (the "Assignment and Acceptance"), together with any Note subject to
such assignment, and together with payment by the assignee to the
Administrative Agent for its own account of an assignment administration fee in
the amount of $750, (v) the Administrative Agent shall have delivered to the
Company a fully executed copy of such Assignment and Acceptance, and (vi) the
assignee is (A) a state or national commercial bank located in the United
States or (B) a United States branch or agency of a foreign commercial branch,
provided that the assignment to such branch or agency will not cause the
Companies to be liable for any additional costs or subject the Companies to any
foreign taxation or bank regulation. Upon satisfaction of each of the
foregoing conditions and upon acceptance and notation by the Administrative
Agent, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business Days after
the execution thereof, (x) the assignee thereunder shall be a party hereto and,
to the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender, and (y) the assigning Lender shall, to the extent
provided in such assignment, be released from its obligations under this
Agreement. Notwithstanding the foregoing, the restrictions contained above in
this Section 10.6(a) shall not apply to assignments to any Federal Reserve
Bank, and the conditions set forth in clauses (i) and (ii)
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above shall not apply to assignments by any Lender to any Person which
controls, is controlled by, or is under common control with, or is otherwise
substantially affiliated with that Lender.
(b) Upon its receipt of an Assignment and Acceptance executed by
the parties to such assignment together with any Note or Notes subject to such
assignment and the written consent of the Administrative Agent and the Company
to such assignment, the Administrative Agent shall give prompt notice thereof
to the Company and the Lenders. Within five (5) Business Days after receipt of
such notice, the Companies at their own expense, shall execute and deliver to
the Administrative Agent, in exchange for the surrendered Note, a new Note or
Notes to the order of such assignee(s) in an amount equal to the amount assumed
by such assignee(s) pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained some portion of its obligations hereunder, a new
Note or Notes to the order of the assigning Lender in an amount equal to the
amount retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Note, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in the form of the assigned Note. The
surrendered Note shall be cancelled and returned to the Company.
(c) Each Lender, without the consent of the Company or the Agents,
may sell participations to one or more banks in all or a portion of its Loans
(including its Commitment) under this Agreement, provided that the selling
Lender shall retain the sole right and responsibility to enforce the
obligations of the Companies relating to such Loans and that the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of this Agreement shall be the
right to approve waivers, amendments, or modifications which require the
consent of all of the Lenders as provided in Section 11.11 hereof.
Section 11. General.
11.1 Definitions. As used in this Agreement, terms used herein
with initial capital letters shall have the following meanings, unless defined
elsewhere in this Agreement or unless the context clearly indicates otherwise:
"Affiliate" shall mean, as to any Person, any Subsidiary of such
Person and any other Person which, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. For purposes of
this definition, "control" shall mean the possession of the power to direct or
cause the direction of management and policies of such Person, whether through
the
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<PAGE> 45
ownership of voting securities, by contract or otherwise, and an Affiliate of
any of the Companies includes, without limitation, any officer or director of
such corporation and any Person who beneficially owns, directly or indirectly,
10% or more of the issued outstanding capital stock of such corporation.
"Administrative Agent" shall mean First National Bank of Commerce, or
its successor selected pursuant to Section 10.1 hereof.
"Agents" shall mean First National Bank of Commerce, The First
National Bank of Boston and Texas Commerce Bank National Association.
"Agreement" shall mean this Amended and Restated Revolving Credit and
Term Loan Agreement, as it may be amended and restated, modified and/or
supplemented from time to time.
"Assignment and Acceptance" shall have the meaning specified in
Section 10.6 hereof.
"Bankruptcy Law" shall have the meaning specified in Section 9.1(h)
hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which commercial banks in New Orleans, Louisiana (or London, England in
the case of LIBO Rate Advances or payments) are required or authorized to be
closed.
"Canadian Subsidiary" shall mean any Subsidiary organized under the
laws of Canada or any province thereof.
"Capital Asset" shall mean any asset other than a current asset (as
determined in accordance with generally accepted accounting principles).
"Capitalized Lease Obligation" shall mean any rental obligation which,
under generally accepted accounting principles, is or will be required to be
capitalized on the books of the Company or any Subsidiary, taken at the amount
thereof accounted for as indebtedness (net of interest expense) in accordance
with such principles.
"CERCLA" shall mean the Comprehensive Environmental Response
Compensation and Liability Act, as amended.
"CERCLIS" shall mean the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
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"Code" shall have the meaning specified in Section 5.10.
"Commitments" shall have the meaning specified in Section 1 hereof.
"Company" shall mean Tidewater Inc.
"Companies" shall mean the Company and the Domestic Subsidiaries.
"Compression" shall mean Tidewater Compression Service, Inc.
"Compression Term Loan" shall have the meaning specified in Section
1.3 hereof.
"Compression Term Note" shall have the meaning specified in Section
2.3 hereof.
"Consolidated Current Assets" shall mean the total current assets of
the Company and its Subsidiaries consolidated in accordance with generally
accepted accounting principles.
"Consolidated Current Liabilities" shall mean the total current
liabilities of the Company and its Subsidiaries consolidated in accordance with
generally accepted accounting principles, including all Current Debt.
"Consolidated Debt" shall mean Funded Debt and Current Debt of the
Company and its Subsidiaries which is consolidated in accordance with generally
accepted accounting principles.
"Consolidated Funded Debt" shall mean Funded Debt of the Company and
its Subsidiaries which is consolidated in accordance with generally accepted
accounting principles.
"Consolidated Net Earnings" shall mean an amount equal to consolidated
gross revenues of the Company and its Subsidiaries less all operating and
non-operating expenses of the Company and its Subsidiaries including all
charges of a proper character (including current and deferred taxes on income,
provisions for taxes on unremitted earnings of Foreign Subsidiaries which are
included in gross revenues and current additions to reserves), but not
including in gross revenues (a) any gains (net of expenses and taxes applicable
thereto) in excess of losses resulting from the sale, conversion or other
disposition of Capital Assets not sold in the ordinary course of business, (b)
any gains resulting from the write-up of assets, (c) any equity of the Company
or any Subsidiary in the unremitted earnings of any Person which is not a
Subsidiary, (d) any earnings of any Person acquired by the Company or any
Subsidiary through purchase, merger or consolidation or otherwise
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for any year prior to the date of acquisition, or (e) any deferred credit
representing the excess of equity in any Subsidiary at the date of acquisition
over the cost of the investment in such Subsidiary, all determined in
accordance with generally accepted accounting principles.
"Consolidated Net Earnings Available For Restricted Payments" shall
mean an amount equal to (1) $50,000,000 plus (2) 70% (or minus 100% in the case
of a deficit) of Consolidated Net Earnings for the period (taken as one
accounting period) commencing on April 1, 1993 and terminating at the end of
the last fiscal quarter preceding the date of any proposed Restricted Payment,
less (3) the sum of (a) the aggregate amount of all dividends and other
distributions paid or declared by the Company on any class of its stock after
March 31, 1993, (b) the aggregate principal amount of Restricted Investments
made after March 31, 1993, and (c) the excess of the aggregate amount expended,
directly or indirectly, after March 31, 1993, for the redemption, purchase, or
other acquisition of any shares of its stock and, after September 30, 1994, for
the payment of principal of, and the retirement, redemption, purchase or other
acquisition of, Subordinated Debt, over the aggregate amount received after
March 31, 1993 as the net cash proceeds of the sale of any shares of its stock
or issuance of its Subordinated Debt; provided that the sum of $50,000,000
permitted by clause (1) above must first be used and exhausted to make
Restricted Payments before any earnings available for Restricted Payments under
clause (2) above can be used to make Restricted Payments; provided further,
that the sum of $50,000,000 permitted by clause (1) above shall not be reduced
by any net losses determined under clause (2) above. In the event that any
shares of stock of the Company are issued upon conversion of convertible
debentures or notes of the Company (provided such debentures or notes had been
sold in whole for cash) the net cash proceeds of the sale of stock so issued
shall be deemed to be equal to the net cash proceeds of the sale of the
obligations so converted.
"Consolidated Net Income" shall mean, for any period, the consolidated
net income of the Company and its Subsidiaries determined on a consolidated
basis in accordance with generally accepted accounting principles.
"Consolidated Net Losses" shall mean, for any period, the consolidated
net losses of the Company and its Subsidiaries determined on a consolidated
basis in accordance with generally accepted accounting principles.
"Consolidated Senior Debt" shall mean Senior Debt of the Company and
its Subsidiaries which is consolidated in accordance with generally accepted
accounting principles.
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"Consolidated Tangible Net Worth" shall mean, at a particular date,
all amounts which, in conformity with generally accepted accounting principles,
would be included under shareholders' equity on a consolidated balance sheet of
the Company and its consolidated Subsidiaries; provided, however, such amounts
shall be net of amounts carried on the books of the Company and its
consolidated Subsidiaries for all intangibles (including goodwill, trademarks,
patents, brand names, unamortized debt discount and expense (net of premium)
solely with respect to Debt issued after May 1, 1987, organization or
developmental expenses and amounts on the asset side of such balance sheet for
capital stock of such corporation), as determined in accordance with generally
accepted accounting principles; and provided further, goodwill of up to
$25,000,000 arising in connection with the acquisition of the gas compression
division of Halliburton Company shall be treated as if it were part of
Consolidated Tangible Net Worth.
"Credit" shall mean the commitment of Lenders to extend the Line of
Credit to the Companies pursuant to this Agreement.
"Credit Facility" shall have the meaning specified in Section 1.1
hereof.
"Credit Facility Advances" shall have the meaning specified in Section
1.1 hereof.
"Current Debt" shall mean any obligation for borrowed money (and any
notes payable and drafts accepted representing extensions of credit whether or
not representing obligations for borrowed money) payable on demand or within a
period of one year from the date of the creation thereof; provided that any
obligation shall be treated as Funded Debt regardless of its term, if such
obligation is renewable pursuant to the terms thereof or of a revolving credit
or similar agreement effective for more than one year after the date of the
creation of such obligation, or may be payable out of the proceeds of a similar
obligation pursuant to the terms of such obligation or of any such agreement.
Any obligation secured by a Lien on, or payable out of the proceeds of
production from, property of the Company or any Subsidiary shall be deemed to
be Funded Debt of the Company or such Subsidiary even though such obligation
shall not be assumed by the Company or such Subsidiary.
"Debt" shall mean Funded Debt and/or Current Debt, as the case may be.
"Default" shall have the meaning specified in the definition of Event
of Default hereinafter.
"Domestic Subsidiary" shall mean any Subsidiary organized under the
laws of any State of the United States.
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"Environmental Authority" shall mean any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Judgments and Orders" shall mean all judgments, decrees
or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" shall mean any liabilities, whether
accrued or contingent, arising from or relating in any way to any Environmental
Requirements.
"Environmental Notices" shall mean any written communication from any
Environmental Authority stating possible or alleged noncompliance with or
possible or alleged liability under any Environmental Requirement, including
without limitation any complaints, citations, demands or requests from any
Environmental Authority for correction of any purported violation of any
Environmental Requirements or any investigation concerning any purported
violation of any Environmental Requirements. Environmental Notices also means
(i) any written communication from any private Person threatening litigation or
administrative proceedings against or involving any Company relating to an
alleged violation of any Environmental Requirements and (ii) any complaint,
petition or similar documents filed by any private Person commencing litigation
or administrative proceedings against or involving any Company relating to
alleged violation of any Environmental Requirements.
"Environmental Proceedings" shall mean any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" shall mean releases (as defined in CERCLA or
under any applicable state or local environmental law or regulation) of
Hazardous Materials. Environmental Releases do not include releases for which
no remediation or reporting is required by applicable Environmental
Requirements and which do not present a danger to health, safety or the
environment.
"Environmental Requirements" shall mean any applicable local, state or
federal law, rule, regulation, permit, order, decision, determination or
requirement relating in any way to Hazardous Materials or to the protection of
human health or the environment.
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"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Event of Default" shall mean any of the events specified in Section
9, provided that there has been satisfied any requirements in connection with
such event for the giving of notice, or the lapse of time, or the happening of
any further condition, event or act, and "Default" shall mean any of such
events, whether or not any such requirement has been satisfied.
"Foreign Subsidiary" shall mean any Subsidiary other than a Domestic
Subsidiary.
"Funded Debt" shall mean and include without duplication,
(a) any obligation payable more than one year from the date of
creation thereof, which under generally accepted accounting
principles is shown on the balance sheet as a liability
(including, without limitation, Capitalized Lease Obligations
and excluding reserves for deferred income taxes and for
foreign employee service indemnities and other reserves to the
extent that such reserves do not constitute an obligation),
(b) Current Debt which is not repaid in full, and kept repaid, for
a period of at least 60 consecutive days during each fiscal
year of the debtor thereof,
(c) amounts equal to the aggregate net rentals (after making
allowance for any interest, taxes or other expenses included
therein), payable more than one year from the date of the
creation thereof under any lease (whether or not such rentals
accrue and become payable only on an annual or other periodic
basis) which lease (i) constitutes the substantial equivalent
of a purchase of the property subject to such lease, (ii) has
an initial term materially less than the useful life of such
property and provides that the lessee has the option to renew
such lease for the remaining useful life of such property at a
rental which at the inception of such lease appears to be
substantially less than the fair rental value of such
property, or (iii) provides an option to the lessee to acquire
the property subject to such lease at a price which, at the
inception of such lease, appears to be substantially less than
the probable fair value of such property at the time or times
of permitted acquisition by the lessee,
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(d) indebtedness secured by any Lien existing on property owned
subject to such Lien, whether or not the indebtedness secured
thereby shall have been assumed,
(e) guarantees, endorsements (other than endorsements of
negotiable instruments for collection in the ordinary course
of business) and other contingent liabilities (whether direct
or indirect) in connection with the obligations, stock or
dividends of any Person,
(f) obligations under any contract providing for the making of
loans, advances or capital contributions to any Person, or for
the purchase of any property from any Person, in each case in
order to enable such Person primarily to maintain working
capital, net worth or any other balance sheet condition or to
pay debts, dividends or expenses,
(g) obligations under any contract for the purchase of materials,
supplies or other property if such contract (or any related
document) requires that payment for such materials, supplies
or other property shall be made regardless of whether or not
delivery of such materials, supplies or other property is ever
made or tendered,
(h) obligations under any contract to rent or lease (as lessee)
any real or personal property if such contract (or any related
document) provides that the obligation to make payments
thereunder is absolute and unconditional under conditions not
customarily found in commercial leases then in general use or
requires that the lessee purchase or otherwise acquire
securities or obligations of the lessor,
(i) obligations under any contract for the sale or use of
materials, supplies or other property if such contract (or any
related document) requires that payment for such materials,
supplies or other property, or the use thereof, shall be
subordinated to any indebtedness (of the purchaser or user of
such materials, supplies or other property) owed or to be owed
to any Person, and
(j) obligations under any other contract which, in economic
effect, is substantially equivalent to a guarantee;
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all as determined in accordance with generally accepted accounting principles.
"Hazardous Materials" includes, without limitation (a) hazardous waste
as defined in the Resource Conservation and Recovery Act of 1976, or in any
applicable state or local law or regulation, (b) hazardous substances, as
defined in CERCLA, or in any applicable state or local law or regulation, (c)
gasoline, or any other petroleum product or by-product, (d) toxic substances,
as defined in the Toxic Substances Control Act of 1976, or in any applicable
state or local law or regulation or (e) insecticides, fungicides, or
rodenticides, as defined in the Federal Insecticide, Fungicide, and Rodenticide
Act of 1975, or in any applicable state or local law or regulation, as each
such Act, statute or regulation may be amended from time to time.
"Identified Subsidiaries" shall mean each of Tidewater Marine, Inc.,
Tidewater Compression Service, Inc.; Tidewater Marine Alaska, Inc.; and Zapata
Gulf Marine Corporation.
"Lease Rental Expenses" shall mean lease rentals payable by the
Company or any Subsidiary pursuant to any agreements to rent or lease any real
or personal property (excluding rentals or leases of data processing equipment
and sales offices, rentals treated as Funded Debt and rentals of real property
which have been subleased to others by the Company or any Subsidiary for the
remaining term of such leases at rents at least equal to those payable by the
Company or any Subsidiary).
"Lenders" shall have the meaning specified in the first introductory
paragraph hereof.
"LIBOR Interest Period" shall have the meaning specified in the
definition of LIBO Rate.
"LIBOR Interest Rate" shall have the meaning defined in the definition
of LIBO Rate.
"LIBO Rate" means during any LIBOR Interest Period for any Tranche, an
interest rate per annum equal to the quotient (converted to a percentage) of
(i) the rate per annum as determined by the Administrative Agent at or about
9:00 o'clock A.M. (Central time) (or as soon thereafter as practicable) on the
second Business Day prior to the first day of each LIBOR Interest Period, as
being the rate at which deposits of United States Dollars are offered to the
Administrative Agent in the London inter-bank market by the Reference Banks, at
the time of determination and in accordance with the normal practice in such
market, for delivery on the first day of such LIBOR Interest Period and for the
number of days comprised therein, in amounts equal (as nearly as may be) to
the
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amount of the Tranche as of the first day of such LIBOR Interest Period,
divided by (ii) 1.00 minus the LIBOR Reserve Requirement (as defined below),
expressed as a decimal, for such LIBOR Interest Period. "LIBOR Reserve
Requirement" shall mean for any day during a LIBOR Interest Period for any LIBO
Rate Tranche, that percentage which is specified by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any marginal reserve
requirement) for the Lender with respect to liabilities consisting of or
including "Eurocurrency liabilities" (as defined in Regulation D of the Board
of Governors of the Federal Reserve System) with a maturity equal to such LIBOR
Interest Period. In determining the percentage, the Administrative Agent may
use any reasonable averaging and attribution methods. "Reference Banks" shall
mean the principal London offices of the banks shown on page 16 of the Telerate
screen (or such other page as may replace the LIBO page on that service for the
purpose of displaying London interbank offered rates of major banks). "LIBOR
Interest Period" shall be the period between the Business Day on which the LIBO
Rate shall begin and the day on which the LIBO Rate shall end. The duration of
each LIBOR Interest Period for a LIBO Rate Advance shall be one month, three
months or six months as the Company may select, subject to the following: (i)
no LIBOR Interest Period shall extend past the maturity date of either the Line
of Credit Notes or the Term Notes; (ii) whenever the last day of any LIBOR
Interest Period would otherwise occur on a day other than a Business Day, the
last day of such LIBOR Interest Period shall be extended to occur on the next
succeeding Business Day, except that if the next succeeding Business Day would
occur in the next following calendar month, the last day of such LIBOR Interest
Period shall be shortened to occur on the next preceding Business Day; and
(iii) LIBOR Rate Tranches outstanding under each Term Loan may not at any time
exceed the aggregate principal amount outstanding on such respective Term Loan.
"LIBO Rate Advances" shall mean Credit Facility Advances bearing
interest at the LIBO Rate plus one and one-half percent (1.50%) or LIBO Rate
plus one and one-fourth percent (1.25%), as the case may be.
"LIBO Rate Tranche" shall mean any part of the principal amount of the
Loans that constitutes LIBO Rate Advances for a specific LIBOR Interest Period.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and the
filing of any financing statement under the Uniform Commercial Code of any
jurisdiction) or any other type of preferential arrangement for the purpose of,
or having the effect
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of protecting a creditor against loss or securing the payment or preference of
any obligation. "Liens" shall not include unsecured guarantees.
"Line of Credit" shall have the meaning specified in Section 1.1
hereof.
"Line of Credit Notes" shall have the meaning specified in Section 2.1
hereof.
"Loan" shall mean the loans under the Credit Facility (including the
Working Capital Term Loan) and the Compression Term Loan.
"Multiemployer Plan" shall have the meaning specified in Section 5.10.
"Notes" shall mean the Line of Credit Notes and the Term Notes,
collectively, and any and all modifications, amendments, supplements, renewals,
rearrangements and/or extensions thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Plan" shall have the meaning specified in Section 5.10 hereof.
"Persons" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
"Prime Rate" shall mean the rate of interest announced publicly by
Chemical Bank, in New York, New York, from time to time as its prime or base
rate.
"Prime Rate Advances" shall mean advances bearing interest at the
Prime Rate plus three-eighths of one percent (0.375%).
"Prime Rate Tranche" shall mean any part of the principal amount of
the Loans that constitutes Prime Rate Advances.
"Pro Forma Interest" shall mean all interest reasonably projected by
the Company to be payable by the Company and all Subsidiaries on all Debt over
a prescribed period of time.
"Projected Fixed Charges" shall mean the sum of all scheduled payments
of principal (including the Revolving Principal Amount) and interest (including
the Revolving Interest Amount) due on all Debt of the Company and its
Subsidiaries for the next consecutive 12 months plus all rental payments due
for the next consecutive 12
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months under all leases on real or personal property, under which the Company
or any of its Subsidiaries is the obligor.
"Properties" means all real property owned, leased or otherwise used
or occupied by the Company or any Subsidiary, wherever located.
"Required Lenders" shall mean Lenders holding at least 60% of the
aggregate principal amount of the Notes.
"Restricted Investments" shall have the meaning set forth in Section
6.10(c).
"Restricted Payments" shall have the meaning set forth in Section 6.09.
"Revolving Interest Amount" shall mean, as of the date of calculation,
the amount of interest due on a principal amount equal to the average of the
aggregate principal amount outstanding during the fiscal quarter ending
immediately prior to the date of calculation for the next consecutive 12 months
calculated at a per annum rate (weighted based on outstanding principal amount)
of interest equal to the average daily interest rate actually accrued on all
revolving credit facilities of the Company and its Subsidiaries (including the
Credit Facility) during the fiscal quarter ending immediately prior to the date
of calculation.
"Revolving Principal Amount" shall mean, as of the date of
calculation, the sum of the amount for each revolving credit facility of the
Company or its Subsidiaries (including the Credit Facility) equal to the
product of 12 times the amount equal to the quotient obtained by dividing the
aggregate principal amount then outstanding under such revolving credit
facility by the number of calendar months during the period from the date of
such calculation to the final maturity date for the principal amount then
outstanding under such revolving credit facility.
"Senior Debt" shall mean all Funded Debt and Current Debt except
Subordinated Debt.
"Subordinated Debt" shall mean all Funded Debt and Current Debt of the
Company which is subordinated to the Credit and the Notes on terms satisfactory
to Lenders and which has a final maturity date subsequent to the final maturity
date of the Notes.
"Subsidiary" shall mean any corporation all of the stock of every
class of which, except directors' qualifying shares, shall, at the time as of
which any determination is being made, be beneficially owned or effectively
controlled by the Company, either directly or through Subsidiaries.
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<PAGE> 56
"Term Loans" shall mean the Working Capital Term Loan and the
Compression Term Loan, collectively.
"Term Notes" shall mean the Working Capital Term Notes and the
Compression Term Notes, collectively.
"Third Party" shall mean all lessees, sublessees, licensees and other
users of the Properties, excluding those users of the Properties in the
ordinary course of the Company's business (consistent with its practices on the
date of this Agreement) and on a temporary basis.
"Tranche" shall mean a part of the Loans that bears interest at a
particular rate depending on whether such tranche is a LIBO Rate Tranche or
Prime Rate Tranche.
"Unused Credit Facility Credit" shall have the meaning specified in
Section 1.1 hereof.
"Working Capital Term Loan" shall have the meaning specified in
Section 1.1 hereof.
"Working Capital Term Notes" shall have the meaning specified in
Section 2.2 hereof.
11.2 Financial Terms. Unless otherwise defined or the context
otherwise requires, all financial and accounting terms shall be defined under
generally accepted accounting principles.
11.3 Delay. No delay on the part of the Lenders or any holder of
the Notes, in the exercise of any power or right shall operate as a waiver
thereof, nor shall any single or partial exercise of any power or right
preclude other or further exercise thereof, or the exercise of any other power
or right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law (except to the extent waived by Section 9.3 hereof).
11.4 Notices. Any notice or demand which, by any provision of this
Agreement, is required or permitted to be given or served by Administrative
Agent or Lenders to or on the Companies shall be deemed to have been
sufficiently given and served for all purposes (if mailed) three calendar days
after being deposited, postage prepaid, in the United States mail, registered
or certified mail, or (if delivered by express courier) one calendar day after
being delivered to such courier, or (if delivered in person) the same day as
delivery, in each case addressed (until another address or addresses are given
in writing by the Companies to Administrative Agent or Lenders) as follows:
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<PAGE> 57
Tidewater Inc.
1440 Canal Street
New Orleans, Louisiana 70112
Attention: Chief Financial Officer
With a copy to:
Tidewater Inc.
1440 Canal Street
New Orleans, Louisiana 70112
Attention: Victor I. Koock, Co-General Counsel
Any notice or demand which, by any provision of this Agreement, is
required or permitted to be given or served by the Companies to or on
Administrative Agent shall be deemed to have been sufficiently given and served
for all purposes (if mailed) three calendar days after being deposited, postage
prepaid, in the United States mail, registered or certified mail, or (if
delivered by express courier) one calendar day after being delivered to such
courier, or (if delivered in person) the same day as delivery, in each case
addressed (until another address or addresses are given in writing by
Administrative Agent to the Companies) as follows:
First National Bank of Commerce
210 Baronne Street
New Orleans, Louisiana 70112
Attention: Mr. J. Charles Freel, Jr., Vice President
With a copy to:
Philip deV. Claverie, Esq.
Phelps Dunbar, L.L.P.
Texaco Center - 30th Floor
400 Poydras Street
New Orleans, Louisiana 70130
Any notice or demand which, by any provision of this Agreement, is
required or permitted to be given or served by the Companies to or on Lenders
shall be deemed to have been sufficiently given and served for all purposes (if
mailed) three calendar days after being deposited, postage prepaid, in the
United States mail, registered or certified mail, or (if delivered by express
courier) one calendar day after being delivered to such courier, or (if
delivered in person) the same day as delivery, in each case addressed (until
another address or addresses are given in writing by Lenders to the Companies)
as follows:
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First National Bank of Commerce
210 Baronne Street
New Orleans, Louisiana 70112
Attention: Mr. J. Charles Freel, Jr., Vice President
AmSouth Bank of Alabama
1900 5th Avenue, North
Birmingham, Alabama 35203
Attention: Mr. Andrew W. Braswell, Assistant
Vice President
The First National Bank of Boston
100 Federal Street
Boston, Massachusetts 02110
Attention: Transportation Division
Whitney National Bank
228 St. Charles Street
New Orleans, Louisiana 70130
Attention: Mr. Donald J. Zornman, Vice President
Hibernia National Bank
313 Carondelet Street
New Orleans, Louisiana 70130
Attention: Mr. Bruce L. Ross, Vice President
Premier Bank National Association
Place St. Charles, Suite 1410
201 St. Charles Avenue
New Orleans, Louisiana 70170
Attention: Mr. Emile J. Dumesnil, Vice President
Texas Commerce Bank National Association
707 Travis, 5th Floor North
Houston, Texas 77002
Attention: Ms. Mona Foch, Vice President
With a copy to:
Philip deV. Claverie, Esq.
Phelps Dunbar, L.L.P.
Texaco Center - 30th Floor
400 Poydras Street
New Orleans, Louisiana 70130
11.5 Costs, Expenses and Taxes. The Companies shall pay on demand
the reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the negotiation, preparation, execution and delivery of this
Agreement and any amendments thereto or waivers thereof which may be requested
by the
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<PAGE> 59
Companies, including the reasonable fees and out-of-pocket expenses of legal
counsel to Administrative Agent. The Companies shall pay on demand the
reasonable out-of-pocket costs and expenses of the Administrative Agent and
each of the Lenders in connection with the enforcement of this Agreement and/or
the Notes and in connection with any amendments thereto or waivers thereof
which may be requested by the Companies during the continuance of, or to avoid,
a Default or Event of Default, including any amendments or waivers tantamount
to a refinancing, restructuring, or reorganization (whether or not under any
Bankruptcy Law). The out-of-pocket costs and expenses referred to in the
previous sentence shall include the reasonable fees and out-of-pocket expenses
of any legal counsel retained by the Administrative Agent or by any Lender, and
the reasonable fees and out-of-pocket expenses of any independent public
accountants and other outside experts retained by the Administrative Agent on
behalf of the Lenders. The Lenders agree that, with respect to the retention
of separate legal counsel for each Lender under such circumstances, each will
consider in good faith whether separate legal counsel is reasonably appropriate
under the policies of that Lender and, in any event, endeavor to avoid
unreasonable duplication of work effort by such legal counsel. The Companies
shall pay any and all documentary and other taxes (other than income or gross
receipts taxes generally applicable to banks) and shall reimburse, hold
harmless, and indemnify the Administrative Agent and each Lender from and
against any and all loss, liability, or legal or other expense with respect to
or resulting from any delay in paying or failure to pay any tax, cost, expense,
fee, or charge or that any of them may suffer or incur by reason of the failure
of the Companies to perform any of its obligations under this Agreement or the
Notes. Any amount payable to the Administrative Agent or any Lender under this
Section shall bear interest from the date of receipt of demand for payment at
the Prime Rate plus one percent (1%).
11.6 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
11.7 Counterparts. This Agreement may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original but all such counterparts shall constitute but one and
the same instrument.
11.8 Law. This Agreement and the Notes shall be contracts made under
and governed by the laws of the State of Louisiana.
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<PAGE> 60
11.9 Successors. This Agreement shall be binding upon the Companies
and Lenders, and their respective successors and assigns, and shall inure to
the benefit of the Companies and Lenders, and the successors and assigns of
Lenders. The Companies shall not assign their rights or duties hereunder
without the consent of Lenders.
11.10 Singular and Plural. Words used herein in the singular, where
the context so permits, shall be deemed to include the plural and vice versa.
The definition of words in the singular herein shall apply to such words when
used in the plural where the context so permits and vice versa.
11.11 Amendments. No amendment or waiver of any provision of this
Agreement or consent to any departure therefrom by the Companies or Lenders
shall be effective unless the same shall be in writing and signed by the
Companies, the Administrative Agent and the Required Lenders, provided that,
without the written consent of all of the Lenders, no amendment to this
Agreement shall change the maturity of any Note, or change the principal of or
the rate or time of payment of interest or any premium payable with respect to
any Note, or change the principal payment date of any installment of the Term
Notes, or increase the Commitments, or release any of the Companies, or affect
the time, amount or allocation of any required prepayments, or reduce the
proportion of the Required Lenders required with respect to any consent, or
change the definition of Required Lenders or amend this Section 11.11. No
course of dealing between any of the Companies and the Lenders nor any delay in
exercising any rights hereunder or under any Note shall operate as a waiver of
any rights of any of the Lenders. In the case of a waiver or consent, such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
11.12 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes any and all prior agreements with
respect to the transactions contemplated hereby, including specifically the
Revolving Credit and Term Loan Agreement by and among the Administrative Agent,
Lenders, the Company and certain of the Subsidiaries, dated as of February 23,
1994, which is hereby terminated.
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<PAGE> 61
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first written above.
TIDEWATER INC.
By:________________________________
Name: Ken C. Tamblyn
Title: Executive Vice President
and Chief Financial
Officer
EASTERN BOAT OPERATORS INC.
GULF FLEET SUPPLY VESSELS, INC.
HILLIARD OIL & GAS, INC.
JACKSON MARINE CORPORATION
JAVA BOAT CORPORATION
MARINE LEASING COMPANY
OFFSHORE EQUIPMENT COMPANY
QUALITY SHIPYARDS, INC.
S.O.P., INC.
SCHOPCO, INC.
SEAFARER BOAT CORPORATION
TIDEWATER COMPRESSION SERVICE, INC.
TIDEWATER ENTERPRISES, INC.
TIDEWATER FLEETS, INC.
TIDEWATER GRAND ISLE, INC.
TIDEWATER MARINE, INC.
TIDEWATER MARINE ALASKA, INC.
TIDEWATER MARINE ATLANTIC, INC.
TIDEWATER MARINE PACIFIC, INC.
TIDEWATER MARINE SERVICE, INC.
TIDEWATER MARINE TOWING, INC.
TIDEWATER MARINE WESTERN, INC.
TIDEWATER NAVIGATORS, INC.
TIDEWATER NW JAVA, INC.
TIDEWATER REALTY, INC.
TIDEWATER RESOURCES, INC.
TIDEWATER SE SUMATRA, INC.
TIDEWATER SERVICES, INC.
TIDEWATER TRADERS, INC.
TIDEWATER VENTURES, INC.
TIDEWATER VESSELS, INC.
TT BOAT CORPORATION
TWENTY GRAND MARINE SERVICE, INC.
TWENTY GRAND OFFSHORE, INC.
ZAPATA GULF MARINE CORPORATION
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<PAGE> 62
ZAPATA GULF MARINE OPERATORS, INC.
ZAPATA GULF PACIFIC, INC.
By:________________________________
Name: Ken C. Tamblyn
Title: Authorized Officer
FIRST NATIONAL BANK OF COMMERCE,
as Administrative Agent,
Agent and Lender
By:________________________________
Name: J. Charles Freel, Jr.
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as Agent and Lender
By:________________________________
Name: Daniel O'Connor
Title: Director
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Agent and Lender
By:________________________________
Name: Mona Foch
Title: Vice President
AMSOUTH BANK OF ALABAMA, as Lender
By:________________________________
Name: Andrew W. Braswell
Title: Assistant Vice President
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<PAGE> 63
WHITNEY NATIONAL BANK, as Lender
By:________________________________
Name: Donald J. Zornman
Title: Vice President
HIBERNIA NATIONAL BANK, as Lender
By:________________________________
Name: Bruce L. Ross
Title: Vice President
PREMIER BANK NATIONAL ASSOCIATION,
as Lender
By:________________________________
Name: Emile J. Dumesnil
Title: Vice President
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