EXHIBIT 10.1
CREDIT AGREEMENT
$55,000,000.00 TERM LOAN, $30,000,000 REVOLVING CREDIT LOAN AND
$5,000,000 DUTCH GUILDER EQUIVALENT REVOLVING LOAN TO
CORE LABORATORIES N.V.,
$20,000,000 REVOLVING CREDIT LOAN TO
CORE LABORATORIES, INC.,
AND
$15,000,000 BRITISH POUNDS STERLING EQUIVALENT TERM LOAN TO
CORE LABORATORIES (U.K.) LIMITED,
AS BORROWERS,
THE BANKS NAMED HEREIN,
AND
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
AND
NATIONSBANK, N.A.
AS SYNDICATION AGENT AND ISSUING BANK
DATED AS OF MAY 12, 1997
TABLE OF CONTENTS
Page
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PRELIMINARY STATEMENT..........................................................1
ARTICLE I DEFINITIONS, ETC.........................................1
Section 1.01. Certain Defined Terms...................................1
Section 1.02. Accounting Terms........................................1
Section 1.03. Computation of Time Periods.............................2
Section 1.04. References, Etc.........................................2
ARTICLE II COMMITMENTS AND TERMS OF CREDIT..........................3
Section 2.01. Commitments.............................................3
Section 2.02. Borrowing Procedures; Conversions.......................5
Section 2.03. Issuing and Reimbursing the Letters of Credit...........7
Section 2.04. The Notes..............................................11
Section 2.05. Reduction of the Commitments...........................11
Section 2.06. Mandatory Repayment of Loans...........................12
Section 2.07. Interest Accrual, Payments.............................14
Section 2.08. Optional Prepayments...................................16
Section 2.09. Payments, Notice of Certain Repayments and
Computations.........................................16
Section 2.10. Fees...................................................18
Section 2.11. Setoff, Counterclaims and Taxes........................19
Section 2.12. Funding Losses.........................................22
Section 2.13. Change of Law..........................................22
Section 2.14. Increased Costs........................................23
Section 2.15. Claims Certificate.....................................24
ARTICLE III CONDITIONS OF CREDIT.............................26
Section 3.01. Conditions Precedent to Effectiveness, the
Initial Borrowing....................................26
Section 3.02. Conditions Precedent to All Letters of Credit
and Loans............................................28
ARTICLE IV REPRESENTATIONS AND WARRANTIES..........................29
Section 4.01. Corporate Existence....................................29
Section 4.02. Corporate Authority; Binding Obligations...............29
Section 4.03. No Conflict............................................29
Section 4.04. No Consent.............................................30
Section 4.05. No Defaults or Violations of Law.......................30
Section 4.06. Financial Position.....................................30
Section 4.07. Litigation.............................................31
Section 4.08. Use of Proceeds........................................31
Section 4.09. Governmental Regulation................................31
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Section 4.10. Disclosure.............................................32
Section 4.11. ERISA..................................................32
Section 4.12. Payment of Taxes.......................................33
Section 4.13. Title and Liens........................................33
Section 4.14. Patents and Intellectual Property. ....................33
Section 4.15. Environmental Matters..................................33
Section 4.16. Security Interests.....................................34
Section 4.17. Labor Relations........................................34
Section 4.18. No Material Adverse Change.............................34
Section 4.19. Credit Parties as Percentage of Consolidated Entity....35
ARTICLE V AFFIRMATIVE COVENANTS...................................36
Section 5.01. Reporting Requirements.................................36
Section 5.02. Taxes; Claims..........................................39
Section 5.03. Compliance with Laws...................................39
Section 5.04. Insurance..............................................39
Section 5.05. Existence..............................................39
Section 5.06. Inspections............................................40
Section 5.07. Maintenance of Properties..............................40
Section 5.08. Accounting Systems.....................................40
Section 5.09. Use of Loans...........................................40
Section 5.10. Additional Guarantees and Stock Pledges................40
Section 5.11. Further Assurances in General..........................41
ARTICLE VI NEGATIVE COVENANTS......................................42
Section 6.01. Indebtedness Restriction...............................42
Section 6.02. Lien Restriction.......................................43
Section 6.03. Derivatives............................................44
Section 6.04. Financial Covenants....................................44
Section 6.05. Sales of Assets........................................45
Section 6.06. Consolidation and Mergers..............................45
Section 6.07. Restricted Disbursements...............................45
Section 6.08. Lines of Business......................................46
Section 6.09. Transactions with Affiliates...........................46
Section 6.10. Restrictions on Subsidiaries...........................47
ARTICLE VII DEFAULT AND REMEDIES....................................48
Section 7.01. Events of Default......................................48
Section 7.02. Setoff in Event of Default.............................51
Section 7.03. No Waiver; Remedies....................................51
Section 7.04. Enforcement............................................51
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ARTICLE VIII THE ADMINISTRATIVE AGENT, THE
SYNDICATION AGENT AND THE ISSUING BANK..................52
Section 8.01. Authorization and Action...............................52
Section 8.02. Reliance, Etc..........................................52
Section 8.03. Agents, Affiliates and Other Activities................53
Section 8.04. Bank Credit Decision...................................54
Section 8.05. Indemnification........................................54
Section 8.06. Employees..............................................55
Section 8.07. Successor Administrative Agent.........................55
Section 8.08. Successor Syndication Agent and Issuing Bank...........56
Section 8.09. Notice of Default......................................57
Section 8.10. Execution of Loan Documents............................57
ARTICLE IX GUARANTY................................................58
Section 9.01. Guaranty...............................................58
Section 9.02. Guaranty Absolute......................................58
Section 9.03. Waiver.................................................59
Section 9.04. Subrogation............................................60
Section 9.05. Continuing Guaranty....................................60
Section 9.06. Effect of Bankruptcy Proceeding........................60
Section 9.07. Further Responsibilities...............................61
Section 9.08. Subordination..........................................61
ARTICLE X MISCELLANEOUS...........................................62
Section 10.01. Amendments, Etc.......................................62
Section 10.02. Participation Agreements and Assignments;
Inter-Creditor Matters...............................62
Section 10.03. Notices...............................................65
Section 10.04. Costs and Expenses....................................67
Section 10.05. Successors and Assigns................................68
Section 10.06. Survival of Representations and Warranties............68
Section 10.07. Separability..........................................68
Section 10.08. Captions..............................................68
Section 10.09. Counterparts and Facsimile Signatures.................68
Section 10.10. Governing Law.........................................69
Section 10.11. Waiver of Jury Trial..................................69
Section 10.12. Submission to Jurisdiction............................69
Section 10.13. Limitation on Interest................................70
Section 10.14. Indemnification.......................................71
Section 10.15. Confidentiality.......................................72
Section 10.16. Judgment..............................................73
Section 10.17. Final Agreement of the Parties........................73
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ANNEXES; EXHIBITS AND SCHEDULES
Annex A Definitions
Exhibit 1.01-C Form of Subordination Agreement
Exhibit 2.02 Form of Borrowing Request
Exhibit 2.02 Form of Conversion Notice
Exhibit 2.03 Form of Letter of Credit Request
Exhibit 2.04(a) Form of Tranche A Note
Exhibit 2.04(b) Form of Tranche B Note
Exhibit 2.04(c) Form of Revolving Note
Exhibit 2.04(d) Form of Guilder Note
Exhibit 3.01(f) Letter of Termination
Exhibit 3.01(n) Form of Contribution and Indemnity Agreement
Exhibit 10.02 Form of Assignment and Acceptance Agreement
Schedule 1.01-A Agent Account
Schedule 1.01-B Borrower Account
Schedule 1.01-C Existing Letters of Credit
Schedule 4.01 Subsidiaries of the Parent and Related Information
Schedule 4.07 Litigation
Schedule 4.15 Environmental Disclosures
Schedule 5.10 Additional Guarantors
Schedule 6.01 Existing Indebtedness
Schedule 6.02 Existing Liens
Schedule 6.07(j) Existing Investments
Schedule 10.12 Address of Guarantors
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of May 12, 1997 is among CORE
LABORATORIES N.V., a Netherlands limited liability company (the "PARENT"), CORE
LABORATORIES, INC., a Delaware corporation (the "US BORROWER"), CORE
LABORATORIES (U.K.) LIMITED, a company organized under the laws of England and
Wales (the "UK BORROWER" and, together with the Parent and the US Borrower, the
"BORROWERS"), the banks named on the signature pages hereto (together with their
respective successors and assigns in such capacity, the "BANKS"), BANKERS TRUST
COMPANY, as administrative agent for the Banks (together with its successors and
assigns in such capacity, the "ADMINISTRATIVE AGENT") and NATIONSBANK, N.A., as
syndication agent for the Banks (together with its successors and assigns in
such capacity, the "SYNDICATION AGENT"), as the issuing bank with respect to the
Letters of Credit issued hereunder (together with its successors and assigns in
such capacity, the "ISSUING BANK"). Unless otherwise defined herein, all
capitalized terms used herein and defined in ARTICLE I are used herein as so
defined.
PRELIMINARY STATEMENT
The Borrowers have requested that the Banks provide (a) the
Parent with: (i) a $55,000,000 term loan facility, (ii) a $5,000,000 Equivalent
Dutch Guilder revolving credit facility and (iii) a $30,000,000 revolving credit
facility, (b) the US Borrower with a $20,000,000 revolving credit facility
providing for letters of credit and revolving loans, and (c) the UK Borrower
with a $15,000,000 Equivalent Pounds Sterling term loan facility, each of which
will be used as specified herein. The Banks have agreed to provide the Borrowers
with such credit facilities upon the terms and conditions set forth in this
Agreement.
Accordingly, in consideration of the foregoing and the mutual
covenants set forth herein, the parties agree as follows:
ARTICLE I
DEFINITIONS, ETC.
Section 1.01. CERTAIN DEFINED TERMS. Capitalized terms used in
this Agreement and not otherwise defined herein, shall have the respective
meanings set forth in ANNEX A (such meanings to be equally applicable to both
singular and plural forms of the terms defined).
Section 1.02. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed, and all financial calculations
shall be made, in accordance with GAAP consistent with those applied in the
preparation of the consolidated financial statements referred to in SECTION
4.06, PROVIDED, if any accounting changes made by any Borrower that are allowed
or required by GAAP result in the calculations that are utilized to compute the
compliance with
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SECTION 6.04 being inconsistent with such prior calculations, the affected
Borrower agrees to negotiate in good faith with the Administrative Agent and the
Syndication Agent to re-establish appropriate, meaningful ratios and covenants.
Section 1.03. COMPUTATION OF TIME PERIODS. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding."
Section 1.04. REFERENCES, ETC. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement or any Annex
or Exhibit attached hereto shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. All references herein to Articles,
Sections, Annexes, Exhibits and Schedules shall, unless the context requires a
different construction, be deemed to be references to the Articles and Sections
of this Agreement and the Annexes, Exhibits and Schedules attached hereto and
made a part hereof. In this Agreement, unless a clear contrary intention
appears, the word "including" (and with correlative meaning "include") means
including, without limiting the generality of any description preceding such
term. No provision of this Agreement shall be interpreted or construed against
any Person solely because that Person or its legal representative drafted such
provision.
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ARTICLE II
COMMITMENTS AND TERMS OF CREDIT
Section 2.01. COMMITMENTS. (a) TRANCHE A LOAN. Each Bank
severally agrees, on the terms and conditions hereinafter set forth, to make a
term loan to the Parent (a "TRANCHE A LOAN") on or promptly after the Effective
Date in an amount not to exceed such Bank's Tranche A Commitment. Each Tranche A
Loan shall be made as a Base Rate Loan or a Eurocurrency Rate Loan and as part
of a maximum of two Tranche A Borrowing made by the Banks ratably according to
their respective Commitment Percentages. Tranche A Loans, once repaid, may not
be reborrowed. Funding and maintenance of the Tranche A Loans shall be in
Dollars.
(b) TRANCHE B LOAN. Each Bank severally agrees, on the terms and
conditions hereinafter set forth, to make a term loan to the UK Borrower (a
"TRANCHE B LOAN") on or promptly after the Effective Date in an amount not to
exceed the Pounds Sterling Equivalent of such Bank's Tranche B Commitment as of
the Date of Determination. Each Tranche B Loan shall be made as a Eurocurrency
Rate Loan and as part of a maximum of two Tranche B Borrowing made by the Banks
ratably according to their respective Commitment Percentages. Tranche B Loans,
once repaid, may not be reborrowed. Subject to SECTION 2.13(A), funding and
maintenance of the Tranche B Loans shall be in Pounds Sterling.
(c) DOLLAR REVOLVING LOANS. (i) Each Bank severally agrees, on
the terms and conditions hereinafter set forth, to make one or more loans (each
a "DOLLAR REVOLVING LOAN") to the Parent and US Borrower from time to time on
any Business Day during the period from the Effective Date up to, but excluding,
the Termination Date in an aggregate amount outstanding for such Bank not to
exceed at any time an amount equal to such Bank's Dollar Revolving Commitment;
PROVIDED HOWEVER, that the portion of the Total Dollar Revolving Commitment
allocated to the Parent shall be $30,000,000 and the portion of the Total Dollar
Revolving Commitment allocated to the US Borrower shall be $20,000,000; and
neither such Borrower may borrow Dollar Revolving Loans if the aggregate amount
of all such Dollar Revolving Loans would be in excess of its allocated portion
of the Total Dollar Revolving Commitment. Each Dollar Revolving Loan shall be
made as either a Base Rate Loan or a Eurocurrency Rate Loan and as part of a
single Borrowing made on the same day by the Banks ratably according to their
respective Commitment Percentages. Each Base Rate Borrowing of Dollar Revolving
Loans shall be in an aggregate amount not less than $1,000,000, and in integral
multiples of $200,000 in excess thereof or, if less, the entire unfunded portion
of the Total Dollar Revolving Commitment. Each Eurocurrency Rate Borrowing of
Dollar Revolving Loans shall be in an aggregate amount not less than $1,000,000
and, in an integral multiple of $200,000 in excess thereof. Within the limits
set forth above and subject to the terms and conditions of this Agreement, the
Parent and the US Borrower may borrow, repay pursuant to SECTION 2.06 or prepay
pursuant to SECTION 2.08 and reborrow under this SECTION 2.01(C). All funding
and maintenance of the Dollar Revolving Loans shall be in Dollars.
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(ii) The Issuing Bank agrees, on the terms and conditions
hereinafter set forth, to issue standby or commercial letters of credit for the
account of the US Borrower, on behalf of it or any of its Affiliates and for the
benefit of any obligee of payment obligations of the US Borrower or any of its
Affiliates (the "LETTERS OF CREDIT") from time to time on any Business Day
during the period from the Effective Date up to, but excluding, the Termination
Date in an aggregate amount for all Outstanding Letters of Credit not exceeding
at any time the Letter of Credit Sublimit. Subject to SECTION 2.01(C)(III), a
Letter of Credit shall be denominated in any currency requested by the US
Borrower and agreeable to the Issuing Bank, shall expire no later than the date
set forth in SECTION 2.03(A), and shall be in such form as approved from time to
time by the Issuing Bank and the US Borrower. Each Bank severally agrees, on the
terms and conditions hereinafter set forth, to purchase participations in the
Letters of Credit issued by the Issuing Bank pursuant to this Agreement in an
amount equal to such Bank's Commitment Percentage in respect of the Total Dollar
Revolving Commitment of the face amount of such Letter of Credit. Upon the
issuance of each Letter of Credit and as of the Effective Date with respect to
the Existing Letters of Credit, the Issuing Bank shall be deemed, without
further action by any party hereto, to have sold to each Bank, and each Bank
shall be deemed, without further action by any party hereto, to have purchased
from the Issuing Bank, a participation, to the extent of such Bank's Commitment
Percentage in respect of the Total Dollar Revolving Commitment, in such Letter
of Credit and the Existing Letters of Credit, the obligations of the Issuing
Bank thereunder and in the reimbursement obligations of the US Borrower due in
respect of drawings made under such Letter of Credit or the Existing Letters of
Credit. The Banks will execute any other documents the Issuing Bank may
reasonably request to evidence the purchase of such participation. On each day
during the period commencing with the issuance by the Issuing Bank of any Letter
of Credit and as of the Effective Date with respect to the Existing Letters of
Credit and ending on the date when such Letter of Credit or Existing Letters of
Credit shall have expired or been terminated, and, irrespective of whether such
Letter of Credit or Existing Letters of Credit have expired or terminated if
such Letter of Credit or Existing Letters of Credit have been drawn upon and the
amount so drawn has not been reimbursed to the Issuing Bank, the Dollar
Revolving Commitment of each Bank shall be deemed to be utilized for all
purposes hereof in an amount equal to such Bank's Commitment Percentage in
respect of the Total Dollar Revolving Commitment of the Outstanding Letters of
Credit.
(iii) In regard to any Letter of Credit issued in a currency
other than Dollars, the following shall apply: (x) any presentation thereof
resulting in payments by the Issuing Bank thereunder shall be repaid to said
Issuing Bank, at the option of the US Borrower, in the currency in which said
payments were made by the Issuing Bank or in Dollars calculated on the date of
US Borrower's repayment thereof, (y) if the US Borrower tenders Dollars for the
Reimbursement Amount, then, unless such tender results in the actual receipt by
the Issuing Bank (acting reasonably and in good faith in converting such Dollars
into the currency in which said payments were made by the Issuing Bank) of the
Reimbursement Amount, the US Borrower shall also promptly pay to the Issuing
Bank an additional amount in Dollars as may be necessary to compensate and
indemnify the Issuing Bank for such shortfall (and if, for any reason, the
amount in Dollars so received exceeds the Reimbursement Amount, the Issuing Bank
will refund such excess), and (z) all calculations required by SECTION
2.01(C)(IV) shall be made, calculating the Dollar Equivalent of such non-Dollar
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Outstanding Letters of Credit as of the date of each such Borrowing Request or
Letter of Credit Request.
(iv) Notwithstanding any other term or provision hereof (A) no
Dollar Revolving Loan shall be made and no Letter of Credit shall be issued if
after giving effect thereto the aggregate amount of the Dollar Revolving Credit
Outstanding (not including Letters of Credit issued under SECTION 6.01(G)) would
exceed the Total Dollar Revolving Commitment; and (B) no Letter of Credit shall
be issued if, after giving effect thereto the aggregate amount of Outstanding
Letters of Credit would exceed the Letter of Credit Sublimit.
(d) GUILDER REVOLVING LOANS. Each Bank severally agrees, on the
terms and conditions hereinafter set forth, to make one or more loans (each a
"GUILDER REVOLVING LOAN") to the Parent from time to time on any Business Day,
during the period from the Effective Date up to but excluding the Termination
Date, in an aggregate amount outstanding for such Bank not to exceed at any
time, such Bank's Guilder Revolving Commitment, determined by reference to the
Equivalent thereof in Dollars on the relevant Date of Determination. Each
Guilder Revolving Loan shall be made as a Eurocurrency Rate Loan and as part of
a single Borrowing made on the same day by the Banks ratably according to their
respective Commitment Percentages. Each Borrowing of Guilder Revolving Loans
shall be in an aggregate amount not less than the Equivalent in Dutch Guilders
of $800,000 as of the Date of Determination and, in an integral multiple of the
Equivalent in Dutch Guilders of $200,000 in excess thereof. Within the limits
set forth above and subject to the terms and conditions of this Agreement, the
Parent may borrow, repay pursuant to SECTION 2.06 or prepay pursuant to SECTION
2.08 and reborrow under this SECTION 2.01(D). Subject to SECTION 2.13(A),
funding and maintenance of Guilder Revolving Loans shall be in Dutch Guilders.
(e) All Existing Letters of Credit, whether or not issued by the
Issuing Bank, shall be deemed to be Letters of Credit hereunder. Upon the
expiration of any Existing Letter of Credit, same shall be reissued only by the
Issuing Bank (or may be issued or reissued by another financial institution in
accordance with SECTION 6.01(G)) in accordance with the provisions of this
Agreement.
(f) Loans of more than one Type and, in the case of Revolving
Loans, in more than one currency, may be outstanding at the same time, but the
Borrowers shall not be entitled to request any Borrowing or to Convert Loans
comprising any Borrowing into Loans of another Type, if after giving effect to
such Borrowing or Conversion, as the case may be, any Bank would have
outstanding at any one time more than (i) two (2) different Types of Tranche A
Loans, (ii) two (2) different Types of Tranche B Loans, (iii) six (6) different
Types of Dollar Revolving Loans, and (iv) two (2) different Types of Guilder
Revolving Loans.
Section 2.02. BORROWING PROCEDURES; CONVERSIONS. (a) Each
Borrowing shall be made upon the written, telecopied or facsimile transmitted
request of the relevant Borrower, given to the Administrative Agent not later
than 11:00 a.m. (New York time) on (i) the third Business Day prior to the
proposed Borrowing Date in the case of a Eurocurrency Rate Borrowing denominated
in Dollars or Pounds Sterling, (ii) the fourth Business Day prior to the
proposed Borrowing Date in
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the case of a Eurocurrency Rate Borrowing denominated in Dutch Guilders, or
(iii) the Business Day prior to the proposed Borrowing Date in the case of a
Base Rate Borrowing. The Administrative Agent shall give each other member of
the Bank Group prompt notice of such request by telecopier, telex or cable. Each
request for a Borrowing (a "BORROWING REQUEST") shall specify therein (A) the
Borrowing Date for such Borrowing, (B) the requested Type of Loans comprising
such Borrowing, (C) the aggregate amount of such Borrowing, (D) in the case of a
Eurocurrency Rate Borrowing, the Interest Period for the Loans comprising such
Borrowing and (E) in the case of a Revolving Loan, whether such Revolving Loan
is to be a Dollar Revolving Loan or a Guilder Revolving Loan. Each Borrowing
Request shall be substantially in the form of EXHIBIT 2.02(A). Each Bank shall,
before 12:00 Noon (New York time) on the date of such Borrowing, make available
for the account of its Applicable Lending Office to the Administrative Agent at
the applicable Agent Account in same day funds, such Bank's Commitment
Percentage of such Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in ARTICLE
III, the Administrative Agent will, not later than 3:00 p.m. (New York time) on
the date of such Borrowing, make such funds available to the relevant Borrowing
at the applicable Borrower Account as is reasonably acceptable to the
Administrative Agent and as such Borrower shall have specified in the related
Borrowing Request. Each Borrowing Request shall be irrevocable and binding on
the Borrower delivering the same.
(b) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank's Commitment Percentage of such
Borrowing, the Administrative Agent may assume that such Bank has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this SECTION 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower requesting
such Borrowing on such date a corresponding amount. If and to the extent that
such Bank shall not have so made its Commitment Percentage of such Borrowing
available to the Administrative Agent, such Bank and the Borrower requesting
such Borrowing severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount, together with interest thereon for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of such
Borrower, the interest rate applicable at the time to the Loans comprising such
Borrowing and (ii) in the case of such Bank, the Federal Funds Rate. If such
Bank shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan as part of such Borrowing for
purposes of this Agreement, and such Borrower shall be relieved of the
obligation to repay such amount under this SECTION 2.02(B). The failure of any
Bank to make the Loan to be made by it as part of any Borrowing shall not
relieve any other Bank of its obligation, if any, hereunder to make its Loan on
the date of such Borrowing or any subsequent Borrowing Date, but no Bank shall
be responsible for the failure of any other Bank to make the Loan to be made by
such other Bank on the date of any Borrowing.
(c) Each Borrower may, subject to the terms of this Agreement,
upon written, telecopied or facsimile transmitted notice (a "CONVERSION NOTICE")
to the Administrative Agent, given not later than the times specified below on
any Business Day on which no Default or Event
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of Default has occurred and is continuing, Convert all Loans comprising one or
more Borrowings from its credit facility hereunder into one or more Borrowings
comprised of Loans from the same credit facility so long as, after giving effect
to any such Conversion, each Borrowing resulting from such Conversion is
comprised of Loans denominated in the same currency and, in the case of each
Borrowing comprised of Eurocurrency Rate Loans, having not more than two (2)
separate Interest Periods for each such Loan. The Administrative Agent shall
promptly transmit the contents of such Conversion Notice to each other member of
the Bank Group by telecopier, telex or cable. Notwithstanding any other term or
provision hereof, after giving effect to any such Conversion, the size of all
Borrowings outstanding hereunder, and the number of different Types of Loans
outstanding hereunder, shall conform to the requirements of SECTION 2.01. In the
event of any Conversion of Eurocurrency Rate Loans on any day other than the
last day of the Interest Period applicable thereto, the Borrower requesting the
same shall be obligated, if necessary, to reimburse the Banks in respect thereof
pursuant to SECTION 2.12. Each Conversion Notice must be given not later than
11:00 a.m. (New York time) on (i) the third Business Day prior to the proposed
Conversion Date in the case of a Conversion of Dollar denominated Base Rate
Loans into Dollar denominated Eurocurrency Rate Loans or of Dollar denominated
Eurocurrency Rate Loans of one Interest Period into Dollar denominated
Eurocurrency Rate Loans of another Interest Period, or (ii) the fourth Business
Day prior to the date of the proposed Conversion in the case of a Conversion of
Foreign Currency denominated Eurocurrency Rate Loans of one Interest Period into
Foreign Currency denominated Eurocurrency Rate Loans of another Interest Period,
or (iii) the Business Day immediately preceding the proposed Conversion Date in
the case of a Conversion of Eurocurrency Rate Loans denominated in Dollars into
Base Rate Loans. Each notice of a Conversion given by a Borrower shall specify
(A) the Conversion Date for such Conversion, (B) the Loans to be Converted, (C)
the Type of Loans to which such Loans are to be Converted, (D) the currency of
the Loans to be Converted and (E) in the case of a Conversion into Eurocurrency
Rate Loans, the Interest Period for such Converted Loans, and shall be in
substantially the form of EXHIBIT 2.02(C). If a Borrower shall fail to give a
timely Conversion Notice conforming to the requirements of this Agreement with
respect to any Eurocurrency Rate Loans denominated in Dollars prior to the
expiration of the Interest Period applicable thereto, such Eurocurrency Rate
Loans shall, automatically on the last day of such Interest Period, be Converted
into Base Rate Loans. If a Borrower shall fail to give a timely Conversion
Notice conforming to the requirements of this Agreement with respect to any
Eurocurrency Rate Loans denominated in a Foreign Currency prior to the
expiration of the Interest Period applicable thereto, such Eurocurrency Rate
Loans shall, automatically on the last day of such Interest Period, be converted
into a Eurocurrency Rate Loan with an Interest Period of one month. Each
Conversion Notice shall be irrevocable and binding on the Borrower requesting
such Conversion.
Section 2.03. ISSUING AND REIMBURSING THE LETTERS OF CREDIT. (a)
Each Letter of Credit shall, subject to the terms of this Agreement, be issued
upon the written, facsimile transmitted request (an original of which shall be
immediately forwarded by overnight courier to the Issuing Bank) or such other
computerized issuance or application procedure, instituted from time to time by
the Issuing Bank and agreed to by the US Borrower, of the US Borrower given to
the Issuing Bank not later than 12:00 noon (New York time) on the third Business
Day prior to the proposed date of
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issuance of such Letter of Credit. Each such request for a Letter of Credit (a
"LETTER OF CREDIT REQUEST") made by the US Borrower shall be substantially in
the form of EXHIBIT 2.03 hereto and shall specify the Business Day on which such
Letter of Credit is to be issued, the currency of such Letter of Credit, the
beneficiary of such Letter of Credit, the amount of such Letter of Credit, the
draw conditions applicable thereto and the Person on whose behalf the Letter of
Credit is to be issued, and shall provide for an expiry date which is not later
than thirty (30) months from the issuance date and each Letter of Credit which
is self-extending beyond its expiration date must be cancelable upon at least
thirty (30) days notice given by the Issuing Bank to the beneficiary of such
Letter of Credit. Such request shall also include any documents that the Issuing
Bank has specified in writing to the US Borrower that it customarily requires in
connection therewith to the extent such documents are applicable. No Letter of
Credit may have an expiry date later than twelve (12) months after the
Termination Date.
(b) Upon satisfaction of the applicable terms and conditions set
forth in ARTICLE III, the Issuing Bank shall issue such Letter of Credit to the
specified beneficiary not later than the close of business (New York time) on
the date so specified. The Issuing Bank shall promptly provide to the Agent for
distribution to, or directly to, each other member of the Bank Group a summary
report of all Outstanding Letters of Credit issued by the Issuing Bank upon the
issuance of each Letter of Credit, at the end of each calendar month or at such
other times as reasonably requested by a member of the Bank Group, but any
failure of the Issuing Bank to provide such Persons with a copy of such report
or Letter of Credit shall not in any way affect the US Borrower's obligation to
reimburse the Issuing Bank for any amount paid by the Issuing Bank under any
Letter of Credit or the Banks' obligations to reimburse the Issuing Bank for
such amount, to the extent provided herein, in the event the US Borrower fails
to do so. Each such Letter of Credit shall (i) provide for the payment of drafts
or other forms of demand to be presented for honor thereunder by the beneficiary
in accordance with the terms thereof, at sight when accompanied by the documents
described therein; and (ii) be subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, (or any subsequent revisions thereof approved by a Congress
of the International Chamber of Commerce and adhered to by the Issuing Bank)
(the "UCP"); and (iii) as to matters not governed by the UCP, be governed by,
and construed and interpreted in accordance with, the governing law specified in
this Agreement.
(c) Upon presentment to the Issuing Bank of any demand for honor
under any Letter of Credit by the beneficiary thereof and the determination by
the Issuing Bank that such demand is in order, the Issuing Bank shall give
prompt notice (a "REIMBURSEMENT NOTICE") to the US Borrower of (i) the Letter of
Credit to which such Reimbursement Notice relates, (ii) the amounts and the
currency to be paid on account of such demand (the "REIMBURSEMENT AMOUNT") and
(iii) the date on which such amounts are to be paid (the "REIMBURSEMENT DATE"),
but any failure to so notify the US Borrower shall not in any way affect the US
Borrower's obligations to reimburse the Issuing Bank for any amount paid by the
Issuing Bank under any Letter of Credit. In determining whether to pay under any
Letter of Credit, the Issuing Bank shall not have any obligation relative to the
US Borrower and the Banks other than the obligations imposed on issuing banks
under the UCP and
-8-
applicable law. Any action taken or omitted to be taken by the Issuing Bank
under or in connection with any Letter of Credit, if taken or omitted in the
absence of gross negligence or willful misconduct (as determined by a court of
competent jurisdiction by final and non-appealable judgment), shall not create
for the Issuing Bank any resulting liability to the US Borrower or the Banks, IT
BEING UNDERSTOOD THAT ANY ACT OR OMISSION CONSTITUTING ORDINARY NEGLIGENCE
(WHETHER SOLE OR CONTRIBUTORY) SHALL NOT RESULT IN ANY RESULTING LIABILITY FOR
THE ISSUING BANK.
(d) Upon receipt of any Reimbursement Notice, the US Borrower
shall reimburse the Issuing Bank by forthwith paying to the Administrative Agent
for the benefit of the Issuing Bank (who shall promptly notify the Issuing Bank
of such payment) no later than 10:00 a.m. (New York time) on the Reimbursement
Date specified in such Reimbursement Notice an amount equal to the Reimbursement
Amount specified in such Reimbursement Notice, together with interest from such
Reimbursement Date until such reimbursement is made by the US Borrower at a
fluctuating rate per annum equal to the lesser of (i) the Highest Lawful Rate
and (ii) the Base Rate in effect during the time such reimbursement obligation
remains unpaid PLUS the Applicable Margin for Base Rate Loans from such
Reimbursement Date until the third day immediately following the delivery of
such Reimbursement Notice by the Issuing Bank to the US Borrower and thereafter,
the Default Rate. To the extent availability may then exist, and upon compliance
with the relevant terms and conditions of this Agreement, the US Borrower may
repay any or all of the obligations described in this paragraph by requesting a
Borrowing and applying the proceeds thereof accordingly, together with any
amounts owed under SECTION 2.01(C)(III)(Y).
(e) If the US Borrower shall fail to reimburse the Issuing Bank
for any payment by the Issuing Bank under a Letter of Credit by 12:00 noon. (New
York time) on the Reimbursement Date specified in the Reimbursement Notice
related thereto, the Administrative Agent shall give prompt notice thereof to
each other member of the Bank Group. Upon receipt of such notice, each Bank
shall, notwithstanding any other provision of this Agreement (including the
occurrence and continuance of a Default or an Event of Default), make available
to the Administrative Agent for the benefit of the Issuing Bank an amount equal
to its Commitment Percentage of the Reimbursement Amount and in the same
currency as specified in the related Reimbursement Notice no later than the
close of business on such Reimbursement Date. If such Reimbursement Amount is
not in fact made available to the Administrative Agent by such Bank on such
Reimbursement Date, such Bank shall pay to the Administrative Agent for the
account of the Issuing Bank, on demand made by the Issuing Bank, in addition to
such Reimbursement Amount, interest on such amount for the number of days that
elapse from such Reimbursement Date to the date on which the amount equal to
such Bank's Commitment Percentage of such Reimbursement Amount becomes
immediately available to the Issuing Bank at a rate per annum equal to the
average daily Federal Funds Rate for such days. Any amount received by the
Administrative Agent or the Issuing Bank from the US Borrower in respect of a
demand honored under a Letter of Credit after one or more of the Banks have made
funds available for the payment of such demand pursuant to this paragraph shall
be paid over by the Administrative Agent or the Issuing Bank, as the case may
be, to such Banks, pro rata according to the amounts so made available by such
Banks, promptly upon receipt by the Administrative Agent
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or the Issuing Bank of such amount. Nothing in this Agreement shall diminish the
US Borrower's obligation under this Agreement to provide the funds for the
payment of, or on demand to reimburse the Issuing Bank for payment of, any
demand presented to, and duly honored by, the Issuing Bank under any Letter of
Credit.
(f) In order to induce the issuance of Letters of Credit by the
Issuing Bank and the purchase of participations therein by the Banks, the US
Borrower irrevocably agrees (i) that the obligation of the US Borrower to
reimburse the Issuing Bank for amounts paid by the Issuing Bank under any Letter
of Credit, including accrued interest thereon, as set forth herein is absolute
and unconditional, (ii) that no member of the Bank Group shall be responsible or
liable for, and the US Borrower's unconditional obligation to reimburse the
Issuing Bank through the Administrative Agent for amounts paid by the Issuing
Bank on account of demands duly honored under the Letters of Credit shall not be
affected by, any circumstance, act or omission whatsoever relating to any Letter
of Credit, whether or not known to any member of the Bank Group, unless such
circumstance, act or omission results in the wrongful payment of any Letter of
Credit and such circumstance, act or omission constitutes the gross negligence
or willful misconduct (as determined by a court of competent jurisdiction by
final and non-appealable judgment) on the part of such member of the Bank Group,
(iii) that any action taken or omitted to be taken by any member of the Bank
Group under or in connection with any Letter of Credit or any related demand,
document or property shall be binding on the US Borrower and shall not put any
member of the Bank Group under any resulting liability to the US Borrower,
unless such action or omission results in the wrongful payment of any Letter of
Credit and such action or omission constitutes the gross negligence or willful
misconduct (as determined by a court of competent jurisdiction by final and
non-appealable judgment) on the part of such member of the Bank Group and (iv)
to indemnify, defend and hold each member of the Bank Group harmless from and
against any and all liabilities, damages, claims or reasonable expenses
(including reasonable attorneys' fees and amounts paid in settlement) arising
out of or based on any Letter of Credit, except to the extent the same is the
result of the wrongful payment of any Letter of Credit and such wrongful payment
constitutes gross negligence or willful misconduct (as determined by a court of
competent jurisdiction by final and non-appealable judgment) on the part of the
Person seeking indemnity hereunder, IT BEING THE EXPRESS INTENTION OF THE US
BORROWER THAT EACH MEMBER OF THE BANK GROUP SHALL BE INDEMNIFIED AND HELD
HARMLESS AGAINST AND SHALL NOT HAVE ANY LIABILITY OR OBLIGATION FOR ANY AND ALL
LIABILITIES, CLAIMS, OR REASONABLE EXPENSES ARISING OUT OF OR RESULTING FROM THE
ORDINARY NEGLIGENCE (WHETHER SOLE, CONCURRENT, OR CONTRIBUTORY) OF SUCH MEMBER
OF THE BANK GROUP. The US Borrower hereby waives presentment for payment and
notice of dishonor, protest and notice of protest with respect to demands
honored under the Letters of Credit.
(g) The provisions of this Agreement and the other Loan Documents
concerning collateral, timing of payments, interest rates applicable to any
reimbursement obligation relating to any Letter of Credit, any representations,
warranties, covenants, events of default, remedies and governing law shall
supersede in their entirety the provisions of any Letter of Credit application
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relating to such matters. In the event any other provision of any Letter of
Credit application is inconsistent with, or in conflict of any provision of this
Agreement or any Loan Documents, the provisions of this Agreement or the Loan
Documents shall govern.
Section 2.04. THE NOTES. (a) The Tranche A Loans made by each
Bank shall be evidenced by a single Tranche A Note issued to such Bank by the
Parent, (i) dated the date of this Agreement (or such other date as may be
specified in SECTION 10.02), (ii) payable to the order of such Bank and (iii)
otherwise duly completed.
(b) The Tranche B Loans made by each Bank shall be evidenced by a
single Tranche B Note issued to such Bank by the UK Borrower, (i) dated the date
of this Agreement (or such other date as may be specified in SECTION 10.02),
(ii) payable to the order of such Bank and (iii) otherwise duly completed.
(c) The Dollar Revolving Loans made by each Bank shall be
evidenced by Dollar Revolving Notes issued to such Bank by each of the Parent
and the US Borrower, (i) dated the date of this Agreement (or such other date as
may be specified in SECTION 10.02), (ii) payable to the order of such Bank and
(iii) otherwise duly completed. Each Dollar Revolving Loan made by a Bank to the
Parent or the US Borrower and all payments made on account of the principal
amount thereof shall be entered by such Bank in its records or on the schedule
(or a continuation thereof) attached to the appropriate Dollar Revolving Note of
such Bank, PROVIDED, that prior to any transfer of any such Dollar Revolving
Note, such Bank shall endorse the amount and maturity of any outstanding Dollar
Revolving Loans on the schedule (or a continuation thereof) attached to such
Dollar Revolving Note.
(d) The Guilder Revolving Loans made by each Bank shall be
evidenced by a single Guilder Revolving Note issued to such Bank by the Parent,
(i) dated the date of this Agreement (or such other date as may be specified in
SECTION 10.02), (ii) payable to the order of such Bank and (iii) otherwise duly
completed. Each Guilder Revolving Loan made by a Bank to the Parent and all
payments made on account of the principal amount thereof shall be entered by
such Bank in its records or on the schedule (or a continuation thereof) attached
to the Guilder Revolving Note of such Bank, PROVIDED, that prior to any transfer
of any such Guilder Revolving Note, such Bank shall endorse the amount and
maturity of any outstanding Guilder Revolving Loans on the schedule (or a
continuation thereof) attached to such Guilder Revolving Note.
Section 2.05. REDUCTION OF THE COMMITMENTS. (a) The Parent or the
US Borrower shall have the right, upon at least three Business Days' notice to
the Administrative Agent to terminate in whole or reduce ratably in part the
unused portion of the Total Dollar Revolving Commitment; PROVIDED, that each
partial reduction in the Total Dollar Revolving Commitment shall be in the
aggregate amount of $2,000,000 or an integral multiple of $1,000,000 in excess
thereof. Any such reduction or termination shall be irrevocable.
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(b) The Parent shall have the right, upon at least three Business
Days' notice to the Administrative Agent to terminate in whole or reduce ratably
in part the unused portion of the Total Guilder Revolving Commitment; PROVIDED,
that each partial reduction in the Total Guilder Revolving Commitment shall be
in the aggregate amount of $1,000,000 or an integral multiple thereof. Any such
reduction or termination shall be irrevocable.
(c) Immediately following the funding of the Tranche A Loans, the
Tranche A Commitment of each Bank shall terminate and no further Tranche A Loans
shall be funded. If the Tranche A Loans have not been funded by May 16, 1997,
the Tranche A Commitment of each Bank shall terminate.
(d) Immediately following the funding of the Tranche B Loans, the
Tranche B Commitment of each Bank shall terminate and no further Tranche B Loans
shall be funded. If the Tranche B Loans have not been funded by May 30, 1997,
the Tranche B Commitment of each Bank shall terminate.
Section 2.06. MANDATORY REPAYMENT OF LOANS. (a) On each Scheduled
Payment Date, (i) the Parent shall repay the Tranche A Loans in an amount equal
to the Repayment Percentage for such Scheduled Payment Date of the aggregate
amount of Tranche A Loans funded pursuant to SECTION 2.01(A), rounded upward to
the nearest $50,000, and (ii) the UK Borrower shall repay the Tranche B Loans in
an amount equal to the Repayment Percentage for such Scheduled Payment Date of
the aggregate amount of Tranche B Loans funded pursuant to SECTION 2.01(B),
rounded upward to the nearest $50,000. Any prepayments of Tranche A Loans or
Tranche B Loans shall be applied against the remaining scheduled installments
required under this Section 2.06(a) on a pro rata basis. As used herein,
"REPAYMENT PERCENTAGE" means, for any Scheduled Payment Date, the percentage
specified below for such Scheduled Payment Date:
Scheduled Payment Date Repayment Percentage
---------------------- --------------------
March 31, 1999 5%
June 30, 1999 5%
September 30, 1999 5%
December 31, 1999 5%
March 31, 2000 7.5%
June 30, 2000 7.5%
September 30, 2000 7.5%
December 31, 2000 7.5%
March 31, 2001 7.5%
June 30, 2001 7.5%
September 30, 2001 7.5%
December 31, 2001 7.5%
March 31, 2002 10%
June 30, 2002 10%
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(b) (i) The US Borrower or the Parent, as applicable, shall from
time to time repay (or, in the case of Outstanding Letters of Credit (other than
those outstanding pursuant to SECTION 6.01(G)), provide Cover) for any Dollar
Revolving Credit Outstanding (other than Letters of Credit issued under SECTION
6.01(G)) or any amount outstanding under a Guilder Revolving Loan in such
amounts as shall be necessary so that at all times the Dollar Revolving Credit
Outstanding (not including Letters of Credit issued under SECTION 6.01(G)) shall
not be in excess of the Total Dollar Revolving Commitment and the amounts
outstanding under the Guilder Revolving Loans shall not exceed the Total Guilder
Revolving Commitment.
(ii) If a Default has occurred and is continuing, then the US
Borrower shall immediately, following a request therefor, provide Cover
for any Outstanding Letter of Credit (other than Letters of Credit
issued under SECTION 6.01(G)) necessary so that at all times the
Outstanding Letters of Credit (other than those outstanding under
SECTION 6.01(G)) shall not be in excess of the Letter of Credit
Sublimit. Any repayment or Cover required by this SECTION 2.06(B) shall
be due and payable on the date such repayment or Cover obligation
accrues pursuant to the preceding subparagraphs.
(c) (i) Any Net Sales Proceeds or Casualty Proceeds received by
or on behalf of any Borrower shall be utilized: (A) to make an investment in
other assets to be used in said Borrower's business with the proceeds thereof or
to rebuild or replace the asset sold, destroyed, damaged or taken, with such
rebuilding or replacement to commence within 180 days of the loss or sale and be
pursued diligently thereafter, or (B) if no such rebuilding or replacement is to
occur, and the amount of such proceeds is in excess of $250,000, all of said
proceeds (not merely the excess over $250,000) shall be used to reduce all
remaining scheduled payments of the Loans of the Borrower owning such asset on a
pro rata basis. If said Borrower is the Parent, the Loan reduced shall be the
Tranche A Loan;
(ii) any Net Sales Proceeds, Debt Proceeds or Casualty Proceeds
received by or on behalf of any non-Borrower Credit Party may be
utilized in the same manner described in subparagraph (c)(i) above, or,
if not so utilized shall be applied on a pro rata basis, first, to
reduce payments due on the Tranche A Loan, second, to reduce payments
due on the Tranche B Loan, in each case, pro-rata on the remaining
installments due, and third, to reduce amounts outstanding on either of
the Revolving Credit Loans as the Parent may elect subject to the
provisions of SECTION 9.01(B); and
(iii) any Debt Proceeds shall be utilized to reduce payments due
of the Loans of the Borrower receiving same pro-rata on the remaining
installments due, and, if said Borrower is the Parent, the Loan reduced
shall be the Tranche A Loan.
(d) In the event that the US Borrower shall be required pursuant
to this SECTION 2.06 to repay or provide Cover for Dollar Revolving Credit
Outstanding, the US Borrower
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shall make such repayment and provide such Cover in the following order: (i)
first, to pay the amount of all unreimbursed drawings under any Letters of
Credit, (ii) second, to repay the principal of any of its Base Rate Loans, (iii)
third, to repay the principal of any of its Eurocurrency Rate Loans, (iv)
fourth, to provide Cover for the undrawn portion of any Letters of Credit. Any
cash delivered as Cover pursuant to this SECTION 2.06(D) shall be placed in an
interest bearing account, for the benefit of the US Borrower, selected by the
Administrative Agent; and so long as no Default has occurred and is continuing,
any accrued interest or dividends paid on all Cover shall be distributed monthly
to the US Borrower, PROVIDED, such distribution shall be suspended during a
period in which a Default has occurred and is continuing.
(e) All outstanding Loans shall be fully due and payable on the
Termination Date.
(f) Each repayment of Loans required by this SECTION 2.06 shall
be accompanied by payment of accrued interest to the date of such payment on the
principal amount paid. In the event of any payment of a Eurocurrency Rate Loan,
the Borrower making such payment shall be obligated to reimburse the Banks for
funding losses, if any, pursuant to SECTION 2.12.
(g) Any Borrowing under a Loan shall be repaid in the same
currency in which said Borrowing was advanced.
Section 2.07. INTEREST ACCRUAL, PAYMENTS. (a) ACCRUAL AND
PAYMENT. Subject to the provisions of SECTION 10.13, each Borrower shall pay
interest on the unpaid principal amount of each Loan made by each Bank to such
Borrower from the Borrowing Date of such Loan until such principal amount shall
be paid in full, on the dates and at the rates per annum specified as follows:
(i) BASE RATE LOANS. If such Loan is a Base Rate Loan, a rate per
annum equal at all times to the lesser of (A) the Highest Lawful Rate
and (B) the Base Rate in effect from time to time PLUS the Applicable
Margin in effect from time to time for Base Rate Loans, and unpaid
accrued interest on such Loans shall be due and payable on each Payment
Date and on the date such Base Rate Loan shall be paid in full or
Converted.
(ii) EUROCURRENCY RATE LOANS. If such Loan is a Eurocurrency Rate
Loan, a rate per annum equal at all times during the Interest Period for
such Loan to the lesser of (A) the Highest Lawful Rate and (B) the sum
of the Eurocurrency Rate for such Interest Period PLUS the Applicable
Margin in effect as of the first day of such Interest Period for
Eurocurrency Rate Loans, and unpaid accrued interest on such Loans shall
be due and payable the last day of such Interest Period and, in the case
of an Interest Period longer than three months, on the date occurring
every three months after the first day of such Interest Period, and on
the date such Eurocurrency Rate Loan shall be paid in full or Converted.
Any amount of principal or, to the extent permitted by applicable law, interest
which is not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest from the date on which such amount is due until
such amount is paid in full, at a rate per annum equal at all times
-14-
to the lesser of (A) the Highest Lawful Rate and (B) the Base Rate in effect
from time to time during the applicable period PLUS the Applicable Margin in
effect from time to time during such period PLUS two percent (2%) (the "DEFAULT
RATE"), payable on demand.
(b) DETERMINATION OF INTEREST RATES. (i) The Administrative Agent
shall give prompt notice to each Borrower and each other member of the Bank
Group of the applicable interest rate determined by the Administrative Agent
hereunder for each Borrowing. Each determination by the Administrative Agent of
an interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(ii) If the Majority Banks shall, at least one Business Day
before the date of any requested Eurocurrency Rate Borrowing, notify the
Administrative Agent that the Eurocurrency Rate applicable to such Borrowing
will not adequately reflect the cost to such Banks of making, funding or
maintaining their respective Eurocurrency Rate Loans for such Borrowing in the
currency requested, the right of the Borrowers to select Eurocurrency Rate Loans
for such Borrowing in such currency or any subsequent Borrowing in such currency
shall be suspended until the Administrative Agent shall notify the Borrowers and
each other member of the Bank Group that the circumstances causing such
suspension no longer exist, and each Loan denominated in Dollars comprising such
Borrowing shall be made as, or Converted into, as applicable, a Base Rate Loan
and each Loan denominated in a Foreign Currency shall be exchanged for the
Equivalent thereof in Dollars and converted into Base Rate Loans.
(c) As used herein, "APPLICABLE MARGIN" means, and "Commitment
Fee," means, for any day, (subject to SECTION 2.10), at such time as the Margin
Ratio is in one of the following ranges, the percentage per annum set forth
opposite such Margin Ratio:
Commitment Fee
Subsequent to
Margin Ratio Eurocurrency Margin Base Rate Margin December 31, 1997
------------ ------------------- ---------------- -----------------
Less than 2.0 to 1.0 .75% 0% .25%
Equal to or greater than 2.0 to 1.0
but less than 2.5 to 1.0 1.00% 0% .25%
Equal to or greater than 2.5 to 1.0
but less than 3.0 to 1.0 1.25% .25% .375%
Equal to or greater than 3.0 to 1.0
but less than 3.5 to 1.0 1.50% .50% .375%
Equal to or greater than 3.5 to 1.0 1.75% .75% .375%
(d) For purposes hereof, "MARGIN RATIO" means, as of any date,
the ratio of (i) the Parent's total consolidated Indebtedness as of the calendar
quarter ending on such date, to (ii) its consolidated EBITDA for the twelve
month period ending on the last day of such calendar quarter.
The Margin Ratio set forth in the most recent Margin Ratio
Certificate delivered to the Administrative Agent shall, for purposes of
determining the Applicable Margin, be in effect from
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the second business day after the date such Margin Ratio Certificate is
delivered (or is required to be delivered), until the second business day after
the next such Margin Ratio Certificate is delivered (or is required to be
delivered), with the following exceptions: (a) if the Administrative Agent in
good faith determines that the calculations of the Margin Ratio reflected in any
Margin Ratio Certificate are not accurate, the Administrative Agent may correct
any error and calculate the appropriate Margin Ratio (and promptly give the
Borrowers notice thereof with supporting documentation and calculations), (b) if
the Parent fails to deliver any Margin Ratio Certificate when due, the Margin
Ratio shall be deemed to be greater than 3.5 to 1.0 until such Margin Ratio
Certificate is delivered, and (c) for the period commencing on the Execution
Date and ending on the date the first Margin Ratio Certificate is due hereunder,
the Margin Ratio shall be deemed to be 3.5 to 1.0.
Section 2.08. OPTIONAL PREPAYMENTS. (a) Each Borrower may, from
time to time on any Business Day, upon notice to the Administrative Agent
stating the proposed date and aggregate principal amount thereof, and if such
notice is given such Borrower shall, prepay the outstanding principal amount of
the Base Rate Loans made to such Borrower and comprising part of the same
Borrowing in whole or ratably in part; PROVIDED, that any partial prepayment of
such Base Rate Loans shall be in an aggregate principal amount of not less than
$2,000,000. Each Borrower may from time to time upon at least three Business
Days' notice to the Administrative Agent stating the proposed date and the
aggregate principal amount thereof, and if such notice is given such Borrower
shall, prepay the outstanding principal amount of the Eurocurrency Rate Loans
made to such Borrower and comprising part of the same Borrowing in whole or
ratably in part; PROVIDED, that any partial prepayment of such Eurocurrency Rate
Loans shall be in an aggregate principal amount of not less than $2,000,000 or
an integral multiple of $1,000,000 in excess thereof (or, in the case of Foreign
Currency denominated Loans, the Equivalent thereof in Dollars as of the Date of
Determination).
(b) Each prepayment of Loans made pursuant to this SECTION 2.08
shall be accompanied by a payment of accrued interest to the date of such
prepayment on the principal amount prepaid. In the event of any prepayment of a
Eurocurrency Rate Loan, the Borrower making such prepayment shall be obligated
to reimburse the Banks for funding losses, if any, pursuant to SECTION 2.12.
Section 2.09. PAYMENTS, NOTICE OF CERTAIN REPAYMENTS AND
COMPUTATIONS. (a) Except with respect to principal of, interest on and other
amounts arising from, or incurred in respect of, Loans or Letters of Credit
denominated in a Foreign Currency, all payments of principal, interest,
commitment fees and other amounts hereunder, under the Notes and the other Loan
Documents shall be made in Dollars to the Administrative Agent at the applicable
Agent Account in immediately available funds not later than 11:00 a.m. (New York
time) on the date when due. Unless otherwise specified herein, all payments of
principal, interest and other amounts hereunder, under the Notes and the other
Loan Documents denominated in a Foreign Currency shall be made in the same
Foreign Currency to the Administrative Agent (or the Issuing Bank with respect
to Letters of Credit) at the applicable Agent Account in immediately available
funds not later than 11:00 a.m. (at
-16-
the time of the jurisdiction in which the applicable Agent's Account for such
Foreign Currency is located) on the date when due. Upon receipt of such
payments, the Administrative Agent will promptly cause to be distributed like
funds and in like currencies relating to the payment of principal or interest or
commitment fees ratably (other than amounts payable pursuant to SECTION 2.11,
SECTION 2.12, SECTION 2.13 or SECTION 2.14) to the Banks, for the account of
their respective Applicable Lending Offices, and like funds in like currencies
relating to the payment of any other amount payable to any Bank, to such Bank
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement.
(b) Unless the Administrative Agent shall have received notice
from the Borrower required to make any payment hereunder prior to the date on
which any payment is due to the Banks under the Loan Documents that such
Borrower will not make such payment in full, the Administrative Agent may assume
that such Borrower has made such payment in full to the Administrative Agent on
such date and the Administrative Agent may, in reliance upon such assumption,
cause to be distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent such Borrower shall not have
made such payment in full to the Administrative Agent, each Bank shall repay to
the Administrative Agent forthwith on demand such amount distributed to such
Bank, together with interest thereon for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent at the Federal Funds Rate.
(c) All payments by the Borrowers of the fees payable to the
Administrative Agent or the Issuing Bank shall be made in Dollars directly to
such Person at its address specified in SECTION 10.03 in immediately available
funds not later than 11:00 a.m. (New York time) on the date when due.
(d) All computations of interest based on the Prime Rate shall be
made on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Eurocurrency Rate or the Federal Funds
Rate shall be made on the basis of a year of 360 days (unless use of a 360 day
year would cause the interest contracted for, charged or received hereunder to
exceed the Highest Lawful Rate, in which case such computations shall be made on
the basis of a year of 365 or 366 days, as the case may be), in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or commitment fees are payable.
(e) Whenever any payment under the Loan Documents shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be;
PROVIDED, if such extension would cause payment of interest on or principal of
Eurocurrency Rate Loans to be made in the next following calendar month, such
payment shall be made on the immediately preceding Business Day.
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(f) If any Bank shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of setoff, or otherwise) on
account of the Loans made by it (other than pursuant to SECTION 2.11, SECTION
2.12, SECTION 2.13 or SECTION 2.14), or payments by the Issuing Bank made
pursuant to SECTION 2.03, in excess of its ratable share of payments on account
of the Loans or payments by the Issuing Bank made pursuant to SECTION 2.03,
obtained by all the Banks, such Bank shall forthwith purchase from the other
Banks such participations in the Loans made by such other Banks, or the
reimbursement obligations in respect of the payments by the Issuing Bank made
pursuant to SECTION 2.03, as the case may be, as shall be necessary to cause
such purchasing Bank to share the excess payment ratably with each of them. The
Borrowers agree that any Bank so purchasing a participation from another Bank
pursuant to this SECTION 2.09(F) may exercise all its rights of payment
(including the right of setoff) with respect to such participation as fully as
if such Bank were the direct creditor of the Borrowers in the amount of such
participation.
(g) To the extent that the Administrative Agent receives funds
for application to the amounts owing by any Borrower under or in respect of this
Agreement or any Note in currencies other than the currency or currencies
required to enable the Administrative Agent to distribute funds to the Banks in
accordance with the terms of this SECTION 2.09, the Administrative Agent shall
be entitled to convert or exchange such funds into Dollars or into a Foreign
Currency or from Dollars to a Foreign Currency, as the case may be, to the
extent necessary to enable the Administrative Agent to distribute such funds in
accordance with the terms of this SECTION 2.09; PROVIDED that if such conversion
results in the receipt by the Administrative Agent (acting reasonably and in
good faith in making such conversion) of an insufficient amount of the currency
required to be distributed, the applicable Borrower shall pay promptly such
additional amount as may be necessary to compensate and indemnify the
Administrative Agent for such shortfall.
Section 2.10. FEES. (a) Subject to the provisions of SECTION
10.13, the US Borrower and the Parent each agree to pay to each Bank, on their
respective pro rata share of the Available Revolving Commitment, a commitment
fee equal to (i) 0.375% per annum of the Available Revolving Commitment of such
Bank in effect from time to time for the period from the Execution Date until
December 31, 1997 and, (ii) thereafter to, but excluding, the Termination Date
(or if earlier, the termination in full of such Bank's Dollar Revolving
Commitment and Guilder Revolving Commitment) at the rate set forth in the Margin
Ratio grid in SECTION 2.07(C). Accrued commitment fees shall be due and payable
in arrears on each Payment Date in each year, on the date of any reduction or
termination of the Dollar Revolving Commitment and Guilder Revolving Commitment
of such Bank and on the Termination Date (or if earlier, the termination in full
of such Bank's Dollar Revolving Commitment and Guilder Revolving Commitment);
and shall be computed for the period commencing with the day to which such fee
was last paid (or, in the case of the first commitment fee payment date, for the
period commencing with and including the Execution Date) to the date such fee is
due and payable. All commitment fees shall be paid in immediately available
funds, and shall be based on a 360-day year and actual days elapsed.
(b) (i) The US Borrower agrees to pay the Administrative Agent,
for the account of the Banks, a fee in respect of each Letter of Credit issued
for the account of the US Borrower (the
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"L/C FEES") for the period from the date of issuance of such Letter of Credit to
and including the expiry of such Letter of Credit computed at a rate per annum
equal to the greater of: (i) $500 or (ii) the Applicable Margin for Eurocurrency
Loans multiplied by the face amount of such Letter of Credit. For any Letter of
Credit issued with a face amount denominated in a currency other than Dollars,
the L/C Fees will be converted into the Equivalent thereof in Dollars as of the
issuance date of such Letter of Credit, and thereafter as of the first day of
each calendar quarter. All L/C Fees shall be paid in immediately available funds
and shall based on a 360 day year and actual days elapsed. Accrued L/C Fees for
each Letter of Credit shall be due and payable in arrears on each Payment Date
(or if earlier, the termination in full of the Dollar Revolving Commitments);
PROVIDED, if the L/C Fee is the $500 minimum, such $500 shall be paid in full on
the first Payment Date after the issuance of such Letter of Credit. No
additional fees shall be payable hereunder from any of the Borrowers or to any
of the Banks in respect of Existing Letters of Credit, if the minimum fee in
effect at the time of issuance of such Existing Letters of Credit has previously
been paid.
(ii) In addition to the L/C Fees, the US Borrower agrees to pay
the Issuing Bank, solely for the Issuing Bank's account, a per annum fee in
respect of each Letter of Credit issued by the Issuing Bank for the account of
the US Borrower (the "FACING FEES"), equal to the greater of: (i) $500 or (ii)
1/8% of the face amount of such Letter of Credit. For any Letter of Credit
issued with a face amount denominated in a currency other than Dollars, the
Facing Fees will be converted into the Equivalent thereof in Dollars as of the
issuance date of such Letter of Credit, and thereafter as of the first day of
each calendar quarter. All Facing Fees shall be paid in immediately available
funds. Accrued Facing Fees for each Letter of Credit shall be due and payable in
arrears on each Payment Date (or if earlier, the termination in full of the
Dollar Revolving Commitments); PROVIDED, if the Facing Fee is the $500 minimum,
such $500 shall be paid in full on the first Payment Date after the issuance of
such Letter of Credit. In addition to the Facing Fees, the US Borrower shall pay
the Issuing Bank, solely for the Issuing Bank's account, its customary service
charges relating to the amendment to, and transfer of any Letters of Credit.
Such amounts to be due and payable when such services are rendered by the
Issuing Bank. No Facing Fees shall be due and payable in connection with the
Existing Letters of Credit.
(iii) The Administrative Agent shall distribute all L/C Fees
collected during the quarterly period then ended to the Banks ratably according
to their respective Commitment Percentages.
(c) Subject to the provisions of SECTION 10.13, the Borrowers
shall pay the Administrative Agent, solely for the Administrative Agent's
account, or to the Syndication Agent for the Syndication Agent's account, as
applicable, such other fees as agreed to in writing among the Borrowers, the
Administrative Agent and the Syndication Agent, when and as due.
Section 2.11. SETOFF, COUNTERCLAIMS AND TAXES. (a) All payments
of principal, interest, expenses, reimbursements, compensation, commitment fees,
letter of credit fees, facing fees, arrangement fees or administration fees and
any other amount from time to time due under the Notes, this Agreement or any
other Loan Document shall be made by the relevant Borrowers without setoff
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or counterclaim and shall be made free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each member of the Bank Group, taxes imposed on its income or gross receipts,
and franchise taxes imposed on it, by the jurisdiction under the laws of which
such member of the Bank Group is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction of such Bank's Applicable Lending Office or
any political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "TAXES"). If any Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Loan Document to any
member of the Bank Group, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this SECTION 2.11) such member of
the Bank Group receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or under the Notes
or the other Loan Documents or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement, the Notes or the other Loan
Documents (hereinafter referred to as "OTHER TAXES").
(c) Each Borrower will indemnify each member of the Bank Group
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
SECTION 2.11) paid, by such member of the Bank Group (whether paid on its own
behalf or on behalf of any other member of the Bank Group) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 10 days from the date such
member of the Bank Group makes written demand therefor; PROVIDED that no
Borrower shall be obligated to indemnify any member of the Bank Group for any
Taxes incurred as the result of a material inaccuracy of the representations and
warranties made by it under SECTION 2.11(F) (unless such inaccuracy is the
result of a change in an applicable Requirement of Law) or the failure by such
Person to comply with its obligations in SECTION 2.11(F).
(d) Within 30 days after the date of any payment of Taxes, the
relevant Borrower will furnish to the Administrative Agent, at its address
referred to in SECTION 10.03, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of
the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this SECTION 2.11 shall survive the payment in full of the Credit
Outstanding and all other amounts owing under the other
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Loan Documents. The provisions of this SECTION 2.11 are in all respects subject
to SECTION 10.13 hereof.
(f) Each Bank shall (i) promptly after the Effective Date or
promptly after the date of the Assignment and Acceptance, pursuant to which it
became a Bank in the case of each other Bank and (ii) from time to time
thereafter upon the obsolescence or expiration of any previously delivered form
or certificate (but only so long as such Bank remains lawfully able to do so),
provide the Borrowers and the Administrative Agent with any form or certificate
that is required by any taxing authority, including, if applicable, two original
Internal Revenue Service forms 1001 or 4224, as appropriate (or any successor
form or other form prescribed by the Internal Revenue Service), an original
Internal Revenue Service form W-9 (or any successor form), or such other forms
as shall be appropriate to establish, subject to the last sentence of this
SECTION 2.11(F), that such Bank is (y) exempt from Home Jurisdiction Withholding
Taxes on payments pursuant to this Agreement, the Notes or any other Loan
Document (or, in the case of a Bank that becomes a party to this Agreement
pursuant to SECTION 10.02(A) and (z) exempt from or entitled to a reduced rate
of Home Jurisdiction Withholding Taxes on payments pursuant to this Agreement,
the Notes or any other Loan Document that is no greater than the rate to which
the assigning Bank was entitled). Each member of the Bank Group represents and
warrants that such information is true and complete in all material respects as
of the date it is delivered. Each Bank shall promptly notify the Borrowers and
the Administrative Agent if, because of any change in the jurisdiction of
organization or an Applicable Lending Office of such Bank, (A) it is required to
withdraw or cancel any form or certificate previously submitted by it or any
form or certificate has otherwise become ineffective or inaccurate or (B)
payments to it are or will be subject to withholding of any Home Jurisdiction
Withholding Tax to a greater or lesser extent than the extent to which payments
to it pursuant to this Agreement, the Notes or any other Loan Document were
previously subject. If any form or document referred to in this SECTION 2.11(F)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form 1001 or 4224, that the Bank reasonably considers to be
confidential, the Bank shall give notice thereof to the Borrowers and the
Administrative Agent and shall not be obligated to include in such form or
document such confidential information; PROVIDED, HOWEVER, such form or document
will state that such confidential information may be requested directly from the
Bank.
(g) If a Bank shall receive a refund of any Taxes paid by a
Borrower pursuant to this SECTION 2.11 by reason of the fact that such Taxes
were not correctly or legally asserted, the Bank shall within 90 days after
receipt of such refund pay to such Borrower the amount of such refund along with
any interest actually received by such Bank thereon, if any; PROVIDED, HOWEVER,
that such payments shall be required only to the extent any Bank can determine,
in its good faith judgment, that such refunds are attributable to payments made
by or on behalf of such Borrower; and PROVIDED, FURTHER, that no Bank shall have
any obligation under this Agreement to claim or otherwise seek to obtain any
such refund, but agrees to use reasonable efforts to assist a Borrower in doing
so.
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Section 2.12. FUNDING LOSSES. Each of the Borrowers hereby
indemnifies each Bank against any loss or reasonable expense (including, but not
limited to, any loss or reasonable expense sustained or incurred or to be
sustained or incurred in liquidating or reemploying deposits from third parties
acquired to effect or maintain such Loan or any part thereof as a Eurocurrency
Rate Loan) which such Bank may sustain or incur as a consequence of (a) any
failure by any of the Borrowers to fulfill on the date of any Borrowing the
applicable conditions set forth in ARTICLE III, (b) any failure by any of the
Borrowers to borrow hereunder, to Convert Loans hereunder after a Borrowing
Request or Conversion Notice, respectively, has been given by such Borrower, (c)
any payment, prepayment or Conversion of a Eurocurrency Rate Loan required or
permitted by any other provisions of this Agreement, including, without
limitation, payments made due to the acceleration of the maturity of the Notes
pursuant to SECTION 7.01, or otherwise made on a date other than the last day of
the applicable Interest Period, (d) any default in the payment or prepayment of
the principal amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, by notice of
prepayment or otherwise) or (e) the occurrence of an Event of Default. Such loss
or reasonable expense shall include, without limitation, an amount equal to the
excess, if any, as determined by each Bank of (i) its cost of obtaining the
funds for the Loan being paid, prepaid or Converted or not borrowed or Converted
(based on the Eurocurrency Rate applicable thereto) for the period from the date
of such payment, prepayment or Conversion or failure to borrow or Convert to the
last day of the Interest Period for such Loan (or, in the case of a failure to
borrow or Convert, the Interest Period for the Loan which would have commenced
on the date of such failure to borrow or Convert) over (ii) the amount of
interest (as estimated by such Bank) that would be realized by such Bank in
reemploying the funds so paid, prepaid or Converted or not borrowed or Converted
for such period or Interest Period, as the case may be. Each Borrower shall pay
to the Administrative Agent for the account of each Bank the amount shown as due
on any certificate received by it under SECTION 2.15 within ten (10) days after
its receipt of the same. Notwithstanding the foregoing, in no event shall any
Bank be permitted to receive any compensation hereunder constituting interest in
excess of the Highest Lawful Rate. Without prejudice to the survival of any
other obligations of the Borrowers hereunder, but subject to the last sentence
of SECTION 2.15, the obligations of the Borrowers under this SECTION 2.12 shall
survive the termination of this Agreement and/or the payment or assignment of
any of the Notes.
Section 2.13. CHANGE OF LAW. (a) If at any time after the
Effective Date any Bank determines in good faith (which determination shall be
presumed correct) that any change in any applicable Requirement of Law, or in
the interpretation, application or administration thereof makes it unlawful, or
any central bank or other Governmental Authority asserts that it is unlawful,
for such Bank or its Eurocurrency Lending Office to fund or maintain any
Eurocurrency Rate Loan in a particular currency (any of the foregoing
determinations being a "EUROCURRENCY EVENT"), then, such Bank, at its option,
may: (i) declare that Eurocurrency Rate Loans in such currency will no longer be
made or maintained by such Bank, whereupon the right of the Borrowers to select
Eurocurrency Rate Loans in such currency for any Borrowing shall be suspended
until such Bank shall notify the Administrative Agent that the circumstances
causing such Eurocurrency Event no longer exist; (ii) with respect to any
Eurocurrency Rate Loans in such currency of such Bank then outstanding, require
that (A) if such Eurocurrency Rate Loans are denominated in Dollars, such
affected Loans
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shall be Converted to Base Rate Loans and (B) if such Eurocurrency Loans are
denominated in a Foreign Currency, such affected Loans shall be exchanged for
the Equivalent thereof in Dollars and converted to Base Rate Loans, in which
event all such Eurocurrency Rate Loans shall automatically be Converted into
Base Rate Loans on the effective date of such notice and all payments or
prepayments of principal that would have otherwise been applied to repay such
Converted Eurocurrency Rate Loans shall instead be applied to repay the Base
Rate Loans resulting from such Conversion; and/or (iii) with respect to any
Eurocurrency Rate Loans in such currency requested of such Bank but not yet made
as or Converted into such, require that such Eurocurrency Rate Loans in such
currency be made as or Converted into, as applicable, Base Rate Loans.
(b) Upon the occurrence of any Eurocurrency Event, and at any
time thereafter so long as such Eurocurrency Event shall continue, such Bank may
exercise its aforesaid option by giving written notice thereof to the
Administrative Agent and the Borrowers, such notice to be effective upon receipt
thereof by the Borrowers. Any Conversion of any Eurocurrency Rate Loan which is
required under this SECTION 2.13 shall be made, together with accrued and unpaid
interest and all other amounts payable to such Bank under this Agreement with
respect to such Converted Loan (including, without limitation, amounts payable
pursuant to SECTION 2.12 hereof), on the date stated in the notice to the
Borrowers referred to above.
Section 2.14. INCREASED COSTS. (a) If, due to either (i) any
Requirement of Law or (ii) the compliance with any guideline by any central bank
or other Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to any Bank of agreeing to make or making,
funding or maintaining Eurocurrency Rate Loans, then the Borrowers shall from
time to time, subject to the provisions of SECTION 2.15 and SECTION 10.13, pay
to the Administrative Agent for the account of such Bank additional amounts
sufficient to compensate such Bank for such increased cost within 10 days after
the receipt by any of the Borrowers of a certificate received under SECTION 2.15
showing the amount due.
(b) If any Bank shall have determined in good faith that any law,
rule, regulation or guideline adopted pursuant to or arising out of the July
1988 report of the Basle Committee on Banking Regulations and Supervisory
Practices entitled "International Convergence of Capital Measurement and Capital
Standards" or that the adoption of any applicable law, rule, regulation or
guideline regarding capital adequacy, or any change in any of the foregoing or
in the interpretation or administration thereof by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof, or compliance by such Bank (or any Applicable Lending Office of such
Bank) with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority or comparable
agency, increases the amount of capital required or expected to be maintained by
such Bank or any corporation controlling such Bank from the level required as of
the Effective Date, then the Borrowers shall from time to time, subject to the
provisions of SECTION 2.15 and SECTION 10.13, pay to such Bank additional
amounts sufficient to compensate such Bank or such corporation in the light of
such circumstances, to the extent that such Bank reasonably determines such
increase in capital to be allocable to the existence of such Bank's Commitment
hereunder.
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(c) If any law, executive order or regulation is adopted or
interpreted by any central bank or other Governmental Authority so as to affect
any of the Borrowers' obligations or the compensation to any Bank or the Issuing
Bank in respect of the Letters of Credit or the cost to such Bank or the Issuing
Bank of establishing and/or maintaining the Letters of Credit (or any
participation therein), then the affected Borrower shall from time to time,
subject to the provisions of SECTION 2.15 and SECTION 10.13, reimburse or
indemnify such Bank or the Issuing Bank, as the case may be, with respect
thereto so that such Bank or the Issuing Bank, as the case may be, shall be in
the same position as if there had been no such adoption or interpretation. The
protection of this SECTION 2.14 shall be available to the Issuing Bank and the
Banks regardless of any possible contention of invalidity or inapplicability of
law, regulation or condition which shall have been imposed.
Section 2.15. CLAIMS CERTIFICATE. (a) Each Bank or the Issuing
Bank, as the case may be, will notify the Borrowers of any event occurring after
the date of this Agreement which will entitle such Bank or the Issuing Bank, as
the case may be, to compensation or indemnification pursuant to SECTION 2.11
through SECTION 2.14 as promptly as practicable after such Bank obtains actual
knowledge of the occurrence of such event, and, in any event, within 180 days
thereof. A certificate of such Bank or the Issuing Bank, as the case may be,
setting forth in reasonable detail (i) such amount or amounts as shall be
necessary to compensate such Bank (or participating banks or other entities
pursuant to SECTION 10.02) or the Issuing Bank, as the case may be, as specified
above and (ii) the calculation of such amount or amounts shall be delivered to
the Borrowers (with a copy to the Administrative Agent) and shall be conclusive
absent manifest error. The Borrowers shall pay to such Bank or to the Issuing
Bank, as the case may be, the amount shown as due on any such certificate within
ten (10) days after its receipt of the same. Subject to the last sentence of
this SECTION 2.15, the failure of any Bank or the Issuing Bank to demand any
such compensation or indemnification shall not constitute a waiver of the right
of such Bank, any other Bank or the Issuing Bank, to demand any such
compensation or indemnification as such rights are set forth herein.
(b) In the event any Bank gives a notice to a Borrower pursuant
to Section 2.07(b), SECTIONS 2.11 through 2.14 that it cannot fund certain Loans
or that such funding will be at an increased cost or a higher interest rate, or
is unable to deliver the forms as required by SECTION 2.11, the affected
Borrower may give notice in response, with copies to the Administrative Agent,
that it wishes to seek one or more banks to replace such Bank in accordance with
the provisions set forth in SECTION 10.02. Each Bank giving such a notice agrees
that, at the request of such Borrower, it will assign all of its interests
hereunder and under the Notes and the Commitment to a designated, Eligible
Assignee for the full amount then owing to it, all in accordance with SECTION
10.02. Thereafter, said assignee shall have all of the rights hereunder and
obligations of the assigning Bank (except as otherwise expressly set forth
herein) and such Bank shall have no further obligations to any Borrower
hereunder. Unless otherwise agreed by the Majority Banks, any such assignment of
one Borrower's Loans shall only be made if all other Borrowers' Loans to such
Bank are likewise assigned.
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(c) Any notice given pursuant to this Section 2.15 shall be
deemed to contain a representation by the Bank issuing such notice that: (i)
such Bank has used reasonable efforts to minimize said costs or charges but
cannot, in its sole judgment, do so at reasonable expense, and (ii) the
increased costs and charges are common to substantially all of the comparable
loan customers of such Bank and are not unique to the Borrowers.
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ARTICLE III
CONDITIONS OF CREDIT
Section 3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS, THE INITIAL
BORROWING OR LETTER OF CREDIT. The obligation of each Bank to make its initial
Loan on the occasion of the initial Borrowing hereunder or the obligation of the
Issuing Bank to issue the initial Letter of Credit hereunder, as the case may
be, is subject to the conditions precedent that the Administrative Agent shall
have received on or before the date of such initial Borrowing or initial Letter
of Credit issuance, all of the following, each in form and substance reasonably
satisfactory to the Bank Group and in such number of counterparts as may be
reasonably requested by the Administrative Agent:
(a) The following Loan Documents duly executed by the Persons
indicated below:
(i) this Agreement executed by each Borrower and each member of
the Bank Group,
(ii) the Notes executed by the relevant Borrower,
(iii) the Pledge Agreements executed by each Person owning stock
to be pledged thereunder (except with respect to the certificates of
Scott Pickford plc and Protechnics Company, which will be delivered
within ten (10) days after the Execution Date), and
(iv) the Guaranty Agreements executed by each Guarantor in the
form of ARTICLE IX.
(b) Evidence that the Liens created by the Pledge Agreements have
been duly perfected and constitute valid first priority Liens, which shall
include, without limiting the generality of the foregoing: (i) the delivery to
the Administrative Agent of such financing statements under the Uniform
Commercial Code for filing in such jurisdictions as the Administrative Agent may
require; and (ii) delivery of certificates representing the "Pledged Shares"
described in the Pledge Agreements and related stock powers executed in blank to
the extent such shares are evidenced by certificates and (iii) the opinion and
related back-up material described in SECTION 3.01(J).
(c) A certificate of the secretary or an assistant secretary of
each Borrower certifying, INTER ALIA, (i) to the extent required under the
jurisdiction of its formation, true and correct copies of resolutions adopted by
the Board of Directors or other appropriate body of each Borrower (A)
authorizing the execution, delivery and performance by such Borrower of the Loan
Documents to which it is or will be a party and the consummation of the
transactions contemplated thereby, and (B) authorizing officers of such Borrower
to negotiate, execute and deliver the Loan Documents to which it is or will be a
party and any related documents, including, without limitation, any agreement
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contemplated by this Agreement, (ii) true and correct copies of the articles of
incorporation and bylaws (or other similar charter documents) of such Borrower
and (iii) the incumbency and, if such officer is an individual, the specimen
signatures of the officers of such Borrower executing any Loan Documents to
which it is a party.
(d) A certificate of the secretary or an assistant secretary of
each Guarantor certifying, INTER ALIA, (i) to the extent required under the
jurisdiction of its formation, true and correct copies of resolutions adopted by
the Board of Directors or other appropriate body of such Person (A) authorizing
the execution, delivery and performance by such Person of the Loan Documents to
which it is or will be a party and the consummation of the transactions
contemplated thereby, and (B) authorizing officers of such Person to execute and
deliver the Loan Documents to which it is or will be a party and any related
documents, including, without limitation, any agreement contemplated by this
Agreement, (ii) true and correct copies of the articles of incorporation and
bylaws (or other similar charter documents) of such Person and (iii) the
incumbency and, if such officer is an individual, the specimen signatures of the
officers of such Person executing any Loan Documents to which it is a party
(PROVIDED, that such certificates in respect of a Guarantor being acquired as of
the Effective Date may be delivered on the day following such acquisition).
(e) Extracts from the Dutch Commercial Register or other
certificates of appropriate public officials as to the existence and good
standing of each Borrower and each Guarantor in its jurisdiction of
incorporation, and, in the case of the US Borrower, as to its authority to do
business in all locations in which its operations makes such certificates
necessary.
(f) Evidence that all Indebtedness (other than the Existing
Letters of Credit) owed by the US Borrower to NationsBank of Texas, N.A. and
Bank of America Texas, N.A. has been (or with the proceeds of the initial
Borrowing, will be) paid in full and the underlying credit facility and all
commitments thereunder have been canceled, said evidence to consist of a letter
substantially in the form of EXHIBIT 3.01(F) or other evidence satisfactory to
the Administrative Agent.
(g) A report from Johnson & Higgins of Texas, Inc. (or other
insurance consultants acceptable to the Administrative Agent) addressing the
scope of the insurance coverage of the Parent and its Subsidiaries, all in form
and substance reasonably satisfactory to the Administrative Agent; and a
certificate of the Parent certifying as to the insurance coverages maintained by
each of Saybolt and Scott Pickford.
(h) Copies of the purchase agreements and all documentation
related thereto (including disclosure schedules, if any) related to the
acquisitions of Saybolt and Scott Pickford and (i) in the case of Scott
Pickford, notice from the Share Transfer Agent/Registrar for Scott Pickford that
the Parent has consummated the acquisition of not less than 90% of its issued
and outstanding shares, and (ii) in the case of Saybolt, evidence that all
conditions precedent thereto have been fulfilled other than the funding, all in
form and substance satisfactory to the Administrative Agent.
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(i) A certificate signed by a Responsible Officer of each of the
Borrowers certifying as to the satisfaction of the conditions specified in
SECTION 3.02.
(j) The favorable, signed opinions of John D. Denson, General
Counsel of the Borrowers, Vinson & Elkins L.L.P., special New York counsel to
the Borrowers and the Guarantors, Norton Rose, special English counsel to the UK
Borrower and Guarantors in the United Kingdom, and Nauta Dutilh, Dutch counsel
to the Parent and Guarantors in the Netherlands, each addressed to the
Administrative Agent and the Bank Group, in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
(k) A written confirmation from the Process Agent of its
appointment and acceptance as process agent for each Borrower and each
Guarantor.
(l) The payment to the Bank Group of the fees due to them as of
such date under the Loan Documents.
(m) Subordination Agreements reasonably satisfactory to the
Administrative Agent subordinating all inter-company indebtedness among the
Credit Parties to the Obligations.
(n) Contribution and Indemnity Agreements among the Guarantors
apportioning the rights and obligations of each Guarantor in the form of EXHIBIT
3.01(N).
(o) Such other documents, certificates and opinions as the
Administrative Agent may reasonably request relating to this Agreement and the
other Loan Documents.
Section 3.02. CONDITIONS PRECEDENT TO ALL LETTERS OF CREDIT AND
LOANS. The obligation of the Issuing Bank to issue any Letter of Credit, and of
each Bank to make any Loan, shall be subject to the further conditions precedent
that (a) on the Borrowing Date of such Loan or the issuance date of such Letter
of Credit, as the case may be, the following statements shall be true, and by
virtue of delivery of a Borrowing Request or a Letter of Credit Request, as
applicable, by any Borrower, each Borrower shall be deemed to have certified to
the Bank Group as of such date that (i) the representations and warranties
contained in ARTICLE IV are true and correct on and as of such date, before and
after giving effect to such Loan or Letter of Credit, as the case may be, and as
though made on and as of such date, unless they relate expressly to a prior
date, (ii) no Default or Event of Default has occurred and is continuing, or
would result from such Loan or Letter of Credit, as the case may be, and (iii)
no event has occurred that could reasonably be expected to have a Material
Adverse Effect on any Borrower and (b) the Administrative Agent shall not have
received any notice under SECTION 5.01(E), SECTION 5.01(F), SECTION 5.01(G), or
SECTION 5.01(H).
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Bank Group to enter into this Agreement,
each Borrower hereby represents and warrants to the Bank Group as follows:
Section 4.01. CORPORATE EXISTENCE. Each of the Borrowers and its
Subsidiaries is a corporation (or other Person) duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
organization, and is duly qualified or licensed to transact business as a
foreign corporation (or other Person) and is in good standing under the laws of
each jurisdiction in which the conduct of its operations or the ownership or
leasing of its properties requires such qualification or licensing, except where
the failure to be so qualified or licensed could not reasonably be expected to
have a Material Adverse Effect. SCHEDULE 4.01 is a complete list of all of the
direct or indirect Subsidiaries of the Parent as of the Effective Date
(subsequent to the Saybolt acquisition) indicating the name of its parent.
SCHEDULE 4.01 will be supplemented within fifteen (15) days from the Execution
Date by adding thereto, for each Subsidiary, (i) the jurisdiction in which it
was incorporated, and (ii) the location of its chief executive office or the
office at which it has the majority of its staff, equipment or inventory.
Section 4.02. CORPORATE AUTHORITY; BINDING OBLIGATIONS. Each
Credit Party has all requisite corporate power and authority to conduct its
business, to own, operate and encumber its Property, and to execute, deliver and
perform all of its obligations under the Loan Documents executed by, or to be
executed by, such Person. The execution, delivery and performance of each of the
Loan Documents to which any Credit Party is a party and the consummation of the
transactions contemplated thereby have been duly authorized by all necessary
corporate action (or comparable action, in the case of a Credit Party that is
not a corporation). Each of the Loan Documents to which any Credit Party is a
party has been duly executed and delivered by such Person, is in full force and
effect and constitutes the legal, valid and binding obligation of such Person,
enforceable against it in accordance with its terms, except (a) as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws or judicial decisions affecting the enforcement
of creditor's rights generally and general principles of equity, and (b) that
(i) the rights and remedies afforded the Bank Group under the Security Documents
relating to the Collateral and (ii) the rights and duties of the issuer of any
of the Collateral, in the case of either clauses (i) and (ii) with respect to
(A) registration of transfer, (B) the effectiveness of registration of transfer,
(C) duties of the issuer to adverse claimants and (D) assertion of adverse
claims, may be limited by the laws of the jurisdiction in which the issuer of
such Collateral was organized.
Section 4.03. NO CONFLICT. The execution, delivery and
performance by each Credit Party of each Loan Document to which such Person is a
party and the consummation of each of the transactions contemplated thereby do
not and shall not, by the lapse of time, the giving of notice or
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otherwise: (a) constitute a violation of any Requirement of Law or a breach of
any provision contained in the articles or certificate of incorporation or
bylaws or other applicable governance documents of such Person, or any
shareholder agreement pertaining to such Person, or contained in any material
agreement, instrument or document to which it is now a party or by which it or
its properties is bound, except for such violations or breaches that could not
reasonably be expected to have a Material Adverse Effect; or (b) result in or
require the creation or imposition of any Lien whatsoever upon any of the
Properties of any Credit Party or its Subsidiaries (other than Liens arising
pursuant to the Loan Documents).
Section 4.04. NO CONSENT. Except for those filings and consents
required from time to time to comply with and perform obligations of the Parent
and its Subsidiaries under this Agreement and the other Loan Documents to which
such Persons are a party, such as filings and consents related to environmental
matters, ERISA matters, Taxes and intellectual property, filings required to
maintain corporate and similar standing and existence, filings pursuant to the
Uniform Commercial Code and other security filings and recordings, filings
required by the SEC, routine filings in the ordinary course of business, and
filings required in connection with the exercise by the Bank Group of remedies
in connection with the Loan Documents, no authorization, consent, approval,
license, or exemption of or filing or registration with, any Governmental
Authority or any other Person, which has not been obtained, was, is or will be
necessary for (a) the valid execution, delivery or performance by any Credit
Party of any of the Loan Documents to which it is a party, (b) the legality,
validity, binding effect or enforceability of any of the Loan Documents, or (c)
the ownership, use or operation by the Credit Parties and their respective
Subsidiaries of any of their Properties other than those that could not
reasonably be expected to have a Material Adverse Effect.
Section 4.05. NO DEFAULTS OR VIOLATIONS OF LAW. No Default or
Event of Default has occurred and is continuing. No default (or event or
circumstance occurred which, but for the passage of time or the giving of
notice, or both, would constitute a default) has occurred and is continuing with
respect to any note, indenture, loan agreement, mortgage, lease, deed or other
agreement to which any Borrower or its Subsidiaries is a party or by which any
of them or their Properties is bound, except for such defaults that could not
reasonably be expected to have a Material Adverse Effect. Neither the Borrowers
nor any of their Restricted Subsidiaries is in violation of any applicable
Requirement of Law except for such violations that could not reasonably be
expected to have a Material Adverse Effect.
Section 4.06. FINANCIAL POSITION. (a) Prior to the Execution
Date, the Parent has furnished to the Bank Group the consolidated balance sheet
of the Parent as at December 31, 1996, and the related consolidated statements
of operations, shareholders' equity and cash flows for the fiscal year then
ended, audited by Arthur Andersen LLP, independent certified public accountants
and comparable items for Saybolt prepared by Price Waterhouse L.L.P. as of
December 31, 1996 and for Scott Pickford prepared by Crane & Partners, as of
March 31, 1996. The financial statements referred to in the previous sentence
have been prepared in accordance with GAAP (except for that in respect of Scott
Pickford, which was prepared in accordance with GAAP as in effect in the United
Kingdom) consistently applied throughout the periods involved and present fairly
in all material
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respects the consolidated financial condition of the Persons named therein as of
the date thereof and the results of its operations for the periods then ended.
No event has occurred since December 31, 1996, or in the case of Scott Pickford
since March 31, 1996, that could reasonably be expected to have a Material
Adverse Effect in respect of any of said Persons.
(b) Except as fully reflected in the audited financial statements
referred to in paragraph (a) of this SECTION 4.06, as of the Execution Date,
there are no liabilities or obligations of the Borrowers or any of their
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
could reasonably be expected to have a Material Adverse Effect.
(c) On and as of the Effective Date, on a PRO FORMA basis after
giving effect to all Indebtedness incurred, and to be incurred, and Liens
created, and to be created, by each Credit Party in connection therewith, (x)
the sum of the assets, at a fair valuation, of each Credit Party will exceed its
debts, (y) no Credit Party will have incurred or intended to, or believe that
they will, incur debts beyond their ability to pay such debts as such debts
mature and (z) no Credit Party will have unreasonably small capital with which
to conduct its business.
Section 4.07. LITIGATION. Except as disclosed in SCHEDULE 4.07,
there are no actions, suits or proceedings pending or, to the knowledge of any
Borrower, threatened against or affecting any Borrower or its Subsidiaries, or
the Properties of any such Person, before or by any Governmental Authority or
other Person, which could reasonably be expected to have a Material Adverse
Effect, PROVIDED, with respect to actions, suits or proceedings involving
Saybolt or Scott Pickford, this representation and warranty is limited to the
extent of the actual knowledge of any Borrower in regard thereto.
Section 4.08. USE OF PROCEEDS. (a) Each Borrower's uses of the
proceeds of the Loans made to it, and, in the case of the US Borrower, of the
Letters of Credit are, and will continue to be, legal and proper corporate uses,
and such uses do not violate and are otherwise consistent with the terms of the
Loan Documents, including, without limitation, SECTION 5.09, and all
Requirements of Law (including Regulations G, T, U and X).
(b) None of the Borrowers nor any of their respective
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U), and no
part of the proceeds of any Loan or Letter of Credit will be used, directly or
indirectly, (i) to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying any margin stock or (ii) for
the purpose of purchasing, carrying or trading in any securities under such
circumstances as to involve the Borrowers or any of their respective
Subsidiaries in a violation of Regulation X.
Section 4.09. GOVERNMENTAL REGULATION. None of the Borrowers nor
any of their respective Subsidiaries is subject to regulation under the Public
Utility Holding Company Act, as amended, the Investment Company Act of 1940, as
amended, or any other Requirement of Law such
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that the ability of any such Person to incur Indebtedness is limited or its
ability to consummate the transactions contemplated by this Agreement or the
other Loan Documents is impaired.
Section 4.10. DISCLOSURE. The schedules, documents, exhibits,
reports, certificates and other written statements and information furnished by
or on behalf of the Borrowers to the Bank Group do not contain any Material
misstatement of fact, or omit to state a Material fact necessary in order to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading. None of the Borrowers nor any of their
respective Subsidiaries has withheld any fact known to it which has or could
reasonably be expected to have a Material Adverse Effect.
Section 4.11. ERISA. (a) The US Borrower and each ERISA Affiliate
have operated and administered each Pension Plan and Other Benefit Plan in
compliance with all applicable laws, except for such instances of noncompliance
as have not resulted in and could not reasonably be expected to result in a
Material Adverse Effect. Neither the US Borrower nor any ERISA Affiliate has
incurred any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Internal Revenue Code relating to employee benefit
plans (as defined in Section 3 of ERISA); and no event, transaction or condition
has occurred or exists or is threatened that could reasonably be expected to
result in the incurrence of any such liability by the US Borrower or any ERISA
Affiliate, or in the imposition of any Lien on any of the Properties of the US
Borrower or any ERISA Affiliate, in either case pursuant to Title I or IV of
ERISA or to such penalty or excise tax provisions or to Section 401(a)(29) or
412 of the Internal Revenue Code, other than such liabilities or Liens as could
not be reasonably expected to have a Material Adverse Effect.
(b) The present value of the aggregate benefit liabilities under
each Pension Plan subject to Title IV of ERISA, determined as of the end of such
Pension Plan's most recently ended plan year on the basis of the actuarial
assumptions specified for funding purposes in such Pension Plan's most recent
actuarial valuation report, did not exceed the aggregate current value of the
assets of such Pension Plan allocable to such benefit liabilities by an amount
that is Material. The term "benefit liabilities" has the meaning specified in
section 4001 of ERISA and the terms "current value" and "present value" have the
meaning specified in Section 3 of ERISA.
(c) The US Borrower and its ERISA Affiliates do not currently and
have never had any liability or obligation with respect to any Material
liabilities (and are not subject to Material contingent withdrawal liabilities)
under section 4201 or 4204 of ERISA with respect to any Multiemployer Plan.
(d) The expected post-retirement benefit obligation (determined
as of the last day of the US Borrower's most recently ended fiscal year in
accordance with Financial Accounting Standards Board Statement No. 106, without
regard to liabilities attributable to continuation coverage mandated by section
4980B of the Internal Revenue Code ("COBRA")) of the US Borrower and its ERISA
Affiliates is not Material and, except as modified by COBRA, such
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obligations can be unilaterally terminated at any time by the US Borrower, or
its ERISA Affiliates without any Material liability.
Section 4.12. PAYMENT OF TAXES. Each Borrower has filed, and has
caused each of its Subsidiaries to file, all federal, state and local tax
returns and other reports and all other tax returns required to be filed,
whether in the United States or in any foreign jurisdiction, that such Borrower
and each such Subsidiary are required by law to file and have paid all taxes and
other similar charges that are due and payable pursuant to such returns and
reports, except (a) to the extent any of the same are being contested in good
faith by appropriate proceedings promptly initiated and diligently conducted,
and with respect to which adequate reserves have been set aside on the books of
such Person in accordance with GAAP, or (b) to the extent the failure to file
such taxes could not reasonably be expected to have a Material Adverse Effect,
PROVIDED, with respect to matters pertaining to Saybolt or Scott Pickford, this
representation and warranty is limited to the extent of the actual knowledge of
any Borrower in regard thereto.
Section 4.13. TITLE AND LIENS. Each Borrower and each of its
Subsidiaries have good title to all of its Material Properties, free and clear
of all Liens except Liens permitted by SECTION 6.02. All Material agreements
necessary for the conduct of the business of each Borrower and its Subsidiaries
are valid and subsisting, in full force and effect and, to the knowledge of any
Borrower, there exists no default or event or circumstance which with the giving
of notice or the passage of time or both would give rise to a default under any
such agreement, which would affect in any Material respect the conduct of the
business of each Borrower and its Subsidiaries.
Section 4.14. PATENTS AND INTELLECTUAL PROPERTY. Each Borrower
and its Subsidiaries has obtained all Material patents, trademarks, service
marks, trade names, copyrights, licenses and other rights, that are necessary
for the operation of their businesses taken as a whole as presently conducted.
Section 4.15. ENVIRONMENTAL MATTERS. Except as disclosed in
SCHEDULE 4.15 hereto, (a) (i) each Borrower and its Subsidiaries possess all
Material environmental, health and safety licenses, permits, authorizations,
registrations, approvals and similar rights necessary under law or otherwise for
such Person to conduct its operations as now being conducted, (ii) each of such
licenses, permits, authorizations, registrations, approvals and similar rights
is valid and subsisting, in full force and effect and enforceable by such
Person, and (iii) such Person is in compliance with all terms, conditions or
other provisions of such permits, authorizations, registrations, approvals and
similar rights, except, in each case covered by clauses (a)(i), (ii) and (iii),
to the extent that the failure to do so could not reasonably be expected to have
a Material Adverse Effect; (b) none of the Borrowers nor any of their respective
Subsidiaries has received any notices of any violation of, noncompliance with,
or remedial obligation under, Requirements of Environmental Laws, and there are
no writs, injunctions, decrees, orders or judgments outstanding, or lawsuits,
claims, proceedings, investigations or inquiries pending or, to the knowledge of
any Borrower, threatened, relating to the ownership, use, condition,
maintenance, or operation of, or conduct of business related to, any Property
owned, leased or operated by such Borrower or any of its Subsidiaries, other
than those
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violations, instances of noncompliance, obligations, writs, injunctions,
decrees, orders, judgments, lawsuits, claims, proceedings, investigations or
inquiries that could not reasonably be expected to have a Material Adverse
Effect; (c) there are no Material obligations, undertakings or liabilities
arising out of or relating to Environmental Laws to which any Borrower or its
Subsidiaries has agreed to, assumed or retained, or by which such Borrower or
its Subsidiaries is adversely affected, by contract or otherwise; (d) there are
no facts, circumstances or conditions on or related to any Property of any
Borrower or its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect or cause any such Property to be subject to any material
restrictions on its ownership, use, occupancy or transferability to the extent
such restrictions could reasonably be expected to have a Material Adverse
Effect, and (e) none of the Borrowers nor any of their respective Subsidiaries
has received a written notice or claim to the effect that such Person is or may
be liable to any Person as the result of a release or threatened release of a
hazardous material or solid waste that could reasonably be expected to have a
Material Adverse Effect, PROVIDED, with respect to matters pertaining to Saybolt
or Scott Pickford, this representation and warranty is limited to the extent of
the actual knowledge of any Borrower in regard thereto..
Section 4.16. SECURITY INTERESTS. Each of the Pledge Agreements
creates, as security for the Obligations purported to be secured thereby, a
valid and enforceable perfected, first priority security interest in and Lien on
all of the Collateral subject thereto, in favor of the Administrative Agent for
the benefit of the Bank Group. No filings or recordings are required in order to
perfect the security interests created under any Pledge Agreement except for
filings or recordings required in connection with any such Pledge Agreement
which shall have been made upon or prior to (or are the subject of arrangements,
satisfactory to the Administrative Agent, for filing on or promptly after the
date of) the execution and delivery thereof.
Section 4.17. LABOR RELATIONS. None of the Borrowers nor any of
their respective Subsidiaries is engaged in any unfair labor practice that could
reasonably be expected to have a Material Adverse Effect. There is (a) no unfair
labor practice compliant pending against any Borrower or any of its Subsidiaries
or threatened against any of them, before the National Labor Relations Board,
and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against any Borrower or any of its
Subsidiaries or, to the best of any Borrower's knowledge, threatened against any
of them, (b) no strike, labor dispute, slowdown or stoppage pending against any
Borrower or any of its Subsidiaries or, to the best of the Borrower's knowledge,
threatened against any Borrower or any of its Subsidiaries and (c) no union
representation petition existing with respect to the employees of any Borrower
or any of its Subsidiaries and no union organizing activities are taking place,
except with respect to any matter specified in clause (a), (b) or (c) above,
either individually or in the aggregate, such as could not reasonably be
expected to have a Material Adverse Effect, PROVIDED, with respect to matters
pertaining to Saybolt or Scott Pickford, this representation and warranty is
limited to the extent of the actual knowledge of any Borrower in regard thereto.
Section 4.18. NO MATERIAL ADVERSE CHANGE. There has occurred no
event or effect that has had or could reasonably be expected to have a Material
Adverse Effect.
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Section 4.19. CREDIT PARTIES AS PERCENTAGE OF CONSOLIDATED
ENTITY. As of the Execution Date, the Credit Parties have at least sixty percent
(60%) of the total assets and total revenues of the Parent on a consolidated
basis.
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ARTICLE V
AFFIRMATIVE COVENANTS
So long as any Letter of Credit remains outstanding, any
principal amount of any Loan, any principal amount of any reimbursement
obligation in respect of any Letter of Credit, any amount of interest accrued
under the Notes or in respect of any Letter of Credit, or any commitment or
other fee, expense, compensation or any other amount payable to any member of
the Bank Group under the Loan Documents shall remain unpaid or outstanding or
any Bank shall have any Commitment hereunder:
Section 5.01. REPORTING REQUIREMENTS. The Parent shall deliver or
cause to be delivered to the Administrative Agent (with sufficient copies for
the Administrative Agent to distribute the same to the other members of the Bank
Group):
(a) As soon as available and in any event within sixty (60) days
after the end of each of the first three fiscal quarters of each fiscal year of
the Parent:
(i) copies of the unaudited consolidated and consolidating
balance sheets of the Parent as of the end of such period, and unaudited
consolidated and consolidating statements of operations, shareholders'
equity and cash flows of the Parent for that period and for the portion
of the year ending with such period, in each case setting forth in
comparative form (on a consolidated basis) the figures for the
corresponding period of the preceding fiscal year, all in reasonable
detail; and
(ii) a certificate of a Responsible Officer of the Parent (1)
stating that (A) such financial statements fairly present in all
material respects the consolidated and consolidating financial position
and results of operations of the Parent in accordance with GAAP
consistently applied, subject to year-end adjustments and the absence of
notes and (B) no Default or Event of Default has occurred and is
continuing and the Parent is not aware of any event or condition which
could reasonably be expected to create a Default or Event of Default or,
if any such event has occurred and is continuing, the action the Parent
is taking or proposes to take with respect thereto, and (2) setting
forth calculations demonstrating compliance with SECTION 6.04 and (3)
stating that the Borrowers are in compliance with the provisions of
SECTION 5.10.
(b) As soon as available and in any event within one hundred
twenty (120) days after the end of each fiscal year of the Parent:
(i) copies of the audited consolidated balance sheets of
the Parent as of the close of such fiscal year and audited consolidated
statements of operations, shareholders' equity and cash flows of the
Parent for such fiscal year, accompanied by an opinion thereon (which
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shall not be qualified) of independent accountants of recognized
national standing selected by the Parent and reasonably satisfactory to
the Majority Banks, to the effect that such consolidated financial
statements have been prepared in accordance with GAAP consistently
applied (except for changes with which such accountants concur) and that
such audit has been made in accordance with generally accepted auditing
standards, and the corresponding unaudited consolidating statements in
each case setting forth in comparative form (on a consolidated basis)
the figures for the preceding fiscal year, all in reasonable detail; and
(ii) a certificate of a Responsible Officer of the Parent
(A) setting forth calculations demonstrating compliance with SECTION
6.04, (B) stating that no Default or Event of Default has occurred and
is continuing or, if any such event has occurred and is continuing, the
action the Parent is taking or proposes to take with respect thereto,
and (C) stating that the Borrowers are in compliance with SECTION 5.10.
(c) As soon as available and in any event with in sixty (60) days
after the end of each calendar quarter, a certificate of a Responsible Officer
of the Parent setting forth a calculation of the Margin Ratio (a "MARGIN RATIO
CERTIFICATE") as of the end of such calendar quarter.
(d) Within ten (10) Business Days after the sending or filing
thereof, copies of all definitive reports and shareholder information which a
Borrower or any of its Subsidiaries sends to its shareholders or the SEC, or
otherwise makes available to the public.
(e) Immediately after a Borrower or any of its Subsidiaries
becomes aware of the occurrence or the likelihood of an occurrence of a Default
or Event of Default, a certificate of a Responsible Officer of such Borrower
setting forth details of such Default or Event of Default and the action which
has been taken or is to be taken with respect thereto.
(f) As soon as reasonably possible and in any event within five
(5) Business Days after a Borrower or any of its Subsidiaries becomes aware
thereof, written notice from a Responsible Officer of such Borrower of (i) the
institution of or overt threat of, any action, suit, proceeding, governmental
investigation or arbitration by any Governmental Authority or other Person
against or affecting such Borrower or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect and that has not been
previously disclosed in writing to the Bank Group pursuant to this SECTION 5.01
or (ii) any Material development in any action, suit, proceeding, governmental
investigation or arbitration already disclosed to the Bank Group pursuant to
this SECTION 5.01.
(g) As soon as reasonably possible and in any event within five
(5) Business Days after a Borrower or any of its Subsidiaries becomes aware
thereof, written notice from a Responsible Officer of such Borrower of (i) any
violation of, noncompliance with, or remedial obligations under, Requirements of
Environmental Laws that could reasonably be expected to have a Material Adverse
Effect, (ii) any release or threatened release affecting any Property owned,
leased or operated by a Borrower or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse
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Effect, (iii) the amendment or revocation of any permit, authorization,
registration, approval or similar right that could reasonably be expected to
have a Material Adverse Effect or (iv) changes to Requirements of Environmental
Laws that could reasonably be expected to have a Material Adverse Effect.
(h) Promptly, and in any event within five (5) Business Days
after becoming aware of any of the following, a written notice setting forth the
nature thereof and the action, if any, that a Borrower or an ERISA Affiliate
proposes to take with respect thereto: (i) with respect to any Pension Plan, any
Reportable Event, for which notice thereof has not been waived pursuant to
applicable regulations as in effect on the date hereof; or (ii) the taking by
the PBGC of steps to institute, or the threatening by the PBGC of the
institution of, proceedings under section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Pension Plan, or the receipt
by a Borrower or any ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by the PBGC with respect to such Multiemployer Plan;
or (iii) any event, transaction or condition that could result in the incurrence
of any Material liability by a Borrower or any ERISA Affiliate pursuant to Title
I or IV of ERISA or the penalty or excise tax provisions of the Internal Revenue
Code relating to employee benefit plans, or in the imposition of any Lien on any
of the rights, properties or assets of a Borrower or any ERISA Affiliate
pursuant to Title I or IV of ERISA or such penalty or excise tax provisions; or
(iv) the inability or failure of a Borrower or any ERISA Affiliate to make
timely any payment or contribution to or with respect to any Pension Plan,
Multiemployer Plan or Other Benefit Plan, if such failure, either separately or
together with all other such failures could reasonably be expected to be
Material; or (v) any event with respect to any Pension Plan, Multiemployer Plan
and/or Other Benefit Plan, individually or in the aggregate, that could
reasonably be expected to result in a Material liability.
(i) In addition, on or before April 15 of each year commencing
April 15, 1998, the Parent will deliver to the Administrative Agent a report
prepared by the Parent's independent insurance broker which report (i) lists all
insurance policies and programs then in effect with respect to the Properties of
the Borrowers and their respective Subsidiaries, (ii) specifies for each such
policy and program, (A) the amount thereof, (B) the risks insured against
thereby, (C) the name of the insurer and each insured party thereunder and (D)
the policy or other identification number thereof, and (iii) certifies that all
such policies and programs are in full force and effect, accompanied by a report
from the Parent certifying that such policies are placed with such insurance
companies, underwriters or associations, in such amounts, against such risks,
and in such form, as are normally issued against by Persons of similar size and
established reputation engaged in the same or similar businesses and similarly
situated, and conform with the requirements of this Agreement.
(j) Within sixty (60) days of the end of each fiscal quarter
ending March 31st, June 30th and September 30th and within one hundred twenty
(120) days of the fiscal quarter ending December 31st, a schedule by each
actively operating legal entity listing total assets, total revenues and EBITDA
of such legal entity.
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(k) Promptly upon receipt thereof and following such time as the
appropriate officers of the Parent shall have had reasonable time to respond
thereto, a copy of each formal report or "management letter" submitted to the
Parent by its independent accountants in connection with any annual, interim or
special audit made by it of the books of the Parent.
(l) Such other information as any member of the Bank Group may
from time to time reasonably request respecting the business, Properties,
operations or condition, financial or otherwise, of the Borrowers or any of
their Subsidiaries.
Section 5.02. TAXES; CLAIMS. Each Borrower will pay and
discharge, and will cause each of its Subsidiaries to pay and discharge, all
taxes, assessments and governmental charges or levies imposed upon such Person
or upon its income or profits, or upon any Properties belonging to such Person,
prior to the date on which penalties attach thereto, and all lawful claims
which, if unpaid, might become a Lien upon any Properties of such Person, other
than (a) any such tax, assessment, charge, levy or claim which is being
contested in good faith by appropriate proceedings promptly initiated and
diligently conducted and with respect to which adequate reserves are set aside
on the books of such Person in accordance with GAAP, or (b) if the failure to
file such taxes could not reasonably be expected to have a Material Adverse
Effect.
Section 5.03. COMPLIANCE WITH LAWS. Each Borrower will comply,
and will cause each of its Subsidiaries to comply, with all applicable
Requirements of Law imposed by, any Governmental Authority, if non-compliance
with such Requirement of Law could reasonably be expected to have a Material
Adverse Effect. Without limitation of the foregoing, each Borrower shall, and
shall cause each of its Subsidiaries to, comply with all Requirements of
Environmental Laws, operate Properties and conduct its business in accordance
with good environmental practices, and handle, treat, store and dispose of
hazardous materials or solid waste in accordance with such practices, except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
Section 5.04. INSURANCE. Each Borrower will maintain, and will
cause each of its Subsidiaries to maintain insurance, with financially sound and
reputable insurance companies or associations, against such risks and in such
amounts (and with co-insurance and deductibles), as are usually insured against
by Persons of similar size and established reputation engaged in the same or
similar businesses and similarly situated, including insurance against fire,
casualty, business interruption, injury to Persons or property and other normal
hazards normally insured against.
Section 5.05. EXISTENCE. Each Borrower will preserve and
maintain, and will cause each of its Subsidiaries to preserve and maintain, its
existence, rights, franchises and privileges in the jurisdiction of its
incorporation or organization, and qualify and remain qualified, and cause each
of its Subsidiaries to qualify and remain qualified, as a foreign corporation in
each jurisdiction in which such qualification is material to the business and
operations of such Person or the ownership or leasing of the Properties of such
Person except to the extent that a Subsidiary merges or
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consolidates in compliance with SECTION 6.06 or ceases to be a Subsidiary of any
Borrower if such cessation is permitted under this Agreement.
Section 5.06. INSPECTIONS. Upon at least one (1) Business Day
advance notice, each Borrower will permit, and will cause each of its
Subsidiaries to permit, any agents or representatives of the Administrative
Agent or its designee to from time to time examine and make copies of and
abstracts from the records and books of account of, and visit the Properties of
any of the Borrowers and their Subsidiaries and to discuss any of the affairs,
finances and accounts of any such Person that in any way relate to this
Agreement or the performance or ability to perform hereunder of any Credit
Party, with any of said Person's independent public accountants, officers or
directors during normal business hours. If an Event of Default has occurred and
is continuing, Borrowers will pay for all such examinations; prior thereto the
examining Bank will pay for same.
Section 5.07. MAINTENANCE OF PROPERTIES. Each Borrower will
maintain and preserve, and will cause each of its Subsidiaries to maintain and
preserve, all of its Property necessary for the proper conduct of its business
in good repair, good working order and condition, ordinary wear and tear
excepted, and make all necessary and proper repairs, replacements, additions and
improvements thereto to the extent and in the manner customary in the industry
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
Section 5.08. ACCOUNTING SYSTEMS. Each Borrower will keep, and
will cause each of its Subsidiaries to keep, adequate records and books of
account in which complete entries will be made in accordance with GAAP
consistently applied (subject to year end adjustments), reflecting all financial
transactions of such Person. Each Borrower shall maintain or cause to be
maintained a system of accounting established and administered in accordance
with sound business practices to permit preparation of financial statements in
conformity with GAAP, and each of the financial statements described herein
shall be prepared from such system and records.
Section 5.09. USE OF LOANS AND LETTERS OF CREDIT. All Letters of
Credit shall be issued for general corporate purposes consistent with the terms
of this Agreement and all Requirements of Law. The Parent will use the proceeds
of the Tranche A Loans solely to finance or refinance the acquisitions of
Saybolt and its related Subsidiaries and Affiliates and the UK Borrower will use
the proceeds of the Tranche B Loans solely to finance or refinance the
acquisition of Scott Pickford, and, in each case in a manner consistent with the
terms of this Agreement and all Requirements of Law. The US Borrower and the
Parent will use the proceeds of all Dollar Revolving Loans and the Parent will
use the proceeds of the Guilder Revolving Loans for working capital and other
general corporate purposes consistent with the terms of this Agreement and all
Requirements of Law.
Section 5.10. ADDITIONAL GUARANTEES AND STOCK PLEDGES. (a) Within
ten (10) days from the Execution Date, the Borrowers shall identify such
Subsidiaries it intends to cause to become Credit Parties as are necessary to
modify SECTION 4.19 such that the figure in said section becomes seventy five
percent (75%) instead of sixty percent (60%). Within thirty (30) days, the
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Borrowers shall cause such Subsidiaries to become Credit Parties and will cause
all of the capital stock of said Persons to be pledged to the Administrative
Agent as security for the Obligations all as more fully described in SECTION
5.10(B).
(b) In the event any Borrower or any of their Subsidiaries
acquires any Subsidiary subsequent to the Execution Date, or if any current
Subsidiary (other than Core Laboratories Sales N.V. or Saybolt Nederland B.V.,
which shall be excluded herefrom) that is not a Credit Party changes in such a
manner that said Subsidiary: (i) has total revenue constituting five percent
(5%) or more of the pro forma consolidated total revenues, or (ii) has five
percent (5%) of the pro forma consolidated total assets, of the Parent and all
of its Subsidiaries on a consolidated basis (in the case of both (i) and (ii),
after the acquisitions of Saybolt and Scott Pickford), such Subsidiary shall
execute and deliver to the Administrative Agent a Guaranty Agreement
guaranteeing the Obligations on the same basis as the other Guarantors and the
Parent shall (or shall cause the relevant Subsidiary to) execute and deliver to
the Administrative Agent an amendment and supplement to the Pledge Agreement, in
form and substance reasonably satisfactory to the Administrative Agent, pledging
100% of the capital stock of such Subsidiary as security for the Obligations
along with such financing statements, stock powers, legal opinions and other
documents or certificates related thereto as the Administrative Agent may
reasonably request. In addition, subsequent to the Execution Date, if the
Borrowers and all of the Subsidiaries that are Guarantors do not have total
revenue and total assets equal to both seventy-five percent (75%) of the
consolidated total revenue and the total assets, respectively, of the Parent and
all of its Subsidiaries on a consolidated basis, as shown by the reports
required under SECTION 5.01(J), the Parent will pledge, or cause to be pledged,
the stock of such Subsidiaries as the Majority Banks may reasonably request to
attain each of said seventy-five percent (75%) levels and will cause such
Persons to become Guarantors, all with appropriate supporting documentation as
referenced above.
Section 5.11. FURTHER ASSURANCES IN GENERAL. Each Borrower shall,
and shall cause each of its Subsidiaries to, protect and perfect the Liens
contemplated by the Pledge Agreements. Each Borrower at its expense shall, and
shall cause each of its Subsidiaries to, promptly execute and deliver all such
other and further documents, agreements and instruments in compliance with or
accomplishment of the covenants and agreements of a Borrower or any of its
Subsidiaries in the Loan Documents, including, without limitation, the
accomplishment of any condition precedent that may have been waived by the Banks
prior to the initial Borrowing or Letter of Credit or any subsequent Borrowings
or Letters of Credit.
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ARTICLE VI
NEGATIVE COVENANTS
So long as any Letter of Credit remains outstanding, any
principal amount of any reimbursement obligation in respect of any Letter of
Credit, any principal amount of any Loan, any amount of interest accrued under
the Notes or in respect of any Letter of Credit, or any commitment, facility or
other fee, expense, compensation or any other amount payable to any member of
the Bank Group under the Loan Documents shall remain unpaid or outstanding or
any Bank shall have any Commitment hereunder:
Section 6.01. INDEBTEDNESS RESTRICTION. Each Borrower will not,
and will not permit any of its Subsidiaries to, create, incur, assume or suffer
to exist, any Indebtedness other than:
(a) Indebtedness of the Borrowers and the Guarantors under the
Loan Documents;
(b) Indebtedness of the Borrowers or their Subsidiaries in
respect of any Derivatives permitted by SECTION 6.03;
(c) Indebtedness existing on the Execution Date and described on
SCHEDULE 6.01;
(d) subject to the limitations of SECTION 6.07, unsecured
Indebtedness owing to a Borrower by any of its Subsidiaries or owing by a
Borrower to any of its Subsidiaries, PROVIDED any such Indebtedness in excess of
$5,000,000 shall be evidenced by a subordinated promissory note in a form
reasonably satisfactory to the Administrative Agent, and shall be pledged to the
Administrative Agent for the benefit of the Banks as security for the
Obligations;
(e) Other Indebtedness of up to $2,000,000 (or its Equivalent)
outstanding at any one time and any Guaranties thereof;
(f) Other unsecured Indebtedness consisting of funded debt in the
form of money market lines of credit or similar arrangements not to exceed
$5,000,000 (or its Equivalent) outstanding at any one time and any Guaranties
thereof;
(g) Other unsecured Indebtedness (contingent or direct) not to
exceed $5,000,000 outstanding at any one time in respect of letters of credit
issued for the account of any of the Credit Parties in the conduct of their
business in the ordinary course and any Guaranties thereof; and
(h) Indebtedness in existence (but not incurred or created in
connection with such acquisition) on the date on which a Person is acquired
(after the Execution Date) by the Parent or any of its Subsidiaries and for
which Indebtedness: (i) neither the Parent nor any of its other Subsidiaries has
any obligation with respect to such Indebtedness, and (ii) none of the
Properties of
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the Parent or any of its other Subsidiaries is bound (and any extensions,
renewals, modifications or refinancings thereof which do not increase the
principal amount thereof or shorten the respective maturities thereof or
increase the collateral therefor), not to exceed $10,000,000 outstanding at any
one time.
Section 6.02. LIEN RESTRICTION. Each Borrower will not, and will
not permit any of its Subsidiaries to, create, incur, assume or suffer to be
created, assumed or incurred or to exist, any Lien upon any of such Person's
Property, whether now owned or hereafter acquired, other than the following
Liens ("EXCEPTED LIENS"):
(a) Liens created pursuant to this Agreement or any other Loan
Document;
(b) statutory Liens for taxes or other assessments that are not
yet delinquent (or that, if delinquent, are being contested in good faith by
appropriate proceedings and for which the Borrowers or their Subsidiaries have
set aside on their books adequate reserves in accordance with GAAP consistently
applied);
(c) Liens imposed by law which were incurred in the ordinary
course of business, such as carriers', warehousemen's and mechanics' liens,
statutory landlord's liens and other similar liens arising in the ordinary
course of business, and (x) which do not in the aggregate Materially detract
from the value of such Property or Materially impair the use thereof in the
operation of the business of any Borrower or its Subsidiaries or (y) which are
being contested in good faith by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the Property subject to such
Lien or procuring the release of the Property subject to such lien from arrest
or detention;
(d) Liens on any real property which do not secure Indebtedness
and do not in the aggregate Materially detract from the value of such Property
or Materially impair the use thereof in the operation of the business of any
Borrower or its Subsidiaries;
(e) Liens existing on the Execution Date and listed on SCHEDULE
6.02, without giving effect to any subsequent extensions or renewals thereof;
(f) Liens on cash and Cash Equivalents in an aggregate amount not
to exceed $500,000.00 to secure performance of bids, trade contracts, leases and
other similar obligations incurred in the ordinary course of business;
(g) Liens securing any purchase money Indebtedness or Capital
Leases allowed under SECTION 6.01(E) on the property or assets acquired in
connection with the incurrence of such purchase money Indebtedness;
(h) Liens on Property of the Person acquired as contemplated
under SECTION 6.01(H) to secure Indebtedness permitted by SECTION 6.01(H); and
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(i) Liens upon any Property hereafter acquired by the Parent or
any of its Subsidiaries to secure Indebtedness in existence on the date of such
acquisition (but not incurred or created in connection with such acquisition),
which indebtedness is assumed by such Person simultaneously with such
acquisition, which Liens extend only to the Property so acquired and which is
otherwise non-recourse to the Parent and its Subsidiaries.
Section 6.03. DERIVATIVES. The Borrowers shall not, and shall not
permit any of their Subsidiaries to, enter into any Derivatives other than
interest rate and foreign exchange Derivatives entered into for purposes of
hedging bona fide interest and foreign exchange risk and not for speculation,
PROVIDED that any such arrangements entered into with any of the Banks shall be
secured by the Collateral on a last-out basis.
Section 6.04. FINANCIAL COVENANTS.
(a) FIXED CHARGE COVERAGE RATIO. As of the last day of any month,
the Parent will not permit the ratio of (i) its consolidated EBITDA for the
twelve (12) month period then ended calculated on a rolling twelve (12) month
basis to (ii) its consolidated Fixed Charges for such twelve month period to be
less than that shown as follows for the periods indicated
From To Minimum Ratio
-------------- -------- -------------
Effective Date 12/31/97 1.4 to 1.0
1/1/98 12/31/98 1.5 to 1.0
1/1/99 3/31/99 1.4 to 1.0
4/1/99 6/30/99 1.3 to 1.0
7/1/99 9/30/99 1.2 to 1.0
10/1/99 12/31/99 1.1 to 1.0
1/1/00
and thereafter 1.0 to 1.0
(b) INDEBTEDNESS-TO-EBITDA RATIO. As of any date of
determination, the Parent will not permit the ratio of (i) its total
consolidated Indebtedness as of the last day of the fiscal quarter immediately
preceding the date of determination to (ii) its consolidated EBITDA for the
twelve month period ending on the last day of the quarter immediately preceding
the date of determination, calculated on a rolling twelve (12) month basis, to
be greater than (A) 4.0 to 1.0 from the Effective Date through December 31,
1997, (B) 3.5 to 1.0 from January 1, 1998 through June 30, 1998, (C) 3.0 to 1.0
from July 1, 1998 through June 30, 1999, (D) 2.75 to 1.0 from July 1, 1999
through June 30, 2000, and (E) 2.5 to 1.0 from July 1, 2000 through the
Termination Date.
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(c) MINIMUM NET WORTH. The Parent will not permit consolidated
Net Worth to at any time be less than the sum of (i) $39,500,000.00 plus (ii)
fifty percent (50%) of Net Income for any fiscal quarter ending after the
Effective Date (excluding any such fiscal quarter in which Net Income is a
negative number), plus (iii) 100% of the proceeds of any equity offering or
similar capital infusion after the Effective Date.
(d) MINIMUM CURRENT RATIO. The Parent will not permit the ratio
of (i) its Current Assets to (ii) its Current Liabilities at the end of any
fiscal quarter to be less than 1.0 to 1.0.
Section 6.05. SALES OF ASSETS. Each Borrower will not, and will
not permit any of its Subsidiaries to (a) sell, transfer, assign or otherwise
dispose of the capital stock of any Credit Party or (b) sell, transfer, assign
or otherwise dispose of any Property (except for sales or other dispositions of
inventory and surplus or obsolete equipment in the ordinary course of business).
Section 6.06. CONSOLIDATION AND MERGERS. Each Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly, dissolve
or consolidate with or merge into any Person or permit any Person to consolidate
with or merge into it, except that: (i) any Subsidiary of the Parent may merge
into or consolidate with any other Subsidiary of the Parent (PROVIDED that if
either of such Subsidiaries is a Borrower, such Borrower shall be the surviving
entity), (ii) any Subsidiary of the Parent (other than the UK Borrower or the US
Borrower) may merge into or consolidate with the Parent (so long as the Parent
is the surviving entity), and (iii) any Subsidiary may dissolve after
transferring substantially all of its assets to the Parent or another Credit
Party PROVIDED in each case that immediately after giving effect and pro forma
effect thereto, no event shall occur and be continuing which constitutes either
a Default or an Event of Default.
Section 6.07. RESTRICTED DISBURSEMENTS. Each Borrower will not,
and will not permit any of its Subsidiaries to approve, make, incur or commit to
incur any Restricted Disbursements after the Execution Date other than:
(a) advances or extensions of credit on terms customary in the
industry involved in the form of accounts receivable incurred, and investments,
loans, and advances made in settlement of such accounts receivable, all in the
ordinary course of business;
(b) investments in cash or Cash Equivalents;
(c) dividends paid by any direct or indirect Subsidiary of the
Parent to the Parent directly or indirectly
(d) Indebtedness between the Parent and its Subsidiaries to the
extent permitted by SECTION 6.01;
(e) investments in any Credit Party;
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(f) Capital Expenditures (including Capital Leases) of not more
than (i) $7,500,000 during the remainder of calendar year 1997; (ii) $16,500,000
for calendar year 1998; and (iii) one hundred ten percent (110%) of the total
for the prior calendar year for each calendar year after 1998 during the term
hereof;
(g) acquisitions by the Parent or any of its Subsidiaries of
capital stock or other equity interests in any other Person the consideration
for which is: (y) common stock of the Parent or (z) cash of not more than
$7,500,000.00 in any single transaction or $22,500,000.00 in the aggregate (in
each case, including assumption of debt) during the term hereof; PROVIDED that
no Default exists or would occur as a result of such acquisition;
(h) investments in or loans to non-Credit Party Subsidiaries of
not more than $5,000,000.00 (or its Equivalent thereof in Dollars) in excess of
the investments or loans outstanding on the Execution Date outstanding in the
aggregate at any one time; PROVIDED, that if any Person in which such Investment
is made becomes a Credit Party, the actual amount of the dollar Investment in
such Person shall no longer be considered an Investment under this SECTION
6.07(H);
(i) other Restricted Disbursements of investments in capital
stock of a Borrower in respect of pension plans, cash paid in connection with
stock option programs, employee stock buybacks, and similar items not to exceed
$500,000.00 per fiscal year of the Parent;
(j) investments currently shown on SCHEDULE 6.07(J);
(k) other investments of not more than $500,000 in the aggregate
per fiscal year of the Parent; and
(l) investments acquired incidentally to and in conjunction with
acquisitions of assets permitted by this Section 6.07; PROVIDED that such
investments do not constitute more than five percent (5%) of the total
consideration paid for such acquisition.
Section 6.08. LINES OF BUSINESS. Each Borrower will not, and will
not permit any of its Subsidiaries to, materially alter the character of the
business of such Borrower and its Subsidiaries taken as a whole from that
conducted on the Effective Date.
Section 6.09. TRANSACTIONS WITH AFFILIATES. None of the Borrowers
nor any of their respective Subsidiaries, will enter into any transaction with
an Affiliate other than transactions entered into in the ordinary course of
business and upon terms no less favorable than those that such Borrower or its
Subsidiary, as applicable, could obtain in an arms length transaction with a
Person that is not an Affiliate. No Credit Party will transfer assets or funds
to any Affiliate or Subsidiary that is not a Credit Party except for value, as
permitted under SECTION 6.06 or as an investment permitted under SECTION 6.07.
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Section 6.10. RESTRICTIONS ON SUBSIDIARIES. Each Borrower will
not, and will not permit any of its Subsidiaries to, create or otherwise cause
or suffer to exist any encumbrance or restriction which prohibits or otherwise
restricts (a) the ability of any Subsidiary to (i) pay dividends or make other
distributions or pay any Indebtedness owed to any Credit Party, (ii) make loans
or advances to any Credit Party, or (iii) transfer any of its Properties to any
Borrower or (b) the ability of any Borrower or any Subsidiary of such Borrower
to create, incur, assume or suffer to exist any Lien upon its Property to secure
the Obligations or to become a guarantor of the Obligations, other than
prohibitions or restrictions existing under or by reason of: (1) this Agreement
and the other Loan Documents; (2) applicable law; (3) Liens, prohibitions or
restrictions permitted by SECTION 6.02 and any documents or instruments
governing the terms of any Indebtedness or other obligations secured by any such
Liens, PROVIDED that such prohibitions or restrictions apply only to the
Property subject to such Liens; and (4) prohibitions or restrictions contained
in any document or instrument governing the terms of the Indebtedness permitted
by SECTION 6.01(H).
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ARTICLE VII
DEFAULT AND REMEDIES
Section 7.01. EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) any Borrower shall fail to pay when due any installment of
principal of the Notes or any reimbursement obligation in respect of any Letter
of Credit; or
(b) any Borrower shall fail to pay any interest on any Loan or
any arrangement fee, commitment fee, administration fee, funding fee, L/C Fee,
Facing Fee, commission, expense, compensation, reimbursement or other amount
when due and such default shall continue for a period of five (5) days which
shall, in no event, be less than three (3) Business Days; or
(c) any Borrower shall fail to perform any term, covenant or
agreement contained in ARTICLE VI or SECTION 5.01(E) of this Agreement; or
(d) any Borrower shall fail to perform any term, covenant or
agreement contained in this Agreement (other than those referenced in
subsections (a), (b) and (c) of this SECTION 7.01) and such failure shall not
have been remedied within thirty (30) days of: (y) any Borrower's obtaining
knowledge thereof or (z) written notice thereof having been delivered to any
Borrower by the Administrative Agent, whichever comes first; or
(e) any Credit Party shall fail to perform any term, covenant or
agreement contained in any Loan Document (other than those referenced in
subsections (a), (b), (c) and (d) of this SECTION 7.01) and such failure shall
not have been remedied within thirty (30) days of: (y) any Borrower's obtaining
knowledge thereof or (z) written notice thereof having been delivered to any
Borrower by the Administrative Agent, whichever comes first; or
(f) any representation or warranty made by a Borrower or any
Guarantor or any of their respective officers, in any Loan Document or in any
certificate, agreement, instrument or statement contemplated by or delivered
pursuant to, or in connection with, any Loan Document shall prove to have been
incorrect in any Material respect when made; or
(g) a Borrower or any of its Subsidiaries shall (i) fail to pay
Indebtedness having a principal amount in excess of $500,000.00 (or its
Equivalent if in a currency other than Dollars) in the aggregate (other than the
amounts referred to in subsections (a) and (b) of this SECTION 7.01) owing by
such Person, or any interest or premium thereon, when due (or, if permitted by
the terms of the relevant document, within any applicable grace period), whether
such Indebtedness shall become due by scheduled maturity, by required
prepayment, by acceleration, by demand or otherwise; or (ii) fail to perform any
term, covenant or condition on its part to be performed under any agreement or
instrument evidencing, securing or relating to any such Indebtedness, when
required to be performed, and such failure shall continue after the applicable
grace period, if any,
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specified in such agreement or instrument, if the effect of such failure is to
accelerate or to permit the holder or holders of such Indebtedness to
accelerate, the maturity of such Indebtedness; or
(h) any Loan Document shall (other than with the consent of the
Majority Banks), at any time after its execution and delivery for any reason,
cease to be in full force and effect or to provide the Liens contemplated
thereby, or shall be declared to be null and void, or the validity or any
enforceability thereof or of the Liens contemplated thereby shall be contested
by any Credit Party or any Credit Party shall deny in writing that it has any or
further liability or obligation under any such Loan Document; or
(i) a Borrower or any of its Subsidiaries shall be adjudicated
insolvent, or shall generally not pay, or admit in writing its inability to pay,
its debts as they mature, or make a general assignment for the benefit of
creditors, or any proceeding shall be instituted by any such Person seeking to
adjudicate it insolvent, seeking liquidation, winding-up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial part
of its Property, or a Borrower or any of its Subsidiaries shall take any action
in furtherance of any of the actions set forth above in this SECTION 7.01(I); or
(j) any proceeding of the type referred to in SECTION 7.01(I) is
filed, or any such proceeding is commenced against a Borrower or any of its
Subsidiaries or any such Person by any act indicates its approval thereof,
consent thereto or acquiescence therein, or an order for relief is entered in an
involuntary case under the bankruptcy law of the United States, or an order,
judgment or decree is entered appointing a trustee, receiver, custodian,
liquidator or similar official or adjudicating any such Person insolvent, or
approving the petition in any such proceedings, and such order, judgment or
decree remains in effect for sixty (60) days; or
(k) a final judgment or order for the payment of money in excess
of $500,000.00 (or its Equivalent if in a currency other than Dollars) (net of
acknowledged, uncontested insurance coverage) shall be rendered against any
Credit Party which has not been discharged, vacated or reversed and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) a stay of enforcement of such judgment or order by
reason of a pending appeal or otherwise, shall not be in effect for any period
of thirty (30) consecutive days; or
(l) if (i) any Pension Plan shall fail to satisfy the minimum
funding standards of ERISA or the Internal Revenue Code for any plan year or
part thereof or a waiver of such standards or extension of any amortization
period is sought or granted under section 412 of the Internal Revenue Code, (ii)
a notice of intent to terminate any Pension Plan shall have been or is
reasonably expected to be filed with the PBGC (other than in connection with a
termination under Section 4041(b) of ERISA) or the PBGC shall have instituted
proceedings under Section 4042 of ERISA to terminate or appoint a trustee to
administer any Pension Plan or the PBGC shall have notified a Borrower or any
ERISA Affiliate that a Pension Plan may become a subject to any such
proceedings,
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(iii) the aggregate "amount of unfunded benefit liabilities" (within the meaning
of Section 4001(a)(18) of ERISA) under all Pension Plans, determined in
accordance with Title IV of ERISA, shall exceed $500,000, (iv) a Borrower or any
ERISA Affiliate shall have incurred or is reasonably expected to incur any
liability pursuant to Title I or IV of ERISA, the penalty or excise tax
provisions of the Internal Revenue Code relating to employee benefit plans
and/or other liability with respect to one or more Other Benefit Plans, (v) a
Borrower or any ERISA Affiliate withdraws from any Multiemployer Plan, (vi) a
Borrower or any ERISA Affiliate fails to make any contribution due, or payment
to, any Pension Plan, Multiemployer Plan and/or Other Benefit Plan, or (vii) a
Borrower or any ERISA Affiliate establishes or amends any employee welfare
benefit plan that provides post- employment welfare benefits in a manner that
would increase the liability of a Borrower or any ERISA Affiliate thereunder,
and any such event or events described in clauses (i) through (vii) above,
either individually or together with any other such event or events, could
reasonably be expected to have a Material Adverse Effect; or
(m) a Change of Control shall occur; or
(n) the stock of the Parent is involuntarily delisted by the
NASDAQ or other public exchange on which it is traded;
then, (i) upon the occurrence of any Event of Default described in SECTION
7.01(I) or SECTION 7.01(J), (A) the Commitments shall automatically terminate
and (B) the entire unpaid principal amount of all Loans, all interest accrued
and unpaid thereon, and all other amounts payable by the Borrowers under this
Agreement, the Notes and, the other Loan Documents shall automatically become
immediately due and payable, without presentment for payment, demand, protest,
notice of intent to accelerate, notice of acceleration or further notice of any
kind, all of which are hereby expressly waived by each Borrower, and the
Administrative Agent may direct the beneficiary of any outstanding Letter of
Credit to make a drawing under such Letter of Credit in an amount equal to the
full amount available thereunder and require from the US Borrower immediate
reimbursement for payments made pursuant to such drawing, or the Administrative
Agent, to the extent Cover had not already been provided, may direct the US
Borrower to deposit with the Administrative Agent cash equal to the aggregate
amount of all Outstanding Letters of Credit as security for the US Borrower's
obligations in respect of such Letters of Credit, and (ii) upon the occurrence
of any other Event of Default, the Administrative Agent may, and upon the
direction of the Majority Banks shall, by notice to each Borrower (A) declare
the Commitments to be terminated, whereupon the same shall forthwith terminate,
(B) declare the entire unpaid principal amount of all Loans, all interest
accrued and unpaid thereon, and all other amounts payable by the Borrowers under
this Agreement, the Notes, and the other Loan Documents, to be forthwith due and
payable, whereupon all such amounts shall become and be forthwith due and
payable, without presentment for payment, demand, protest, notice of intent to
accelerate, notice of acceleration or further notice of any kind, all of which
are hereby expressly waived by each Borrower, (C) direct the beneficiary of any
outstanding Letter of Credit to make a drawing under such Letter of Credit in an
amount equal to the full amount available thereunder and require from the US
Borrower immediate reimbursement for payments made pursuant to such drawing, or,
to the extent Cover had not already been provided, may direct the US
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Borrower to deposit with the Administrative Agent cash equal to the aggregate
amount of all Outstanding Letters of Credit as security for the US Borrower's
obligations in respect of such Letters of Credit, (D) setoff any amounts held by
it against any of the Obligations, as hereafter provided and (E) exercise any
other right or remedy available to it hereunder under any of the other Loan
Documents or at law or in equity.
Section 7.02. SETOFF IN EVENT OF DEFAULT. Upon the occurrence and
during the continuance of any Event of Default, each member of the Bank Group is
hereby authorized, at any time and from time to time, without notice to any
Borrower (any such notice being expressly waived by each Borrower) and to the
fullest extent permitted by applicable law, to setoff and apply any and all
deposits at any time held and other indebtedness at any time owing by such
member of the Bank Group (or any branch, Subsidiary or Affiliate of such member
of the Bank Group) to or for the credit or the account of any Borrower against
any and all of the obligations of any Borrower or any other Person, now or
hereafter existing under this Agreement, the Notes or the other Loan Documents,
irrespective of whether or not such member of the Bank Group shall have made any
demand for satisfaction of such obligations and although such obligations may be
unmatured. Any member of the Bank Group exercising such right agrees to notify
the relevant Borrower promptly after any such setoff and application made by
such Person; PROVIDED, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of the Bank Group under this
SECTION 7.02 are in addition to other rights and remedies (including, without
limitation, other rights of setoff) which the Bank Group may have hereunder or
under any applicable law.
Section 7.03. NO WAIVER; REMEDIES. No failure on the part of any
member of the Bank Group to exercise, or any delay in exercising, any right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies provided in this Agreement are
cumulative and not exclusive of any remedies provided in any of the other Loan
Documents or by law.
Section 7.04. ENFORCEMENT. The amounts payable by the Borrowers
under the Loan Documents to each Bank shall be a separate and independent debt,
but no Bank shall be entitled to enforce any right arising out of any Loan
Document except through the Administrative Agent acting for and on behalf of all
Banks unless otherwise agreed by the Majority Banks.
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ARTICLE VIII
THE ADMINISTRATIVE AGENT, THE
SYNDICATION AGENT AND THE ISSUING BANK
Section 8.01. AUTHORIZATION AND ACTION. Each Bank hereby appoints
and authorizes the Administrative Agent, the Syndication Agent and the Issuing
Bank to take such action in such capacity on such Bank's behalf and to exercise
such powers under this Agreement and the other Loan Documents as are delegated
to the Administrative Agent, the Syndication Agent or the Issuing Bank by the
terms hereof and thereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes or of
amounts owing under the other Loan Documents), neither the Administrative Agent,
the Syndication Agent nor the Issuing Bank shall be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Banks, and such instructions shall be
binding upon all Banks and any other holders of Notes; PROVIDED, HOWEVER, that
neither the Administrative Agent, the Syndication Agent nor the Issuing Bank
shall be required to take any action which exposes it to personal liability or
which is contrary to the Loan Documents or applicable law. Each of the
Administrative Agent, the Syndication Agent and the Issuing Bank is hereby
expressly authorized on behalf of the other members of the Bank Group, without
hereby limiting any implied authority, (a) to receive on behalf of each of the
other members of the Bank Group any payment of principal of or interest on the
Loans outstanding hereunder, any Letters of Credit and all other amounts accrued
hereunder paid to such Persons, and promptly to distribute to each other member
of the Bank Group its proper share of all payments so received; (b) to give
notice within a reasonable time on behalf of each other member of the Bank Group
to the Borrowers of any Default or Event of Default specified in this Agreement
of which the Administrative Agent has actual knowledge as provided in SECTION
8.09; (c) to distribute to the other members of the Bank Group copies of all
notices, agreements and other material as provided for in this Agreement as
received by such Person; and (d) to distribute to the Borrowers any and all
requests, demands and approvals received by such Person from any other member of
the Bank Group. Nothing herein contained shall be construed to constitute the
Administrative Agent, the Syndication Agent or the Issuing Bank as a trustee for
any holder of the Notes or of a participation therein, nor to impose on the
Administrative Agent, the Syndication Agent or the Issuing Bank any duties or
obligations other than those expressly provided for in the Loan Documents.
Section 8.02. RELIANCE, ETC. None of the Administrative Agent,
the Syndication Agent, the Issuing Bank, their Affiliates and their respective
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,
except for its or their own gross negligence or willful misconduct (as
determined by a court of competent jurisdiction by final and non-appealable
judgment). Without limitation of the generality of the foregoing, the
Administrative Agent, the Syndication Agent and the Issuing Bank: (a) may treat
the payee of any Note as the holder thereof until the Administrative Agent
receives and accepts an Assignment and Acceptance entered into by the Bank which
is the payee of
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such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
SECTION 10.02; (b) may consult with legal counsel (including counsel for the
Borrowers), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Bank and shall not be responsible to
any Bank for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement or the other Loan Documents;
(d) shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement or the
other Loan Documents on the part of the Borrowers or any other Person or to
inspect the property (including the books and records) of the Borrowers or any
other Person; (e) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Loan Document, any collateral provided for therein, or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram, cable or
telex) believed by it to be genuine and signed or sent by the proper party or
parties. None of the Administrative Agent, the Syndication Agent, the Issuing
Bank, their Affiliates and their respective directors, officers, employees or
agents shall have any responsibility to the Borrowers on account of the failure
or delay in performance or breach by any Bank of any of its obligations
hereunder or to any Bank on account of the failure of or delay in performance or
breach by any other Bank or any Borrower of any of its obligations hereunder or
in connection herewith; PROVIDED that the foregoing does not relieve the
Administrative Agent, the Syndication Agent or the Issuing Bank of any of its
respective obligations in its capacity as a Bank.
Section 8.03. AGENTS, AFFILIATES AND OTHER ACTIVITIES. Without
limiting the right of any other Bank to engage in any business transactions with
the Borrowers or any of their Affiliates, with respect to its Commitment, the
Loans made by it, the Notes issued to it and its interest in the Outstanding
Letters of Credit, the Administrative Agent and the Syndication Agent shall each
have the same rights and powers under this Agreement as any other Bank and may
exercise the same as though they were not such Agents; and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include said Person in its
individual capacity. Each of said Agents, or any of their Affiliates, may be
engaged in, or may hereafter engage in, one or more loan, Letter of Credit,
leasing, derivative or other financing activities not the subject of the Loan
Documents (collectively, the "OTHER FINANCINGS") with the Borrowers or any of
their Affiliates, or may act as trustee on behalf of, or depositary for, or
otherwise engage in other business transactions with the Borrowers or any of
their Affiliates (all Other Financings and other such business transactions
being collectively, the "OTHER ACTIVITIES") with no responsibility to account
therefor to the Banks. Without limiting the rights and remedies of the Banks
specifically set forth in the Loan Documents, no other Bank shall have any
interest in (a) any Other Activities, (b) any present or future guarantee by or
for the account of the Borrowers not contemplated or included in the Loan
Documents, (c) any present or future offset exercised by said Agents in respect
of any such Other Activities, (d) any present or future Property taken as
security for any such Other Activities or (e) any Property now or hereafter in
the possession or control of said Agents which may be or become security for the
obligations of the Borrowers under the Loan Documents by reason of the general
description of indebtedness secured,
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or of Property, contained in any other agreements, documents or instruments
related to such Other Activities; PROVIDED, that if any payment in respect of
such guarantees or such Property or the proceeds thereof shall be applied to
reduction of the obligations evidenced hereunder and by the Notes, then each
Bank shall be entitled to share in such application according to its pro rata
portion of such obligations.
Section 8.04. BANK CREDIT DECISION. Each Bank acknowledges that
it has, independently and without reliance upon any other member of the Bank
Group and based on the financial statements referred to in SECTION 4.06 and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon any other
member of the Bank Group and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
Section 8.05. INDEMNIFICATION. The Banks agree to indemnify each
of the Administrative Agent, the Syndication Agent and the Issuing Bank, their
Affiliates or any of their respective directors, officers, agents or employees
(to the extent not reimbursed by the Borrowers), ratably according to its
Commitment Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against any such Person in any way relating to or arising out of
this Agreement or the other Loan Documents or any action taken or omitted by any
such Person under this Agreement or the other Loan Documents, PROVIDED, that no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Person's gross negligence or willful misconduct (as
determined by a court of competent jurisdiction by final and non-appealable
judgment). IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT THE
ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE ISSUING BANK AND THEIR
AFFILIATES AND THEIR DIRECTORS, OFFICERS, AGENTS OR EMPLOYERS SHALL BE
INDEMNIFIED AND HELD HARMLESS AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR
DISBURSEMENTS OF ANY KIND ARISING OUT OF OR RESULTING FROM THE ORDINARY
NEGLIGENCE (WHETHER SOLE OR CONTRIBUTORY) OF SUCH PERSON. Neither the
Administrative Agent, the Syndication Agent nor the Issuing Bank shall be
required to do any act hereunder or under any other document or instrument
delivered hereunder or in connection herewith or take any action toward the
execution or enforcement of the agencies hereby created, or to prosecute or
defend any suit in respect of this Agreement or the Loan Documents or any
Collateral, unless indemnified to its satisfaction by the holders of the Notes
against loss, cost, liability, and expense. If any indemnity furnished to the
Administrative Agent, the Syndication Agent and the Issuing Bank for any purpose
is, in the opinion of such Person insufficient or becomes impaired, such Person
may call for additional indemnity and not commence or cease to do the acts
indemnified against until such additional indemnity is furnished. Without
limitation of the foregoing, each Bank agrees to reimburse the Administrative
Agent, the Syndication Agent and the Issuing Bank promptly upon
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demand for its ratable share of any out-of-pocket expenses (including counsel
fees) incurred by such Person in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement and the other Loan
Documents, to the extent that the Administrative Agent, the Syndication Agent or
the Issuing Bank is not reimbursed for such expenses by the Borrowers.
Section 8.06. EMPLOYEES. Each of the Administrative Agent, the
Syndication Agent and the Issuing Bank may execute any of their respective
duties under this Agreement, the other Loan Documents and any instrument,
agreement or document executed, issued or delivered pursuant hereto or thereto
or in connection herewith or therewith, by or through employees, agents and
attorneys-in-fact, and shall not be answerable for the default or misconduct of
any such employee, agent or attorney-in-fact selected by it with reasonable
care. Each of the Administrative Agent, the Syndication Agent and the Issuing
Bank may, and upon the written instruction of the Majority Banks shall, enforce
on behalf of the Banks any claims which the Administrative Agent and/or the
Banks may have against any such employee, agent or attorney-in-fact, and any
recovery therefrom shall be applied for the pro rata benefit of the Banks.
Section 8.07. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
Agent may resign at any time by giving written notice thereof to the other
members of the Bank Group and the Borrower. Upon any such resignation, the
Majority Banks shall have the right to appoint a successor Administrative Agent.
If no successor Administrative Agent shall have been so appointed by the
Majority Banks, and shall have accepted such appointment, within thirty (30)
days after the retiring Administrative Agent's giving of notice of resignation,
then the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent, which shall be a commercial bank or corporation
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. So long as
no Default exists, the Borrowers shall have the right to approve each successor
Administrative Agent, which approval shall not be unreasonably withheld. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement,
subject to the requirement that such retiring Administrative Agent will execute
such documents and take such actions as may be necessary or desirable to cause
the successor Administrative Agent to be vested with all such rights, powers,
privileges and duties. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this ARTICLE VIII shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. All reasonable costs and
expenses incurred by the Bank Group in connection with any amendments or other
documentation required by this SECTION 8.07 shall be paid by the Borrowers
pursuant to SECTION 10.04.
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Section 8.08. SUCCESSOR SYNDICATION AGENT AND ISSUING BANK. (a)
The Syndication Agent may resign at any time by giving written notice thereof to
the other members of the Bank Group and the Borrowers. Upon any such
resignation, the Majority Banks shall have the right to appoint a successor
Syndication Agent. If no successor Syndication Agent shall have been so
appointed by the Majority Banks, and shall have accepted such appointment,
within thirty (30) days after the retiring Syndication Agent's giving of notice
of resignation, then the retiring Syndication Agent may, on behalf of the Banks,
appoint a successor Syndication Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. So long as
no Default exists, the Borrowers shall have the right to approve each successor
Syndication Agent, which approval shall not be unreasonably withheld. Upon the
acceptance of any appointment as Syndication Agent hereunder by a successor
Syndication Agent, such successor Syndication Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Syndication Agent, and the retiring Syndication Agent shall be
discharged from its duties and obligations under this Agreement, subject to the
requirement that such retiring Syndication Agent will execute such documents and
take such actions as may be necessary or desirable to cause the successor
Syndication Agent to be vested with all such rights, powers, privileges and
duties. After any retiring Syndication Agent's resignation hereunder as
Syndication Agent, the provisions of this ARTICLE VIII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Syndication Agent under this Agreement. All reasonable costs and expenses
incurred by the Bank Group in connection with any amendments or other
documentation required by this SECTION 8.08(A) shall be paid by the Borrowers
pursuant to SECTION 10.04.
(b) The Issuing Bank may resign at any time by giving written
notice thereof to the other members of the Bank Group and the Borrowers. Upon
any such resignation, the Majority Banks shall have the right to appoint a
successor Issuing Bank. If no successor Issuing Bank shall have been so
appointed by the Majority Banks, and shall have accepted such appointment,
within thirty (30) days after the retiring Issuing Bank's giving of notice of
resignation, then the retiring Issuing Bank may, on behalf of the Banks, appoint
a successor Issuing Bank, which shall be a commercial bank or corporation
organized under the laws of the United States of America or of any state thereof
and having a combined capital and surplus of at least $500,000,000. So long as
no Default exists, the US Borrower shall have the right to approve each
successor Issuing Bank, which approval shall not be unreasonably withheld. Upon
the acceptance of any appointment as Issuing Bank hereunder by a successor
Issuing Bank, such successor Issuing Bank shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Issuing Bank, and the retiring Issuing Bank shall be discharged from its duties
and obligations under this Agreement, subject to the requirement that such
retiring Issuing Bank will execute such documents and take such actions as may
be necessary or desirable to cause the successor Issuing Bank to be vested with
all such rights, powers, privileges and duties. Without limiting the generality
of the foregoing, the US Borrower, the retiring Issuing Bank and the successor
Issuing Bank will cause each Letter of Credit issued by the retiring Issuing
Bank to be terminated and replaced by a Letter of Credit issued by the successor
Issuing Bank. After any retiring Issuing Bank's resignation hereunder as Issuing
Bank, the provisions of this ARTICLE VIII shall inure to its benefit as to any
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actions taken or omitted to be taken by it while it was Issuing Bank under this
Agreement. All reasonable costs and expenses incurred by the Bank Group in
connection with any amendments or other documentation required by this SECTION
8.08(B) shall be paid by the Borrowers pursuant to SECTION 10.04.
Section 8.09. NOTICE OF DEFAULT. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless it shall have received notice from a Bank or a
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default" or "notice of
event of default," as applicable. If the Administrative Agent receives such a
notice from a Borrower, the Administrative Agent shall give notice thereof to
the other members of the Bank Group and, if such notice is received from a Bank,
the Administrative Agent shall give notice thereof to the other members of the
Bank Group and the Borrowers. The Administrative Agent shall be entitled to take
action or refrain from taking action with respect to such Default or Event of
Default as provided in this ARTICLE VIII.
Section 8.10. EXECUTION OF LOAN DOCUMENTS. Each member of the
Bank Group hereby authorizes and directs the Administrative Agent, the
Syndication Agent and the Issuing Bank to execute and deliver on its behalf each
Loan Document to be executed by the Administrative Agent pursuant to the terms
of this Agreement.
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ARTICLE IX
GUARANTY
Section 9.01. GUARANTY. (a) In consideration of, and in order to
induce the Banks to make Loans under this Agreement and to induce the Issuing
Bank to issue Letters of Credit under this Agreement, each Guarantor, including
each Borrower, hereby jointly, severally, unconditionally and irrevocably,
guarantees, as primary obligor, and not merely as surety, the punctual payment
and performance when due, whether at stated maturity, as an installment, by
required or optional prepayment or by demand, acceleration or otherwise, of all
Obligations of the Borrowers now or hereafter existing, except as hereinafter
provided. If any or all of the Obligations becomes due and payable hereunder,
the Guarantors jointly and severally unconditionally promise to pay such
Obligations to the Administrative Agent, or order, on demand, together with any
and all expenses (including reasonable counsel fees and expenses) which may be
incurred by the Bank Group in collecting any of the Obligations and in
connection with the protection, defense or enforcement of any rights under this
Agreement or any Loan Document; PROVIDED that notwithstanding anything contained
herein or in any of the Loan Documents to the contrary, the maximum liability of
each Guarantor hereunder shall never exceed the maximum amount which said
Guarantor could pay without having such payment set aside as a fraudulent
transfer or fraudulent conveyance or similar action under the U.S. Bankruptcy
Code or applicable state or foreign law, PROVIDED FURTHER, each Guarantor shall
be unconditionally required to pay all amounts demanded of it hereunder prior to
any determination of such maximum liability and the recipient of such payment,
if so required by a final non-appealable order of a court of competent
jurisdiction by final and non-appealable judgment, shall then be liable for the
refund of any excess amounts. If any such rebate or refund is ever required, all
other Guarantors (and the Borrowers) shall be fully liable for the repayment
thereof to the maximum extent allowed by applicable law.
(b) Notwithstanding any provisions of SECTION 9.01(A), the
Guarantor, Scott Pickford, shall not guaranty the Tranche B Loan, nor shall the
Guarantors Saybolt International B.V. or Saybolt Eastern Hemisphere B.V.
guaranty either: (i) the Tranche A Loan or (ii) the Dollar Revolving Loan to the
Parent in the principal amount of $30,000,000.00.
(c) The Guaranty of each of Saybolt International B.V., Saybolt
North America, Inc., Saybolt, Inc. and Saybolt Eastern Hemisphere B.V. shall be
effective only upon the acquisition of Saybolt by the Parent, as referenced in
SECTION 3.01(H). Until such acquisition, such Guaranty by said Persons shall not
be effective, notwithstanding said Persons' execution of this agreement,
PROVIDED, such Guaranty shall automatically become effective without the need
for further action of any kind by any Person at the time such acquisition is
effective.
Section 9.02. GUARANTY ABSOLUTE. Subject to SECTION 9.01, each of
the Guarantors hereby unconditionally guarantees that the Obligations will be
paid strictly in accordance with the terms of this Agreement, the Notes and the
other Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any member of the Bank Group with respect thereto. The liability of
each Guarantor under this
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ARTICLE IX shall constitute a guaranty of payment and not of collection and
shall be absolute and unconditional irrespective of, and each Guarantor waives
any and all defenses that may arise out of, any of the following: (a) any lack
of validity or enforceability of the Obligations, this Agreement, the Notes, or
any other Loan Document or any other agreement, security document or instrument
relating hereto or thereto; (b) any extension, renewal, modification,
settlement, compromise, waiver or release or any change in the time, manner or
place of payment of, or in any other term of, all or any of the Obligations, or
any other amendment or waiver of or any consent to departure from this
Agreement, the Notes or any other Loan Document or any other agreement or
instrument relating thereto or executed in connection therewith or pursuant
thereto; (c) any taking, exchange, release or non-perfection of any Collateral,
or any release or amendment or waiver of or consent to departure from any other
Guaranty Agreement, for all or any of the Obligations; (d) any manner of
application of collateral, or proceeds thereof, to all or any of the
Obligations, or any manner of sale or other disposition of any Collateral for
all or any of the Obligations or any other assets of the Borrowers or any other
Person (including any other Guarantor); (e) any change, restructuring or
termination of the corporate structure or existence of any of the Borrowers or
any other Person; (f) any manner of application of payments on the Obligations,
whether at the direction of any of the Borrowers or any other Person; (g) any
other similar circumstances which might otherwise constitute a defense available
to, or a discharge of, any of the Borrowers or any other Person (including any
other Guarantor) of all or part of the Obligations; or (h) any of said
Guarantor's obligations as a Borrower hereunder in respect of any other Loan.
The obligations of the Guarantors under this guaranty shall not be subject to
reduction, termination or other impairment by reason of any setoff, recoupment,
counterclaim or defense or for any other reason. This guaranty is to be in
addition to and is not to prejudice or be prejudiced by any other securities or
guaranties (including any guaranty signed by any other Guarantor) which any
member of the Bank Group may now or hereafter hold from or on account of any of
the Borrowers and is to be binding on each Guarantor as a continuing security
notwithstanding any payments from time to time made to any member of the Bank
Group or any settlement of account or disability or incapacity affecting such
Guarantor or any other thing whatsoever.
Section 9.03. WAIVER. Each Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Agreement and any liability to which this Agreement applies
or may apply, and waives presentment, demand of payment, notice of intent to
accelerate, notice of acceleration, notice of dishonor or nonpayment, and any
requirement that any member of the Bank Group institute suit, collection
proceedings or take any other action to collect the Obligations, including any
requirement that any member of the Bank Group protect, secure, perfect or insure
any security interest or Lien against any Property subject thereto or exhaust
any right or take any action against the Borrowers or any other Person
(including the other Guarantor) or any Collateral (it being the intention of the
Bank Group and each Guarantor that the obligations of such Guarantor under this
ARTICLE IX are to be a guaranty of payment and not of collection) or that any
Borrower or any other Person (including the any other Guarantor) be joined in
any action hereunder. Each Guarantor hereby expressly waives, to the extent it
is located in Texas or otherwise entitled to the benefits thereof, each and
every right to which it may be entitled by virtue of the suretyship laws of the
State of Texas, including, without limitation, any and all rights
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it may have pursuant to Rule 31 or Rule 32, Texas Rules of Civil Procedure,
Section 17.001 of the Texas Civil Practice and Remedies Code and Chapter 34 of
the Texas Business and Commerce Code. Each Guarantor hereby waives marshaling of
assets and liabilities, sale in inverse order of alienation, notice by any
member of the Bank Group of the creation of any Indebtedness or liability to
which it applies or may apply, any amounts received by any member of the Bank
Group, notice of disposition or substitution of Collateral and of the creation,
advancement, increase, existence, extension, renewal, rearrangement and/or
modification of the Obligations.
Section 9.04. SUBROGATION. Subject to SECTION 9.06, each
Guarantor hereby irrevocably agrees that until the Obligations have been paid in
full and all the Commitments have been canceled, it will not exercise any rights
to which it may be entitled, by operation of law or otherwise, upon making any
payment hereunder (a) to be subrogated to the rights of any member of the Bank
Group against any of the Borrowers with respect to such payment, (b) to be
reimbursed, indemnified or exonerated by any of the Borrowers in respect
thereof, (c) to receive any payment, in the nature of contribution or for any
other reason, from any of the Borrowers with respect to such payment, (d) to
enforce any remedy which such Guarantor now has or may hereafter have against
the Borrowers or (e) to receive any benefit of, or right to participate in, any
security now or hereafter held by or for the benefit of any member of the Bank
Group. Each Guarantor agrees that if any amount shall be paid to such Guarantor
on account of any such rights at any time while such rights are restricted
pursuant to the preceding sentence, such amount shall be held in trust for the
benefit of the Bank Group and shall forthwith be paid to the Administrative
Agent to be credited and applied upon the Obligations, whether matured or
unmatured, in accordance with the terms of this Agreement.
Section 9.05. CONTINUING GUARANTY. This guaranty is a continuing
guaranty and shall remain in full force and effect until payment in full of the
Obligations.
Section 9.06. EFFECT OF BANKRUPTCY PROCEEDING. This guaranty
shall continue to be effective, or be automatically reinstated, as the case may
be, if at any time payment, in whole or in part, of any of the Obligations is
rescinded or must otherwise be restored or returned by any member of the Bank
Group upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any of the Borrowers, any Guarantor or any other Person, or
upon or as a result of the appointment of a custodian, receiver, trustee or
other officer with similar powers with respect to any of the Borrowers, any
Guarantor or any other Person, or any substantial part of their Property, or
otherwise, all as though such payments had not been made. If an Event of Default
shall at any time have occurred and be continuing and declaration of such Event
of Default shall at such time be prevented by reason of the pendency against any
of the Borrowers of a case or proceeding under a bankruptcy or insolvency law,
each Guarantor agrees that, for purposes of this Agreement and its obligations
hereunder, the Obligations shall be deemed to have been accelerated with the
same effect as if the Obligations had been accelerated in accordance with the
terms hereof, and each Guarantor shall forthwith pay the Obligations specified
by the Administrative Agent to be paid hereunder without further notice or
demand.
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Section 9.07. FURTHER RESPONSIBILITIES. It is not necessary for
any member of the Bank Group to inquire into the capacity or powers of the
Borrowers or the officers, directors, partners or agents acting or purporting to
act on their behalf, and any Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder. Each Guarantor
assumes all responsibility for being and keeping itself informed of the other
Borrowers' financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations and the nature, scope and
extent of the risks which each Guarantor assumes and incurs hereunder, and
agrees that no member of the Bank Group shall have any duty to advise either
Guarantor of information known to them regarding such circumstances or risks.
Section 9.08. SUBORDINATION. Each Borrower and Guarantor hereby
subordinates all indebtedness owing to it from any other Borrower or Guarantor
to the Obligations, and agrees that upon the occurrence and during the
continuance of a Default or an Event of Default, it shall not accept any payment
on the same until payment in full of the Obligations, and shall in no
circumstance whatsoever attempt to set off or reduce any obligations hereunder
because of such Indebtedness.
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ARTICLE X
MISCELLANEOUS
Section 10.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement, any Note or any other Loan Document, or consent to
any departure by any Person herefrom or therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Borrowers and
the Majority Banks, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; PROVIDED,
that no amendment, waiver or consent shall, unless in writing and signed by all
the Banks, do any of the following: (a) waive any of the conditions specified in
ARTICLE III, (b) increase the Commitments of the Banks, (c) reduce the principal
of, or interest on, the Notes, the reimbursement obligations in respect of the
Letters of Credit or any fees or other amounts payable hereunder, (d) postpone
any date fixed for any payment of principal of, or interest on, the Notes, the
reimbursement obligations in respect of the Letters of Credit or any fees or
other amounts payable hereunder, (e) release a Credit Party or any other Person
from its payment obligations to the Bank Group, regardless of whether such
obligations are those of a primary obligor, a guarantor or surety, or otherwise,
(f) authorize the Administrative Agent to release Liens against any Collateral
covered by the Security Documents, (g) take action which expressly requires the
signing of all the Banks pursuant to the terms of this Agreement, (h) reduce the
Commitment Percentages or the aggregate unpaid principal amount of the Notes, or
the number of Banks, as the case may be, required for the Administrative Agent,
the Syndication Agent, the Issuing Bank or the Banks or any of them to take any
action under this Agreement or change the definition of Majority Banks or (i)
amend this SECTION 10.01; PROVIDED, FURTHER, that no amendment, waiver or
consent shall (i) unless in writing and signed by the Borrowers and the
Administrative Agent in addition to the Banks required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document, (ii) unless in writing and signed by the
Borrowers and the Syndication Agent in addition to the Banks required above to
take such action, affect the rights or duties of the Syndication Agent under
this Agreement or any other Loan Document and (iii) unless in writing and signed
by the Borrowers and the Issuing Bank in addition to the Banks required above to
take such action, affect the rights or duties of the Issuing Bank under this
Agreement, the Letters of Credit, Letter of Credit Applications, or any other
Loan Document. Any amendment, waiver or consent that becomes effective in
accordance with this SECTION 10.01 shall be binding on all of the Banks and upon
each future holder of any Note and upon each Credit Party without regard to
whether such Note has been marked to indicate such amendment, waiver or consent.
Section 10.02. PARTICIPATION AGREEMENTS AND ASSIGNMENTS;
INTER-CREDITOR MATTERS. (a) Each Bank may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment and the Loans
owing to it, the Note or the Notes held by it, its interest in the Outstanding
Letters of Credit and the other Loan Documents); PROVIDED, that (i) each such
assignment shall be of a constant; and not a varying, percentage of all rights
and obligations of the assignor under this Agreement and the other Loan
Documents, (ii) the amount of the Commitment or Loans of the assigning Bank
being assigned pursuant to each such assignment (determined as of the date of
the Assignment and
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Acceptance with respect to such assignment) shall, unless otherwise agreed to by
the Administrative Agent or unless such assignment is to a member of the Bank
Group, in no event be less than $5,000,000.00 in respect of all Loans assigned
(or, if in a Foreign Currency, in its Equivalent thereof in Dollars), (iii) each
such assignment to an Eligible Assignee who is not a member of the Bank Group
must be approved by the Parent, the Administrative Agent and the Issuing Bank
(which approval shall not be unreasonably withheld), and (iv) the parties to
each such assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with any Note subject to such assignment and a recordation fee in the
amount of $3,500 for processing such assignment. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations under the Loan Documents have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Bank under the Loan Documents, (y) the assigning Bank
thereunder shall, to the extent that rights and obligations under the Loan
Documents have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from further obligations under the Loan
Documents (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto) and (z) the assignee
thereunder shall be deemed to have made, as of such effective date, to the
Administrative Agent and the Borrowers the representations and warranties set
forth in SECTION 2.11(F).
(b) By executing and delivering an Assignment and Acceptance, the
assigning Bank thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Bank makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any
Borrower or any other Person or the performance or observance by any Borrower or
any other Person of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement and the other Loan Documents,
together with copies of the financial statements referred to in SECTION 4.06 and
SECTION 5.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon any member of the Bank Group (including such assigning Bank) and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent,
the Syndication Agent and the Issuing Bank, to take such action on its behalf
and to exercise such powers under this Agreement and the other Loan Documents as
are delegated to such Person by the terms thereof, together with such powers as
are reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with
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their terms all of the obligations which by the terms of this Agreement and the
other Loan Documents are required to be performed by it as a Bank.
(c) The Administrative Agent shall maintain at its address
referred to in SECTION 10.03 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Banks and the Commitment of, and principal amount of the Loans
owing to, each Bank from time to time (the "REGISTER"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrowers and each member of the Bank Group may treat each Person
whose name is recorded in the Register as a Bank hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrowers
or any member of the Bank Group at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Bank and an assignee representing that it is an Eligible Assignee,
together with any Notes subject to such assignment and the administrative fee
payable to the Administrative Agent for such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of EXHIBIT 10.02 hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrowers. Within five (5) Business Days
after its receipt of such notice, the Borrowers, at their own expense, shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Notes, new Notes to the order of such Eligible Assignee in an amount
corresponding to the relevant Commitment and Loans assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, if the assigning Bank
has retained any Commitment and Loans hereunder, new Notes to the order of the
assigning Bank in an amount corresponding to the relevant Commitment and Loans
retained by it hereunder. Such new Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Notes shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form prescribed by SECTION 2.04 hereto. The
Administrative Agent shall promptly return such surrendered Notes to the Parent
marked "canceled" or otherwise defaced.
(e) Each Bank may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment and the Loans owing to it and its interest in the Outstanding Letters
of Credit); PROVIDED, that (i) such Bank's obligations under this Agreement
(including, without limitation, its Commitment to the Borrowers hereunder) and
the other Loan Documents shall remain unchanged, (ii) such Bank shall remain
solely responsible to the other parties hereto for the performance of such
obligations, and the participating banks or other entities shall not be
considered a "Bank" for purposes of the Loan Documents, (iii) the participating
banks or other entities shall be entitled to the cost protection provisions
contained in SECTION 2.11 through SECTION 2.14 to the same extent that the Bank
from which such participating bank or other entity acquired its participation
would be entitled to the benefit of such cost protection provisions so long as
such Borrower is not obligated to pay any amount under such Sections in excess
of the amount that would have been due
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to such Bank under such Sections if no participations had been made by such
Bank, and (iv) the Borrowers and the other members of the Bank Group shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement and the other Loan Documents,
and such Bank shall retain the sole right to enforce the obligations of the
Borrowers relating to the Loans and the Letters of Credit to the extent
permitted hereby and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
with respect to the amounts of any fees payable hereunder or the amount of
principal of or the rate at which interest is payable on the Loans or the amount
of any reimbursement obligations payable with respect to any Letter of Credit or
the dates fixed for payments of principal or interest on the Loans or
reimbursement obligations in respect of any Letters of Credit).
(f) Any Bank may at any time pledge or assign all or any portion
of its rights under this Agreement and the other Loan Documents to any Federal
Reserve Bank without notice to or consent of the Borrowers. No such pledge or
assignment shall release the assigning Bank from its obligations hereunder.
(g) The Administrative Agent, the Syndication Agent, the Issuing
Bank and each Bank may furnish any information concerning a Borrower or its
Subsidiaries in its possession from time to time to Affiliates of the
Administrative Agent, the Syndication Agent, the Issuing Bank or such Bank
(including without limitation, in the case of BTCo, BT Securities Corporation
and its employees, to the extent necessary for the purposes contemplated by this
Agreement, including, without limitation, the syndication of the credit
facilities contemplated hereby) and, in the case of each Bank, to assignees and
participants (including prospective assignees and participants) of such Bank;
PROVIDED such recipient agrees to be bound by the terms of SECTION 10.15. If
requested by the Parent, such Bank will identify prospective assignees and
participants that have received such information.
Section 10.03. NOTICES. All correspondence, statements, notices,
requests and demands (collectively "COMMUNICATIONS") shall be in writing
(including telegraphic Communications) and mailed, telegraphed, telecopied,
facsimile transmitted or delivered as follows:
if to the Parent --
Core Laboratories N.V.
Herengracht 424
1017 BZ Amsterdam
The Netherlands
Telecopier: 011-31-20-627-9886
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if to the US Borrower --
Core Laboratories, Inc.
5295 Hollister Road
Houston, Texas 77040
Attn: Richard L. Bergmark
Telecopier: (713) 690-3947
Telephone: (713) 460-9600
if to the U.K. Borrower --
Core Laboratories (U.K.) Limited
Howe Moss Drive
Dyce Aberdeen
AB 2 OES
Scotland, United Kingdom
Telecopier: 011-44-1224-723-303
in the case of each notice to any Borrower, with a copy to --
Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin St.
Houston, Texas 77002
Attn: T. Mark Kelly
Telecopier: (713) 615-5531
and to:
John D. Denson
General Counsel, Core Laboratories
5295 Hollister Road
Houston, Texas 77040
Telecopier: (713) 690-3947
if to the Administrative Agent --
Bankers Trust Company
130 Liberty Street, 14th Floor
New York, New York 10006
Attention: James T. Cullen
Telecopier: (212) 250-6029 or (212) 250-7351
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with a copy to --
Bankers Trust Company
909 Fannin Street, Suite 3000
Houston, Texas 77010
Attention: Roberta K. Bohn
Telecopier: (713) 759-6708
and to --
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: Thomas J. Perich
Telecopier: (713) 220-4285
if to the Syndication Agent or the Issuing Bank --
NationsBank, N.A.
700 Louisiana, 7th Floor
Houston, Texas 77002
Attention: Craig S. Wall or Jennifer Textus
Telecopier: (713) 247-7748
and to --
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: Thomas J. Perich
Telecopier: (713) 220-4285
if to any Bank, at its Domestic Lending Office, or as to each such party, at
such other address as such party shall designate in a written Communication to
each of the other parties hereto. All such Communications shall be effective, in
the case of written or telegraphed Communications, when deposited in the mails
or delivered to the telegraph company, respectively, and, in the case of a
Communication by telecopy or facsimile transmission, when telecopied or
transmitted against receipt of a confirmation, in each case addressed as
aforesaid, except that Communications to any member of the Bank Group pursuant
to ARTICLE II and ARTICLE VIII shall not be effective until received by such
Persons.
Section 10.04. COSTS AND EXPENSES. Each Borrower agrees to pay
promptly (a) all reasonable costs and expenses (including fees and expenses of
legal counsel) of the Administrative
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Agent, the Syndication Agent and the Issuing Bank incurred in connection with
the preparation, execution, delivery, filing, administration and recording of
the Loan Documents and the primary syndication of this Agreement in the course
of the initial syndication period (both before and after the date hereof) and
(b) all reasonable costs and expenses of any member of the Bank Group incurred
in connection with the enforcement of the Loan Documents including, but not
limited to, the reasonable fees and out-of-pocket expenses of counsel for any
member of the Bank Group, and local counsel who may be retained by such counsel,
with respect thereto, and the costs and expenses in connection with the custody,
preservation, or the sale of, or collection from, or other realization upon the
sale of, or collection from, or other realization upon any Collateral covered by
any of the Loan Documents. The agreements of any of the Borrowers contained in
this SECTION 10.04 shall survive the termination of the Commitments and the
payment of all other amounts owing under any of the Loan Documents.
Section 10.05. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the Borrowers, the Bank Group and their
respective successors and assigns, except that no Borrower may assign or
transfer its rights hereunder without the prior written consent of the Banks.
Section 10.06. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in this Agreement and the other Loan
Documents or made in writing by the Borrowers or any Guarantor in connection
herewith or therewith, shall survive the execution and delivery of this
Agreement, the Notes and the other Loan Documents. Any investigation by any
member of the Bank Group shall not diminish in any respect whatsoever its right
to rely on such representations and warranties.
Section 10.07. SEPARABILITY. Should any clause, sentence,
paragraph, subsection, Section or Article of this Agreement be judicially
declared to be invalid, unenforceable or void, such decision will not have the
effect of invalidating or voiding the remainder of this Agreement. The parties
hereto agree that the part or parts of this Agreement so held to be invalid,
unenforceable or void will be deemed to have been stricken herefrom by the
parties hereto, and the remainder will have the same force and effectiveness as
if such stricken part or parts had never been included herein.
Section 10.08. CAPTIONS. The captions in this Agreement have been
inserted for convenience only and shall be given no substantive meaning or
significance whatsoever in construing the terms and provisions of this
Agreement.
Section 10.09. COUNTERPARTS AND FACSIMILE SIGNATURES. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original, and all of which taken together shall constitute one and the
same agreement. Counterparts executed by facsimile shall be binding and
enforceable against the party forwarding same and all other parties hereto,
PROVIDED each party hereto
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agrees to use reasonable efforts to provide original signatures to all other
parties as soon as practicable.
Section 10.10. GOVERNING LAW. THIS AGREEMENT (INCLUDING THE
VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 10.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
Section 10.12. SUBMISSION TO JURISDICTION. (A) EACH BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK
STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, CITY AND STATE OF NEW YORK, OR
ANY FEDERAL COURT LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK OVER ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS TO WHICH IT IS A PARTY, AND EACH BORROWER AND EACH GUARANTOR
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURT; PROVIDED,
NOTHING IN THIS SECTION 10.12 IS INTENDED TO WAIVE THE RIGHT OF ANY MEMBER OF
THE BANK GROUP TO REMOVE ANY SUCH ACTION OR PROCEEDING COMMENCED IN ANY SUCH NEW
YORK STATE COURT TO AN APPROPRIATE NEW YORK FEDERAL COURT TO THE EXTENT THE
BASIS FOR SUCH REMOVAL EXISTS UNDER APPLICABLE LAW. EACH BORROWER AND EACH
GUARANTOR HEREBY IRREVOCABLY APPOINTS CT CORPORATION SYSTEM (THE "PROCESS
AGENT"), WITH AN OFFICE ON THE DATE HEREOF AT 1633 BROADWAY, NEW YORK, NEW YORK
10019, AS ITS AGENT TO RECEIVE ON BEHALF OF IT AND ITS PROPERTIES SERVICE OF
COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN
ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY SENDING BY CERTIFIED
MAIL OR COURIER DELIVERY SERVICE A COPY OF SUCH PROCESS TO SUCH BORROWER OR SUCH
GUARANTOR IN CARE OF THE PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS,
WITH A COPY TO SUCH BORROWER OR SUCH GUARANTOR AT ITS ADDRESS SPECIFIED HEREIN
AND EACH BORROWER AND EACH GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS
THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE METHOD
OF SERVICE, EACH BORROWER
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AND EACH GUARANTOR ALSO IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL
PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE SENDING BY CERTIFIED MAIL OR
COURIER DELIVERY SERVICE OF COPIES OF SUCH PROCESS TO IT AT ITS ADDRESS
SPECIFIED HEREIN. FOR ALL NON-BORROWER GUARANTORS, THE ADDRESS MAY BE THAT SHOWN
ON SCHEDULE 10.12 EACH BORROWER AND EACH GUARANTOR AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS SECTION 10.12 SHALL AFFECT THE RIGHT OF ANY MEMBER OF THE
BANK GROUP TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT
THE RIGHT OF ANY MEMBER OF THE BANK GROUP TO BRING ANY ACTION OR PROCEEDING
AGAINST A BORROWER, A GUARANTOR OR ITS PROPERTIES, IN THE COURTS OF ANY OTHER
JURISDICTION.
(B) TO THE EXTENT THAT ANY BORROWER OR ANY GUARANTOR HAS OR HEREAFTER
MAY ACQUIRE ANY IMMUNITY (SOVEREIGN OR OTHERWISE) FROM ANY LEGAL ACTION, SUIT OR
PROCEEDING, FROM JURISDICTION OF ANY COURT OR FROM SET-OFF OR ANY LEGAL PROCESS
(WHETHER SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OF JUDGMENT, EXECUTION OF JUDGMENT OR OTHERWISE) WITH RESPECT TO
ITSELF OR ANY OF ITS PROPERTY, SUCH BORROWER OR GUARANTOR HEREBY IRREVOCABLY
WAIVES AND AGREES NOT TO PLEAD OR CLAIM SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. EACH BORROWER AND
EACH GUARANTOR HEREBY AGREES THAT THE WAIVERS SET FORTH IN THIS SECTION 10.12
SHALL HAVE THE FULLEST EXTENT PERMITTED UNDER THE FOREIGN SOVEREIGN IMMUNITIES
ACT OF 1976 OF THE UNITED STATES OF AMERICA AND ARE INTENDED TO BE IRREVOCABLE
AND NOT SUBJECT TO WITHDRAWAL FOR PURPOSES OF SUCH ACT.
Section 10.13. LIMITATION ON INTEREST. Each provision in this
Agreement and each other Loan Document is expressly limited so that in no event
whatsoever shall the amount paid, or otherwise agreed to be paid, by a Borrower
for the use, forbearance or detention of the money to be loaned under this
Agreement or any other Loan Document or otherwise (including any sums paid as
required by any covenant or obligation contained herein or in any other Loan
Document which is for the use, forbearance or detention of such money), exceed
that amount of money which would cause the effective rate of interest to exceed
the Highest Lawful Rate, and all amounts owed under this Agreement and each
other Loan Document shall be held to be subject to reduction to the effect that
such amounts so paid or agreed to be paid which are for the use, forbearance or
detention of money under this Agreement or such Loan Document shall in no event
exceed that amount of money which would cause the effective rate of interest to
exceed the Highest Lawful Rate. To the extent that the Highest Lawful Rate
applicable to a Bank is at any time determined by Texas law, such rate
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shall be the "indicated rate ceiling" described in Section (a)(1) of Article
1.04 of Chapter 1, Subtitle 1, Title 79, of the Revised Civil Statutes of Texas,
1925, as amended; PROVIDED, to the extent permitted by such Article, the Banks
from time to time by notice from the Administrative Agent to the Borrowers may
revise the aforesaid election of such interest rate ceiling as such ceiling
affects the then-current or future balances of the Loans outstanding under the
Notes. Notwithstanding any provision in this Agreement or any other Loan
Document to the contrary, if the maturity of the Notes or the obligations in
respect of the other Loan Documents are accelerated for any reason, or in the
event of prepayment of all or any portion of the Notes or the obligations in
respect of the other Loan Documents by a Borrower or in any other event, earned
interest on the Loans and such other obligations of such Borrower may never
exceed the maximum amount permitted by applicable law, and any unearned interest
otherwise payable under the Notes or the obligations in respect of the other
Loan Documents that is in excess of the maximum amount permitted by applicable
law shall be canceled automatically as of the date of such acceleration or
prepayment or other such event and, if theretofore paid, shall be credited on
the principal of the relevant Notes or, if the principal of the relevant Notes
has been paid in full, held as collateral for any contingent or unmatured
obligation of such Borrower, or, if there are no contingent or unmatured
obligations of such Borrower then outstanding, refunded to such Borrower. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the Highest Lawful Rate, the Borrowers and the Banks shall,
to the maximum extent permitted by applicable law, amortize, prorate, allocate
and spread, in equal parts during the period of the actual term of this
Agreement, all interest at any time contracted for, charged, received or
reserved in connection with this Agreement. Chapter 15, Subtitle 3, Title 79, of
the Revised Civil Statutes of Texas, 1925, as amended (relating to revolving
loans and revolving triparty accounts), shall not apply to this Agreement or the
Notes or the transactions contemplated hereby.
Section 10.14. INDEMNIFICATION. Each Borrower agrees to
indemnify, defend and hold each member of the Bank Group, their Affiliates and
their officers, employees, agents, directors, shareholders and Affiliates
(collectively, "INDEMNIFIED PERSONS") harmless from and against any and all
loss, liability, damage, judgment, claim, deficiency or expense (including
interest, penalties, reasonable attorneys' fees and amounts paid in settlement)
incurred by or asserted against any Indemnified Person arising out of, in any
way connected with, or as a result of (i) the execution and delivery of this
Agreement and the other Loan Documents, the performance by the parties hereto
and thereto of its obligations hereunder and thereunder (including but not
limited to the making of the Commitments of each Bank) and consummation of the
transactions contemplated hereby and thereby, (ii) the actual or proposed use of
the Letters of Credit or the proceeds of the Loans, (iii) any violation by a
Borrower or any of its Subsidiaries of any Requirement of Law, including but not
limited to Environmental Laws, (iv) ownership by the Bank Group of any Property
following foreclosure under the Security Documents, to the extent such losses,
liabilities, damages, judgments, claims, deficiencies or expenses arise out of
or result from the presence, disposal or release of any hazardous materials or
solid waste in, on or under such property during the period owned, leased or
operated by a Borrower or any of its Subsidiaries, including, without
limitation, losses, liabilities, damages, judgments, claims, deficiencies or
expenses which are imposed under Environmental Laws upon Persons by virtue of
their ownership, (v) any member of the Bank Group being deemed an
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operator of any such real or personal property in circumstances in which no
member of the Bank Group is generally operating or generally exercising control
over such Property, to the extent such losses, liabilities, damages, judgments,
claims, deficiencies or expenses arise out of or result from any hazardous
materials or solid waste located in, on or under such property or (vi) any
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnified Person is a party thereto; PROVIDED that such
indemnity shall not apply to any such losses, claims, damages, liabilities or
related expenses that are determined by a court of competent jurisdiction by
final and non-appealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnified Person. WITHOUT LIMITING ANY PROVISION OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, IT IS THE EXPRESS INTENTION
OF THE BORROWERS THAT EACH INDEMNIFIED PERSON SHALL BE INDEMNIFIED AND HELD
HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DEFICIENCIES,
JUDGMENTS OR REASONABLE EXPENSES ARISING OUT OF OR RESULTING FROM THE ORDINARY
NEGLIGENCE (WHETHER SOLE, CONCURRENT OR CONTRIBUTORY) OF SUCH INDEMNIFIED
PERSON. THE OBLIGATIONS OF THE BORROWERS UNDER THIS SECTION 10.14 SHALL SURVIVE
THE TERMINATION OF THIS AGREEMENT.
Section 10.15. CONFIDENTIALITY. In the event that a Borrower or
any of its Subsidiaries provides any member of the Bank Group with written
confidential information belonging to such Borrower or any of its Subsidiaries,
that has been identified in writing at the time of delivery as "confidential",
each member of the Bank Group severally agrees to thereafter maintain such
information in confidence in accordance with the standards of care and diligence
that each utilizes in maintaining its own confidential information. This
obligation of confidence shall not apply to such portions of the information
which (i) are in the public domain, (ii) hereafter become part of the public
domain, (iii) are previously known by the Bank Group from some source other than
a Borrower, (iv) are hereafter obtained by or available to any member of the
Bank Group from a third party who owes no obligation of confidence to the
Borrowers with respect to such information or through any other means, (vi) are
disclosed with a Borrower's consent, (vii) must be disclosed either pursuant to
any Requirements of Law or to Persons regulating the activities of any member of
the Bank Group, or (viii) as may be required by law or regulation or order of
any Governmental Authority in any judicial, arbitration or governmental
proceeding. Further, any member of the Bank Group may disclose any such
information to any other Bank, any consultants, any independent certified public
accountants, any legal counsel employed by such Person in connection with this
Agreement or any other Loan Document, including without limitation, the
enforcement or exercise of all rights and remedies thereunder, or any assignee
or participant (including prospective assignees and participants) in the Loans;
PROVIDED, HOWEVER, that the member of the Bank Group disclosing such information
imposes on the Person to whom such information is disclosed the same obligation
to maintain the confidentiality of such information as is imposed upon it
hereunder. Notwithstanding anything to the contrary provided herein, this
obligation of confidence shall cease three (3) years from the date the
information was furnished, unless such Borrower requests, in writing at least
thirty (30) days prior to the expiration of such three year period, that the
Bank Group maintain the confidentiality of such information for an additional
three year period. Each Borrower
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waives any and all other rights it may have to confidentiality as against the
Bank Group arising by contract, agreement, statute or law except as expressly
stated in this SECTION 10.15.
Section 10.16. JUDGMENT. (a) RATE OF EXCHANGE. If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum due
under any Loan Document in another currency into Dollars or into a Foreign
Currency, as the case may be, the parties hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be that at
which, in accordance with normal banking procedures, a Bank could purchase such
other currency with Dollars or with such Foreign Currency, as the case may be,
in New York City, New York at the close of business on the Business Day
immediately preceding the day on which final judgment is given, together with
any premiums and costs of exchange payable in connection with such purchase.
(b) INDEMNITY. The obligation of each Borrower in respect of any
sum due from it to the Administrative Agent or any Bank under any Loan Document
shall, notwithstanding any judgment in a currency other than Dollars or a
Foreign Currency, as the case may be, be discharged only to the extent that on
the Business Day next succeeding receipt by the Administrative Agent or such
Bank of any sum adjudged to be so due in such other currency, the Administrative
Agent or such Bank may, in accordance with normal banking procedures, purchase
Dollars or such Foreign Currency, as the case may be, with such other currency.
If the Dollars or such Foreign Currency so purchased are less than the sum
originally due to such Administrative Agent or such Bank in Dollars or in such
Foreign Currency, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or such
Bank against such loss, and if the Dollars or such Foreign Currency so purchased
exceed the sum originally due to the Administrative Agent or any Bank in Dollars
or in such Foreign Currency, as the case may be, the Administrative Agent or
such Bank agrees to remit to such Borrower such excess.
Section 10.17. FINAL AGREEMENT OF THE PARTIES. THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by its officers thereunto duly authorized as of the date first
above written.
BORROWERS:
CORE LABORATORIES N.V. BY: CORE
LABORATORIES INTERNATIONAL B.V., ITS SOLE
MANAGING DIRECTOR
By: /s/ JACOBUS SCHOUTEN
Jacobus Schouten
Managing Director
CORE LABORATORIES, INC.
By: /s/ RICHARD L. BERGMARK
Richard L. Bergmark
Chief Financial Officer and Treasurer
CORE LABORATORIES (U.K.) LIMITED
By: /s/ KEN GUEST
Ken Guest
President
ADMINISTRATIVE AGENT:
BANKERS TRUST COMPANY, as
Administrative Agent
By: /s/ CALLIE HAYES
Callie Hayes
Managing Director
SYNDICATION AGENT:
NATIONSBANK, N.A., as
Syndication Agent and as Issuing Bank
By: /s/ CRAIG S. WALL
Craig S. Wall
Senior Vice President
GUARANTORS:
CORE LABORATORIES N.V. BY: CORE
LABORATORIES INTERNATIONAL B.V., ITS SOLE
MANAGING DIRECTOR
By: /s/ JACOBUS SCHOUTEN
Jacobus Schouten
Managing Director
CORE LABORATORIES, INC.
By: /s/ RICHARD L. BERGMARK
Richard L. Bergmark
Chief Financial Officer and Treasurer
PROTECHNICS COMPANY
By: /s/ RICHARD L. BERGMARK
Richard L. Bergmark
Treasurer
CORE LABORATORIES
INTERNATIONAL B.V.
By: /s/ JACOBUS SCHOUTEN
Jacobus Schouten
Managing Director
CORE LABORATORIES (U.K.) LIMITED
By: /s/ KEN GUEST
Ken Guest
President
SCOTT PICKFORD PLC
By: /s/ KEN GUEST
Ken Guest
Managing Director
SAYBOLT INTERNATIONAL B.V.
SAYBOLT EASTERN HEMISPHERE B.V.
By: /s/ FRERIK PLUIMERS
Frerik Pluimers
Managing Director
SAYBOLT, INC.
SAYBOLT NORTH AMERICA, INC.
By: /s/ DAVID MEAD
David Mead
President
BANKS:
Tranche A Commitment: BANKERS TRUST COMPANY
$27,500,000.00
Tranche B Commitment:
$7,500,000.00 By: /s/ CALLIE HAYES
Dollar Revolving Commitment Callie Hayes
(a) to Parent - Managing Director
$15,000,000.00
(b) to US Borrower -
$10,000,000.00
Total - $25,000,000.00
Guilder Revolving ADDRESS:
Commitment: $2,500,000
Equivalent 130 Liberty Street, 14th Floor
New York, New York 10006
Telecopy No.: (212) 250-6029
DOMESTIC LENDING OFFICE:
Bankers Trust Company
130 Liberty Street, 14th Floor
New York, New York 10006
EUROCURRENCY LENDING OFFICE:
Bankers Trust Company
130 Liberty Street, 14th Floor
New York, New York 10006
Tranche A Commitment: NATIONSBANK, N.A.
$27,500,000.00
Tranche B Commitment:
$7,500,000.00 By: /s/ CRAIG S. WALL
Dollar Revolving Commitment Craig S. Wall
(a) to Parent - Senior Vice President
$15,000,000.00
(b) to US Borrower -
$10,000,000.00
Total - $25,000,000.00
Guilder Revolving ADDRESS:
Commitment: $2,500,000
Equivalent 700 Louisiana, 7th Floor
Houston, Texas 77002
Telecopy No.: (713) 247-7748
DOMESTIC LENDING OFFICE:
NationsBank, N.A.
Attn: Jennifer Textus
700 Louisiana
Houston, Texas 77002
Telecopy No.: (713) 247-7748
EUROCURRENCY LENDING OFFICE:
NationsBank, N.A.
Attn: Jennifer Textus
700 Louisiana
Houston, Texas 77002
Telecopy No.: (713) 247-7748