<PAGE> 1
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) February 23, 1994
TIDEWATER INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-6311 72-0487776
(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification
Incorporation) Number)
1440 Canal Street, Suite 2100, New Orleans, Louisiana 70112
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (504) 568-1010
NOT APPLICABLE
Former name, former address and former fiscal year, if changed since last
report.
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ITEM 5. OTHER EVENTS.
On February 23, 1994 the Company increased its bank borrowing facility
to $130 million from $60 million by amending a revolving credit and term loan
agreement. The $130 million facility is subject to the same terms as
Tidewater's previous agreement. The Company initially obtained the $60 million
loan facility in January 1992. The increased line of credit expands the
Company's financial flexibility. Although none of the line is being used
currently, it allows the Company to be better prepared for the future as needs
arise.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
Exhibit No. Description
- ----------- -----------
10 $130,000,000 Revolving Credit
and Term Loan Agreement dated
February 23, 1994.
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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: February 24, 1994 /s/ Victor I. Koock
-------------------------------------
Victor I. Koock
Senior Vice President, Secretary, and
Co-General Counsel
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EXHIBIT 10
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AMONG
TIDEWATER INC., ET AL
(as Companies)
FIRST NATIONAL BANK OF COMMERCE
(as Agent)
and
FIRST NATIONAL BANK OF COMMERCE,
AMSOUTH BANK, N.A.,
THE FIRST NATIONAL BANK OF BOSTON,
WHITNEY NATIONAL BANK,
HIBERNIA NATIONAL BANK,
PREMIER BANK NATIONAL ASSOCIATION
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(as Lenders)
__________
$130,000,000.00
__________
Dated: February 23, 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 Use of Proceeds........................... 3
Section 2. Promissory Notes...................... 3
2.1 Line of Credit Notes...................... 3
2.2 Term Notes................................ 3
Section 3. Interest and Fees..................... 4
3.1 Interest - Line of Credit................. 4
3.2 Interest - Term Loan...................... 4
3.3 Interest - Agent's Determination.......... 5
3.4 Interest Payment Dates; Late Payment...... 8
3.5 Commitment Fee; Facility Fee; Agent's Fee. 9
3.6 Method of Calculating Interest and Fees... 9
Section 4. Payments, Reduction or Termination of
the Credit and Prepayments............ 9
4.1 Place of Payment.......................... 10
4.2 Reduction of Credit under the Line of
Credit; Prepayments..................... 10
4.3 Prepayments of Term Note.................. 10
4.4 Pro Rata Payments......................... 11
Section 5. Representations and Warranties of
the Companies......................... 11
5.1 Corporate Existence....................... 11
5.2 Authorization; Validity................... 11
5.3 Conflicting Agreements and Other Matters.. 11
5.4 Financial Statements...................... 12
5.5 Litigation and Contingent Liabilities..... 13
5.6 Outstanding Debt.......................... 13
5.7 Title to Properties....................... 13
5.8 Purpose................................... 13
5.9 Margin Stock.............................. 13
5.10 ERISA..................................... 13
5.11 Consents.................................. 14
5.12 Tax Returns; Taxes........................ 14
5.13 Compliance with Laws...................... 14
5.14 Foreign Assets Control Regulations........ 15
</TABLE>
(i)
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<TABLE>
<S> <C>
5.15 Disclosure................................ 15
5.16 Environmental Matters..................... 15
Section 6. Covenants of the Companies............ 16
6.1 Financial Statements...................... 16
6.2 Inspection of Property.................... 19
6.3 Covenant to Secure Notes Equally.......... 20
6.4 Guaranteed or Collateralized Obligations.. 20
6.5 Maintenance of Insurance.................. 20
6.6 Maintenance of Corporate Existence/
Compliance with Law/Preservation
of Property............................. 21
6.7 Compliance with Environmental Laws........ 21
6.8 Consolidated Current Assets Requirement... 22
6.9 Dividend, Payment, Redemption and Other
Limitations............................. 22
6.10 Liens, Debt and Other Restrictions........ 22
6.11 Stock Transactions by Subsidiaries........ 27
6.12 ERISA..................................... 27
6.13 Federal Reserve Regulations, etc.......... 28
6.14 Environmental Matters..................... 28
6.15 Taxes..................................... 28
Section 7. Conditions Precedent to Credit
Facility Advances..................... 28
7.1 Default................................... 29
7.2 Representations and Warranties............ 29
Section 8. Conditions Precedent to the Credit.... 29
8.1 Resolutions of the Companies.............. 29
8.2 Organization Documents; Good Standing..... 29
8.3 Incumbency................................ 30
8.4 Officer's Certificate..................... 29
8.5 Line of Credit Note....................... 30
8.6 Opinion................................... 30
Section 9. Events of Default; Remedies; Set Offs. 30
9.1 Events of Default......................... 30
9.2 Remedies.................................. 33
9.3 Waiver of Set-Offs........................ 33
Section 10. The Agent............................. 34
10.1 Appointment and Authorization............. 34
10.2 Agent's Reliance.......................... 34
10.3 Acts by Agent after Default, etc.......... 35
10.4 Lender Credit Decision.................... 35
10.5 Agent..................................... 36
10.6 Assignments and Participations............ 36
</TABLE>
(ii)
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<TABLE>
<S> <C>
Section 11. General.............................. 37
11.1 Definitions............................... 37
11.2 Financial Terms........................... 48
11.3 Delay..................................... 48
11.4 Notices................................... 49
11.5 Costs, Expenses and Taxes................. 51
11.6 Severability.............................. 52
11.7 Counterparts.............................. 52
11.8 Law....................................... 52
11.9 Successors................................ 52
11.10 Singular and Plural....................... 52
11.11 Amendments................................ 52
11.12 Entire Agreement.......................... 53
Signatures........................................ 53
</TABLE>
Exhibit A List of Domestic Subsidiaries
Exhibit B Form of Line of Credit Note
Exhibit C Form of Term Note
Exhibit D 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 23rd day of February, 1994, by and among Tidewater
Inc., a Delaware corporation (the "Company"), the Domestic Subsidiaries (as
hereinafter defined) of the Company named on Exhibit "A", attached hereto and
made a part hereof, the respective state of incorporation of each of which
Domestic Subsidiaries being set forth opposite its name and which Domestic
Subsidiaries constitute all of the Domestic Subsidiaries of the Company (herein
together with the Company called the "Companies"), and First National Bank of
Commerce, a national banking association, as agent (the "Agent"), and First
National Bank of Commerce, AmSouth Bank N.A., 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 September 14, 1993 (the "Existing Loan Agreement"), the
Companies and certain of the Lenders have heretofore entered into an agreement
to provide for line of credit advances up to the aggregate principal amount of
$60,000,000 through September 30, 1995, after which the line of credit converts
to a four-year term loan.
B. The Companies wish to increase the line of credit and term
loan to the aggregate principal amount of $130,000,000 and in order to do so
the Agent has arranged (i) for the existing Lenders to increase the amount of
their respective commitments and (ii) for three additional banks to become
Lenders under the Agreement. 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 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
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Agreement, in the following aggregate principal amount (the "Commitments"):
<TABLE>
<CAPTION>
Lender Maximum Commitment
------ ------------------
<S> <C>
First National Bank of Commerce $25,000,000
AmSouth Bank N.A. 20,000,000
The First National Bank of Boston 20,000,000
Whitney National Bank 20,000,000
Hibernia National Bank 15,000,000
Premier Bank National Association 15,000,000
Texas Commerce Bank National
Association 15,000,000
------------
Total $130,000,000
</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, 1995, 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 Commitments (the "Credit Facility"), which amount outstanding under said
Line of Credit as of the close of business on September 30, 1995, shall then
convert on the following day to a four (4) year term loan (the "Term Loan")
with principal payable quarterly on a four (4) year amortization schedule. The
Credit available to the Companies from time to time under the Line of Credit
within the Credit 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."
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 Agent received by the 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 Agent at least three (3) Business
Days prior to the date of such proposed Credit Facility Advance. The Agent
will use its best efforts to give telephone notice of a
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proposed credit Facility advance on the same day such notice is received by the
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 Agent, which shall make such total Credit Facility Advance
available to the Company in same day funds at the 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 Use of Proceeds. The Companies shall use the proceeds of the
Credit Facility and Term Loan only for general corporate purposes not
inconsistent with the provisions of this Agreement.
Section 2. Promissory Notes.
2.1 Line of Credit Notes. The Credit Facility shall be evidenced
by seven (7) 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 Commitments, with appropriate insertions, and payable in
full on September 30, 1995.
2.2 Term Notes. The Term Loan shall be evidenced by seven (7)
promissory notes of the Companies in the form of Exhibit "C" to this Agreement,
dated October 1, 1995, payable to the order of each Lender respectively
(together with any and all renewals, extensions, rearrangements and/or
modifications thereof, the "Term Notes"), in the Lenders' respective
proportionate amount of the Term Loan, with appropriate insertions, and payable
in full on September 30, 1999. The 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 Term Loan is
initially funded, the Lenders shall not fund any additional Credit Facility
Advances under the Term Loan.
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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 one-half of one percent
(0.50%) or (ii) LIBO Rate plus one and three- fourths percent (1.75%);
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 one-half of one percent (0.50%) or
(ii) LIBO Rate plus one and one-half percent (1.50%). The Company shall select
the interest rate applicable to each Tranche at the time of funding such 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 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 one-half of one percent (0.50%). Not more than six (6)
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.
3.2 Interest - Term Loan. The unpaid principal of the Term Notes
shall bear interest at one (or both) of the following interest rates, at the
Company's option: (i) Prime Rate plus one-half of one percent (0.50%) or (ii)
LIBO Rate plus one and three-fourths percent (1.75%); 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 Term Loan shall
be one (or both) of the following interest rates, at the Company's option: (i)
Prime Rate plus one-half of one percent (0.50%) or (ii) LIBO Rate plus one and
one-half percent (1.50%). The Company shall notify the Agent of the Company's
desire to change the interest rate on the 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
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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 Term Notes shall bear interest at
the Prime Rate plus one-half of one percent (0.50%). Not more than two (2)
Term Loan LIBO Rate Tranches shall be permitted at any time, and no Term Loan
Tranche may have a principal amount of less than $1,000,000. Each Tranche
shall be proportionately the same on each Term Note.
3.3 Interest - Agent's Determination. (a) The Agent shall
determine the amount of interest payable on each Tranche, and its determination
shall be conclusive in the absence of manifest error. The 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 Agent to
provide such notice shall not affect the Companies' obligation to pay interest
on such date.
(b) If the Agent gives notice to the Company that no LIBO Rate is
quoted to the 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 one-half of one
percent (0.50%).
(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 adminis- tration 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
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made in the definition of LIBO Rate) or against assets of, deposits
with or for the account of, or credit extended by, the Lenders; or
(iii) imposes on the Lenders or the interbank eurocurrency
deposit and transfer market any other condition affecting any such
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 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
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 one-half
of one percent (0.50%).
(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 one-half of one percent (0.50%). 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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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
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 Agent within five days after the 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 Agent, furnish to the
Lenders evidence in form and substance satisfactory to the Lenders
that the Companies have met their obligation under this subsection.
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(ii) The Companies will indemnify the Agent and the Lenders
against, and reimburse the Agent and the Lenders on demand for, any
Reimbursable Taxes paid by the Agent and the Lenders and any loss,
liability, claim or expense, including interest, penalties and legal
fees, that the 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 Agent within five days after demand
therefor by the 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 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 one-half of one
percent (0.50%), 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 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.
3.4 Interest Payment Dates; Late Payment. Interest on Prime Rate
Advances shall be payable quarterly in arrears on the last day of each March,
June, September and December, beginning March 31, 1994; interest on LIBO Rate
Advances shall be payable on the last day of each LIBOR Interest Period (30
days or 90 days). 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, 1995. Principal on the Term Notes shall be payable on
the last day of each March, June, September and December, beginning on December
31, 1995, with the balance of all outstanding principal being payable on
September 30, 1999. Principal payments shall be allocated first to Prime Rate
Tranches,
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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 3.3(e) hereof).
3.5 Commitment Fee; Facility Fee; Agent's Fee.
(a) A commitment fee of $87,500 (one-eighth of one percent (0.125%)
of the increased Commitments of $70 million) shall be payable by the Companies
to the Lenders on the date of this Agreement, as follows:
<TABLE>
<S> <C>
First National Bank of Commerce $12,500
AmSouth Bank, N.A. 6,250
The First National Bank of Boston 6,250
Whitney National Bank 6,250
Hibernia National Bank 18,750
Premier Bank National Association 18,750
Texas Commerce Bank National Association 18,750
-------
Total $87,500
</TABLE>
(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 March 31, 1994 through and including September 30,
1995; 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.
(c) An agent's fee of $40,000 per year shall be payable by the
Companies to the Agent (which shall be retained by the Agent) in advance on the
last day of September in each year, beginning September 30, 1994 through and
including September 30, 1998; provided, that for the period from the date
hereof to and including September 30, 1994, an agent's fee of $8,750 shall be
payable by the Companies to the Agent on the date of this Agreement.
3.6 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.
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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 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 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 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. 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 Note. 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 Agent, prepay the principal of
the Term Notes in whole or in part without premium; provided, however, any
partial
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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 Agent's fee described in Section 3.5(c) hereof) and
other amounts paid by the Companies to the Agent from time to time under this
Agreement shall be promptly wired by the 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 impair the ability of the Company or
any of its Subsidiaries to operate its business or own its assets; and each of
the Companies has and will continue to have 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
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<PAGE> 16
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 1991 through 1993, inclusive, and for the
nine-month period ending December 31, 1993 and a consolidated statement of
income and statement of cash flows for each such fiscal year and such
nine-month period, all identified by a principal financial officer of such
Company and all (other than any financial information for such nine-month
period) certified by KPMG Peat Marwick (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 December
31, 1993.
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<PAGE> 17
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 respective businesses of the
Company and its Subsidiaries are valid and subsisting and are in full force and
effect.
5.8 Purpose. The proceeds of the Loan will be used by the
Companies only for the purposes specified in Section 1.3 hereof.
5.9 Margin Stock. Neither the Company nor any of its Subsidiaries
is engaged in the business of purchasing or selling margin stock (as defined in
any regulation of the Board of Governors of the Federal Reserve System) or
extending credit to others for the purpose of purchasing or carrying margin
stock and no part of the proceeds of any borrowing hereunder will be used to
purchase or carry any margin stock or for any other purpose which would violate
any of the margin regulations of such Board of Governors.
5.10 ERISA. No accumulated funding deficiency (as defined in Section
302 of ERISA and Section 412 of the Code), whether or not waived, exists with
respect to any Plan (other than a Multiemployer Plan). No liability to the
PBGC has been or is expected by the Company to be incurred with respect to any
Plan (other than a
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<PAGE> 18
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.
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
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<PAGE> 19
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 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 onSchedule 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.
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<PAGE> 20
(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 inSchedule 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 Agent seven copies of the following:
(a) as soon as practicable and in any event within forty-five (45)
days after the end of each quarterly period (other than the
last quarterly period) in each fiscal year, a consolidated
balance sheet of the Company and its Subsidiaries as at the
end of such quarterly period and the related statement of
earnings and cash flows for the period from the beginning of
the current fiscal year to the end of such quarterly period,
setting forth in each case in comparative form figures for the
corresponding period in the preceding fiscal year, all in
reasonable detail and certified by an authorized financial
officer of the Company, subject to changes resulting from year
end adjustments; provided, however, that delivery pursuant to
clause (c) below of copies of the Quarterly Report on Form
10-Q of the Company for such quarterly period filed with the
Securities and Exchange Commission shall be deemed to satisfy
the requirements of this clause (a);
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<PAGE> 21
(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 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
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<PAGE> 22
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 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 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.
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
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<PAGE> 23
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;
the Company will deliver to the 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 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 Agent from the
Borrower pursuant to this Section 6.1.
6.2 Inspection of Property. The Companies agree that they will
permit the Agent, each Lender (with prior notice to the Agent) and any Person
designated by the Agent in writing, at 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 Agent or the Lenders may reasonably request.
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<PAGE> 24
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 Credit 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 Credit, 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 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
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<PAGE> 25
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 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 Agent, 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.
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<PAGE> 26
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 other than any payments of
principal after January 1, 1996 on the Company's 7% Convertible Subordinated
Debentures due 2010; 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 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 Plan adopted by
the Company on April 24, 1990 and redemption of any rights that may be
distributed pursuant to such Shareholder Rights Plan 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;
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(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 onSchedule
2-Part 1 attached hereto and made a part hereof;
(v) any presently existing Lien which existed on any real
or personal property of any corporation at the time
it became a Subsidiary, or which existed prior to the
time of acquisition upon any real or personal
property acquired by the Company or any Subsidiary
through purchase, merger or consolidation or
otherwise, whether or not assumed by the Company or
any Subsidiary, or placed upon real or personal
property acquired by the Company or any Subsidiary,
in connection with the purchase thereof, all of which
Liens (other than Liens which are incidental and do
not materially affect such property) are set forth on
Schedule 2-Part 2 attached hereto and made a part
hereof, provided that any such Lien shall not
encumber any other property of the Company or any
Subsidiary;
(vi) any Lien renewing, extending or refunding any Lien
permitted by clause (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);
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(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 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
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<PAGE> 29
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 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
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<PAGE> 30
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 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:
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<PAGE> 31
(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.
(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:
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<PAGE> 32
(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 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
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<PAGE> 33
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 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 (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.
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), (b) the by-laws of the Company, certified
by the secretary or assistant secretary of the Company, (c) the certificate of
incorporation and by-laws of each Identified Subsidiary, certified by the
secretary or assistant secretary of such Identified Subsidiary, in each case as
in effect on the 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, and (e) certificate of
qualification to do business of the Company 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 and the
Line of Credit Notes, and all other documents or certificates to be delivered
hereunder, together with the true signatures of such officers.
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<PAGE> 34
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 December 31, 1993.
8.5 Line of Credit Note. The duly executed Line of Credit Notes
of the Companies 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) such actions have been duly authorized by all necessary
corporate action, and are not in conflict with any provision of law or of the
charter or by-laws of any of the Companies, nor in conflict with any agreement
binding upon the Company or any of the Identified Subsidiaries; (d) this
Agreement and the Line of Credit Notes 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; (e) no consent or approval of the shareholders of the Company
or of any governmental authority is required as a condition to the validity or
enforceability of this Agreement or the Notes; and (f) such other matters as
the Lenders shall reasonably require.
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:
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<PAGE> 35
(a) The Companies default in the payment of any principal on any
Note when the same shall become due, either by the terms thereof or otherwise
as herein provided.
(b) The Companies default in the payment of any interest on any
Note or any other amount due hereunder for more than 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 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.
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<PAGE> 36
(h) Any decree or order for relief in respect of the Company or
any Subsidiary is entered under any bankruptcy, reorganization, compromise,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law, whether now or hereinafter in effect (herein called "Bankruptcy
Law"), of any jurisdiction.
(i) The Company or any Subsidiary petitions or applies to any
tribunal for, or consents to the appointment of, or taking possession by, a
trustee, receiver, custodian, liquidator or similar official, of the Company or
any Subsidiary, or of any substantial part of the assets of the Company or any
Subsidiary, or commences a voluntary case under the Bankruptcy Law of the
United States or any proceedings (other than proceedings for the voluntary
liquidation and dissolution of a Subsidiary) relating to the Company or any
Subsidiary under the Bankruptcy Law of any other jurisdiction.
(j) Any such petition or application (described in Section 9.1(i)
is filed, or any such proceedings are commenced, against the Company or any
Subsidiary, and the Company or such Subsidiary by any act indicates its
approval thereof, consent thereto, or acquiescence therein, or an order,
judgment or decree is entered appointing any such trustee, receiver, 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.
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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 (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 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 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 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 Agent and each Lender hereby
specifically waive (i) the right to set-off any funds of any of the Companies
in possession of the Agent or any Lender against the
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obligation of the Companies to the 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 Agent.
10.1 Appointment and Authorization. Each Lender appoints and
authorizes the 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 from the
Lenders, and to take such action and to exercise such powers under this
Agreement and the Notes as are delegated to the 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 Agent, but favorable action on such requests shall require the approval of
the Required Lenders. The 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 commitment
fees described in Section 3.5(a) hereof and the Agent's fee described in
Section 3.5(c) hereof), in proportion to the Lenders' Commitments. Similarly,
the Lenders shall be obligated to fund Credit Facility Advances in proportion
to their Commitments. The Agent may resign at any time by written notice to
the Lenders; the successor Agent shall be selected by the Required Lenders.
10.2 Agent's Reliance. Neither the Agent nor any of its 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 Agent: (i) may
treat the payee of any of the Notes as the holder thereof until the Agent
receives written notice of the assignment or transfer thereof, signed by such
payee and in form satisfactory to the Agent; (ii) may consult with legal
counsel (including counsel for the Company), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts; (iii) makes no warranty or representation to
any Lender and shall not be responsible to any Lender for any statements,
warranties or representations made in or in connection with this Agreement and
the Notes; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement and the Notes or to inspect any property (including the books and
records) of the Companies; (v)
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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 Agent after Default, etc. In the event that the 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 Agent responsible
for the Borrower's account obtains actual knowledge of an Event of Default),
the 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 Agent and the
other Lenders that the decisions and determinations of the Required Lenders in
enforcing this Agreement and the Notes and guiding the Agent in those matters
shall be binding upon all the Lenders, including, without limitation,
authorizing the 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 Agent 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 Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the Notes.
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10.5 Agent. Agent 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 Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include Agent in its individual capacity. Agent
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 Agent were
not the Agent 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 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 Agent an Assignment and Acceptance, substantially
in the form of Exhibit D hereto (the "Assignment and Acceptance"), together
with any Note subject to such assignment, and together with payment by the
assignee to the Agent for its own account of an assignment administration fee
in the amount of $750, (v) the 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 Agent, from and after the
effective date specified in each Assignment and Acceptance, which effective
date shall be at least five (5) Business Days after the execution thereof, (x)
the assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Lender,
and (y) the assigning Lender shall, to the extent provided in such assignment,
be released from its obligations under this Agreement. Notwithstanding the
foregoing, the restrictions contained above in this Section 10.6(a) shall not
apply to assignments to any Federal Reserve Bank, and the conditions set forth
in clauses (i) and (ii) above shall not apply to assignments by any Lender to
any Person which controls, is controlled by, or is under common control with,
or is otherwise substantially affiliated with that Lender.
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<PAGE> 41
(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 Agent and the Company to such
assignment, the 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 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 Agent,
may sell participations to one or more banks in all or a portion of its Loans
(but not 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 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.
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"Agent" shall mean First National Bank of Commerce.
"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.
"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.
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<PAGE> 43
"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 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
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<PAGE> 44
acquisition of any shares of its stock and 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; 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.
"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.
"Credit" shall mean the commitment of Lenders to extend the Line of
Credit to the Companies pursuant to this Agreement.
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<PAGE> 45
"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.
"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
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<PAGE> 46
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.
"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
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<PAGE> 47
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,
(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,
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<PAGE> 48
(g) obligations under any contract for the purchase of materials,
supplies or other property if such contract (or any related
document) requires that payment for such materials, supplies
or other property shall be made regardless of whether or not
delivery of such materials, supplies or other property is ever
made or tendered,
(h) obligations under any contract to rent or lease (as lessee)
any real or personal property if such contract (or any related
document) provides that the obligation to make payments
thereunder is absolute and unconditional under conditions not
customarily found in commercial leases then in general use or
requires that the lessee purchase or otherwise acquire
securities or obligations of the lessor,
(i) obligations under any contract for the sale or use of
materials, supplies or other property if such contract (or any
related document) requires that payment for such materials,
supplies or other property, or the use thereof, shall be
subordinated to any indebtedness (of the purchaser or user of
such materials, supplies or other property) owed or to be owed
to any Person, and
(j) obligations under any other contract which, in economic
effect, is substantially equivalent to a guarantee;
all as determined in accordance with generally accepted accounting principles.
"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.; and Zapata Gulf Marine Corporation.
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<PAGE> 49
"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 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 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 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 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
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<PAGE> 50
shall be 30 or 90 days, 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; and (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.
"LIBO Rate Advances" shall mean Credit Facility Advances bearing
interest at the LIBO Rate plus one and three-fourths percent (1.75%) or LIBO
Rate plus one and one-half percent (1.50%), 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 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 loan under the Credit Facility.
"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.
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<PAGE> 51
"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
Citibank, N.A., 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 one-half of one percent (0.50%).
"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 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.
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<PAGE> 52
"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.
"Term Loan" shall have the meaning specified in Section 1.1 hereof.
"Term Note" shall have the meaning specified in Section 2.2 hereof.
"Third Party" shall mean all lessees, sublessees, licensees and other
users of the Properties, excluding those users of the Properties in the
ordinary course of the Company's business (consistent with its practices on the
date of this Agreement) and on a temporary basis.
"Tranche" shall mean a part of the Loans that bears interest at a
particular rate 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.
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
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<PAGE> 53
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 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 Agent or Lenders) as follows:
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 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 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
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With a copy to:
Philip deV. Claverie, Esq.
Phelps Dunbar
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:
First National Bank of Commerce
210 Baronne Street
New Orleans, Louisiana 70112
Attention: Mr. J. Charles Freel, Jr., Vice President
AmSouth Bank N.A.
1900 5th Avenue, North
Birmingham, Alabama 35203
Attention: Mr. Andrew W. Braswell, Commercial Loan Officer
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
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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
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 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 Companies,
including the reasonable fees and out-of-pocket expenses of legal counsel to
Agent. The Companies shall pay on demand the reasonable out-of-pocket costs
and expenses of the 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
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
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 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 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%).
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<PAGE> 56
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.
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 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.
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<PAGE> 57
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 Agent, Lenders, the
Company and certain of the Subsidiaries, dated as of January 15, 1992, which
is hereby terminated.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first written above.
TIDEWATER INC.
By: /s/ KEN C. TAMBLYN
--------------------------------
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 BARGES, INC.
TIDEWATER COMPRESSION SERVICE, INC.
TIDEWATER CONTRACTORS, INC.
TIDEWATER ENTERPRISES, INC.
TIDEWATER FLEETS, INC.
TIDEWATER GRAND ISLE, INC.
TIDEWATER MARINE, INC.
TIDEWATER MARINE ATLANTIC, INC.
TIDEWATER MARINE PACIFIC, INC.
TIDEWATER MARINE SERVICE, INC.
TIDEWATER MARINE TOWING, INC.
TIDEWATER MARINE WESTERN, INC.
TIDEWATER MEDITERRANEAN, INC.
TIDEWATER NAVIGATORS, INC.
TIDEWATER NW JAVA, INC.
TIDEWATER PACIFIC, INC.
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TIDEWATER REALTY, INC.
TIDEWATER RESOURCES, INC.
TIDEWATER SE SUMATRA, INC.
TIDEWATER SERVICES, INC.
TIDEWATER TRADERS, INC.
TIDEWATER VENICE, INC.
TIDEWATER VENTURES, INC.
TIDEWATER VESSELS, INC.
TMS ACQUISITION CORPORATION
TT BOAT CORPORATION
TWENTY GRAND MARINE SERVICE, INC.
TWENTY GRAND OFFSHORE, INC.
ZAPATA GULF MARINE CORPORATION
ZAPATA GULF MARINE OPERATORS, INC.
ZAPATA GULF PACIFIC, INC.
ZAPATA MARINE (U.S.) INC.
By: /s/ KEN C. TAMBLYN
--------------------------------
Name: Ken C. Tamblyn
Title: Authorized Officer
FIRST NATIONAL BANK OF COMMERCE,
as Agent and Lender
By: /s/ J. CHARLES FREEL, JR
--------------------------------
Name: J. Charles Freel, Jr.
Title: Vice President
AMSOUTH BANK N.A., as Lender
By: /s/ ANDREW W. BRASWELL
--------------------------------
Name: Andrew W. Braswell
Title: Commercial Loan Officer
THE FIRST NATIONAL BANK OF BOSTON,
as Lender
By: /s/ VICTOR M. GARCIA
--------------------------------
Name: Victor M. Garcia
Title: Assistant Vice President
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<PAGE> 59
WHITNEY NATIONAL BANK, as Lender
By: /s/ DONALD J. ZORNMAN
--------------------------------
Name: Donald J. Zornman
Title: Vice President
HIBERNIA NATIONAL BANK, as Lender
By: /s/ BRUCE L. ROSS
--------------------------------
Name: Bruce L. Ross
Title: Vice President
PREMIER BANK NATIONAL ASSOCIATION,
as Lender
By: /s/ EMILE J. DUMESNIL
--------------------------------
Name: Emile J. Dumesnil
Title: Vice President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Lender
By: /s/ MONA FOCH
--------------------------------
Name: Mona Foch
Title: Vice President
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EXHIBIT A
LIST OF DOMESTIC SUBSIDIARIES
State of
Name Incorporation
- ---- -------------
Eastern Boat Operators, Inc. Louisiana
Gulf Fleet Supply Vessels, Inc. Louisiana
Hilliard Oil & Gas, Inc. Nevada
Jackson Marine Corporation Delaware
Java Boat Corporation Louisiana
Marine Leasing Company Missouri
Offshore Equipment Company Delaware
Quality Shipyards, Inc. Louisiana
S.O.P., Inc. Louisiana
Schopco, Inc. Louisiana
Seafarer Boat Corporation Louisiana
Tidewater Barges, Inc. Louisiana
Tidewater Compression Service, Inc. Texas
Tidewater Contractors, Inc. Louisiana
Tidewater Enterprises, Inc. Louisiana
Tidewater Fleets, Inc. Louisiana
Tidewater Grand Isle, Inc. Louisiana
Tidewater Marine, Inc. Louisiana
Tidewater Marine Atlantic, Inc. Delaware
Tidewater Marine Pacific, Inc. California
Tidewater Marine Service, Inc. Louisiana
Tidewater Marine Towing, Inc. Louisiana
Tidewater Marine Western, Inc. Texas
Tidewater Mediterranean, Inc. Louisiana
Tidewater Navigators, Inc. Louisiana
Tidewater NW Java, Inc. Louisiana
Tidewater Pacific, Inc. Missouri
Tidewater Realty, Inc. Louisiana
Tidewater Resources, Inc. Louisiana
Tidewater SE Sumatra, Inc. Louisiana
Tidewater Services, Inc. Louisiana
Tidewater Traders, Inc. Louisiana
Tidewater Venice, Inc. Louisiana
Tidewater Ventures, Inc. Louisiana
Tidewater Vessels, Inc. Louisiana
TMS Acquisition Corporation Louisiana
TT Boat Corporation Louisiana
Twenty Grand Marine Service, Inc. Louisiana
Twenty Grand Offshore, Inc. Louisiana
Zapata Gulf Marine Corporation Delaware
Zapata Gulf Marine Operators, Inc. Delaware
Zapata Gulf Pacific, Inc. Delaware
Zapata Marine (U.S.) Inc. Delaware
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