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EXHIBIT 10.7
EXECUTION COPY
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CORE LABORATORIES, INC., as Issuer
CORE LABORATORIES N.V., as Guarantor
8.11% Guaranteed Senior Notes, Series A, due 2009
8.21% Guaranteed Senior Notes, Series B, due 2011
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NOTE AND GUARANTEE AGREEMENT
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Dated as of July 22, 1999
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Table of Contents
Page
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1. AUTHORIZATION OF NOTES..................................................................1
1.1. The Notes....................................................................1
1.2. The Guarantees...............................................................1
2. SALE AND PURCHASE OF NOTES..............................................................2
3. CLOSING.................................................................................2
4. CONDITIONS TO CLOSING...................................................................3
4.1. Representations and Warranties...............................................3
4.2. Performance; No Default......................................................3
4.3. Compliance Certificates......................................................3
4.4. Opinions of Counsel..........................................................3
4.5. Subsidiary Guarantees........................................................4
4.6. Purchase Permitted by Applicable Law, etc....................................4
4.7. Sale of Notes to Other Purchasers............................................4
4.8. Payment of Special Counsel Fees..............................................4
4.9. Private Placement Numbers....................................................5
4.10. Changes in Corporate Structure..............................................5
4.11. Proceedings and Documents...................................................5
5. REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE COMPANY............................5
5.1. Organization; Power and Authority............................................5
5.2. Authorization, etc...........................................................6
5.3. Disclosure...................................................................6
5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.............7
5.5. Financial Statements.........................................................7
5.6. Compliance with Laws, Other Instruments, etc.................................8
5.7. Governmental Authorizations, etc.............................................8
5.8. Litigation; Observance of Agreements, Statutes and Orders....................8
5.9. Taxes. 9
5.10. Title to Property; Leases..................................................10
5.11. Licenses, Permits, Y2K, etc................................................10
5.12. Compliance with ERISA......................................................11
5.13. Private Offering...........................................................12
5.14. Use of Proceeds; Margin Regulations........................................13
5.15. Existing Indebtedness; Future Liens........................................13
5.16. Foreign Assets Control Regulations, etc....................................14
5.17. Status Under Certain Statutes..............................................14
5.18. Environmental Matters......................................................14
6. REPRESENTATIONS OF THE PURCHASER.......................................................15
6.1. Purchase of Notes...........................................................15
6.2. Source of Funds.............................................................15
(i)
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7. INFORMATION AS TO COMPANY..............................................................16
7.1. Financial and Business Information..........................................16
7.2. Officer's Certificate.......................................................19
7.3. Inspection..................................................................19
8. PREPAYMENT OF THE NOTES................................................................20
8.1. Required Prepayments........................................................20
8.2. Optional Prepayments........................................................21
8.3. Prepayment in Connection with a Change of Control and Debt Downgrade........21
8.4. Allocation of Partial Prepayments...........................................22
8.5. Maturity; Surrender, etc....................................................22
8.6. Purchase of Notes...........................................................23
8.7. Make-Whole Amount...........................................................23
9. AFFIRMATIVE COVENANTS..................................................................25
9.1. Compliance with Law.........................................................25
9.2. Insurance...................................................................25
9.3. Maintenance of Properties...................................................25
9.4. Payment of Taxes and Claims.................................................26
9.5. Corporate Existence, etc....................................................26
9.6. Additional Subsidiary Guarantees; Release of Subsidiary Guarantees..........26
10. NEGATIVE COVENANTS....................................................................27
10.1. Total Indebtedness; Subsidiary Indebtedness................................27
10.2. Liens. 29
10.3. Limitation on Sale and Leaseback Transactions..............................30
10.4. Maintenance of Net Worth...................................................31
10.5. Merger, Consolidation, Amalgamation, etc...................................31
10.6. Lines of Business..........................................................33
10.7. Transactions with Affiliates...............................................33
11. EVENTS OF DEFAULT.....................................................................33
12. REMEDIES ON DEFAULT, ETC..............................................................36
12.1. Acceleration...............................................................36
12.2. Other Remedies.............................................................37
12.3. Rescission.................................................................37
12.4. No Waivers or Election of Remedies, Expenses, etc..........................37
13. TAX INDEMNIFICATION...................................................................38
14. PARENT GUARANTEE......................................................................39
14.1. Guarantee..................................................................39
14.2. Subrogation and Contribution...............................................41
15. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.........................................42
15.1. Registration of Notes......................................................42
15.2. Transfer and Exchange of Notes.............................................42
15.3. Replacement of Notes.......................................................43
(ii)
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16. PAYMENTS ON NOTES.....................................................................43
16.1. Place of Payment...........................................................43
16.2. Home Office Payment........................................................44
17. EXPENSES, ETC.........................................................................44
17.1. Transaction Expenses.......................................................44
17.2. Survival...................................................................45
18. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT..........................45
19. AMENDMENT AND WAIVER..................................................................45
19.1. Requirements...............................................................45
19.2. Solicitation of Holders of Notes...........................................46
19.3. Binding Effect, etc........................................................46
19.4. Notes held by the Issuer, etc..............................................47
20. NOTICES...............................................................................47
21. REPRODUCTION OF DOCUMENTS.............................................................48
22. CONFIDENTIAL INFORMATION..............................................................48
23. SUBSTITUTION OF PURCHASER.............................................................49
24. MISCELLANEOUS.........................................................................50
24.1. Successors and Assigns.....................................................50
24.2. Construction...............................................................50
24.3. Jurisdiction and Process; Waiver of Jury Trial; Judgment Currency..........50
24.4. Payments Due on Non-Business Days..........................................52
24.5. Severability...............................................................52
24.6. Accounting Terms; Pro Forma Calculations...................................52
24.7. Counterparts...............................................................53
24.8. Governing Law..............................................................53
Exhibit 1.1(a) -- Form of 8.11% Guaranteed Senior Note,
Series A, due 2009
Exhibit 1.1(b) -- Form of 8.21% Guaranteed Senior Note,
Series B, due 2011
Exhibit 1.2 -- Form of Subsidiary Guarantee
Exhibit 4.4(a)(i) -- Form of Opinion of Special Counsel for
the Issuer and the Company
Exhibit 4.4(a)(ii) -- Form of Opinion of United States
Special Counsel for the Issuer and
the Company
Exhibit 4.4(a)(iii) -- Form of Opinion of Dutch Special
Counsel for the Company
Exhibit 4.4(b) -- Form of Opinion of Dutch Special Counsel for the Issuer
Exhibit 4.4(c) -- Form of Opinion of Special Counsel for
the Purchasers
Schedule A -- Names and Addresses of Purchasers
Schedule B -- Defined Terms
Schedule 5.3 -- Disclosure Documents
Schedule 5.4 -- Subsidiaries
Schedule 5.5 -- Financial Statements
Schedule 5.8 -- Litigation
Schedule 5.11 -- Licenses, etc.
Schedule 5.15 -- Existing Indebtedness
(iii)
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CORE LABORATORIES, INC.
CORE LABORATORIES N.V.
8.11% Guaranteed Senior Notes, Series A, due 2009
8.21% Guaranteed Senior Notes, Series B, due 2011
As of July 22, 1999
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
CORE LABORATORIES, INC., a Delaware corporation (the "ISSUER"),
and CORE LABORATORIES N.V., a Netherlands limited liability company (the
"COMPANY" or the "PARENT"), jointly and severally agree with you as follows:
1. AUTHORIZATION OF NOTES.
1.1. THE NOTES.
The Issuer has duly authorized the issue and sale of $35,000,000
aggregate principal amount of its 8.11% Guaranteed Senior Notes, Series A, due
2009 (the "SERIES A NOTES") and $40,000,000 aggregate principal amount of its
8.21% Guaranteed Senior Notes, Series B, due 2011 (the "SERIES B NOTES" and,
together with the Series A Notes, the "NOTES"), such notes to be in the
respective form set out in Exhibits 1.1(a) and 1.1(b). As used herein, the term
"NOTES" shall mean all notes (irrespective of series unless otherwise specified)
originally delivered pursuant to this Agreement and the Other Agreements
referred to below and all notes delivered in substitution or exchange for any
such note and, where applicable, shall include the singular number as well as
the plural. The terms "NOTE", "SERIES A NOTE" and "SERIES B NOTE" mean one of
the Notes, Series A Notes and Series B Notes, respectively. Certain capitalized
and other terms used in this Agreement are defined in Schedule B; references to
a "Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule or
an Exhibit attached to this Agreement.
1.2. THE GUARANTEES.
(a) The Notes and the obligations of the Issuer hereunder and
under the Other Agreements will be unconditionally guaranteed by the Parent,
which owns beneficially and of record
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all of the issued and outstanding capital stock of the Issuer, pursuant to a
parent guarantee contained in Section 14 of this Agreement and the Other
Agreements (the "PARENT GUARANTEE").
(b) The Notes and the obligations of the Issuer hereunder and
under the Other Agreements will also be unconditionally guaranteed by certain of
the Company's existing Subsidiaries, pursuant to subsidiary guarantees
substantially in the form of Exhibit 1.2 (individually a "SUBSIDIARY GUARANTEE"
and collectively the "SUBSIDIARY GUARANTEES", which terms shall include after
the date of the Closing all additional Subsidiary Guarantees from time to time
executed and delivered pursuant to Section 9.6).
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Issuer
will issue and sell to you and you will purchase from the Issuer, at the Closing
provided for in Section 3, Notes of the series and in the principal amount
specified opposite your name in Schedule A at the purchase price of 100% of the
principal amount thereof. Contemporaneously with entering into this Agreement,
the Issuer and the Company are entering into separate Note and Guarantee
Agreements (the "OTHER AGREEMENTS") identical with this Agreement with each of
the other purchasers named in Schedule A (the "OTHER PURCHASERS"), providing for
the sale at such Closing to each of the Other Purchasers of Notes of the series
and in the principal amount specified opposite its name in Schedule A. Your
obligation hereunder and the obligations of the Other Purchasers under the Other
Agreements are several and not joint obligations and you shall have no
obligation under any Other Agreement and no liability to any Person for the
performance or non-performance by any Other Purchaser thereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the
Other Purchasers shall occur at the offices of Willkie Farr & Gallagher, 787
Seventh Avenue, New York, NY 10019 at 10:00 a.m., New York time, at a closing
(the "CLOSING") on July 22, 1999, or on such other Business Day thereafter as
may be agreed upon by the Issuer and you and the Other Purchasers. At the
Closing the Issuer will deliver to you the Notes to be purchased by you in the
form of a single Note (or such greater number of Notes in denominations of at
least $100,000 as you may request prior to the Closing) dated the date of the
Closing and registered in your name (or in the name of your nominee), against
delivery by you to the Issuer or its order of immediately available funds in the
amount of the purchase price therefor by wire transfer of immediately available
funds for the account of the Issuer to account number 2662372753, at NationsBank
of Texas, N.A., ABA number 111-000-025.
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If at the Closing the Issuer shall fail to tender such Notes to
you as provided above in this Section 3, or any of the conditions specified in
Section 4 shall not have been fulfilled to your satisfaction, you shall, at your
election, be relieved of all further obligations under this Agreement, without
thereby waiving any rights you may have by reason of such failure or such
nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to
you at the Closing is subject to the fulfillment to your satisfaction, prior to
or at the Closing, of the following conditions:
4.1. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Issuer and the Company
in this Agreement shall be correct when made and (unless specifically limited to
an earlier date) at the time of the Closing.
4.2. PERFORMANCE; NO DEFAULT.
The Issuer and the Company shall have performed and complied with
all agreements and conditions contained in this Agreement required to be
performed or complied with by them prior to or at the Closing and after giving
effect to the issue and sale of the Notes (and the application of the proceeds
thereof as contemplated by Section 5.14) no Default or Event of Default shall
have occurred and be continuing. Neither the Company nor any Subsidiary shall
have entered into any transaction since the date of the Memorandum that would
have been prohibited by Section 10.1 (without regard to the proviso in Section
10.1(a)), 10.2, 10.3, 10.5, 10.6 or 10.7 had such Sections applied since such
date.
4.3. COMPLIANCE CERTIFICATES.
(a) Officer's Certificates. Each of the Issuer and the Company
shall have delivered to you an Officer's Certificate, dated the date of the
Closing, certifying that the conditions specified in Sections 4.1, 4.2 and 4.10
have been fulfilled.
(b) Secretary's Certificates. Each of the Issuer and the Company
shall have delivered to you a certificate of its Secretary or an Assistant
Secretary certifying as to the resolutions attached thereto and other corporate
proceedings relating to the authorization, execution and delivery of this
Agreement and the Other Agreements and, in the case of the Issuer, the Notes.
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4.4. OPINIONS OF COUNSEL.
You shall have received opinions in form and substance
satisfactory to you, dated the date of the Closing (a) from (i) John D. Denson,
Esq., Vice President and General Counsel for the Issuer and the Company, (ii)
Vinson & Elkins L.L.P., United States special counsel for the Issuer and the
Company, and (iii) Nauta Dutihl, Dutch special counsel for the Company,
substantially in the respective forms set forth in Exhibits 4.4(a)(i),
4.4(a)(ii) and 4.4(a)(iii), and covering such other matters incident to the
transactions contemplated hereby as you or your counsel may reasonably request
(and the Issuer and the Company hereby instruct their counsel to deliver such
opinions to you) and (b) from Willkie Farr & Gallagher, your special counsel in
connection with such transactions, substantially in the form set forth in
Exhibit 4.4(b) and covering such other matters incident to such transactions as
you may reasonably request.
4.5. SUBSIDIARY GUARANTEES.
A Subsidiary Guarantee, dated as of a date on or before the date
of the Closing, shall have been executed and delivered by each Subsidiary that
at the time is a borrower or guarantor under the Bank Credit Facility (sometimes
individually a "SUBSIDIARY GUARANTOR" and collectively the "SUBSIDIARY
GUARANTORS", which term shall include at any time after the date of the Closing
each other Subsidiary that theretofore executes and delivers a Subsidiary
Guarantee pursuant to Section 9.6 but shall exclude at such time any Subsidiary
or other Person theretofore released from its obligations as a Subsidiary
Guarantor pursuant to Section 9.6) in the form hereinabove recited and shall be
in full force and effect.
4.6. PURCHASE PERMITTED BY APPLICABLE LAW, ETC.
On the date of the Closing your purchase of Notes shall (a) be
permitted by the laws and regulations of each jurisdiction to which you are
subject, without recourse to provisions (such as Section 1405(a)(8) of the New
York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (b) not
violate any applicable law or regulation (including without limitation
Regulation T, U or X of the Board of Governors of the Federal Reserve System)
and (c) not subject you to any tax, penalty or liability under or pursuant to
any applicable law or regulation, which law or regulation was not in effect on
the date hereof. If requested by you, you shall have received an Officer's
Certificate certifying as to such matters of fact as you may reasonably specify
to enable you to determine whether such purchase is so permitted.
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4.7. SALE OF NOTES TO OTHER PURCHASERS.
The Issuer shall sell to the Other Purchasers and the Other
Purchasers shall purchase the Notes to be purchased by them at the Closing as
specified in Schedule A.
4.8. PAYMENT OF SPECIAL COUNSEL FEES.
Without limiting the provisions of Section 17.1, the Issuer shall
have paid on or before the Closing the reasonable fees, charges and
disbursements of your special counsel referred to in Section 4.4 to the extent
reflected in a statement of such counsel rendered to the Company at least one
Business Day prior to the Closing.
4.9. PRIVATE PLACEMENT NUMBERS.
A Private Placement Number issued by Standard & Poor's CUSIP
Service Bureau (in cooperation with the Securities Valuation Office of the
National Association of Insurance Commissioners) shall have been obtained for
the Notes of each series.
4.10. CHANGES IN CORPORATE STRUCTURE.
Neither the Issuer nor the Company shall have changed its
jurisdiction of incorporation or been a party to any merger or consolidation or
succeeded to all or any substantial part of the liabilities of any other entity
at any time following the date of the most recent financial statements referred
to in Schedule 5.5.
4.11. PROCEEDINGS AND DOCUMENTS.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be satisfactory to you and your special
counsel, and you and your special counsel shall have received all such
counterpart originals or certified or other copies of such documents as you or
they may reasonably request.
5. REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE COMPANY.
The Issuer and the Company jointly and severally represent and
warrant to you that:
5.1. ORGANIZATION; POWER AND AUTHORITY.
The Issuer is a corporation and the Company is a limited liability
company, in each case duly organized, validly
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existing and in good standing under the laws of its jurisdiction of formation,
and is duly qualified and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each of the
Issuer and the Company has the corporate power and authority to own or hold
under lease the properties it purports to own or hold under lease, to transact
the business it transacts and proposes to transact, to execute and deliver this
Agreement and the Other Agreements and (in the case of the Issuer) the Notes and
to perform the provisions hereof and thereof.
5.2. AUTHORIZATION, ETC.
This Agreement and the Other Agreements and the Notes have been
duly authorized by all necessary corporate action on the part of the Issuer, and
this Agreement constitutes, and upon execution and delivery thereof each Note
will constitute, a legal, valid and binding obligation of the Issuer enforceable
against the Issuer in accordance with its terms, except as such enforceability
may be limited by (a) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and (b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). This
Agreement and the Other Agreements have been duly authorized by all necessary
corporate action on the part of the Company and this Agreement constitutes a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited as aforesaid.
5.3. DISCLOSURE.
The Company, through its agent, Credit Suisse First Boston
Corporation, has delivered to you a copy of a Confidential Offering Memorandum,
dated June 1999 (the "MEMORANDUM"), relating to the transactions contemplated
hereby. The Memorandum fairly describes, in all material respects, the general
nature of the business and principal properties of the Company and its
Subsidiaries. This Agreement, the Memorandum, the documents, certificates or
other writings delivered to you by an agent or authorized representative on
behalf of the Issuer and the Company in connection with the transactions
contemplated hereby and described in Schedule 5.3 (together with the Memorandum,
the "DISCLOSURE DOCUMENTS"), and the financial statements listed in Schedule
5.5, taken as a whole, do not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein not
misleading in light of the circumstances under which they were made. Since
December 31, 1998, there has been no change in the financial condition,
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operations, business or properties of the Company or any Subsidiary except
changes disclosed in the Disclosure Documents or in the financial statements
listed in Schedule 5.5 and other changes that individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect. There is no
fact known to the Company that could reasonably be expected to have a Material
Adverse Effect that has not been set forth herein or in the Memorandum or in the
other Disclosure Documents.
5.4. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES; AFFILIATES.
(a) Schedule 5.4 contains (except as noted therein) complete and
correct lists of the Company's (i) Subsidiaries, showing, as to each Subsidiary,
the correct name thereof, the jurisdiction of its organization, and the
percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary, (ii)
Affiliates, other than Subsidiaries, and (iii) directors and senior officers.
Schedule 5.4 also identifies each Significant Subsidiary and each Subsidiary
that is a borrower or a guarantor under the Bank Credit Facility.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the
Company and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another Subsidiary free and clear
of any Lien (except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or
other legal entity duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate power and authority to
own or hold under lease the properties it purports to own or hold under lease
and to transact the business it transacts and proposes to transact and, in the
case of each Subsidiary Guarantor, to execute and deliver and perform its
obligations under its respective Subsidiary Guarantee.
(d) No Subsidiary (other than the Issuer) is a party to, or
otherwise subject to any legal restriction or any agreement (other than this
Agreement, the agreements listed in Schedule 5.4 and customary limitations
imposed by corporate law or currency export limitation statutes) restricting the
ability of such Subsidiary to pay dividends out of profits or make any other
similar distributions of profits to the Company or any of
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its Subsidiaries that owns outstanding shares of capital stock or similar equity
interests of such Subsidiary.
5.5. FINANCIAL STATEMENTS.
The Company has delivered to you copies of the consolidated
financial statements of the Company and its Subsidiaries listed in Schedule 5.5.
All of said financial statements (including in each case the related schedules
and notes) fairly present in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the respective dates
specified in such Schedule and the consolidated results of their operations and
cash flows for the respective periods so specified and have been prepared in
accordance with GAAP consistently applied throughout the periods involved except
as set forth in the notes thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments).
5.6. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
The execution, delivery and performance by the Issuer of this
Agreement and the Notes, by the Company of this Agreement and by the Subsidiary
Guarantors of their respective Subsidiary Guarantees will not (i) contravene,
result in any breach of, or constitute a default under, or result in the
creation of any Lien in respect of any property of the Issuer, the Company or
any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or
credit agreement, lease, corporate charter or by-laws, or any other material
agreement or instrument to which the Issuer, the Company or any Subsidiary is
bound or by which the Issuer, the Company or any Subsidiary or any of their
respective properties may be bound or affected, (ii) conflict with or result in
a breach of any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority applicable
to the Issuer, the Company or any Subsidiary or (iii) violate any provision of
any statute or other rule or regulation of any Governmental Authority applicable
to the Issuer, the Company or any Subsidiary.
5.7. GOVERNMENTAL AUTHORIZATIONS, ETC.
No consent, approval or authorization of, or registration, filing
or declaration with, any Governmental Authority is required for the validity of
the execution, delivery or performance by the Issuer of this Agreement or the
Notes, by the Company of this Agreement or by the Subsidiary Guarantors of their
respective Subsidiary Guarantees.
5.8. LITIGATION; OBSERVANCE OF AGREEMENTS, STATUTES AND ORDERS.
(a) Except as disclosed in Schedule 5.8, there are no actions,
suits or proceedings pending or, to the knowledge of the
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Issuer or the Company, threatened against or affecting the Company or any
Subsidiary or any property of the Company or any Subsidiary in any court or
before any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any
term of any agreement or instrument to which it is a party or by which it is
bound or any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law, ordinance, rule
or regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
5.9. TAXES.
(a) The Issuer, the Company and the Company's other Subsidiaries
have filed all tax returns that are required to have been filed in any
jurisdiction, and have paid all Taxes shown to be due and payable on such
returns and all other taxes levied upon them or their properties, assets, income
or franchises, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any taxes (i)
currently payable without penalty or interest, (ii) the amount of which is not
individually or in the aggregate Material or (iii) the amount, applicability or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP. The Company
knows of no basis for any other tax or assessment that could reasonably be
expected to have a Material Adverse Effect. The charges, accruals and reserves
on the consolidated books of the Company and its Subsidiaries in respect of U.S.
or Dutch federal, state or provincial or other taxes for all fiscal periods are
adequate in all material respects. The U.S. federal income tax liabilities of
the Issuer have not been and currently are not the subject of any U.S. federal
tax audit.
(b) No liability for any tax (whether income, documentary, sales,
stamp, registration, issue, capital, property, excise or otherwise), duty, levy,
impost, fee, charge or withholding (each a "TAX" and collectively "TAXES")
directly or indirectly imposed, assessed, levied or collected by or for the
account of any Governmental Authority in The Netherlands, or to the knowledge of
the Issuer or the Company any other jurisdiction, will be incurred by the Issuer
or the Company, any Subsidiary Guarantor or any holder of a Note as a result of
the execution or delivery of this Agreement, the Notes or the Subsidiary
Guarantees and, based on present law, no deduction or
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withholding in respect of Taxes imposed by or for the account of any
Governmental Authority in The Netherlands, or to the knowledge of the Issuer or
the Company any other jurisdiction, is required to be made from any payment by
the Issuer under this Agreement or the Notes, by the Company under this
Agreement (including without limitation the Parent Guarantee) or by any
Subsidiary Guarantor under its respective Subsidiary Guarantee, other than
income taxes payable in respect of any such payment imposed by the United
States, any state thereof or any political subdivision or taxing authority
thereof or therein.
5.10. TITLE TO PROPERTY; LEASES.
The Company and its Subsidiaries have good and sufficient title to
their respective real properties and good and sufficient title to their
respective other properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance sheet
listed on Schedule 5.5 or purported to have been acquired by the Company or any
Subsidiary after said date (except as sold or otherwise disposed of), in each
case free and clear of Liens prohibited by this Agreement. All leases that
individually or in the aggregate are Material are valid and subsisting and are
in full force and effect in all material respects.
5.11. LICENSES, PERMITS, Y2K, ETC.
Except as disclosed in Schedule 5.11,
(a) the Company and its Subsidiaries own or possess all licenses,
permits, franchises, authorizations, patents, copyrights, proprietary
software, service marks, trademarks and trade names, or rights
thereto, that individually or in the aggregate are Material, without
known conflict with the rights of others;
(b) to the best knowledge of the Company, no product of the
Company infringes in any material respect any license, permit,
franchise, authorization, patent, copyright, proprietary software,
service mark, trademark, trade name or other right owned by any other
Person; and
(c) to the best knowledge of the Company, there is no Material
violation by any Person of any right of the Company or any of its
Subsidiaries with respect to any patent, copyright, proprietary
software, service mark, trademark, trade name or other right owned or
used by the Company or any of its Subsidiaries.
The Company and its Subsidiaries have (a) initiated a review and
assessment of all areas within their respective businesses and operations
(including those affected by information received from suppliers and vendors)
that could
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reasonably be expected to be adversely affected by the Year 2000 Problem, (b)
developed a plan and timetable for addressing the Year 2000 Problem on a timely
basis, and (c) to date, implemented that plan substantially in accordance with
that timetable. The Company reasonably believes that all computer applications
(including those affected by information received from its suppliers and
vendors) that are material to the businesses and operations of the Company and
its Subsidiaries will on a timely basis be Year 2000 Compliant, except to the
extent that a failure to be so could not reasonably be expected to have a
Material Adverse Effect. The Company does not believe that the costs to be
incurred after the date of this Agreement for the purpose of ensuring that the
Company and its Subsidiaries will be Year 2000 Compliant will be Material. As
used in this Agreement, the term "YEAR 2000 COMPLIANT" means all computer
applications (including those affected by information received from suppliers
and vendors) that are material to the businesses and operations of the Company
and its Subsidiaries will on a timely basis be able to perform properly
date-sensitive functions involving all dates on and after January 1, 2000; and
the term "YEAR 2000 PROBLEM" means the risk that computer applications used by
the Company or any of its Subsidiaries (including those affected by information
received from suppliers and vendors) may be unable to recognize and perform
properly date-sensitive functions involving certain dates on and after January
1, 2000.
5.12. COMPLIANCE WITH ERISA.
(a) The Issuer and each ERISA Affiliate have operated and
administered each 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 Issuer 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 Code relating to employee benefit
plans (as defined in Section 3 of ERISA), and no event, transaction or condition
has occurred or exists that could reasonably be expected to result in the
incurrence of any such liability by the Issuer or any ERISA Affiliate, or in the
imposition of any Lien on any of the rights, properties or assets of the Issuer
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
Code, other than such liabilities or Liens as would not be individually or in
the aggregate Material.
(b) The present value of the aggregate benefit liabilities under
each of the Plans (other than Multiemployer Plans), determined as of the end of
such Plan's most recently ended plan year on the basis of the actuarial
assumptions specified for funding purposes in such Plan's most recent actuarial
valuation report, did not exceed the aggregate current value of the assets of
such Plan allocable to such benefit
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liabilities by more than $10,000,000. 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 Issuer and the ERISA Affiliates have not incurred
withdrawal liabilities (and are not subject to contingent withdrawal
liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer
Plans that individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation (determined as
of the last day of the Company'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 Code) of the Company and its Subsidiaries is not Material.
(e) With respect to each employee benefit plan, if any, disclosed
by you in writing to the Company in accordance with Section 6.2(c), neither the
Issuer nor the Company nor any "affiliate" of the Issuer or the Company (as
defined in Section V(c) of the QPAM Exemption) has at this time, nor has
exercised at any time during the immediately preceding year, the authority to
appoint or terminate the "QPAM" (as defined in Part V of the QPAM Exemption)
disclosed by you to the Company pursuant to Section 6.2(c) as manager of any of
the assets of any such plan or to negotiate the terms of any management
agreement with such QPAM on behalf of any such plan, and neither the Issuer nor
the Company is an "affiliate" (as so defined) of such QPAM. Neither the Issuer
nor the Company is a party in interest with respect to any employee benefit plan
disclosed by you in accordance with Section 6.2(b) or 6.2(e). The execution and
delivery of this Agreement and the issuance and sale of the Notes at the Closing
hereunder will not involve any prohibited transaction (as such term is defined
in section 406(a) of ERISA and section 4975(c)(1)(A)-(D) of the Code), that
could subject the Issuer or the Company or any holder of a Note to any tax or
penalty on prohibited transactions imposed under said section 4975 of the Code
or by section 502(i) of ERISA. The representation by the Issuer and the Company
in the preceding sentence of this Section 5.12(e) is made in reliance upon and
subject to the accuracy of your representation in Section 6.2 as to the source
of the funds used to pay the purchase price of the Notes to be purchased by you.
(f) All Foreign Plans have been established, operated,
administered and maintained in compliance with all laws, regulations and orders
applicable thereto except for such instances of noncompliance as have not
resulted in and could not reasonably be expected to result in a Material Adverse
Effect. All premiums, contributions and any other amounts required by applicable
Foreign Plan documents or applicable laws to be paid
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or accrued by the Company and its Subsidiaries, to the extent Material, have
been paid or accrued as required.
5.13. PRIVATE OFFERING.
Neither the Issuer nor the Company nor anyone acting on their
behalf has offered the Notes, the Parent Guarantee, the Subsidiary Guarantees or
any similar securities for sale to, or solicited any offer to buy any of the
same from, or otherwise approached or negotiated in respect thereof with, any
Person other than you, the Other Purchasers and not more than 40 other
Institutional Investors, each of which has been offered the Notes at a private
sale for investment. Neither the Issuer nor the Company nor anyone acting on
their behalf has taken, or will take, any action that would subject the issuance
or sale of the Notes or the issuance of the Parent Guarantee or the Subsidiary
Guarantees to the registration requirements of Section 5 of the Securities Act.
5.14. USE OF PROCEEDS; MARGIN REGULATIONS.
The Issuer will apply the net proceeds of the sale of the Notes to
repay existing Indebtedness and for general corporate purposes. No part of the
proceeds from the sale of the Notes hereunder will be used, and no part of the
proceeds of any such Indebtedness being repaid was used, directly or indirectly,
for the purpose of buying or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System (12 CFR
21), or for the purpose of buying or carrying or trading in any securities under
such circumstances as to involve the Issuer or the Company in a violation of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). Margin stock does not
constitute more than 10% of the value of the consolidated assets of the Company
and its Subsidiaries and the Company does not have any present intention that
margin stock will constitute more than 25% of the value of such assets. As used
in this Section, the terms "MARGIN STOCK" and "PURPOSE OF BUYING OR carrying"
shall have the meanings assigned to them in said Regulation U.
5.15. EXISTING INDEBTEDNESS; FUTURE LIENS.
(a) Schedule 5.15 sets forth a complete and correct list of all
outstanding Indebtedness of the Company and its Subsidiaries as of June 30,
1999, since which date there has been no Material change in the amounts,
interest rates, sinking funds, installment payments or maturities of the
Indebtedness of the Company or its Subsidiaries. Neither the Company nor any
Subsidiary is in default, and no waiver of default is currently in effect, in
the payment of any principal or interest on any Indebtedness of the Company or
such Subsidiary, and no event or condition exists with respect to any
Indebtedness of the Company
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or any Subsidiary that would permit (or that with the giving of notice or the
lapse of time, or both, would permit) one or more Persons to cause such
Indebtedness to become due and payable before its stated maturity or before its
regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor
any Subsidiary has agreed or consented to cause or permit in the future (upon
the happening of a contingency or otherwise) any of its property, whether now
owned or hereafter acquired, to be subject to a Lien not permitted by Section
10.2.
5.16. FOREIGN ASSETS CONTROL REGULATIONS, ETC.
Neither the sale of the Notes by the Issuer hereunder nor its use
of the proceeds thereof will violate the Trading with the Enemy Act, as amended,
or any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
5.17. STATUS UNDER CERTAIN STATUTES.
Neither the Company nor any Subsidiary is subject to regulation
under the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, the Interstate Commerce Act, as amended, or the
Federal Power Act, as amended.
5.18. ENVIRONMENTAL MATTERS.
Neither the Company nor any Subsidiary has knowledge of any claim
or has received any notice of any claim, and no proceeding has been instituted
raising any claim against the Company or any of its Subsidiaries or any of their
respective real properties now or formerly owned, leased or operated by any of
them or other assets, alleging any damage to the environment or violation of any
Environmental Laws, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect. Except as otherwise disclosed
to you in writing prior to your execution and delivery of this Agreement,
(a) no officer or senior manager of the Company or any Subsidiary
has knowledge of any facts which would give rise to any claim, public
or private, of violation of Environmental Laws or damage to the
environment emanating from, occurring on or in any way related to real
properties now or formerly owned, leased or operated by any of them or
to other assets or their use or to their business operations, except,
in each case, such as could not reasonably be expected to result in a
Material Adverse Effect;
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(b) neither the Company nor any of its Subsidiaries has stored
any Hazardous Materials on real properties now or formerly owned,
leased or operated by any of them and has not disposed of any Hazardous
Materials in a manner contrary to any Environmental Laws in each case
in any manner that could reasonably be expected to result in a Material
Adverse Effect; and
(c) all buildings on all real properties now owned, leased or
operated by the Company or any of its Subsidiaries are in compliance
with applicable Environmental Laws, except where failure to comply
could not reasonably be expected to result in a Material Adverse
Effect.
6. REPRESENTATIONS OF THE PURCHASER.
6.1. PURCHASE OF NOTES.
You represent that you are purchasing the Notes for your own
account or for one or more separate accounts maintained by you or for the
account of one or more pension or trust funds and not with a view to the
distribution thereof, provided that the disposition of your or their property
shall at all times be within your or their control. You understand that the
Notes have not been registered under the Securities Act and may be resold only
if registered pursuant to the provisions of the Securities Act or if an
exemption from registration is available, except under circumstances where
neither such registration nor such an exemption is required by law, and that the
Issuer is not required to register the Notes.
6.2. SOURCE OF FUNDS.
You represent that at least one of the following statements is an
accurate representation as to each source of funds (a "SOURCE") to be used by
you to pay the purchase price of the Notes to be purchased by you hereunder:
(a) the Source is an "insurance company general account", as
such term is defined in Prohibited Transaction Exemption ("PTE") 95-60
(issued July 12, 1995), and there is no plan with respect to which the
aggregate amount of such general account's reserves and liabilities for
the contracts held by or on behalf of such plan and all other plans
maintained by the same employer (and affiliates thereof as defined in
section V(a)(1) of PTE 95-60) or by the same employee organization (in
each case determined in accordance with PTE 95-60) exceeds or will
exceed 10% of the total of all reserves and liabilities of such general
account (determined in accordance with PTE 95-60, exclusive of separate
account liabilities, plus any applicable surplus) as of the date of the
Closing; or
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(b) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January 29,
1990), or (ii) a bank collective investment fund, within the meaning of
the PTE 91-38 (issued July 12, 1991) and, except as you have disclosed
to the Issuer in writing pursuant to this paragraph (b), no employee
benefit plan or group of plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment
fund; or
(c) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that
are included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of Section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part I(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or controlled by the QPAM (applying the definition of "control" in
section V(e) of the QPAM Exemption) owns a 5% or more interest in the
Company and (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment
fund have been disclosed to the Issuer in writing pursuant to this
paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Issuer in
writing pursuant to this paragraph (e); or
(f) the Source does not include assets of any employee benefit
plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "EMPLOYEE BENEFIT PLAN", "GOVERNMENTAL
PLAN" and "SEPARATE ACCOUNT" shall have the respective meanings assigned to such
terms in section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1. FINANCIAL AND BUSINESS INFORMATION.
The Company shall deliver to each holder of Notes that is an
Institutional Investor:
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(a) Quarterly Statements -- within 60 days after the end of
each quarterly fiscal period in each fiscal year of the Company (other
than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries, for such quarter and (in the case of the second and
third quarters) for the portion of the fiscal year ending with
such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer of the Company as fairly presenting, in all material respects,
the financial position of the companies being reported on and their
results of operations and cash flows, subject to changes resulting from
year-end adjustments;
(b) Annual Statements -- within 120 days after the end of each
fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such year, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by an opinion thereon of independent public
accountants of recognized national standing, which opinion shall state
that such financial statements present fairly, in all material
respects, the financial position of the companies being reported upon
and their results of operations and cash flows and have been prepared
in conformity with GAAP, and that the examination of such accountants
in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that such
audit provides a reasonable basis for such opinion in the
circumstances;
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or
proxy statement sent by the
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Issuer or the Company generally to their respective shareholders or
creditors (other than the Company or another Subsidiary), and (ii) each
regular or periodic report, each registration statement (without
exhibits except as expressly requested by such holder), and each
prospectus and all amendments thereto filed by the Company or any
Subsidiary with the Securities and Exchange Commission and of each
press release and other statement made available generally by the
Company or the Issuer to the public concerning developments that are
Material;
(d) Notice of Default or Event of Default -- promptly, and in
any event within five days after a Responsible Officer of the Issuer or
the Company becoming aware of the existence of any Default or Event of
Default or that any Person has given any notice or taken any action
with respect to a claimed default hereunder or that any Person has
given any notice or taken any action with respect to a claimed default
of the type referred to in Section 11(f), a written notice specifying
the nature and period of existence thereof and what action the Issuer
and the Company are taking or propose to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five days
after a Responsible Officer of the Issuer or the Company becoming aware
of any of the following, a written notice setting forth the nature
thereof and the action, if any, that the Issuer or one or more of its
ERISA Affiliates propose to take with respect thereto:
(i) with respect to any Plan, any reportable event,
as defined in section 4043(b) of ERISA and the regulations
thereunder, for which notice thereof has not been waived pursuant
to such 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 Plan, or the receipt by the Issuer
or any of its ERISA Affiliates 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 liability by the Issuer or any of its
ERISA Affiliates pursuant to Title I or IV of ERISA or the penalty
or excise tax provisions of the Code relating to employee benefit
plans, or in the imposition of any Lien on any of the rights,
properties or assets of the Issuer or any of its ERISA Affiliates
pursuant to Title I or IV of ERISA or such penalty or excise tax
provisions, if such liability or Lien, taken together with any
other such
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liabilities or Liens then existing, could reasonably be expected
to have a Material Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in
any event within 30 days of receipt thereof, copies of any notice to
the Company or any Subsidiary from any federal, state or provincial
Governmental Authority relating to any order, ruling, statute or other
law or regulation that could reasonably be expected to have a Material
Adverse Effect; and
(g) Requested Information -- with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or properties of the Company or
any of its Subsidiaries or relating to the ability of the Company to
perform its obligations hereunder, the ability of the Issuer to perform
its obligations hereunder and under the Notes or the ability of a
Subsidiary Guarantor to perform its obligations under its respective
Subsidiary Guarantee, in each case as from time to time may be
reasonably requested by any such holder of Notes.
7.2. OFFICER'S CERTIFICATE.
Each set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a
certificate of a Senior Financial Officer of the Company setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Issuer and the
Company were in compliance with the requirements of Sections 10.1
through 10.4, inclusive, during the quarterly or annual period covered
by the statements then being furnished (including with respect to each
such Section, where applicable, the calculations of the maximum or
minimum amount, ratio or percentage, as the case may be, permissible
under the terms of such Sections, the calculation of the amount, ratio
or percentage then in existence, and detailed calculations with respect
to any Step-up Period occurring during such quarterly or annual
period); and
(b) Default -- a statement that such Senior Financial Officer
has reviewed the relevant terms hereof and has made, or caused to be
made, under his or her supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review shall not
have disclosed the existence during such period of any condition
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or event that constitutes a Default or an Event of Default or, if any
such condition or event existed or exists, specifying the nature and
period of existence thereof and what action the Issuer and the Company
shall have taken or propose to take with respect thereto.
7.3. INSPECTION.
The Company shall permit the representatives of each holder of
Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior notice
to the Company, to visit the principal executive offices of the Company
and the Issuer, to discuss the affairs, finances and accounts of the
Company and its Subsidiaries with the officers of the Company and the
Issuer, and (with the consent of the Company, which consent will not be
unreasonably withheld) its independent public accountants, and (with
the consent of the Company, which consent will not be unreasonably
withheld) to visit the other offices and properties of the Company and
each Subsidiary, all at such reasonable times during normal business
hours and as often as may be reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then exists,
at the expense of the Issuer, to visit and inspect any of the offices
or properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers, employees and the
Company's independent public accountants (and by this provision the
Company authorizes said accountants to discuss the affairs, finances
and accounts of the Company and its Subsidiaries), all at such times
and as often as may be requested.
8. PREPAYMENT OF THE NOTES.
In addition to the payment of the entire unpaid principal amount
of the Notes of each series at the final maturity thereof, the Issuer will make
required, and may make optional, prepayments in respect of the Notes as
hereinafter provided.
8.1. REQUIRED PREPAYMENTS.
(a) On July 22, 2005 and on each July 22 thereafter to and
including July 22, 2008, the Issuer will prepay $7,000,000 aggregate
principal amount (or such lesser principal amount as shall then be
outstanding) of the Series A Notes, such prepayment
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to be made at the principal amount to be prepaid, together with accrued
interest thereon to the date of such prepayment, without any Make-Whole
Amount or other premium, and allocated as provided in Section 8.4 and
subject to paragraph (c) below.
(b) On July 22, 2007 and on each July 22 thereafter to and
including July 22, 2010, the Issuer will prepay $8,000,000 aggregate
principal amount (or such lesser principal amount as shall then be
outstanding) of the Series B Notes, such prepayment to be made at the
principal amount to be prepaid, together with accrued interest thereon
to the date of such prepayment, without any Make-Whole Amount or other
premium, and allocated as provided in Section 8.4 and subject to
paragraph (c) below.
(c) Upon any partial prepayment of the Notes of either series
pursuant to Section 8.2 or purchase of Notes of either series permitted
by Section 8.6, the principal amount of each required prepayment of the
Notes of such series becoming due under this Section 8.1 on and after
the date of such prepayment or purchase shall be reduced in the same
proportion as the aggregate unpaid principal amount of the Notes of
such series is reduced as a result of such prepayment or purchase.
8.2. OPTIONAL PREPAYMENTS.
The Issuer may, at its option and upon notice as provided below,
prepay at any time all, or from time to time any part of, the Notes (in a
minimum amount of $1,000,000 and otherwise in multiples of $100,000) at the
principal amount so prepaid, together with interest accrued thereon to the date
of such prepayment, plus the Make-Whole Amount, if any, for the Notes of each
series determined for the prepayment date with respect to such principal amount.
The Issuer will give each holder of Notes written notice of each optional
prepayment under this Section 8.2 not less than 30 days and not more than 60
days prior to the date fixed for such prepayment. Each such notice shall specify
the date fixed for such prepayment (which shall be a Business Day), the
aggregate principal amount of the Notes to be prepaid on such date, the
principal amount of Notes (if any) held by such holder to be prepaid (determined
in accordance with Section 8.4) and the interest to be paid on the prepayment
date with respect to such principal amount being prepaid.
Each such notice of prepayment shall be accompanied by a
certificate of a Senior Financial Officer of the Issuer as to the estimated
Make-Whole Amount for the Notes of each series due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment of Notes, the Issuer shall deliver to each holder of
the Notes a certificate of a Senior Financial Officer of the Issuer specifying
the calculation of such Make-Whole Amount for the Notes of each series as of the
specified prepayment date.
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8.3. PREPAYMENT IN CONNECTION WITH A CHANGE OF CONTROL AND DEBT DOWNGRADE.
Promptly and in any event within ten Business Days after the
occurrence of a Change of Control and a Change of Control Debt Downgrade, the
Company will give written notice thereof (a "CHANGE OF CONTROL Notice") to the
holders of all outstanding Notes, which Change of Control Notice shall (a) refer
specifically to this Section 8.3, (b) describe the Change of Control and Change
of Control Debt Downgrade in reasonable detail and specify the Change of Control
Prepayment Date and the Response Date (as respectively defined below) in respect
thereof and (c) offer to prepay all Notes at the price specified below on the
date therein specified (the "CHANGE OF CONTROL PREPAYMENT DATE"), which shall be
a Business Day not more than 90 days after the date of such Change of Control
Notice. Each holder of a Note will notify the Company of such holder's
acceptance or rejection of such offer by giving written notice of such
acceptance or rejection to the Company on or before the date for such notice
specified in such Change of Control Notice (the "RESPONSE DATE"), which
specified date shall be not less than 30 days nor more than 60 days after the
date of such Change of Control Notice. The Company shall prepay on the Change of
Control Prepayment Date all of the Notes held by the holders as to which such
offer has been so accepted, at the principal amount of each such Note, together
with interest accrued thereon to the Change of Control Prepayment Date, but
without any Make-Whole Amount or any premium. If any holder shall reject such
offer or fail to accept such offer on or before the Response Date, such holder
shall be deemed to have waived its rights under this Section 8.3 to require
prepayment of all Notes held by such holder in respect of such Change of Control
but not in respect of any subsequent Change of Control.
For purposes of this Section 8.3: a "Change of Control Debt
Downgrade" means that (i) the credit rating (the "RATING") by Fitch IBCA, Inc.
(or another Approved Rating Agency referred to below in the event Fitch IBCA,
Inc. is no longer providing a credit rating for the Notes) in effect for the
Notes immediately prior to any disclosure relating to a Change of Control is
lowered for reasons attributable to such Change of Control or (ii) there is no
Rating in effect at the time of such Change of Control; and an "APPROVED RATING
Agency" means Fitch IBCA, Inc., Duff & Phelps Credit Rating Co., Standard &
Poor's Ratings Group, Moody's Investors Service, Inc., or any successor to any
of the foregoing. Without limiting the notice requirements of this Section 8.3
with respect to a Change of Control, the Company will give prompt written notice
to each holder of a Note of any change of the Rating as in effect from time to
time or of the Approved Rating Agency then providing such rating.
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8.4. ALLOCATION OF PARTIAL PREPAYMENTS.
In the case of each partial prepayment of all Notes pursuant to
Section 8.2 or the Notes of either series pursuant to Section 8.1, the principal
amount of the Notes to be prepaid shall be allocated among all Notes or the
Notes of such series, as the case may be, at the time outstanding in proportion,
as nearly as practicable, to the respective unpaid principal amounts thereof.
8.5. MATURITY; SURRENDER, ETC.
In the case of each prepayment of Notes pursuant to this Section
8, the principal amount of each Note to be prepaid shall mature and become due
and payable on the date fixed for such prepayment, together with interest on
such principal amount accrued to such date and the applicable Make-Whole Amount,
if any. From and after such date, unless the Issuer shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Issuer and cancelled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.6. PURCHASE OF NOTES.
Neither the Issuer nor the Company will, nor will either of them
permit any Affiliate to, purchase, redeem, prepay or otherwise acquire, directly
or indirectly, any of the outstanding Notes except (a) upon the payment or
prepayment of the Notes in accordance with the terms of this Agreement and the
Notes or (b) pursuant to an offer made by the Issuer, the Company or any such
Affiliate to all holders of the Notes to purchase Notes on the same terms and
conditions (except for differences to reflect the terms of the Notes of each
series), pro rata among all Notes tendered, which offer shall remain outstanding
for a reasonable period of time (not to be less than 30 days).
Any Notes so repurchased shall immediately upon acquisition
thereof be cancelled and no Notes shall be issued in substitution or exchange
therefor.
Promptly and in any event within five Business Days after each
such purchase of Notes, the Issuer will furnish each holder of the Notes with a
certificate of a Senior Financial Officer of the Issuer describing such purchase
(including the aggregate principal amount of Notes of each series so purchased
and the purchase price therefor) and certifying that such purchase was made in
compliance with the requirements of this Section.
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8.7. MAKE-WHOLE AMOUNT.
The term "MAKE-WHOLE AMOUNT" means, with respect to any Note, an
amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Note over the
amount of such Called Principal, provided that the Make-Whole Amount may in no
event be less than zero. For the purposes of determining the Make-Whole Amount,
the following terms have the following meanings:
"CALLED PRINCIPAL" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.2 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"DISCOUNTED VALUE" means, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"REINVESTMENT YIELD" means, with respect to the Called
Principal of any Note, .0.50% over the yield to maturity implied by (i)
the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on (x) the Bloomberg Financial Markets News screen
PX1 or the equivalent screen provided by Bloomberg Financial Markets
News, or (y) if such on-line market data is not at the time provided by
Bloomberg Financial Markets News, on the display designated as "Page
500" on the Telerate service (or such other display as may replace Page
500 on the Telerate service), in any case for actively traded U.S.
Treasury securities having a maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date, or (ii) if
such yields are not reported as of such time or the yields reported as
of such time are not ascertainable (including by way of interpolation),
the Treasury Constant Maturity Series Yields reported, for the latest
day for which such yields have been so reported as of the second
Business Day preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date. Such implied
yield will be determined, if necessary, by (a) converting U.S. Treasury
bill quotations to
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bond-equivalent yields in accordance with accepted financial practice
and (b) interpolating linearly between (1) the actively traded U.S.
Treasury security with a maturity closest to and greater than the
Remaining Average Life and (2) the actively traded U.S. Treasury
security with a maturity closest to and less than the Remaining Average
Life.
"REMAINING AVERAGE LIFE" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2 or 12.1.
"SETTLEMENT DATE" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Issuer and the Company jointly and severally covenant that so
long as any of the Notes are outstanding:
9.1. COMPLIANCE WITH LAW.
The Company will and will cause each of its Subsidiaries to comply
with all laws, ordinances or governmental rules or regulations to which each of
them is subject, including without limitation Environmental Laws, and will
obtain and maintain in effect all licenses, certificates, permits, franchises
and other governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective businesses, in each
case to the extent necessary
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to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.2. INSURANCE.
The Company will and will cause each of its Subsidiaries to
maintain, with financially sound and reputable insurers, insurance with respect
to their respective properties and businesses against such casualties and
contingencies, of such types, on such terms and in such amounts (including
deductibles, co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of entities of
established reputations engaged in the same or a similar business and similarly
situated.
9.3. MAINTENANCE OF PROPERTIES.
The Company will and will cause each of its Subsidiaries to
maintain and keep, or cause to be maintained and kept, their respective
properties in good repair, working order and condition (other than ordinary wear
and tear), so that the business carried on in connection therewith may be
properly conducted at all times, provided that this Section shall not prevent
the Company or any Subsidiary from discontinuing the operation and the
maintenance of any of its properties if such discontinuance is desirable in the
conduct of its business and the Company has concluded that such discontinuance
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
9.4. PAYMENT OF TAXES AND CLAIMS.
The Company will and will cause each of its Subsidiaries to file
all tax returns required to be filed in any jurisdiction and to pay and
discharge all taxes shown to be due and payable on such returns and all other
taxes, assessments, governmental charges, or levies imposed on them or any of
their properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent
and all claims for which sums have become due and payable that have or might
become a Lien on properties or assets of the Company or any Subsidiary, provided
that neither the Company nor any Subsidiary need pay any such tax or assessment
or claim if (i) the amount, applicability or validity thereof is contested by
the Company or such Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (ii) the nonpayment of all such taxes
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and assessments in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
9.5. CORPORATE EXISTENCE, ETC.
Subject to Section 10.5, each of the Issuer and the Company will
at all times preserve and keep in full force and effect its corporate existence.
Subject to Section 10.5, the Company will at all times preserve and keep in full
force and effect the corporate existence of each of its Subsidiaries (unless
merged into the Company or a Subsidiary) and all rights and franchises (as
franchisee) of the Company and its Subsidiaries unless, in the good faith
judgment of the Company, the termination of or failure to preserve and keep in
full force and effect such corporate existence, right or franchise could not,
individually or in the aggregate, have a Material Adverse Effect.
9.6. ADDITIONAL SUBSIDIARY GUARANTEES; RELEASE OF SUBSIDIARY GUARANTEES.
Prior to or concurrently with any Subsidiary becoming an obligor
or a guarantor under the Bank Credit Facility after the Closing, the Company
will cause such Subsidiary to execute and deliver a Subsidiary Guarantee, and
within ten Business Days thereafter the Company will furnish each holder of the
Notes with a counterpart of such executed Subsidiary Guarantee. If any opinion
of counsel relating to the authorization, execution, delivery or enforceability
of the obligations of such Subsidiary under the Bank Credit Facility is then
provided to the lenders under the Bank Credit Facility in connection with such
Subsidiary becoming an obligor or guarantor as aforesaid, the Company will
concurrently furnish each holder of the Notes with an opinion of counsel as to
such matters as they relate to such executed Subsidiary Guarantee. Any
Subsidiary Guarantor that is being released from its obligations (as obligor or
guarantor) under the Bank Credit Facility shall, at the Company's request, be
discharged from all of its obligations and liabilities under its Subsidiary
Guarantee by the Required Holders entering into a release in form and substance
reasonably satisfactory to the Required Holders, and you and each other holder
of a Note, by acceptance of such Note, agree to enter into such a satisfactory
release promptly upon request, except that this sentence shall not apply (a) if
a Default or Event of Default shall have occurred and be continuing after giving
effect to such release, (b) to a Subsidiary if any amount is then due and
payable under its Subsidiary Guarantee, or (c) unless such Subsidiary is
concurrently released from such obligations or guarantee under the Bank Credit
Facility.
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10. NEGATIVE COVENANTS.
The Issuer and the Company jointly and severally covenant that so
long as any of the Notes are outstanding:
10.1. TOTAL INDEBTEDNESS; SUBSIDIARY INDEBTEDNESS.
(a) The Company will not and will not permit any Subsidiary to
create, assume, incur, guarantee or otherwise become liable in respect of any
Indebtedness if immediately after giving effect thereto and to the application
of the proceeds of such Indebtedness the Total Indebtedness to EBITDA Ratio
exceeds 3.00 to 1.
Notwithstanding the foregoing provisions of this Section 10.1(a),
the Company or a Subsidiary may incur Indebtedness during a Step-up Period
referred to below if immediately after giving effect thereto and to the
application of the proceeds of such Indebtedness the Total Indebtedness to
EBITDA Ratio exceeds 3.00 to 1.0 but does not exceed 3.50 to 1.0, provided that
until the earlier of (i) the expiration of the Maximum Step-up Period referred
to below and (ii) the earliest date after such incurrence on which such Ratio
shall not exceed 3.00 to 1.0, the Company will not at any time permit such Ratio
to exceed 3.50 to 1.0. If such Ratio exceeds 3.0 to 1.0 at the expiration of the
Maximum Step-up Period, whether or not Indebtedness is then being incurred, the
Company shall be in default in compliance with this Section 10.1(a). As used
herein the term "STEP-UP PERIOD" means a period (expressed as a number of days)
commencing on any date of incurrence of Indebtedness under circumstances
described in the preceding sentence and ending on the earliest date thereafter
when the Total Indebtedness to EBITDA Ratio does not exceed 3.0 to 1.0; and the
term "MAXIMUM STEP-UP PERIOD" means one or more Step-up Periods aggregating 1095
days.
(b) The Company will not permit any Subsidiary to create, assume,
incur, guarantee or otherwise become liable in respect of any Indebtedness
except
(i) Indebtedness secured by Liens permitted by Section
10.2(a), (b) or (c),
(ii) the Notes and other Indebtedness of the Issuer,
(iii) Indebtedness of Subsidiary Guarantors (A) evidenced by
the Subsidiary Guarantees and other guarantees by the Subsidiary
Guarantors in respect of unsecured Indebtedness of the Company and (B)
as obligors or guarantors under the Bank Credit Facility (subject to
Section 9.6),
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(iv) in the case of any Person that after the date of the
Closing becomes a Subsidiary or is consolidated with or merged with or
into a Subsidiary or sells, leases or otherwise disposes of all or
substantially all of its property to a Subsidiary, Indebtedness
existing at the time such Person becomes a Subsidiary or is so
consolidated or merged or effects such sale, lease or other disposition
of property (and not created in anticipation thereof),
(v) Indebtedness owing to the Company or a Wholly-Owned
Subsidiary, and
(vi) other Indebtedness, provided that immediately after
giving effect to such other Indebtedness the sum (without duplication)
of (A) the aggregate unpaid principal amount of Indebtedness (including
Capitalized Lease Obligations) of the Company secured by Liens
permitted by Section 10.2(e) plus (B) the aggregate unpaid principal
amount of Indebtedness of all Subsidiaries (other than Indebtedness
permitted by clauses (i) through (v) above) plus (C) the aggregate
Attributable Debt in connection with all sale and leaseback
transactions of the Company and its Subsidiaries entered into after the
date of the Closing in accordance with the provisions of Section
10.3(a), does not exceed 15% of Consolidated Tangible Assets.
For purposes of this Section 10.1(b), a Subsidiary shall be deemed to have
incurred Indebtedness in respect of any obligation previously owed to the
Company or to a Wholly-Owned Subsidiary on the date the obligee ceases for any
reason to be the Company or a Wholly-Owned Subsidiary, and a Person that
hereafter becomes a Subsidiary shall be deemed at that time to have incurred all
of its outstanding Indebtedness.
10.2. LIENS.
The Company will not and will not permit any Subsidiary to create,
assume, incur or suffer to exist any Lien upon or with respect to any property
or assets, whether now owned or hereafter acquired, securing any Indebtedness
without making effective provision (pursuant to documentation in form and
substance reasonably satisfactory to the Required Holders) whereby the Notes
shall be secured by such Lien equally and ratably with or prior to any and all
Indebtedness and other obligations to be secured thereby, provided that nothing
in this Section 10.2 shall prohibit:
(a) Liens in respect of property of the Company or a
Subsidiary existing on the date of the Closing and described in
Schedule 5.15, and extensions, renewals and replacements (including
successive extensions, renewals and replacements) of any such Liens,
provided that in any such case the principal amount of Indebtedness (or
the maximum commitment
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therefor) secured by any such Lien is not increased above the unpaid
principal amount (or maximum commitment) on the date of such extension,
renewal or replacement and such Lien does not extend to or cover any
property other than the property covered by such Lien on the date of
the Closing;
(b) Liens in respect of property (including without limitation
shares of capital stock) acquired or constructed by the Company or a
Subsidiary after the date of the Closing, which are created at the time
of or within 360 days after acquisition or completion of construction
of such property to secure Indebtedness assumed or incurred to finance
all or any part of the purchase price or cost of construction of such
property, provided that in any such case
(i) no such Lien shall extend to or cover any other property
of the Company or such Subsidiary, as the case may be, and
(ii) the aggregate principal amount of Indebtedness secured
by all such Liens in respect of any such property shall not
exceed the cost of such property and any improvements then being
financed;
(c) Liens in respect of property (including without limitation
shares of capital stock) acquired by the Company or a Subsidiary after
the date of the Closing, existing on such property at the time of
acquisition thereof (and not created in anticipation thereof), or in
the case of any Person that after the date of the Closing becomes a
Subsidiary or is consolidated with or merged with or into the Company
or a Subsidiary or sells, leases or otherwise disposes of all or
substantially all of its property to the Company or a Subsidiary, Liens
existing at the time such Person becomes a Subsidiary or is so
consolidated or merged or effects such sale, lease or other disposition
of property (and not created in anticipation thereof), provided that in
any such case no such Lien shall extend to or cover any other property
of the Company or such Subsidiary, as the case may be;
(d) Liens securing Indebtedness owed by a Subsidiary to the
Company or to a Wholly-Owned Subsidiary; and
(e) Liens which would otherwise not be permitted by Section
10.2(a), (b), (c) or (d), securing additional Indebtedness of the
Company or a Subsidiary, provided that after giving effect thereto the
sum (without duplication) of (i) the aggregate unpaid principal amount
of Indebtedness (including Capitalized Lease Obligations) of the
Company secured by such Liens permitted by this Section 10.2(e) plus
(ii) the aggregate unpaid principal amount of Indebtedness of
Subsidiaries (other than Indebtedness permitted by
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clauses (i) through (v) of Section 10.1(b)) plus (iii) the aggregate
Attributable Debt in connection with all sale and leaseback
transactions of the Company and its Subsidiaries entered into after the
date of the Closing in accordance with the provisions of Section
10.3(a), does not exceed 15% of Consolidated Tangible Assets.
For purposes of this Section 10.2 any Lien existing in respect of property at
the time such property is acquired or in respect of property of a Person at the
time such Person is acquired, consolidated or merged with or into the Company or
a Subsidiary shall be deemed to have been created at that time.
10.3. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any Subsidiary to sell,
lease, transfer or otherwise dispose of (collectively, a "TRANSFER") any asset
on terms whereby the asset or a substantially similar asset is or may be leased
or reacquired by the Company or any Subsidiary over a period in excess of three
years, unless either
(a) after giving effect to such transaction and the incurrence
of Attributable Debt in respect thereof, the sum (without duplication)
of (i) the aggregate unpaid principal amount of Indebtedness (including
Capitalized Lease Obligations) of the Company secured by such Liens
permitted by Section 10.2(e) plus (ii) the aggregate unpaid principal
amount of Indebtedness of Subsidiaries (other than the Notes
Indebtedness permitted by clauses (i) through (v) of Section 10.1(b))
plus (iii) the aggregate Attributable Debt in connection with all sale
and leaseback transactions of the Company and its Subsidiaries entered
into after the date of the Closing in accordance with the provisions of
this Section 10.3(a), does not exceed 15% of Consolidated Tangible
Assets, or
(b) the net proceeds realized from the transfer are applied
within 180 days after the receipt thereof to the reinvestment in
similar categories of property or assets for use in the business of the
Company and its Subsidiaries or to the repayment of unsubordinated
Indebtedness.
10.4. MAINTENANCE OF NET WORTH.
The Company will not at any time permit Consolidated Net Worth to
be less than the sum of (a) $145,000,000 plus (b) 50% of Consolidated Net Income
for the nine-month period ending on December 31, 1999 (if such Consolidated Net
Income is positive) plus (c) 50% of Consolidated Net Income for each fiscal year
thereafter for which Consolidated Net Income is positive.
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10.5. MERGER, CONSOLIDATION, AMALGAMATION, ETC.
The Company will not and will not permit any Subsidiary to
consolidate, amalgamate or merge with any other Person or convey, transfer or
lease all or substantially all of its assets in a single transaction or series
of transactions to any Person except:
(a) a Subsidiary (other than the Issuer) may consolidate,
amalgamate or merge with any other corporation or convey or transfer
all or substantially all of its assets to
(i) the Company, provided that the Company shall be the
continuing, surviving or acquiring Person (the "SURVIVING
PERSON"), or a then existing Wholly-Owned Subsidiary, or
(ii) any other Person, provided that if such Subsidiary is a
Subsidiary Guarantor and it is not the surviving Person, the
surviving Person shall have (A) executed and delivered to each
holder of a Note its assumption of the due and punctual
performance and observance of all obligations of such Subsidiary
under its Subsidiary Guarantee and (B) caused to be delivered to
each holder of a Note an opinion of counsel reasonably
satisfactory to the Required Holders to the effect that all
agreements or instruments effecting such assumption are
enforceable in accordance with their terms and comply with the
terms of this Agreement and such Subsidiary Guarantee;
(b) the Issuer may consolidate, amalgamate or merge with any
other corporation or convey or transfer all or substantially all of its
assets to a corporation organized and existing under the laws of the
United States or any State thereof (including the District of
Columbia), The Netherlands or any other Permitted Jurisdiction,
provided that
(i) the continuing, surviving or acquiring corporation (if
not the Issuer) shall have (A) executed and delivered to each
holder of a Note its assumption of the due and punctual
performance and observance of all obligations of the Issuer under
this Agreement, the Other Agreements and the Notes and (B) caused
to be delivered to each holder of a Note an opinion of counsel
reasonably satisfactory to the Required Holders to the effect that
all agreements or instruments effecting such assumption are
enforceable in accordance with their terms and comply with the
terms of this Agreement, and
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(ii) immediately after giving effect to such transaction,
(A) no Default or Event of Default shall have occurred and be
continuing and (B) if the continuing, surviving or acquiring
corporation is not a then existing Wholly-Owned Subsidiary, the
Company would be permitted to incur at least $1 of additional
Indebtedness under Section 10.1(a); and
(c) the Company may consolidate, amalgamate or merge with any
other corporation or convey or transfer all or substantially all of its
assets to a Person organized and existing under the laws of the United
States or any State thereof (including the District of Columbia), The
Netherlands or any other Permitted Jurisdiction, provided that
(i) the surviving Person (if not the Company) shall have (A)
executed and delivered to each holder of a Note its assumption of
the due and punctual performance and observance of all obligations
of the Company under this Agreement and the Other Agreements and
(B) caused to be delivered to each holder of a Note an opinion of
counsel reasonably satisfactory to the Required Holders to the
effect that all agreements or instruments effecting such
assumption are enforceable in accordance with their terms and
comply with the terms of this Agreement, and
(ii) immediately after giving effect to such transaction,
(A) no Default or Event of Default shall have occurred and be
continuing, (B) if the surviving Person is not a then existing
Wholly-Owned Subsidiary of the Company, the surviving Person (as
the Company) would be permitted to incur at least $1 of additional
Indebtedness under Section 10.1(a) and (C) the Company shall have
complied with its obligations under Section 8.3.
No such conveyance, transfer or lease of substantially all of the assets of the
Issuer or the Company shall have the effect of releasing the Issuer or the
Company or any successor corporation that shall theretofore have become such in
the manner prescribed in this Section 10.5 from its liability under this
Agreement or (in the case of the Issuer) the Notes.
10.6. LINES OF BUSINESS.
The Company and its Subsidiaries taken as a whole will continue to
engage in the businesses in which they are engaged as described in the
Memorandum and businesses reasonably related thereto or in furtherance thereof,
provided the Company and its Subsidiaries may from time to time be engaged in
other businesses
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that are insignificant in relation to the businesses then engaged in by the
Company and its Subsidiaries taken as a whole.
10.7. TRANSACTIONS WITH AFFILIATES.
The Company will not and will not permit any Subsidiary to enter
into directly or indirectly any Material transaction or Material group of
related transactions (including without limitation the purchase, lease, sale or
exchange of properties of any kind or the rendering of any service) with any
Affiliate (other than the Company or another Subsidiary), except in the ordinary
course and pursuant to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would be obtainable in a comparable
arm's-length transaction with a Person not an Affiliate.
11. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" shall exist if any of the following
conditions or events shall occur and be continuing:
(a) default in the payment of any principal or Make-Whole
Amount, if any, on any Note when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration
or otherwise; or
(b) default in the payment of any interest on any Note, or any
amount due in respect thereof pursuant to Section 13, and such default
shall have continued for more than five Business Days; or
(c) default in the performance of or compliance with any term
contained in Section 7.1(d) or 8.3 or Sections 10.1 to 10.5, inclusive,
and, in the case of any such default under Section 10.4, such default
shall have continued for a period of 30 days after a Responsible
Officer of the Company obtains knowledge thereof (if and so long as the
Company is proceeding diligently and in good faith, by issuing equity
securities or otherwise, to remedy such default during such 30-day
period); or
(d) default in the performance of or compliance with any term
contained herein (other than those referred to in paragraphs (a), (b)
and (c) of this Section 11) and such default is not remedied within 30
days after a Responsible Officer obtaining knowledge of such default;
or
(e) any representation or warranty made in writing by or on
behalf of the Issuer, the Company or a Subsidiary Guarantor or by any
officer of the Issuer, the Company or a Subsidiary Guarantor in this
Agreement or a Subsidiary Guarantee or in any writing furnished in
connection with the
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transactions contemplated hereby proves to have been false or incorrect
in any material respect on the date as of which made; or
(f) (i) the Company or any Subsidiary Guarantor or other
Significant Subsidiary is in default (as principal or as guarantor or
other surety) in the payment of any principal of or premium or
make-whole amount or interest on any Indebtedness (other than the
Notes) that is outstanding in an aggregate principal amount of at least
$10,000,000 beyond any period of grace provided with respect thereto,
or (ii) the Company or any Subsidiary Guarantor or other Significant
Subsidiary is in default in the performance of or compliance with any
term of any evidence of any such Indebtedness or of any mortgage,
indenture or other agreement relating thereto or any other condition
exists, and as a consequence of such default or condition such
Indebtedness has become, or has been declared, due and payable before
its stated maturity or before its regularly scheduled dates of payment,
or (iii) as a consequence of the occurrence or continuation of any
event or condition (other than the passage of time or the right of the
holder of such Indebtedness to convert such Indebtedness into equity
interests), the Company or any Subsidiary Guarantor or other
Significant Subsidiary has become obligated to purchase or repay any
such Indebtedness before its regular maturity or before its regularly
scheduled dates of payment; or
(g) the Company, the Issuer or any Subsidiary Guarantor or
other Significant Subsidiary (i) admits in writing its inability to pay
its debts as they become due, (ii) files, or consents by answer or
otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any jurisdiction,
(iii) makes an assignment for the benefit of its creditors, (iv)
consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, (v) is adjudicated as insolvent or to
be liquidated, or (vi) takes corporate action for the purpose of any of
the foregoing; or
(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the
Company, the Issuer or any Subsidiary Guarantor or other Significant
Subsidiary, a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial
part of its property, or constituting an order for relief or approving
a petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the
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dissolution, winding-up or liquidation of the Company, the Issuer or
any such Subsidiary Guarantor or other Significant Subsidiary, or any
such petition shall be filed against the Company, the Issuer or any
such Subsidiary Guarantor or other Significant Subsidiary and such
petition shall not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $10,000,000 are rendered against one or more
of the Company and its Significant Subsidiaries which judgments are
not, within 60 days after entry thereof, bonded, paid, discharged or
stayed pending appeal, or are not discharged within 60 days after the
expiration of such stay; or
(j) the Parent Guarantee or, except for releases provided for
in Section 9.6, any Subsidiary Guarantee shall cease to be in full
force and effect as an enforceable instrument or the Company or any
Subsidiary (or any Person at its authorized direction or on its behalf)
shall assert in writing that the Parent Guarantee or the Subsidiary
Guarantee of such Subsidiary, as the case may be, is unenforceable in
any material respect; or
(k) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the 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 Code, (ii) a notice of
intent to terminate any Plan shall have been filed with the PBGC or the
PBGC shall have instituted proceedings under ERISA section 4042 to
terminate or appoint a trustee to administer any Plan or the PBGC shall
have notified the Company or any ERISA Affiliate that a Plan may become
a subject of any such proceedings, (iii) the aggregate "amount of
unfunded benefit liabilities" (within the meaning of section
4001(a)(18) of ERISA) under all Plans, determined in accordance with
Title IV of ERISA, shall exceed $10,000,000, (iv) the Company or any
ERISA Affiliate shall have incurred or is reasonably expected to incur
any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans,
(v) the Company or any ERISA Affiliate withdraws from any Multiemployer
Plan, or (vi) the Company or any Subsidiary establishes or amends any
employee welfare benefit plan that provides post-employment welfare
benefits in a manner that would increase the liability of the Company
or any Subsidiary thereunder; and any such event or events described in
clauses (i) through (vi) above, either individually or together with
any other such event or events, could reasonably be expected to have a
Material Adverse Effect.
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As used in Section 11(k), the terms "EMPLOYEE BENEFIT PLAN" and "EMPLOYEE
WELFARE BENEFIT PLAN" shall have the respective meanings assigned to such terms
in section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. ACCELERATION.
(a) If an Event of Default with respect to the Company or the
Issuer described in paragraph (g) or (h) of Section 11 has occurred, all the
Notes then outstanding shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing,
the Required Holders may at any time at its or their option, by notice or
notices to the Issuer, declare all the Notes at the time outstanding to be
immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing, any holder or holders of Notes at the
time outstanding affected by such Event of Default may at any time, at its or
their option, by notice or notices to the Issuer, declare all the Notes held by
it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Notes will forthwith mature and
the entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the Make-Whole Amount determined in respect of
such principal amount (to the full extent permitted by applicable law), shall
all be immediately due and payable, in each and every case without presentment,
demand, protest or further notice, all of which are hereby waived. The Issuer
and the Company acknowledge, and the parties hereto agree, that each holder of a
Note has the right to maintain its investment in the Notes free from repayment
by the Issuer (except as herein specifically provided) and that the provision
for payment of a Make-Whole Amount by the Issuer in the event that the Notes are
prepaid or are accelerated as a result of an Event of Default, is intended to
provide compensation for the deprivation of such right under such circumstances.
12.2. OTHER REMEDIES.
If any Default or Event of Default has occurred and is continuing,
and irrespective of whether any Notes have become or have been declared
immediately due and payable under Section 12.1, the holder of any Note at the
time outstanding may proceed to protect and enforce the rights of such holder by
an action at law, suit in equity or other appropriate proceeding, whether for
the specific performance of any agreement contained herein or in any Note, or
for an injunction against a violation of any of the
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terms hereof or thereof, or in aid of the exercise of any power granted hereby
or thereby or by law or otherwise.
12.3. RESCISSION.
At any time after any Notes have been declared due and payable
pursuant to paragraph (b) or (c) of Section 12.1, the Required Holders, by
written notice to the Issuer, may rescind and annul any such declaration and its
consequences if (a) the Issuer has paid all overdue interest on the Notes, all
principal of and Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) all Events of Default and Defaults, other than
the non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 19, and (c)
no judgment or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and annulment under this Section
12.3 will extend to or affect any subsequent Event of Default or Default or
impair any right consequent thereon.
12.4. NO WAIVERS OR ELECTION OF REMEDIES, EXPENSES, ETC.
No course of dealing and no delay on the part of any holder of any
Note in exercising any right, power or remedy shall operate as a waiver thereof
or otherwise prejudice such holder's rights, powers or remedies. No right, power
or remedy conferred by this Agreement or by any Note upon any holder thereof
shall be exclusive of any other right, power or remedy referred to herein or
therein or now or hereafter available at law, in equity, by statute or
otherwise. Without limiting the obligations of the Issuer and the Company under
Section 17, the Issuer will pay to the holder of each Note on demand such
further amount as shall be sufficient to cover all costs and expenses of such
holder incurred in any enforcement or collection under this Section 12,
including without limitation reasonable attorneys' fees, expenses and
disbursements.
13. TAX INDEMNIFICATION.
All payments whatsoever under this Agreement, the Notes and the
Subsidiary Guarantees will be made by the Issuer, the Company or the respective
Subsidiary Guarantors, as the case may be, in the lawful currency of the United
States of America free and clear of, and without liability or withholding or
deduction for or on account of, any present or future Taxes of whatever nature
imposed or levied by or on behalf of any jurisdiction other than the United
States (or any political subdivision or taxing authority of or in such
jurisdiction) (hereinafter a
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"TAXING JURISDICTION"), unless the withholding or deduction of such Tax is
compelled by law.
If any deduction or withholding or payment for any Tax of a Taxing
Jurisdiction shall at any time be required in respect of any amounts to be paid
by the Issuer, the Company or any Subsidiary Guarantor under this Agreement, the
Notes or a Subsidiary Guarantee, as the case may be, the Issuer, the Company or
such Subsidiary Guarantor, as the case may be, will pay such additional amounts
as may be necessary in order that the net amounts paid to each holder pursuant
to the terms of this Agreement, the Notes or any Subsidiary Guarantee, as the
case may be, after such deduction or withholding or payment (including any
required deduction, withholding or other payment of Tax on or with respect to
such additional amount), shall be not less than the amounts then due and payable
under the terms of this Agreement, the Notes or the Subsidiary Guarantees, as
the case may be, provided that no payment of any additional amounts shall be
required to be made for or on account of:
(a) any Tax which would not have been imposed but for the
existence at the time of any present or former connection between such
holder (or between a fiduciary, settlor, beneficiary, member of,
shareholder of, or possessor of a power over, such holder, if such
holder is an estate, trust, partnership or corporation or any Person
other than the holder to whom the relevant Note or Subsidiary
Guarantee, as the case may be, or any amount payable thereon is
attributable for the purposes of such tax, assessment or charge) and
the Taxing Jurisdiction, other than the mere holding of the relevant
Note or Subsidiary Guarantee, as the case may be, including without
limitation such holder (or such other Person described in the above
parenthetical) being or having been a citizen or resident thereof, or
being or having been engaged in a trade or business therein or having
an establishment therein;
(b) any Tax that is imposed or withheld by reason of the
failure to comply (after a reasonable period of not less than 60 days
nor more than 120 days to respond) by the holder or any other Person
mentioned in clause (a) above with a request of the Company addressed
to the holder to provide information (other than any confidential or
proprietary tax return or other information) concerning the
nationality, residence or identity of the holder or such other Person,
and to make such declaration or other similar claim or reporting
requirement regarding such information (other than any such declaration
claim or reporting requirement that would involve the disclosure of
confidential or proprietary tax return or other information), which is
required by a statute, treaty or regulation of the Taxing Jurisdiction
as a precondition to
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exemption from all or part of such tax, assessment or other governmental charge;
or
(c) any combination of clauses (a) and (b) above;
provided further that no such additional amounts shall be payable in respect of
any Note held by (i) any holder who is a fiduciary or a partnership or a
beneficial owner who is other than the sole beneficial owner of such payment to
the extent a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or a beneficial owner would not have been entitled to such
additional amounts had it been the holder of such Note or (ii) any holder who is
not a resident of the United States or with respect to any payment all or any
part of which represents income which is not subject to United States tax as
income of a resident of the United States to the extent that, had the holder
been a resident of the United States or had the payment been so subject to
United States tax, the provisions of a statute, treaty or regulation of such
Taxing Jurisdiction would have enabled an exemption to be claimed from the tax
assessment or governmental charge in respect of which an additional amount would
otherwise have been payable.
The Company will furnish the holders of Notes, within the period
of payment permitted by applicable law, an official receipt, if any, issued by
the relevant taxation or other authorities involved for all amounts deducted or
withheld as aforesaid.
14. PARENT GUARANTEE.
14.1. GUARANTEE.
(a) Guaranteed Obligations. The Parent hereby unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety,
(i) the punctual payment when due, whether at stated maturity,
by prepayment, by acceleration or otherwise, of all obligations of the
Issuer arising under this Agreement, the Other Agreements and the
Notes, whether for principal, interest (including without limitation
interest on any overdue principal, Make-Whole Amount and interest at
the rate specified in the Notes and interest accruing or becoming owing
both prior to and subsequent to the commencement of any bankruptcy,
reorganization or similar proceeding involving either the Issuer or the
Company), Make-Whole Amount, fees, expenses, indemnification or
otherwise, and
(ii) the due and punctual performance and observance by the
Issuer of all covenants, agreements and
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conditions on its part to be performed and observed under this
Agreement, the Other Agreements and the Notes.
The obligations guaranteed by this Parent Guarantee are sometimes called the
"GUARANTEED OBLIGATIONS".
Without limiting the generality of the foregoing, this Parent
Guarantee guarantees, to the extent provided herein, the payment of all amounts
which constitute part of the Guaranteed Obligations and would be owed by any
other Person to any holder of a Note but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Person.
(b) Guarantee Absolute. This Parent Guarantee constitutes a
present and continuing guarantee of payment and not of collection and the Parent
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of this Agreement, the Other Agreements and the Notes, 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 holder of a Note with respect
thereto. The obligations of the Parent under this Parent Guarantee are
independent of the Guaranteed Obligations, and a separate action or actions may
be brought and prosecuted against the Parent to enforce this Parent Guarantee,
irrespective of whether any action is brought against the Issuer or any other
Person liable for the Guaranteed Obligations or whether the Issuer or any other
such Person is joined in any such action or actions. The liability of the Parent
under this Parent Guarantee shall be primary, absolute, irrevocable, and
unconditional irrespective of:
(i) any lack of validity or enforceability of any Guaranteed
Obligation, this Agreement, the Other Agreements, the Notes or any
agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from this
Agreement, the Other Agreements, the Notes or this Parent Guarantee;
(iii) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure by the Parent or other Person liable, or any other
guarantee, for all or any of the Guaranteed Obligations;
(iv) any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral or any other assets of the
Issuer or any other Subsidiary;
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(v) any change, restructuring or termination of the corporate
structure or existence of the Issuer or any other Subsidiary; or
(vi) any other circumstance (including without limitation any
statute of limitations) that might otherwise constitute a defense,
offset or counterclaim available to, or a discharge of, the Issuer or
the Parent.
This Parent Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned by any holder
of a Note or any other Person upon the insolvency, bankruptcy or reorganization
of the Issuer or otherwise, all as though such payment had not been made.
(c) Waivers by the Parent. The Parent hereby irrevocably waives,
to the extent permitted by applicable law:
(i) promptness, diligence, presentment, notice of acceptance
and any other notice with respect to any of the Guaranteed Obligations
and this Parent Guarantee;
(ii) any requirement that any holder of a Note or any other
Person protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against the
Issuer or any other Person or any collateral;
(iii) any defense, offset or counterclaim arising by reason of
any claim or defense based upon any action by any holder of a Note;
(iv) any duty on the part of any holder of a Note to disclose
to the Parent any matter, fact or thing relating to the business,
operation or condition of any Person and its assets now known or
hereafter known by such holder; and
(v) any rights by which it might be entitled to require suit
on an accrued right of action in respect of any of the Guaranteed
Obligations or require suit against the Issuer or the Parent or any
other Person.
14.2. SUBROGATION AND CONTRIBUTION.
The Parent shall not assert, enforce, or otherwise exercise (a)
any right of subrogation to any of the rights, remedies, powers, privileges or
Liens of any holder of a Note or any other beneficiary against the Issuer or any
other obligor on the Guaranteed Obligations or any collateral or other security,
or (b) any right of recourse, reimbursement, contribution, indemnification, or
similar right against the Issuer, and the Parent hereby waives any and all of
the foregoing rights,
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remedies, powers, privileges and the benefit of, and any right to participate
in, any collateral or other security given to any holder of a Note or any other
beneficiary to secure payment of the Guaranteed Obligations, until such time as
the Guaranteed Obligations have been indefeasibly paid in full.
15. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
15.1. REGISTRATION OF NOTES.
The Issuer shall keep at its principal executive office a register
for the registration and registration of transfers of Notes. The name and
address of each holder of one or more Notes, each transfer thereof and the name
and address of each transferee of one or more Notes shall be registered in such
register. Prior to due presentment for registration of transfer, the Person in
whose name any Note shall be registered shall be deemed and treated as the owner
and holder thereof for all purposes hereof, and the Issuer shall not be affected
by any notice or knowledge to the contrary. The Issuer shall give to any holder
of a Note that is an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all registered holders
of Notes.
15.2. TRANSFER AND EXCHANGE OF NOTES.
Upon surrender of any Note at the principal executive office of
the Issuer for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of such
Note or such holder's attorney duly authorized in writing and accompanied by the
address for notices of each transferee of such Note or part thereof), within
five Business Days thereafter the Issuer shall execute and deliver, at the
Issuer's expense (except as provided below), one or more new Notes of the same
series (as requested by the holder thereof) in exchange therefor, in an
aggregate principal amount equal to the unpaid principal amount of the
surrendered Note. Each such new Note shall be payable to such Person as such
holder may request. Each such new Note shall be dated and bear interest from the
date to which interest shall have been paid on the surrendered Note or dated the
date of the surrendered Note if no interest shall have been paid thereon. The
Issuer may require payment of a sum sufficient to cover any stamp tax or
governmental charge imposed in respect of any such transfer of Notes. Notes
shall not be transferred in denominations of less than $500,000, provided that
if necessary to enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be in a denomination of less than $500,000.
You agree that the Issuer shall not be required to register the
transfer of any Note to any Person (other than your
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nominee) or to any separate account maintained by you unless the Issuer receives
from the transferee a representation to the Issuer (and appropriate information
as to any separate accounts or other matters) to the same or similar effect with
respect to the transferee as is contained in Section 6.2 or other assurances
reasonably satisfactory to the Issuer that such transfer does not involve a
prohibited transaction (as such term is used in Section 5.12(e)). You shall not
be liable for any damages in connection with any such representations or
assurances provided to the Issuer by any transferee.
15.3. REPLACEMENT OF NOTES.
Upon receipt by the Issuer of evidence reasonably satisfactory to
it of the ownership of and the loss, theft, destruction or mutilation of any
Note (which evidence shall be, in the case of an Institutional Investor, notice
from such Institutional Investor of such ownership and such loss, theft,
destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note
is, or is a nominee for, an original Purchaser or any other
Institutional Investor, such Person's own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
within five Business Days thereafter the Issuer at its own expense shall execute
and deliver, in lieu thereof, a new Note of the same series, dated and bearing
interest from the date to which interest shall have been paid on such lost,
stolen, destroyed or mutilated Note or dated the date of such lost, stolen,
destroyed or mutilated Note if no interest shall have been paid thereon.
16. PAYMENTS ON NOTES.
16.1. PLACE OF PAYMENT.
Subject to Section 16.2, payments of principal, Make-Whole Amount,
if any, and interest becoming due and payable on the Notes shall be made at the
principal office of Citibank, N.A. in New York City. The Issuer may at any time,
by notice to each holder of a Note, change the place of payment of the Notes so
long as such place of payment shall be either the principal office of the Issuer
in the United States or the principal office of a bank or trust company in the
United States.
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16.2. HOME OFFICE PAYMENT.
So long as you or your nominee shall be the holder of any Note,
and notwithstanding anything contained in Section 16.1 or in such Note to the
contrary, the Issuer will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by the method and at the address
specified for such purpose below your name in Schedule A, or by such other
method or at such other address as you shall have from time to time specified to
the Issuer in writing for such purpose, without the presentation or surrender of
such Note or the making of any notation thereon, except that upon written
request of the Issuer made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, you shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Issuer at the
principal executive office of the Company or at the place of payment most
recently designated by the Issuer pursuant to Section 16.1. Prior to any sale or
other disposition of any Note held by you or your nominee you will, at your
election, either endorse thereon the amount of principal paid thereon and the
last date to which interest has been paid thereon or surrender such Note to the
Issuer in exchange for a new Note or Notes pursuant to Section 15.2. The Issuer
will afford the benefits of this Section 16.2 to any Institutional Investor that
is the direct or indirect transferee of any Note purchased by you under this
Agreement and that has made the same agreement relating to such Note as you have
made in this Section 16.2.
17. EXPENSES, ETC.
17.1. TRANSACTION EXPENSES.
Whether or not the transactions contemplated hereby are
consummated, the Issuer and the Company jointly and severally agree to pay all
costs and expenses (including reasonable attorneys' fees of your special counsel
and, if reasonably required, local or other counsel) incurred by you and each
Other Purchaser or holder of a Note in connection with such transactions and in
connection with any amendments, waivers or consents under or in respect of this
Agreement or the Notes (whether or not such amendment, waiver or consent becomes
effective), including without limitation: (a) the costs and expenses incurred in
enforcing or defending (or determining whether or how to enforce or defend) any
rights under this Agreement, the Notes or any Subsidiary Guarantee or in
responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement, the Notes or any Subsidiary
Guarantee, or by reason of being a holder of any Note, and (b) the reasonable
costs and expenses, including financial advisors' fees, incurred in connection
with the insolvency or bankruptcy of the Company, the Issuer or any Subsidiary
Guarantor or in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Issuer
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and the Company will pay, and will save you and each other holder of a Note
harmless from, all claims in respect of any fees, costs or expenses if any, of
brokers and finders (other than those retained by you).
In furtherance of the foregoing, on the date of the Closing the
Issuer will pay or cause to be paid the reasonable fees and disbursements and
other charges (including estimated unposted disbursements and other charges as
of the date of the Closing) of your special counsel which are reflected in the
statement of such special counsel submitted to the Issuer at least one Business
Day prior to the date of the Closing. The Issuer will also pay, promptly upon
receipt of supplemental statements therefor, reasonable additional fees, if any,
and disbursements and other charges of such special counsel in connection with
the transactions hereby contemplated (including disbursements and other charges
unposted as of the date of the Closing to the extent such disbursements and
other charges exceed estimated amounts paid as aforesaid).
17.2. SURVIVAL.
The obligations of the Issuer and the Company under this Section
17 will survive the payment or transfer of any Note, the enforcement, amendment
or waiver of any provision of this Agreement or the Notes, and the termination
of this Agreement.
18. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive
the execution and delivery of this Agreement and the Notes, the purchase or
transfer by you of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of you or any
other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of the Issuer or the Company pursuant to
this Agreement shall be deemed representations and warranties of the Issuer and
the Company under this Agreement. Subject to the preceding sentence, this
Agreement and the Notes embody the entire agreement and understanding between
you and the Issuer and the Company and supersede all prior agreements and
understandings relating to the subject matter hereof.
19. AMENDMENT AND WAIVER.
19.1. REQUIREMENTS.
This Agreement and the Notes may be amended, and the observance of
any term hereof or of the Notes may be waived (either retroactively or
prospectively), with (and only with) the
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written consent of the Issuer and the Company and the Required Holders, except
that (a) no amendment or waiver of any of the provisions of Section 1, 2, 3, 4,
5, 6 or 23, or any defined term (as it is used therein), will be effective as to
you unless consented to by you in writing, and (b) no such amendment or waiver
may, without the written consent of the holder of each Note at the time
outstanding affected thereby, (i) subject to the provisions of Section 12
relating to acceleration or rescission, change the amount or time of any
prepayment or payment of principal of, or change the rate or the time of payment
or method of computation of interest or of the Make-Whole Amount on, the Notes,
(ii) change the percentage of the principal amount of the Notes the holders of
which are required to consent to any such amendment or waiver, or (iii) amend
any of Sections 8, 11(a), 11(b), 12, 13, 14, 19 or 22.
19.2. SOLICITATION OF HOLDERS OF NOTES.
(a) Solicitation. The Issuer and the Company will provide each
holder of the Notes (irrespective of the amount of Notes then owned by it) with
sufficient information, sufficiently far in advance of the date a decision is
required, to enable such holder to make an informed and considered decision with
respect to any proposed amendment, waiver or consent in respect of any of the
provisions hereof or of the Notes. The Issuer and the Company will deliver
executed or true and correct copies of each amendment, waiver or consent
effected pursuant to the provisions of this Section 19 to each holder of
outstanding Notes promptly following the date on which it is executed and
delivered by, or receives the consent or approval of, the requisite holders of
Notes.
(b) Payment. Neither the Issuer nor the Obligor will directly or
indirectly pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, or grant any security, to
any holder of Notes as consideration for or as an inducement to the entering
into by any holder of Notes of any waiver or amendment of any of the terms and
provisions hereof unless such remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to each holder of Notes then
outstanding even if such holder did not consent to such waiver or amendment.
19.3. BINDING EFFECT, ETC.
Any amendment or waiver consented to as provided in this Section
19 applies equally to all holders of Notes and is binding upon them and upon
each future holder of any Note and upon the Issuer and the Company without
regard to whether such Note has been marked to indicate such amendment or
waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No
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course of dealing between the Issuer or the Company and the holder of any Note
nor any delay in exercising any rights hereunder or under any Note shall operate
as a waiver of any rights of any holder of such Note. As used herein, the term
"THIS AGREEMENT" and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
19.4. NOTES HELD BY THE ISSUER, ETC.
Solely for the purpose of determining whether the holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Agreement or the Notes, or have directed the taking of any action provided
herein or in the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Issuer, the Company or
any of their respective Affiliates shall be deemed not to be outstanding.
20. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other
address as you or it shall have specified to the Issuer and the Company
in writing,
(ii) if to any other holder of any Note, to such holder at
such address as such other holder shall have specified to the Issuer
and the Company in writing,
(iii) if to the Issuer, to the Issuer at 5295 Hollister Road,
Houston, TX 77040, to the attention of its Secretary and the General
Counsel, or at such other address as the Issuer shall have specified to
the holder of each Note in writing, or
(iv) if to the Company, to the Company at Herengracht 424,
1017 BZ Amsterdam, The Netherlands, to the attention of its Managing
Director, with a copy to General Counsel c/o 5295 Hollister Road,
Houston, TX 77040 or at such other address as the Company shall have
specified to the holder of each Note in writing.
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Notices under this Section 20 will be deemed given only when actually received.
21. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications that may hereafter
be executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. Each of
the Issuer and the Company agrees and stipulates that, to the extent permitted
by applicable law, any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by you in
the regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence. This
Section 21 shall not prohibit Issuer or the Company or any other holder of Notes
from contesting any such reproduction to the same extent that it could contest
the original, or from introducing evidence to demonstrate the inaccuracy of any
such reproduction.
22. CONFIDENTIAL INFORMATION.
For the purposes of this Section 22, "CONFIDENTIAL INFORMATION"
means information delivered to you by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by you as
being confidential information of the Company or such Subsidiary, provided that
such term does not include information that (a) was publicly known or otherwise
known to you prior to the time of such disclosure, (b) subsequently becomes
publicly known through no act or omission by you or any person acting on your
behalf, (c) otherwise becomes known to you other than through disclosure by the
Company or any Subsidiary or (d) constitutes financial statements delivered to
you under Section 7.1 that are otherwise publicly available. You will maintain
the confidentiality of such Confidential Information in accordance with
procedures adopted by you in good faith to protect confidential information of
third parties delivered to you, provided that you may deliver or disclose
Confidential Information to (i) your directors, officers, trustees, employees,
agents, attorneys and affiliates (to the extent such disclosure reasonably
relates to the administration of the investment represented by your Notes and
whose duties require them to maintain the confidentiality of such information),
(ii) your
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financial advisors and other professional advisors whose duties require them to
hold confidential the Confidential Information substantially in accordance with
the terms of this Section 22, (iii) any other holder of any Note, (iv) any
Institutional Investor to which you sell or offer to sell such Note or any part
thereof or any participation therein (if such Person has agreed in writing prior
to its receipt of such Confidential Information to be bound by the provisions of
this Section 22), (v) any Person from which you offer to purchase any security
of the Company (if such Person has agreed in writing prior to its receipt of
such Confidential Information to be bound by the provisions of this Section 22),
(vi) any federal or state regulatory authority having jurisdiction over you,
(vii) the National Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency that requires access to
information about your investment portfolio or (viii) any other Person to which
such delivery or disclosure may be necessary or appropriate (w) to effect
compliance with any law, rule, regulation or order applicable to you, (x) in
response to any subpoena or other legal process, (y) in connection with any
litigation to which you are a party or (z) if an Event of Default has occurred
and is continuing, to the extent you may reasonably determine such delivery and
disclosure to be necessary or appropriate in the enforcement or for the
protection of the rights and remedies under your Notes and this Agreement. Each
holder of a Note, by its acceptance of a Note, will be deemed to have agreed to
be bound by and to be entitled to the benefits of this Section 22 as though it
were a party to this Agreement. On reasonable request by the Issuer or the
Company in connection with the delivery to any holder of a Note of information
required to be delivered to such holder under this Agreement or requested by
such holder (other than a holder that is a party to this Agreement or its
nominee), such holder will enter into an agreement with the Issuer and the
Company embodying the provisions of this Section 22. Your obligations under this
Section 22 will survive the payment or transfer of any Note held by you and the
termination of this Agreement.
23. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates
as the purchaser of the Notes that you have agreed to purchase hereunder, by
written notice to the Issuer and the Company, which notice shall be signed by
both you and such Affiliate, shall contain such Affiliate's agreement to be
bound by this Agreement and shall contain a confirmation by such Affiliate of
the accuracy with respect to it of the representations set forth in Section 6.
Upon receipt of such notice, wherever the word "you" is used in this Agreement
(other than in this Section 23), such word shall be deemed to refer to such
Affiliate in lieu of you. In the event that such Affiliate is so substituted as
a purchaser hereunder and such Affiliate thereafter transfers to you all of the
Notes then held by such
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Affiliate, upon receipt by the Issuer and the Company of notice of such
transfer, wherever the word "you" is used in this Agreement, such word shall no
longer be deemed to refer to such Affiliate, but shall refer to you, and you
shall have all the rights of an original holder of the Notes under this
Agreement.
24. MISCELLANEOUS.
24.1. SUCCESSORS AND ASSIGNS.
All covenants and other agreements contained in this Agreement by
or on behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including without limitation any subsequent
holder of a Note) whether so expressed or not.
24.2. CONSTRUCTION.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained
herein, so that compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by any Person,
or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
24.3. JURISDICTION AND PROCESS; WAIVER OF JURY TRIAL; JUDGMENT CURRENCY.
(a) Each of the Issuer and the Company irrevocably submits to the
non-exclusive in personam jurisdiction of any New York State or federal court
sitting in the Borough of Manhattan, The City of New York, over any suit, action
or proceeding arising out of or relating to this Agreement or the Notes. To the
fullest extent permitted by applicable law, each of the Issuer and the Company
irrevocably waives and agrees not to assert, by way of motion, as a defense or
otherwise, any claim that it is not subject to the in personam jurisdiction of
any such court, any objection that it may now or hereafter have to the laying of
the venue of any such suit, action or proceeding brought in any such court and
any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
(b) Each of the Issuer and the Company agrees, to the fullest
extent permitted by applicable law, that a final judgment in any suit, action or
proceeding of the nature referred to in Section 24.3(a) brought in any such
court shall be conclusive and binding upon it subject to rights of appeal, as
the case may be, and may be enforced in the courts of the United States of
America
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or the State of New York (or any other courts to the jurisdiction of which it is
or may be subject) by a suit upon such judgment.
(c) Each of the Issuer and the Company consents to process being
served in any suit, action or proceeding of the nature referred to in Section
24.3(a) by mailing a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to it at its address specified in Section 20
or at such other address of which you shall then have been notified pursuant to
said Section. Each of the Issuer and the Company agrees that such service upon
receipt (i) shall be deemed in every respect effective service of process upon
it in any such suit, action or proceeding and (ii) shall, to the fullest extent
permitted by applicable law, be taken and held to be valid personal service upon
and personal delivery to it. Notices hereunder shall be conclusively presumed
received as evidenced by a delivery receipt furnished by the United States
Postal Service or any reputable commercial delivery service.
(d) Nothing in this Section 24.3 shall affect the right of any
holder of a Note to serve process in any manner permitted by law, or limit any
right that the holders of any of the Notes may have to bring proceedings against
the Issuer or the Company in the courts of any appropriate jurisdiction or to
enforce in any lawful manner a judgment obtained in one jurisdiction in any
other jurisdiction.
(E) EACH PARTY HERETO WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT
ON OR WITH RESPECT TO THIS AGREEMENT, THE OTHER AGREEMENTS, THE NOTES OR ANY
OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH.
(f) Any payment on account of an amount that is payable hereunder
(including without limitation under the Parent Guarantee) or under the Notes by
either the Issuer or the Company in U.S. Dollars which is made to or for the
account of any holder of Notes in any other currency, whether as a result of any
judgment or order or the enforcement thereof or the realization of any security
or the liquidation of the Issuer or the Company, shall constitute a discharge of
the obligation of the Issuer or the Company under this Agreement (including
without limitation the Parent Guarantee) or the Notes only to the extent of the
amount of U.S. Dollars which such holder could purchase in the foreign exchange
markets in London, England, with the amount of such other currency in accordance
with normal banking procedures at the rate of exchange prevailing on the London
Banking Day following receipt of the payment first referred to above. If the
amount of U.S. Dollars that could be so purchased is less than the amount of
U.S. Dollars originally due to such holder, the Issuer and the Company jointly
and severally agree, to the fullest extent permitted by law, to indemnify and
save harmless such holder from and against all loss or damage arising out of or
as a result of such deficiency. This indemnity shall, to the
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fullest extent permitted by law, constitute an obligation separate and
independent from the other obligations contained in this Agreement (including
without limitation the Parent Guarantee) and the Notes, shall give rise to a
separate and independent cause of action, shall apply irrespective of any
indulgence granted by such holder from time to time and shall continue in full
force and effect notwithstanding any judgment or order for a liquidated sum in
respect of an amount due hereunder (including without limitation under the
Parent Guarantee) or under the Notes or under any judgment or order. As used
herein the term "LONDON BANKING DAY" shall mean any day other than Saturday or
Sunday or a day on which commercial banks are required or authorized by law to
be closed in London, England.
24.4. PAYMENTS DUE ON NON-BUSINESS DAYS.
Anything in this Agreement or the Notes to the contrary
notwithstanding (but without limiting the requirement in Sections 8.2 and 8.3
that notice of any optional prepayment specify a Business Day as the date fixed
for such prepayment), any payment of principal of or Make-Whole Amount (if any)
or interest on any Note that is due on a date other than a Business Day shall be
made on the next succeeding Business Day without including the additional days
elapsed in the computation of the interest payable on such next succeeding
Business Day.
24.5. SEVERABILITY.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the fullest extent permitted by applicable law) not
invalidate or render unenforceable such provision in any other jurisdiction.
24.6. ACCOUNTING TERMS; PRO FORMA CALCULATIONS.
All accounting terms used herein which are not expressly defined
in this Agreement have the meanings respectively given to them in accordance
with GAAP. Except as otherwise specifically provided herein, all computations
made pursuant to this Agreement shall be made in accordance with GAAP and all
balance sheets and other financial statements with respect thereto shall be
prepared in accordance with GAAP. Except as otherwise specifically provided
herein, any consolidated financial statement or financial computation shall be
done in accordance with GAAP. In case GAAP changes from time to time after the
date of the Closing, the covenant levels or other components of financial
computations required to be made pursuant to this Agreement shall be
appropriately adjusted by the Company in good faith in consultation with its
independent public
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58
accountants so that the effects of such changes in GAAP will be negated.
Forthwith and in any event within ten Business Days after any such
adjustment, the Company will furnish each holder of the Notes with certificates
or written statements of a Senior Financial Officer and such accountants
specifying the effective date of such change in GAAP, describing in reasonable
detail such adjustments to covenant levels or other components of financial
computations and certifying that such adjustments were made in accordance with
the requirements of the preceding paragraph of this Section.
Any pro forma computation required to be made hereby shall include
adjustments (without limitation as to other appropriate pro forma adjustments in
accordance with generally accepted financial practice) giving effect to all
acquisitions and dispositions made during the period with respect to which such
computation is being made as if such acquisitions and dispositions were made on
the first day of such period.
24.7. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each
of which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
24.8. GOVERNING LAW.
This Agreement and the Notes shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of New York excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
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If you are in agreement with the foregoing, please sign the
form of agreement in the space below provided on a counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Issuer and the Company.
Very truly yours,
CORE LABORATORIES, INC.
By
--------------------------------------
Title:
CORE LABORATORIES N.V.
By
--------------------------------------
Title:
The foregoing is hereby agreed
to as of the date thereof.
[PURCHASER]
By
----------------------------
Title:
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SCHEDULE A
This Schedule A shows the names and addresses of the Purchasers
under the foregoing Note and Guarantee Agreement and the Other Agreements
referred to therein and the respective Series and principal amounts of Notes to
be purchased by each.
Principal Amount
Name and Address of Purchaser and Series
- ----------------------------- ----------------
THE FRANKLIN LIFE INSURANCE COMPANY $10,000,000 (Series B)
(1) All payments by wire transfer of
immediately available funds, with
sufficient information (including PPN
21867@ AB 2, interest rate, maturity
date, interest amount, principal
amount and premium amount, if
applicable) to identify the source and
application of such funds, to:
ABA#011000028
State Street Bank and Trust Company
Boston, MA 02101
Re: The Franklin Life Insurance Company
AC-2492-440-9
OBI = PPN# 21867@ AB 2 and description of payment
Fund Number PA37
(2) All notices of payments and written
confirmations of such
wire transfers, to:
The Franklin Life Insurance Company and PA37
c/o State Street Bank and Trust Company
Insurance Services, WES2S
105 Rosemont Road
Westwood, MA 02090
Facsimile Number: (781) 302-8005
(3) All communications (including
payment notices), to:
The Franklin Life Insurance Company
c/o American General Corporation
Attn: Investment Research Department, A37-01
P.O. Box 3247
Houston, TX 77253-3247
Overnight Mail Address:
2929 Allen Parkway
Houston, TX 77019-2155
Facsimile Number: (713) 831-1366
(4) Tax I.D. Number: 37-0281650
61
Principal Amount
Name and Address of Purchaser and Series
- ----------------------------- ----------------
THE VARIABLE ANNUITY LIFE INSURANCE $10,000,000 (Series B)
COMPANY
(1) All payments by wire transfer of
immediately available funds, with
sufficient information (including PPN
21867@ AB 2, interest rate, maturity
date, interest amount, principal
amount and premium amount, if
applicable) to identify the source and
application of such funds, to:
ABA#011000028
State Street Bank and Trust Company
Boston, MA 02101
Re: The Variable Annuity Life Insurance
Company
AC-0125-82-9
OBI = PPN# 21867@ AB 2 and
description of payment
Fund Number PA54
(2) All notices of payments and written
confirmations of such wire
transfers, to:
The Variable Annuity Life Insurance Company
and PA54
c/o State Street Bank and Trust Company
Insurance Services, WES2S
105 Rosemont Road
Westwood, MA 02090
Facsimile Number: (781) 302-8005
(3) All communications (including
payment notices), to:
The Variable Annuity Life Insurance Company
c/o American General Corporation
Attn: Investment Research Department, A37-01
P.O. Box 3247
Houston, TX 77253-3247
Overnight Mail Address:
2929 Allen Parkway
Houston, TX 77019-2155
Facsimile Number: (713) 831-1366
(4) Tax I.D. Number: 74-1625348
A-2
62
Principal Amount
Name and Address of Purchaser and Series
- ----------------------------- ----------------
THE GUARDIAN LIFE INSURANCE COMPANY $20,000,000 (Series A)
OF AMERICA
(I/N/O CUDD & CO.)
(1) All payments on account of the
Notes shall be made by wire
transfer of federal or other
immediately available funds, to:
The Chase Manhattan Bank
FED ABA #021000021
CHASE/NYC/CTR/BNF
A/C 900-9-000200
Reference A/C #G05978 Guardian Life
with sufficient information
(including interest rate and
maturity) to identify the issue to
which the payment relates and the
source and application of such
funds, including the amount of
principal, interest and premium and
the PPN: 21867@ AA 4 of the Notes
(2) All notices with respect to payment:
The Guardian Life Insurance Company
of America
Attn: Investment Accounting Dept. 17-B
7 Hanover Square
New York, NY 10004-2616
Fax: 212-598-7011
(3) Address for all other communications and
notices:
The Guardian Life Insurance Company
of America
7 Hanover Square
New York, NY 10004-2616
Attn: Raymond Henry
Investment Department 20-A
Fax: 212-919-2656/2658
(4) Tax Identification No.: 13-6022143
A-3
63
Principal Amount
Name and Address of Purchaser and Series
- ----------------------------- ----------------
PROVIDENT LIFE AND ACCIDENT INSURANCE $20,000,000 (Series B)
COMPANY
(I/N/O CUDD & CO.)
(1) All payments by wire transfer of
immediately available funds to:
CUDD & CO.
c/o The Chase Manhattan Bank
New York, NY
ABA No. 021000 021
SSG Private Income Processing
A/C #900-9-000200
Custodial Account N. G06704
Please reference: Issuer
PPN - 21867@ AB 2
Coupon
Maturity
Principal = $
Interest - $
(2) Address all notices regarding
payments and all other
communications to:
Provident Investment Management, LLC
Private Placvements
One Fountain Square
Chattanooga, Tennessee
Telephone: (423) 755-1365
Fax: (423) 755-3351
(4) Tax Identification Number: 13-6022143 (CUDD & CO.)
A-4
64
Principal Amount
Name and Address of Purchaser and Series
- ----------------------------- ----------------
CONNECTICUT GENERAL LIFE INSURANCE $15,000,000 (Series A)
COMPANY
(I/N/O CIG & CO.)
(1) All payments on account of the Notes
shall be made in the form of bank wire
transfer or other immediately
available funds to: FED ABA
#021000021 Chase NYC/CTR/BNF=CIGNA
Private Placements/AC=9009001802
OBI=
Senior Notes due 2009
PPN: 21867@ AA 4, the amount of
interest and/or principal, the
amount of any prepayment, the
payable date, the originator's
contact name and telephone number
(2) Address for all notices in respect to payments:
CIG & CO.
c/o CIGNA Investments, Inc.
900 Cottage Grove Road
Hartford, CT 06152-2309
Attention: Securities Processing (S-309)
CIG & CO.
c/o CIGNA Investments, Inc.
900 Cottage Grove Road
Hartford, CT 06152-2309
Attention: Private Securities Operations
Group (S-307)
With a copy to:
The Chase Manhattan Bank
Private Placement Servicing
P.O. Box 1508
Bowling Green Station
New York, NY 10081
Attention: CIGNA Private Placements
Fax: 212-552-3107/1005
(3) Address for all other communications:
CIG & CO.
c/o CIGNA Investments, Inc.
900 Cottage Grove Road
Hartford, CT 06152-2307
Attention: Private Securities Division (S-307)
James G. Schelling
(4) Tax Identification Number: 13-3574027
A-5
65
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective meanings
set forth below or set forth in the Section hereof following such term:
"AFFILIATE" means, at any time, (a) with respect to any Person
(including without limitation the Company), any other Person that at such time
directly or indirectly through one or more intermediaries Controls, or is
Controlled by, or is under common Control with, such first Person, and (b) with
respect to the Company, any Person beneficially owning or holding, directly or
indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary or any corporation of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
10% or more of any class of voting or equity interests. As used in this
definition, "CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an "Affiliate"
is a reference to an Affiliate of the Company.
"ATTRIBUTABLE DEBT" means, as to any particular lease relating to
a sale and leaseback transaction, the total amount of rent (discounted
semiannually from the respective due dates thereof at the interest rate implicit
in such lease) required to be paid by the lessee under such lease during the
remaining term thereof. The amount of rent required to be paid under any such
lease for any such period shall be (a) the total amount of the rent payable by
the lessee with respect to such period after excluding amounts required to be
paid on account of maintenance and repairs, insurance, taxes, assessments,
utilities, operating and labor costs and similar charges plus (b) without
duplication, any guaranteed residual value in respect of such lease to the
extent such guarantee would be included in indebtedness in accordance with GAAP.
"BANK CREDIT FACILITY" means the Credit Agreement dated as of May
12, 1997 by and among the Company, certain banks and Bankers Trust Company, as
Administrative Agent, and Bank of America National Association (as successor by
merger to Nationsbank, N.A.), as Syndication Agent and Issuing Bank, as
supplemented, amended, restated or refinanced from time to time.
"BUSINESS DAY" means (a) for the purposes of Section 8.7 only, any
day other than a Saturday, a Sunday or a day on which commercial banks in New
York City are required or authorized to be closed, and (b) for the purposes of
any other
Schedule B
66
provision of this Agreement, any day other than a Saturday, a Sunday or a day on
which commercial banks in New York City or The Netherlands are required or
authorized to be closed.
"CAPITAL LEASE" means, at any time, a lease with respect to which
the lessee is required concurrently to recognize the acquisition of an asset and
the incurrence of a liability in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" means with respect to any Person,
all outstanding obligations of such Person in respect of Capital Leases, taken
at the capitalized amount thereof accounted for as indebtedness in accordance
with GAAP.
"CHANGE OF CONTROL" means such time as a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more
than 35% of the Voting Stock of the Company.
"CLOSING" is defined in Section 3.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time, and the rules and regulations promulgated thereunder from time to
time.
"COMPANY" means Core Laboratories N.V., a Netherlands limited
liability company.
"CONFIDENTIAL INFORMATION" is defined in Section 22.
"CONSOLIDATED INDEBTEDNESS" means, at any date, all Indebtedness
of the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" for any period means the sum for
the Company and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP, of all amounts which would be deducted in computing
Consolidated Net Income on account of interest on Indebtedness (including
imputed interest in respect of Capitalized Lease Obligations and amortization of
debt discount and expense).
"CONSOLIDATED NET INCOME" for any period means the net income of
the Company and its Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP, excluding
(a) the proceeds of any life insurance policy,
(b) any gains arising from (i) the sale or other disposition of
any assets (other than current assets) to the
Schedule B
-2-
67
extent that the aggregate amount of the gains during such period
exceeds the aggregate amount of the losses during such period from the
sale, abandonment or other disposition of assets (other than current
assets), (ii) any write-up of assets or (iii) the acquisition of
outstanding securities of the Company or any Subsidiary,
(c) any amount representing any interest in the undistributed
earnings of any other Person (other than a Subsidiary),
(d) any earnings, prior to the date of acquisition, of any
Person acquired in any manner (except in connection with a pooling
transaction), and any earnings of any Subsidiary prior to its becoming
a Subsidiary,
(e) any earnings of a successor to or transferee of the assets
of the Company prior to its becoming such successor or transferee,
(f) any deferred credit (or amortization of a deferred credit)
arising from the acquisition of any Person, and
(g) any extraordinary gains not covered by clause (b) above.
"CONSOLIDATED NET WORTH" means, at any date, on a consolidated
basis for the Company and its Subsidiaries, (a) the sum of (i) capital stock
taken at par or stated value plus (ii) capital in excess of par or stated value
relating to capital stock plus (iii) retained earnings (or minus any retained
earning deficit) minus (b) the sum of treasury stock, capital stock subscribed
for and unissued and other contra-equity accounts, all determined in accordance
with GAAP.
"CONSOLIDATED TANGIBLE ASSETS" means, at any date, Consolidated
Total Assets minus all intangible assets of the Company and its Subsidiaries as
of such date determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED TOTAL ASSETS" means, at any date, the total assets
of the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"DEFAULT" means an event or condition the occurrence or existence
of which would, with the giving of notice or the lapse of time, or both, become
an Event of Default.
"DEFAULT RATE" means that rate of interest for the Notes of each
series that is the greater of (i) 2% per annum above the stated interest rate
for the Notes of such series and (ii) 2% above the rate of interest publicly
announced by
Schedule B
-3-
68
Citibank, N.A. from time to time at its principal office in New York City as its
prime rate.
"DOLLARS" or "$" means lawful money of the United States.
"EBITDA" for any period means Consolidated Net Income plus all
amounts deducted in the computation thereof on account of (a) Consolidated
Interest Expense, (b) depreciation and amortization expenses and other non-cash
charges and (c) income and profits taxes.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations promulgated
thereunder from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Issuer or
the Company under section 414 of the Code.
"EVENT OF DEFAULT" is defined in Section 11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time.
"FOREIGN PLAN" means each plan that is, or within the preceding
five years has been, maintained, sponsored or otherwise contributed to by the
Company or any Subsidiary and that provides, or within the preceding five years
has provided, retirement or welfare benefits and is, or within the preceding
five years has been, maintained outside the United States primarily for the
benefit of individuals substantially all of whom are or were "nonresident
aliens", as defined in Section 7701(b) of the Code.
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States of America.
Schedule B
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"GOVERNMENTAL AUTHORITY" means
(a) the government of
(i) the United States of America or any State thereof or The
Netherlands or any province thereof or any other political subdivision
of any thereof, or
(ii) any jurisdiction in which the Company or any Subsidiary
conducts all or any part of its business, or which asserts jurisdiction
over any properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"GUARANTY" means, with respect to any Person, any obligation
(except the endorsement in the ordinary course of business of instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including without limitation obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such Indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment
of such Indebtedness or obligation, or (ii) to maintain any working
capital or other balance sheet condition or any income statement
condition of any other Person or otherwise to advance or make available
funds for the purchase or payment of such Indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of any other Person to make payment of the
Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or
obligation against loss in respect thereof.
In any computation of the Indebtedness or other liabilities of the obligor under
any Guaranty, the Indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"HAZARDOUS MATERIAL" means any and all pollutants, toxic or
hazardous wastes or any other substances that might pose a hazard to health or
safety, the removal of which may be required or the generation, manufacture,
refining, production,
Schedule B
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processing, treatment, storage, handling, transportation, transfer, use,
disposal, release, discharge, spillage, seepage, or filtration of which is or
shall be restricted, prohibited or penalized by any applicable law (including
without limitation asbestos, urea formaldehyde foam insulation and
polycholorinated biphenyls).
"HOLDER" means, with respect to any Note, the Person in whose name
such Note is registered in the register maintained by the Issuer pursuant to
Section 15.1.
"INDEBTEDNESS" with respect to any Person means, at any time,
without duplication,
(a) its liabilities for borrowed money or its mandatory
purchase, redemption or other retirement obligations in respect of
mandatorily redeemable Preferred Stock,
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business but including all liabilities created
or arising under any conditional sale or other title retention
agreement with respect to any such property),
(c) its Capitalized Lease Obligations,
(d) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities),
(e) all its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for its
account by banks and other financial institutions (whether or not
representing obligations for borrowed money), excluding any letter of
credit given in the ordinary course of business in lieu of a
performance bond or similar undertaking,
(f) Swaps of such Person, and
(g) any Guaranty of such Person with respect to liabilities of
a type described in any of clauses (a) through (f) above.
Indebtedness of any Person shall include all obligations of such Person of the
character described in clauses (a) through (g) above to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP.
Schedule B
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"INSTITUTIONAL INVESTOR" means (a) any original purchaser of a
Note, (b) any holder of a Note holding (together with one or more of its
Affiliates) more than 2% of the aggregate principal amount of the Notes then
outstanding, and (c) any bank, trust company, savings and loan association or
other financial institution, any pension plan, any investment company, any
insurance company, any broker or dealer, or any other similar financial
institution or entity, regardless of legal form.
"ISSUER" means Core Laboratories, Inc., a Delaware corporation.
"LIEN" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such Person under
any conditional sale or other title retention agreement or Capital Lease, upon
or with respect to any property or asset of such Person (including in the case
of stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"MAKE-WHOLE AMOUNT" is defined in Section 8.7.
"MATERIAL" means material in relation to the business, operations,
financial condition, assets or properties of the Company and its Subsidiaries
taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the business, operations, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, (b) the ability of the Issuer to
perform its obligations under this Agreement and the Notes or the ability of the
Company to perform its obligations under this Agreement or (c) the validity or
enforceability of this Agreement, the Notes, the Parent Guarantee or any
Subsidiary Guarantee.
"MEMORANDUM" is defined in Section 5.3.
"MULTIEMPLOYER PLAN" means any Plan that is a "multiemployer plan"
(as such term is defined in section 4001(a)(3) of ERISA).
"NOTES" is defined in Section 1.1.
"OECD" means the "Organization for Economic Co-operation and
Development", the economic organization currently comprising 29 nations formed
by the signing of a convention in Paris on December 14, 1960.
"OFFICER'S CERTIFICATE" means a certificate of a Senior Financial
Officer of the Issuer or the Company or of any other
Schedule B
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72
officer of the Issuer or the Company whose responsibilities extend to the
subject matter of such certificate.
"OTHER AGREEMENTS" is defined in Section 2.
"OTHER PURCHASERS" is defined in Section 2.
"PARENT" means Core Laboratories, N.V., a Netherlands limited
liability company.
"PARENT GUARANTEE" is defined in Section 1.2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA or any successor thereto.
"PERMITTED JURISDICTION" means (a) the United States of America,
(b) the Netherlands Antilles and (c) any country that on the date hereof is a
member of the OECD (other than Greece, Poland, Korea or Turkey).
"PERSON" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"PLAN" means an "employee benefit plan" (as defined in section
3(3) of ERISA) that is or, within the preceding five years, has been established
or maintained, or to which contributions are or, within the preceding five
years, have been made or required to be made, by the Company or any ERISA
Affiliate or with respect to which the Company or any ERISA Affiliate may have
any liability.
"PREFERRED STOCK", as applied to any Person, means shares or
equity interests of such Person that shall be entitled to preference or priority
over any other shares or equity interests of such Person in respect of either
the payment of dividends or the distribution of assets upon liquidation, or
both.
"PROPERTY" or "PROPERTIES" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, inchoate
or otherwise.
"PTE" is defined in Section 6.2.
"QPAM EXEMPTION" means Prohibited Transaction Class Exemption
84-14 issued on March 13, 1984 by the United States Department of Labor.
Schedule B
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"REQUIRED HOLDERS" means, at any time, the holders of at least a
majority in unpaid principal amount of the Notes at the time outstanding.
"RESPONSIBLE OFFICER" means any Senior Financial Officer of the
Issuer or the Company and any other officer of the Issuer or the Company with
responsibility for the administration of the relevant portion of this Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time.
"SENIOR FINANCIAL OFFICER" of the Issuer or the Company means the
chief financial officer, principal accounting officer, treasurer or controller
of the Issuer or the Company.
"SIGNIFICANT SUBSIDIARY" means, at any date, (a) a Subsidiary
Guarantor and (b) any other Subsidiary (i) which, together with its
Subsidiaries, produced more than 5% of consolidated gross revenues of the
Company and its Subsidiaries for the fiscal year then most recently ended
(calculated on a pro forma basis in the case of any Person which became a
Subsidiary during or after the end of such fiscal year) or (ii) the assets of
which, together with the assets of its Subsidiaries, exceeded 5% of the
consolidated total assets (fixed and current) of the Company and its
Subsidiaries as of the last day of such fiscal year (calculated on a pro forma
basis as of the last day of such fiscal year in the case of any Person which
became a Subsidiary thereafter).
"STEP-UP PERIOD" is defined in Section 10.1(a)
"SUBSIDIARY" means, as to any Person, any corporation or other
business entity a majority of the combined voting power of all Voting Stock of
which is owned by such Person or one or more of its Subsidiaries or such Person
and one or more of its Subsidiaries. Unless the context otherwise clearly
requires, any reference to a "Subsidiary" is a reference to a Subsidiary of the
Company, including the Issuer.
"SUBSIDIARY GUARANTEE" is defined in Section 1.2.
"SUBSIDIARY GUARANTOR" is defined in Section 4.5.
"SWAPS" means, with respect to any Person, payment obligations
with respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Agreement, the amount of
the obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such Person,
based on the assumption that such Swap had
Schedule B
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74
terminated at the end of such fiscal quarter, and in making such determination,
if any agreement relating to such Swap provides for the netting of amounts
payable by and to such Person thereunder or if any such agreement provides for
the simultaneous payment of amounts by and to such Person, then in each such
case, the amount of such obligation shall be the net amount so determined.
"TAX" is defined in Section 5.9(b).
"TOTAL INDEBTEDNESS TO EBITDA RATIO" means, at any date, the ratio
of (a) Consolidated Indebtedness as at such date to (b) pro forma EBITDA for the
four consecutive fiscal quarters then most recently ended.
"VOTING STOCK" means, with respect to any Person, any shares of
stock or other equity interests of any class or classes of such Person whose
holders are entitled under ordinary circumstances (irrespective of whether at
the time stock or other equity interests of any other class or classes shall
have or might have voting power by reason of the happening of any contingency)
to vote for the election of a majority of the directors, managers, trustees or
other governing body of such Person.
"WHOLLY-OWNED SUBSIDIARY" means, at any time, any Subsidiary at
least 90% of the equity interests (except directors' qualifying shares) and
voting interests of which are owned by any one or more of the Company and the
Company's other Wholly-Owned Subsidiaries at such time.
Schedule B
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EXHIBIT 1.1(a)
[FORM OF SERIES A NOTE]
CORE LABORATORIES, INC.
8.11% GUARANTEED SENIOR NOTE, SERIES A, DUE 2009
No. [_____] New York, New York
$[_______] [Date]
PPN: 21867@ AA 4
FOR VALUE RECEIVED, the undersigned, CORE LABORATORIES, INC. (the
"ISSUER"), a Delaware corporation, hereby promises to pay to [_______________],
or registered assigns, the principal sum of [______________________] DOLLARS on
July 22, 2009, with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) from the date hereof on the unpaid balance thereof at the
rate of 8.11% per annum, payable semiannually on January 22 and July 22 in each
year, until the principal hereof shall have become due and payable, and (b) on
any overdue payment of principal, any overdue payment of interest (to the extent
permitted by applicable law) and any overdue payment of any Make-Whole Amount
(as defined in the Note Agreements referred to below), payable semiannually as
aforesaid (or, at the option of the registered holder hereof, on demand) at a
rate per annum from time to time equal to the greater of (i) 10.11% and (ii) 2%
above the rate of interest publicly announced by Citibank, N.A. from time to
time at its principal office in New York City as its prime rate.
Payments of principal of, interest on and any Make-Whole Amount
with respect to this Note are to be made in lawful money of the United States of
America at said principal office of Citibank, N.A. in New York City or at such
other place as the Issuer shall have designated by written notice to the holder
of this Note as provided in the Note Agreements referred to below.
This Note is one of a series of Senior Notes issued pursuant to
separate Note and Guarantee Agreements dated as of July 22, 1999 (as from time
to time amended, the "NOTE AGREEMENTS") between the Issuer and Core Laboratories
N.V. and the respective Purchasers named therein and is entitled to the benefits
thereof. This Note is also entitled to the benefits of a Parent Guarantee
included in the Note Agreements and certain Subsidiary Guarantees executed and
delivered from time to time pursuant to the Note Agreements. Each holder of this
Note will be deemed, by its acceptance hereof, to have agreed to the
confidentiality provisions set forth in Section 22 of the Note Agreements.
76
This Note is a registered Note and, as provided in the Note
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note of the same series and for a like principal amount (or, if
less, the then unpaid principal amount) will be issued to, and registered in the
name of, the transferee. Prior to due presentment for registration of transfer,
the Issuer may treat the person in whose name this Note is registered as the
owner hereof for the purpose of receiving payment and for all other purposes,
and the Issuer will not be affected by any notice to the contrary.
The Issuer will make required prepayments of principal on the
dates and in the amounts specified in the Note Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Agreements, but not otherwise.
If an Event of Default, as defined in the Note Agreements, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Agreements.
This Note shall be construed and enforced in accordance with, and
the rights of the Issuer and the holder hereof shall be governed by, the laws of
the State of New York, excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
CORE LABORATORIES, INC.
By
-------------------------------
Title:
-2-
77
EXHIBIT 1.1(b)
[FORM OF SERIES B NOTE]
CORE LABORATORIES, INC.
8.21% GUARANTEED SENIOR NOTE, SERIES B, DUE 2011
No. [_____] New York, New York
$[_______] [Date]
PPN: 21867@ AB 2
FOR VALUE RECEIVED, the undersigned, CORE LABORATORIES, INC. (the
"ISSUER"), a Delaware corporation, hereby promises to pay to [___________], or
registered assigns, the principal sum of [_________________________] DOLLARS on
July 22, 2011, with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) from the date hereof on the unpaid balance thereof at the
rate of 8.21% per annum, payable semiannually on January 22 and July 22 in each
year, until the principal hereof shall have become due and payable, and (b) on
any overdue payment of principal, any overdue payment of interest (to the extent
permitted by applicable law) and any overdue payment of any Make-Whole Amount
(as defined in the Note Agreements referred to below), payable semiannually as
aforesaid (or, at the option of the registered holder hereof, on demand) at a
rate per annum from time to time equal to the greater of (i) 10.21% and (ii) 2%
above the rate of interest publicly announced by Citibank, N.A. from time to
time at its principal office in New York City as its prime rate.
Payments of principal of, interest on and any Make-Whole Amount
with respect to this Note are to be made in lawful money of the United States of
America at said principal office of Citibank, N.A. in New York City or at such
other place as the Issuer shall have designated by written notice to the holder
of this Note as provided in the Note Agreements referred to below.
This Note is one of a series of Senior Notes issued pursuant to
separate Note and Guarantee Agreements dated as of July 22, 1999 (as from time
to time amended, the "NOTE AGREEMENTS") between the Issuer and Core Laboratories
N.V. and the respective Purchasers named therein and is entitled to the benefits
thereof. This Note is also entitled to the benefits of a Parent Guarantee
included in the Note Agreements and certain Subsidiary Guarantees executed and
delivered from time to time pursuant to the Note Agreements. Each holder of this
Note will be deemed, by its acceptance hereof, to have agreed to the
confidentiality provisions set forth in Section 22 of the Note Agreements.
78
This Note is a registered Note and, as provided in the Note
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note of the same series and for a like principal amount (or, if
less, the then unpaid principal amount) will be issued to, and registered in the
name of, the transferee. Prior to due presentment for registration of transfer,
the Issuer may treat the person in whose name this Note is registered as the
owner hereof for the purpose of receiving payment and for all other purposes,
and the Issuer will not be affected by any notice to the contrary.
The Issuer will make required prepayments of principal on the
dates and in the amounts specified in the Note Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Agreements, but not otherwise.
If an Event of Default, as defined in the Note Agreements, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Agreements.
This Note shall be construed and enforced in accordance with, and
the rights of the Issuer and the holder hereof shall be governed by, the laws of
the State of New York, excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
CORE LABORATORIES, INC.
By
-------------------------------
Title:
-2-
79
EXHIBIT 1.2
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of ______________ made by
________________________, a _________________ [ ] (the "GUARANTOR"),
in favor of the holders from time to time of the Notes referred to below
(collectively the "OBLIGEES").
WHEREAS, Core Laboratories, Inc., a Delaware corporation (the
"ISSUER"), and Core Laboratories N.V., a Netherlands limited liability company
(the "COMPANY" or the "PARENT" and, together with the Issuer, individually an
"OBLIGOR" and collectively the "OBLIGORS"), have entered into several Note and
Guarantee Agreements dated as of July 22, 1999 (as amended or otherwise modified
from time to time, collectively the "NOTE AGREEMENTS" and terms defined therein
and not otherwise defined herein are being used herein as so defined) with the
institutional purchasers listed in Schedule A thereto, pursuant to which the
Issuer proposes to issue and sell to such purchasers $35,000,000 aggregate
principal amount of its 8.11% Guaranteed Senior Notes, Series A, due 2009 and
$40,000,000 aggregate principal amount of its 8.21% Guaranteed Senior Notes,
Series B, due 2011 (the "NOTES");
WHEREAS, the Parent has unconditionally guaranteed the Notes and
the obligations of the Issuer under the Note Agreements pursuant to a parent
guarantee (the "PARENT GUARANTEE") contained in Section 14 of the Note
Agreements; and
WHEREAS, it is a [condition precedent to the purchase of the Notes
by such purchasers under/requirement of] the Note Agreements that the Guarantor
shall execute and deliver this Guarantee Agreement;
NOW, THEREFORE, in consideration of the premises the Guarantor
hereby agrees as follows:
SECTION 1. Guarantee. The Guarantor unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety,
A. the punctual payment when due, whether at stated maturity, by
prepayment, by acceleration or otherwise, of all obligations of the
Issuer arising under the Note Agreements and the Notes, including all
extensions, modifications, substitutions, amendments and renewals
thereof, whether for principal, interest (including without limitation
interest on any overdue principal, the Make-Whole Amount, if any, and
interest at the rate specified in the Notes and interest accruing or
becoming owing both prior to
GUARANTEE AGREEMENT
80
and subsequent to the commencement of any proceeding against or with
respect to either Obligor under any applicable Debtor Relief Laws as
defined below), Make-Whole Amount, fees, expenses, indemnification or
otherwise, and
B. the due and punctual performance and observance by the
Obligors of all covenants, agreements and conditions on their part to
be performed and observed under the Note Agreements and the Notes;
(all such obligations are called the "GUARANTEED OBLIGATIONS"); provided that
the aggregate liability of the Guarantor hereunder in respect of the Guaranteed
Obligations shall not exceed at any time the lesser of (1) the amount of the
Guaranteed Obligations and (2) the maximum amount for which the Guarantor is
liable under this Guarantee Agreement without such liability being deemed a
fraudulent transfer (or any analogous concept) under applicable Debtor Relief
Laws (as hereinafter defined), as determined by a court of competent
jurisdiction. As used herein, the term "DEBTOR RELIEF LAWS" means any applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement, insolvency,
reorganization or similar debtor relief laws affecting the rights of creditors
generally from time to time in effect.
The Guarantor also agrees to pay, in addition to the amount stated
above, any and all reasonable expenses (including reasonable counsel fees and
expenses) incurred by any Obligee in enforcing any rights under this Guarantee
Agreement or in connection with any amendment of this Guarantee Agreement.
Without limiting the generality of the foregoing, this Guarantee
Agreement guarantees, to the extent provided herein, the payment of all amounts
which constitute part of the Guaranteed Obligations and would be owed by any
other Person to any Obligee but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such Person.
SECTION 2. Guarantee Absolute. The obligations of the Guarantor
under Section 1 of this Guarantee Agreement constitute a present and continuing
guaranty of payment and not of collectability and the Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
the Note Agreements and the Notes, 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 Obligee with respect thereto. The obligations of the Guarantor
under this Guarantee Agreement are independent of the Guaranteed Obligations,
and a separate action or actions may be brought and prosecuted against the
Guarantor to enforce this Guarantee Agreement, irrespective of whether any
action is brought against either Obligor or any other Person liable for the
Guaranteed
GUARANTEE AGREEMENT
2
81
Obligations or whether an Obligor or any other such Person is joined in any such
action or actions. The liability of the Guarantor under this Guarantee Agreement
shall be primary, absolute, irrevocable, and unconditional irrespective of:
A. any lack of validity or enforceability of any Guaranteed
Obligation, the Note Agreements, the Parent Guarantee, any Note or any
agreement or instrument relating thereto;
B. any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from the Note
Agreements, the Parent Guarantee, any Note or this Guarantee Agreement;
C. any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure by the Guarantor or other Person liable, or any other
guarantee, for all or any of the Guaranteed Obligations;
D. any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral or any other assets of the
Company or any Subsidiary;
E. any change, restructuring or termination of the corporate
structure or existence of the Company, the Issuer or any other
Subsidiary; or
F. any other circumstance (including without limitation any
statute of limitations) that might otherwise constitute a defense,
offset or counterclaim available to, or a discharge of, the Company,
the Issuer or the Guarantor.
This Guarantee Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned by any Obligee
or any other Person upon the insolvency, bankruptcy or reorganization of an
Obligor or otherwise, all as though such payment had not been made.
SECTION 3. Waivers. The Guarantor hereby irrevocably waives, to
the extent permitted by applicable law:
A. promptness, diligence, presentment, notice of acceptance
and any other notice with respect to any of the Guaranteed Obligations
and this Guarantee Agreement;
B. any requirement that any Obligee or any other Person protect,
secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against either Obligor or any
other Person or any collateral;
GUARANTEE AGREEMENT
3
82
C. any defense, offset or counterclaim arising by reason of
any claim or defense based upon any action by any Obligee;
D. any duty on the part of any Obligee to disclose to the
Guarantor any matter, fact or thing relating to the business, operation
or condition of any Person and its assets now known or hereafter known
by such Obligee; and
E. any rights by which it might be entitled to require suit on
an accrued right of action in respect of any of the Guaranteed
Obligations or require suit against the Obligors or the Guarantor or
any other Person.
SECTION 4. Waiver of Subrogation and Contribution. The Guarantor
shall not assert, enforce, or otherwise exercise (A) any right of subrogation to
any of the rights, remedies, powers, privileges or Liens of any Obligee or any
other beneficiary against the Issuer, the Company or any other obligor on the
Guaranteed Obligations or any collateral or other security, or (B) any right of
recourse, reimbursement, contribution, indemnification, or similar right against
the Issuer or the Company, and the Guarantor hereby waives any and all of the
foregoing rights, remedies, powers, privileges and the benefit of, and any right
to participate in, any collateral or other security given to any Obligee or any
other beneficiary to secure payment of the Guaranteed Obligations, until such
time as the Guaranteed Obligations have been indefeasibly paid in full.
SECTION 5. Representations and Warranties. The Guarantor hereby
represents and warrants as follows:
A. The Guarantor is a [corporation/limited liability
company/other entity to be described] duly organized, validly existing
and in good standing under the laws of its jurisdiction of formation.
The execution, delivery and performance of this Guarantee Agreement
have been duly authorized by all necessary action on the part of the
Guarantor.
B. The execution, delivery and performance by the Guarantor of
this Guarantee Agreement will not (i) contravene, result in any breach
of, or constitute a default under, or result in the creation of any
Lien in respect of any property of the Guarantor or any Subsidiary of
the Guarantor under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or
any other material agreement or instrument to which the Guarantor or
any Subsidiary of the Guarantor is bound or by which the Guarantor or
any Subsidiary of the Guarantor or any of their respective
GUARANTEE AGREEMENT
4
83
properties may be bound or affected, (ii) conflict with or result in a
breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Governmental
Authority applicable to the Guarantor or any Subsidiary of the
Guarantor or (iii) violate any provision of any statute or other rule
or regulation of any Governmental Authority applicable to the Guarantor
or any Subsidiary of the Guarantor.
C. The Guarantor and the Obligors are members of the same
consolidated group of companies and are engaged in related businesses
and the Guarantor will derive substantial direct and indirect benefit
from the execution and delivery of this Guarantee Agreement.
SECTION 6. Amendments, Etc. No amendment or waiver of any
provision of this Guarantee Agreement and no consent to any departure by the
Guarantor therefrom shall in any event be effective unless the same shall be in
writing and signed by the Required Holders, 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 Obligees, (i) limit the liability of or release the
Guarantor hereunder, (ii) postpone any date fixed for, or change the amount of,
any payment hereunder or (iii) change the percentage of Notes the holders of
which are, required to take any action hereunder.
SECTION 7. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing and sent (A) by
telecopy if the sender on the same day sends a confirming copy of such notice by
a recognized overnight delivery service (charges prepaid), or (B) by registered
or certified mail with return receipt requested (postage prepaid), or (C) by a
recognized overnight delivery service (with charges prepaid). Such notice if
sent to the Guarantor shall be addressed to it at the address of the Guarantor
provided below its name on the signature page of this Guarantee Agreement or at
such other address as the Guarantor may hereafter designate by notice to each
holder of Notes, or if sent to any holder of Notes, shall be addressed to it as
set forth in the Note Agreements. Any notice or other communication herein
provided to be given to the holders of all outstanding Notes shall be deemed to
have been duly sent if sent as aforesaid to each of the registered holders of
the Notes at the time outstanding at the address for such purpose of such holder
as it appears on the Note register maintained by the Issuer in accordance with
the provisions of Section 15.1 of the Note Agreements. Notices under this
Section 7 will be deemed given only when actually received.
SECTION 8. No Waiver; Remedies. No failure on the part of any
Obligee to exercise, and no 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
GUARANTEE AGREEMENT
5
84
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9. Continuing Guarantee. This Guarantee Agreement is a
continuing guarantee of payment and performance and shall (A) remain in full
force and effect until payment in full of the Guaranteed Obligations and all
other amounts payable under this Guarantee Agreement, (B) be binding upon the
Guarantor, its successors and assigns and (C) inure to the benefit of and be
enforceable by the Obligees and their successors, transferees and assigns.
SECTION 10. Jurisdiction and Process; Waiver of Jury Trial. The
Guarantor irrevocably submits to the non-exclusive in personam jurisdiction of
any New York State or federal court sitting in the Borough of Manhattan, The
City of New York, over any suit, action or proceeding arising out of or relating
to this Guarantee Agreement. To the fullest extent permitted by applicable law,
the Guarantor irrevocably waives and agrees not to assert, by way of motion, as
a defense or otherwise, any claim that it is not subject to the in personam
jurisdiction of any such court, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
The Guarantor consents to process being served in any suit, action
or proceeding of the nature referred to in this Section by mailing a copy
thereof by registered or certified mail, postage prepaid, return receipt
requested, to the Guarantor at its address specified in Section 7 or at such
other address of which the Obligees shall then have been notified pursuant to
said Section. The Guarantor agrees that such service upon receipt (i) shall be
deemed in every respect effective service of process upon it in any such suit,
action or proceeding and (ii) shall, to the fullest extent permitted by
applicable law, be taken and held to be valid personal service upon and personal
delivery to the Guarantor. Notices hereunder shall be conclusively presumed
received as evidenced by a delivery receipt furnished by the United States
Postal Service or any recognized courier or overnight delivery service.
Nothing in this Section 10 shall affect the right of any Obligee
to serve process in any manner permitted by law, or limit any right that the
Obligees may have to bring proceedings against the Guarantor in the courts of
any appropriate jurisdiction or to enforce in any lawful manner a judgment
obtained in one jurisdiction in any other jurisdiction.
THE GUARANTOR WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT ON OR
WITH RESPECT TO THIS GUARANTEE AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN
CONNECTION HEREWITH.
GUARANTEE AGREEMENT
6
85
[SECTION 11. Tax Indemnification.
All payments whatsoever under this Guarantee will be made by the
Guarantor in the lawful currency of the United States of America free and clear
of, and without liability or withholding or deduction for or on account of, any
present or future Taxes of whatever nature imposed or levied by or on behalf of
any jurisdiction other than the United States (or any political subdivision or
taxing authority of or in such jurisdiction) (hereinafter a "TAXING
JURISDICTION"), unless the withholding or deduction of such Tax is compelled by
law.
If any deduction or withholding or payment for any Tax of a Taxing
Jurisdiction shall at any time be required in respect of any amounts to be paid
by the Guarantor under this Guarantee Agreement, the Guarantor will pay such
additional amounts as may be necessary in order that the net amounts paid to
each Obligee pursuant to the terms of this Guarantee Agreement, after such
deduction or withholding or payment (including any required deduction,
withholding or other payment of Tax on or with respect to such additional
amount), shall be not less than the amounts then due and payable under the terms
of this Guarantee Agreement to any Holder, provided that no payment of any
additional amounts shall be required to be made for or on account of:
(a) any Tax which would not have been imposed but for the
existence at the time of any present or former connection between such
Holder (or between a fiduciary, settlor, beneficiary, member of,
shareholder of, or possessor of a power over, such Holder, if such
Holder is an estate, trust, partnership or corporation or any Person
other than the Holder to whom this Guarantee Agreement or any amount
payable hereunder is attributable for the purposes of such tax,
assessment or charge) and the Taxing Jurisdiction, other than the mere
holding of this Guarantee Agreement including without limitation such
Holder (or such other Person described in the above parenthetical)
being or having been a citizen or resident thereof, or being or having
been engaged in a trade or business therein or having an establishment
therein;
(b) any Tax that is imposed or withheld by reason of the
failure to comply (after a reasonable period of not less than 60 days
nor more than 120 days to respond) by the Holder or any other Person
mentioned in clause (a) above with a request of the Guarantor addressed
to the Holder to provide information (other than any confidential or
proprietary tax return or other information) concerning the
nationality, residence or identity of the Holder or such other Person,
and to make such declaration or other similar claim or reporting
requirement regarding such information (other than any such declaration
claim or reporting requirement that would involve the disclosure of
GUARANTEE AGREEMENT
7
86
confidential or proprietary tax return or other information), which is
required by a statute, treaty or regulation of the Taxing Jurisdiction
as a precondition to exemption from all or part of such tax, assessment
or other governmental charge; or
(c) any combination of clauses (a) and (b) above;
provided further that no such additional amounts shall be payable to (i) any
Holder who is a fiduciary or a partnership or a beneficial owner who is other
than the sole beneficial owner of such payment to the extent a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner would not have been entitled to such additional amounts had it
been the Holder or (ii) any Holder who is not a resident of the United States or
with respect to any payment all or any part of which represents income which is
not subject to United States tax as income of a resident of the United States to
the extent that, had the holder been a resident of the United States or had the
payment been so subject to United States tax, the provisions of a statute,
treaty or regulation of such Taxing Jurisdiction would have enabled an exemption
to be claimed from the tax assessment or governmental charge in respect of which
an additional amount would otherwise have been payable.
The Guarantor will furnish the Holders, within the period of
payment permitted by applicable law, an official receipt, if any, issued by the
relevant taxation or other authorities involved for all amounts deducted or
withheld as aforesaid.
Section 12. Judgment Currency. Any payment on account of an amount
that is payable hereunder by the Guarantor in U.S. Dollars which is made to or
for the account of any Obligee in any other currency, whether as a result of any
judgment or order or the enforcement thereof or the realization of any security
or the liquidation of the Guarantor, shall constitute a discharge of the
Guarantor's obligation under this Guarantee Agreement only to the extent of the
amount of U.S. Dollars which such Obligee could purchase in the foreign exchange
markets in London, England, with the amount of such other currency in accordance
with normal banking procedures at the rate of exchange prevailing on the London
Banking Day following receipt of the payment first referred to above. If the
amount of U.S. Dollars that could be so purchased is less than the amount of
U.S. Dollars originally due to such Obligee, the Guarantor agrees, to the
fullest extent permitted by law, to indemnify and save harmless such Obligee
from and against all loss or damage arising out of or as a result of such
deficiency. This indemnity shall, to the fullest extent permitted by law,
constitute an obligation separate and independent from the other obligations
contained in this Guarantee Agreement, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted
by such Obligee from time
GUARANTEE AGREEMENT
8
87
to time and shall continue in full force and effect notwithstanding any judgment
or order for a liquidated sum in respect of an amount due hereunder or under any
judgment or order. As used herein the term "LONDON BANKING DAY" shall mean any
day other than Saturday or Sunday or a day on which commercial banks are
required or authorized by law to be closed in London, England.
SECTION 13.]* Governing Law. This Guarantee Agreement shall be
construed and enforced in accordance with, and the rights of the Guarantor and
the Obligees shall be governed by, the laws of the State of New York excluding
choice-of-law principles of the law of such State that would require the
application of the laws of a jurisdiction other than such State.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
Agreement to be duly executed and delivered as of the date first above written.
[GUARANTOR]
By
--------------------------------------
Title:
Address:
Attention:
Telephone:
Telecopy:
- --------------------
* Bracketed Sections 11 and 12 to be inserted if the Guarantor is a Subsidiary
with a jurisdiction of organization outside the United States.
GUARANTEE AGREEMENT
9
88
EXHIBITS 4.4(a)(i), (ii) and (iii)
OPINIONS OF SPECIAL COUNSEL FOR THE ISSUER AND THE COMPANY
The following opinions are to be provided by U.S. and Dutch
special counsel for the Issuer and the Company (allocated among such counsel as
appropriate), subject to customary assumptions, limitations and qualifications.
All capitalized terms used herein without definition shall have the meanings
ascribed thereto in the Agreements.
1. The Company is a limited liability company duly organized and
validly existing under the laws of The Netherlands and has all requisite power
and authority to own or hold under lease the property it purports to own or hold
under lease, to carry on its business as now being conducted and to execute and
deliver the Agreements and to perform the provisions thereof.
2. The Issuer is a corporation duly organized and validly existing
under the laws of the State of Delaware and has all requisite power and
authority to own or hold under lease the property it purports to own or hold
under lease, to carry on its business as now being conducted and to execute and
deliver the Agreements and the Notes and to perform the provisions thereof. The
Issuer has duly qualified and is authorized to do business in each jurisdiction
where such qualification and authorization is necessary.
3. Each Subsidiary (other than the Issuer and the inactive
Subsidiaries so designated in Schedule 5.4 of the Agreements) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization and is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, except where the failure to be so qualified or
in good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such Subsidiary has all
requisite corporate power and authority to own or hold under lease the property
it purports to own or hold under lease and to carry on its business as now being
conducted and, in the case of a Subsidiary Guarantor, to execute and deliver its
respective Subsidiary Guarantee and perform the provisions thereof.
4. The Agreements have been duly authorized, executed and
delivered by the Issuer and the Company and constitute legal, valid and binding
agreements of the Issuer and the Company, enforceable against the Issuer and the
Company in accordance with their terms.
5. The Notes being purchased by you today have been duly
authorized, executed and delivered by the Issuer and
89
constitute legal, valid and binding obligations of the Issuer, enforceable
against the Issuer in accordance with their terms.
6. The Subsidiary Guarantees have been duly authorized, executed
and delivered by the respective Subsidiary Guarantors and constitute legal,
valid and binding obligations of such Subsidiary Guarantors, enforceable against
such Subsidiary Guarantors in accordance with their respective terms.
7. No consent, approval or authorization of, or declaration,
registration or filing with, any Governmental Authority is required to be
obtained or made as a condition to the validity of the execution and delivery by
the Issuer or the Company of the Agreements, by the Issuer of said Notes or by
the Subsidiary Guarantors of said Subsidiary Guarantees or for the performance
by the Issuer or the Company or the Subsidiary Guarantors of their respective
obligations thereunder.
8. It was not necessary in connection with the offering, sale and
delivery of said Notes, the Parent Guarantee or said Subsidiary Guarantees,
under the circumstances contemplated by the Agreements, to register said Notes,
the Parent Guarantee or said Subsidiary Guarantees under the Securities Act or
to qualify an indenture in respect of the Notes under the Trust Indenture Act of
1939, as amended.
9. The execution, delivery and performance by the Company of the
Agreements, by the Issuer of the Agreements and the Notes and by the Subsidiary
Guarantors of their respective Subsidiary Guarantees will not (i) contravene,
result in any breach of, or constitute a default under, or result in the
creation of any Lien in respect of any property of the Company or any Subsidiary
under, any indenture, mortgage, deed of trust, loan, purchase or credit
agreement, lease, corporate charter or by-laws, or any other agreement or
instrument known to such counsel to which the Company or any Subsidiary is bound
or by which the Company or any Subsidiary or any of their respective properties
may be bound or affected, (ii) conflict with or result in a breach of any of the
terms, conditions or provisions of any order, judgment, decree or ruling of any
court, arbitrator or Governmental Authority applicable to the Company or any
Subsidiary or (iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or any
Subsidiary.
10. Neither the Company nor any Subsidiary is subject to
regulation under the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, or the Federal Power Act, as
amended.
11. None of the transactions contemplated by the Agreements
(including without limitation the use of the proceeds from the sale of the
Notes) will violate or result in a violation of Section 7 of the Exchange Act,
or any regulations issued
2
90
pursuant thereto, including without limitation Regulations T, U and X of the
Board of Governors of the Federal Reserve System (12 CFR, Part 220, Part 221 and
Part 224, respectively).
12. No liability for any Tax, directly or indirectly, imposed,
assessed, levied or collected by or for the account of any Governmental
Authority in The Netherlands will be incurred by you or by the Issuer, the
Company or any Subsidiary Guarantor as a result of the execution or delivery of
the Agreements, the Notes purchased by you today or said Subsidiary Guarantees,
and assuming you are resident in the United States and are not engaged in
business in The Netherlands, no deduction or withholding in respect of Taxes
imposed by or for the account of any Governmental Authority in The Netherlands
is required to be made from any payment by the Issuer, the Company or the
Subsidiary Guarantors under the Agreements, said Notes, the Parent Guarantee or
said Subsidiary Guarantees.
13. Assuming you do not otherwise have a presence in The
Netherlands, you will not be deemed to be domiciled or resident in The
Netherlands for tax purposes or carrying on business in The Netherlands solely
by reason of the making and performance or enforcement of the Agreements or the
holding of Notes.
14. A final judgment properly obtained in any court of the State
of New York or any federal court in the United States of America located in the
Borough of Manhattan, The City of New York, in respect of any suit, action or
proceeding arising out of the Agreements, the Notes or said Subsidiary
Guarantees will be given conclusive effect by the courts in The Netherlands
without reexamination of the substantive matters thereby adjudicated.
15. It is not necessary under the laws of The Netherlands in order
to enable any Person to enforce its rights under the Agreements, the Notes or
said Subsidiary Guarantees that such Person be licensed, qualified or otherwise
entitled to carry on business in The Netherlands.
16. There are no actions, suits or proceedings pending, or to the
knowledge of such counsel threatened, against or affecting the Company or any
Subsidiary or any property of the Company or any Subsidiary in any court or
before any arbitrator of any kind or before or by any Governmental Authority,
except actions, suits or proceedings which (a) individually do not in any manner
draw into question the validity of the Agreements, the Subsidiary Guarantees or
the Notes and (b) in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
* * * *
This opinion is given solely for your benefit, and for the benefit
of the institutional investor holders from time to time of the Notes purchased
by you today, in connection with the closing held today of the transactions
contemplated by the Agreements, and may not be relied upon by any other person
for any purpose without our prior written consent.
3
91
EXHIBIT 4.4(b)
FORM OF OPINION OF WF&G
July , 1999
Re: Core Laboratories, Inc.
Guaranteed Senior Notes
To the several Purchasers listed in
the Schedule A to the
within-mentioned Note Agreements
Ladies and Gentlemen:
We have acted as your special counsel in connection with the
issuance by Core Laboratories, Inc. (the "Issuer") of its 8.11% Guaranteed
Senior Notes, Series A, due 2009 in an aggregate principal amount of $35,000,000
and its 8.21% Guaranteed Senior Notes, Series B, due 2011 in an aggregate
principal amount of $40,000,000 (collectively, the "Notes"), and the purchases
by you pursuant to the several Note and Guarantee Agreements made by you with
the Company and Core Laboratories, N.V., (the "Company") under date of July 22,
1999 (the "Note Agreements") of Notes of the series and in the respective
aggregate principal amounts set forth in Schedule A to the Note Agreements. All
capitalized terms used herein without definition shall have the meanings
ascribed thereto in the Note Agreements.
We have examined such corporate records of the Company and the
Issuer, agreements and other instruments, certificates of public officials and
of officers and representatives of the Company and the Issuer, and such other
documents, as we have deemed necessary in connection with the opinions
hereinafter expressed. In such examination we have assumed the genuineness of
all signatures, the authenticity of documents submitted to us as originals and
the conformity with the authentic originals of all documents submitted to us as
copies. As to questions of fact material to such opinions we have, when relevant
facts were not independently established, relied upon the representations set
forth in the Note Agreements and upon certifications by officers or other
representatives of the Company and the Issuer.
In addition, we attended the closing held today at our office at
which you purchased and made payment for Notes of the series and in the
respective aggregate principal amounts to be purchased by you, all in accordance
with the Note Agreements.
92
Based upon the foregoing and having regard for legal
considerations that we deem relevant, we render our opinion to you pursuant to
Section 4.4(b) of the Note Agreements as follows:
1. The Issuer is a validly existing corporation in good standing
under the laws of the State of Delaware and has the corporate power to execute
and deliver the Note Agreements and the Notes and to perform its obligations
thereunder.
2. The Note Agreements have been duly authorized, executed and
delivered by the Issuer and constitute legal, valid and binding agreements of
the Issuer, enforceable against the Company in accordance with their terms.
3. The Note Agreements constitute legal, valid and binding
agreements of the Company, enforceable against the Company in accordance with
their terms.
4. The Notes being purchased by you today have been duly
authorized, executed and delivered by the Issuer and constitute legal, valid and
binding obligations of the Issuer, enforceable against the Issuer in accordance
with their respective terms; and said Notes are entitled to the benefits of the
Parent Guarantee in accordance with its terms.
5. No consent, approval or authorization of, or declaration,
registration or filing with, any New York or Federal Governmental Authority is
required to be obtained or made as a condition to the validity of the execution
and delivery by the Company or the Issuer of the Note Agreements or by the
Issuer of said Notes or for the performance by the Company or the Issuer of
their respective obligations thereunder.
6. It was not necessary in connection with the offering, sale and
delivery of said Notes or the Parent Guarantee or the Subsidiary Guarantees
delivered today, under the circumstances contemplated by the Note Agreements, to
register said Notes or the Parent Guarantee or said Subsidiary Guarantees under
the Securities Act of 1933, as amended, or to qualify an indenture in respect of
the Notes under the Trust Indenture Act of 1939, as amended.
8. The opinions of John D. Denson, Esq., Vice President and
General Counsel for the Issuer and the Company, Vinson & Elkins L.L.P., United
States special counsel for the Issuer and the Company, and Nauta Dutihl, Dutch
special counsel for the Company, each dated today and delivered to you pursuant
to Section 4.4 of the Note Agreements, are satisfactory to us in form and scope
with respect to the matters respectively specified therein and we believe that
you are justified in relying thereon.
The opinions expressed above as to the enforceability of the Note
Agreements and the Notes purchased by you today in accordance with their
respective terms are subject to the
93
exception that such enforceability may be limited by (a) applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and (b) general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
To the extent that the opinions expressed above involve matters
governed by Dutch law we have relied upon the aforementioned opinion of Nauta
Dutihl, and our conclusions as to such matters are subject to the same
assumptions, limitations and qualifications as are contained in said opinion.
We express no opinion as to Section 24.3 of the Note Agreements
insofar as said Section relates to (i) the subject matter jurisdiction of the
United States District Court for the Southern District of New York to adjudicate
any controversy relating to the Note Agreements or the Notes, (ii) the waiver of
inconvenient forum with respect to proceedings in such United States District
Court or (iii) the waiver of the right to jury trial.
We are members of the bar of the State of New York and do not
herein intend to express any opinion as to any matters governed by any laws
other than Federal laws of the United States of America and the laws of the
State of New York and the General Corporation Law of the State of Delaware.
This opinion is given solely for your benefit and for the benefit
of the institutional investor holders from time to time of the Notes purchased
by you today, in connection with the closing held today of the transactions
contemplated by the Note Agreements, and may not be relied upon by any other
person for any purposes without our prior written consent.
Very truly yours,
94
SCHEDULE 5.3
Disclosure Documents
95
SCHEDULE 5.4
Subsidiaries
96
SCHEDULE 5.5
Financial Statements
97
SCHEDULE 5.8
Litigation
98
SCHEDULE 5.11
Licenses, etc.
99
SCHEDULE 5.15
Existing Indebtedness
100
If you are in agreement with the foregoing, please sign the form
of agreement in the space below provided on a counterpart of this Agreement and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Issuer and the Company.
Very truly yours,
CORE LABORATORIES, INC.
By
--------------------------------------
Title:
CORE LABORATORIES N.V., by
its sole Managing Director
Core Laboratories International B.V.
By
--------------------------------------
Jacobus Schouten,
Managing Director
The foregoing is hereby agreed
to as of the date thereof.
THE FRANKLIN LIFE
INSURANCE COMPANY
By
------------------------------
Title:
101
If you are in agreement with the foregoing, please sign the form
of agreement in the space below provided on a counterpart of this Agreement and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Issuer and the Company.
Very truly yours,
CORE LABORATORIES, INC.
By
--------------------------------------
Title:
CORE LABORATORIES N.V., by
its sole Managing Director
Core Laboratories International B.V.
By
--------------------------------------
Jacobus Schouten,
Managing Director
The foregoing is hereby agreed
to as of the date thereof.
THE VARIABLE ANNUITY LIFE
INSURANCE COMPANY
By
------------------------------
Title:
102
If you are in agreement with the foregoing, please sign the form
of agreement in the space below provided on a counterpart of this Agreement and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Issuer and the Company.
Very truly yours,
CORE LABORATORIES, INC.
By
--------------------------------------
Title:
CORE LABORATORIES N.V., by
its sole Managing Director
Core Laboratories International B.V.
By
--------------------------------------
Jacobus Schouten,
Managing Director
The foregoing is hereby agreed
to as of the date thereof.
THE GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA
By
------------------------------
Title:
103
If you are in agreement with the foregoing, please sign the form
of agreement in the space below provided on a counterpart of this Agreement and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Issuer and the Company.
Very truly yours,
CORE LABORATORIES, INC.
By
--------------------------------------
Title:
CORE LABORATORIES N.V., by
its sole Managing Director
Core Laboratories International B.V.
By
--------------------------------------
Jacobus Schouten,
Managing Director
The foregoing is hereby agreed
to as of the date thereof.
PROVIDENT LIFE AND ACCIDENT
INSURANCE COMPANY
By
------------------------------
Title:
104
If you are in agreement with the foregoing, please sign the form
of agreement in the space below provided on a counterpart of this Agreement and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Issuer and the Company.
Very truly yours,
CORE LABORATORIES, INC.
By
--------------------------------------
Title:
CORE LABORATORIES N.V., by
its sole Managing Director
Core Laboratories International B.V.
By
--------------------------------------
Jacobus Schouten,
Managing Director
The foregoing is hereby agreed
to as of the date thereof.
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
By: CIGNA INVESTMENTS, INC.
By
------------------------------
Title: