EXHIBIT 10.2
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of February 20, 2004
(this "Amendment"), is by and among VERITAS DGC INC., a Delaware corporation
("Company"), VERITAS ENERGY SERVICES INC., an Alberta corporation ("VES"), and
VERITAS ENERGY SERVICES PARTNERSHIP, an Alberta general partnership ("VESP";
collectively, VES and VESP are referred to herein as "Canadian Borrowers"),
VERITAS DGC LIMITED, a company incorporated under the laws of England and Wales
("UK Borrower"; collectively, Company, Canadian Borrowers and UK Borrower are
referred to herein as "Borrowers" and individually as a "Borrower"), certain
financial institutions party to the Credit Agreement referred to below (the
"Lenders"), DEUTSCHE BANK AG, NEW YORK BRANCH, in its capacity as administrative
agent ("Administrative Agent"), and DEUTSCHE BANK AG, CANADA BRANCH, in its
capacity as Canadian administrative agent ("Canadian Administrative Agent";
Administrative Agent and Canadian Administrative Agent are collectively referred
to herein as "Agents").
BACKGROUND
A. Borrowers, the Lenders, and Agents are parties to that certain
Credit Agreement dated as of February 14, 2003 (as amended, restated,
supplemented or otherwise modified and in effect from time to time, the "Credit
Agreement").
B. Borrowers have requested Agents and the Lenders to amend the
Credit Agreement in certain respects as set forth herein, and Agents and the
Lenders are agreeable to the same, subject to the terms and conditions set forth
herein.
AGREEMENT
NOW THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings given them in the Credit
Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is hereby amended
by inserting the following definitions in their proper alphabetical
sequence:
"Convertible Note Offering" means the offering and
sale by the Company of the Convertible Notes on or prior to
May 31, 2004.
"Convertible Notes" means the Company's unsecured
convertible notes issued and sold in the Convertible Note
Offering (i) in an aggregate principal amount up to $155
million, (ii) with a stated maturity no earlier than one (1)
year after the latest maturity date for the Facilities, (iii)
having market terms substantially similar to those for
comparable issuances, (iv) on terms and conditions not more
restrictive to the Company and its Subsidiaries than those set
forth in this Agreement and (v) otherwise on terms and
conditions and in form and substance satisfactory to
Administrative Agent.
(b) Section 3.2(e) of the Credit Agreement is hereby
amended by deleting the reference to "Sections 4.4(c), (e) or (f)" and
inserting a reference to "Sections 4.4(c), (e), (f) or (h)" in lieu
thereof.
(c) Section 4.4 of the Credit Agreement is hereby amended
by inserting the following subsection (h) thereto at the end of such
Section:
"(h) MANDATORY PREPAYMENT WITH PROCEEDS OF CONVERTIBLE
NOTE OFFERING. No later than the first Business Day after receipt
thereof by the Company or any Subsidiary, an amount equal to 100% of
the Net Offering Proceeds of the Convertible Note Offering shall be
applied as a mandatory prepayment of principal of the Loans pursuant to
the terms of Section 4.5(a); provided that, notwithstanding the
foregoing, within 30 days of the closing of the Convertible Note
Offering the Company may apply up to the lesser of $20,000,000 or 20%
of the Net Offering Proceeds of the Convertible Note Offering toward a
repurchase of the Company's Capital Stock as permitted under Section
8.5(c)."
(d) Section 4.5(a) of the Credit Agreement is hereby amended and
restated in its entirety as follows (emphasis added in this Amendment for
convenient reference of inserted text only):
"(a) PREPAYMENTS. Except as expressly provided in this
Agreement, all prepayments of principal made by any Borrower pursuant
to Section 4.4(c) through (f) shall be applied (i) first, to the
payment of the unpaid principal amount of the Term Loans constituting
First Priority Debt on a pro rata basis until paid in full (ii) second,
to the pro rata payment of the then outstanding balance of the UK
Revolving Loans, the Domestic Revolving Loans and Canadian Revolving
Loans (with corresponding permanent reductions to such Commitments)
until paid in full and the cash collateralization of LC Obligations,
(iii) third, to the payment of the unpaid principal amount of the Term
C Loans until paid in full, (iv) within each of the foregoing Loans,
first to the payment of Base Rate Loans and second to the payment of
Eurocurrency Loans; and (v) with respect to Eurocurrency Loans, in such
order as such Borrower shall request (and in the absence of such
request, as Administrative Agent shall determine). All prepayments of
principal made by Borrowers pursuant to Section 4.4(h) shall be applied
(i) first, to the payment of the unpaid principal amount of the Term C
Loans until paid in full, (ii) second, to the payment of the unpaid
principal amount of the Terms A Loans and Term B Loans on a pro rata
basis, (iii) within each of the foregoing Loans, first to the payment
of Base Rate Loans and second to the payment of Eurocurrency Loans and
(iv) with respect to Eurocurrency Loans, in such order as such Borrower
shall request (and in the absence of such request, as Administrative
Agent shall determine). Each prepayment of Term Loans constituting
First Priority Debt made pursuant to Section 4.4 shall be allocated to
such Term Loans based on the aggregate principal amount of the
Scheduled Term Repayments based upon their applicable Term Pro Rata
Share and pro rata to each Scheduled Term Repayment. Each prepayment of
the Term C Loans shall be applied to reduce the principal amount
thereof. If any prepayment of Eurocurrency Loans made pursuant to a
single Borrowing shall reduce the outstanding Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount,
such Borrowing shall immediately be converted into Base Rate Loans. All
prepayments shall include payment of accrued interest on the principal
amount so prepaid, shall be applied to the payment of interest before
application to principal and shall include amounts payable, if any,
under Section 3.5."
(e) Section 8.2 of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (k), changing the existing
subsection (l) to subsection (m) and adding the following new subsection (l)
thereto:
"(l) Indebtedness pursuant to the Convertible Notes; and"
(f) Section 8.5(c) of the Credit Agreement is hereby amended by
inserting the following text at the end of such Section:
", which amount shall increase, dollar for dollar but in no
event by more than $10,000,000, on the first anniversary of the initial
sale of Convertible Notes, to the extent that the Net Offering Proceeds
of such sale are used to repurchase the Company's Capital Stock prior
to such date"
SECTION 3. FEES. Borrowers agree jointly and severally to pay all
reasonable costs and expenses of Administrative Agent in connection with the
negotiation, preparation, printing, typing, reproduction, execution and
2
delivery of this Amendment and all other documents furnished pursuant hereto or
in connection herewith, including without limitation, the reasonable fees and
out-of-pocket expenses of Winston & Xxxxxx LLP, special counsel to
Administrative Agent, as well as the reasonable fees and out-of-pocket expenses
of any local counsel retained by Administrative Agent relative hereto, other
Attorney Costs, independent public accountants and other outside experts
retained by Administrative Agent in connection with the administration of this
Amendment.
SECTION 4. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT. This
Amendment shall become effective upon the date (the "Third Amendment Effective
Date") each of the following conditions have been satisfied:
(a) Third Amendment. Borrowers, Agents, the Majority
Lenders of the Term A Facility, the Majority Lenders of the Term B Facility and
the Required Lenders shall have executed and delivered this Amendment.
(b) Convertible Note Offering. The Convertible Notes
shall have been offered and sold by the Company in the Convertible Note
Offering.
(c) No Defaults. No Event of Default or Unmatured Event
of Default under the Credit Agreement (as amended hereby) shall have occurred
and be continuing.
(d) Representations and Warranties. The representations
and warranties of each Borrower contained in this Amendment, the Credit
Agreement (as amended hereby) and the other Loan Documents shall be true and
correct in all material respects as of the Third Amendment Effective Date, with
the same effect as though made on such date, except to the extent that any such
representation or warranty expressly relates to an earlier date, in which case
such representation or warranty shall be true and correct in all material
respects as of such earlier date.
(e) Payment of Fees. Borrowers shall have paid in full
(i) to Administrative Agent the fees set forth in Section 3 hereof and (ii) to
the Administrative Agent for the account of each Lender executing and delivering
its signature page to this Amendment on or prior to 1:00 p.m. (New York City
time) on Friday, February 20, 2004, a fee equal to 0.10% of the aggregate amount
of such Lender's Commitments.
(f) Reaffirmation of Guaranty. Each Guarantor shall have
executed and delivered a Reaffirmation of Guaranty in the form attached as
Exhibit A hereto.
(g) Other. Receipt by Agents or any Lender of such other
documents, instruments and certificates as Agents or such Lender shall have
reasonably requested.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
(a) Each Borrower represents and warrants (i) that it has
full corporate (or equivalent) power and authority to enter into this Amendment
and perform its obligations hereunder in accordance with the provisions hereof,
(ii) that this Amendment has been duly authorized, executed and delivered by
such Borrower and (iii) that this Amendment constitutes the legal, valid and
binding obligation of such Borrower, enforceable against such Borrower in
accordance with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or law).
(b) Each Borrower represents and warrants that the
following statements are true and correct, in each case after giving effect to
this Amendment:
(i) The representations and warranties contained
in the Credit Agreement and each of the other Loan Documents
are and shall each be true and correct in all material
respects on and as of the Third Amendment Effective Date to
the same extent as though made on and as of that date, except
to the extent such representations and warranties expressly
relate to an earlier date, in which case they were true and
correct in all material respects on and as of such earlier
date.
3
(ii) No Event of Default or Unmatured Event of
Default shall have occurred and be continuing.
(iii) Neither the execution, delivery and
performance by such Borrower of this Amendment, nor compliance
by it with the terms and provisions hereof, nor the
consummation of the transactions described herein (A) will
contravene any provision of any Requirement of Law applicable
to such Borrower, (B) will violate or result in any breach of
or constitute a tortious interference with any of the terms,
covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien (except pursuant
to the Security Documents) upon any of the property or assets
of such Borrower pursuant to the terms of any material
Contractual Obligation to which such Borrower is a party or by
which it or any of its property or assets is bound or to which
it may be subject, (C) will violate any provision of any
Organizational Document of such Borrower or (D) require any
approval of stockholders or any approval or consent of any
Person (other than a Governmental Authority).
(iv) No order, consent, approval, license,
authorization or validation of, or filing, recording or
registration with, or exemption by, any Governmental
Authority, is required to authorize, or is required in
connection with, (A) the execution, delivery and performance
of this Amendment or (B) the legality, validity, binding
effect or enforceability of this Amendment.
SECTION 6. REFERENCES TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) On and after the Third Amendment Effective Date each
reference in the Credit Agreement to "this Agreement," "hereunder," "hereof,"
"herein," or words of like import, and each reference to the Credit Agreement in
the Loan Documents and all other documents (the "Ancillary Documents") delivered
in connection with the Credit Agreement shall mean and be a reference to the
Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit
Agreement, the Loan Documents and all other Ancillary Documents shall remain in
full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of the
Lenders or Administrative Agent under the Credit Agreement, the Loan Documents
or the Ancillary Documents.
SECTION 7. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of a signature page of this
Amendment by facsimile transmission shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID
STATE, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS RULES.
SECTION 9. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
SECTION 10. REAFFIRMATION. Company hereby unconditionally consents to
the terms of this Amendment and fully ratifies and affirms its Guaranty set
forth in Article XIV of the Credit Agreement, taking into account this
Amendment.
[signature pages follow]
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers thereunto duly authorized as of the
date above first written.
VERITAS DGC INC.
By: ________________________________________
Xxxxx X. Xxxxxx
Chairman & Chief Executive Officer
VERITAS DGC LIMITED
By: ________________________________________
Xxxxxxxx X.X. Xxxxxx
Managing Director
VERITAS ENERGY SERVICES INC.
By: ________________________________________
Xxxxx X. Xxxxxx
President
VERITAS ENERGY SERVICES PARTNERSHIP,
by its partners,
VERITAS ENERGY SERVICES INC.
By: ________________________________________
Xxxxx X. Xxxxxx
President
TIME SEISMIC EXCHANGE LTD.
By: ________________________________________
Xxxxxxx X. Xxxxx
President
Signature Page -- Third Amendment to Credit Agreement
VERITAS DGC INC.
DEUTSCHE BANK AG, NEW YORK BRANCH,
in its individual capacity and as
Administrative Agent
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
DEUTSCHE BANK AG, CANADA BRANCH,
as Canadian Administrative Agent
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
Signature Page -- Third Amendment to Credit Agreement
VERITAS DGC INC.
HSBC BANK CANADA
By: ________________________________________
Name:
Title:
Signature Page -- Third Amendment to Credit Agreement
VERITAS DGC INC.
XXXXX FARGO BANK, N.A.
By: ________________________________________
Name:
Title:
Signature Page -- Third Amendment to Credit Agreement
VERITAS DGC INC.
BANK ONE, NA, with its main offices in
Chicago, Illinois
By: ________________________________________
Name:
Title:
Signature Page -- Third Amendment to Credit Agreement
VERITAS DGC INC.
NATEXIS BANQUES POPULAIRES
By: ________________________________________
Name:
Title:
Signature Page -- Third Amendment to Credit Agreement
VERITAS DGC INC.
ABELCO FINANCE LLC
By: ________________________________________
Name:
Title:
Signature Page -- Third Amendment to Credit Agreement
VERITAS DGC INC.
____________________________________________
[Name of Institution]
By: ________________________________________
Name:
Title:
Signature Page -- Third Amendment to Credit Agreement
VERITAS DGC INC.
EXHIBIT A
REAFFIRMATION OF GUARANTY
Signature Page -- Third Amendment to Credit Agreement
VERITAS DGC INC.
REAFFIRMATION OF GUARANTY
Each of the undersigned acknowledges receipt of the Credit Agreement
dated as of February 14, 2003, as amended by the Third Amendment to Credit
Agreement dated as of February 20, 2004 (as so amended, the "Credit Agreement"),
by and among Veritas DGC Inc., a Delaware corporation, Veritas Energy Services
Inc., an Alberta corporation, Veritas Energy Services Partnership, an Alberta
general partnership, Veritas DGC Limited, a company incorporated under the laws
of England and Wales, certain financial institutions party thereto, Deutsche
Bank AG, New York Branch, in its capacity as administrative agent, and Deutsche
Bank AG, Canada Branch, in its capacity as Canadian administrative agent and
each of the undersigned consents to the Credit Agreement (as so amended) and
each of the amendments, referenced therein, and hereby reaffirms its obligations
under its respective Guaranty (as such term is defined in the Credit Agreement)
executed by the undersigned.
Dated as of February 20, 2004
XXXXXXX-XXXXXXX LIMITED PARTNERSHIP,
by its general partner Xxxxxxx-Xxxxxxx GP Inc.
By: __________________________________________
Xxxxx Xxxxxxx
Vice President
VERITAS ENERGY SERVICES PARTNERSHIP,
by its partners,
VERITAS ENERGY SERVICES INC.
By: __________________________________
Xxxxx X. Xxxxxx
President
TIME SEISMIC EXCHANGE LTD.
By: __________________________________
Xxxxxxx X. Xxxxx
President
VERITAS ENERGY SERVICES INC.
By: ___________________________________________
Xxxxx X. Xxxxxx
President
Signature Page -- Third Amendment to Credit Agreement
VERITAS DGC INC.
TIME SEISMIC EXCHANGE LTD.
By: ___________________________________________
Xxxxxxx X. Xxxxx
President
VERITAS DGC LIMITED
By: ___________________________________________
Xxxxxxxx X.X. Xxxxxx
Managing Director
VERITAS GEOPHYSICAL CORPORATION
By: ___________________________________________
Xxxxxxx X. Xxxxx
President
EUROSEIS, INC.
By: ___________________________________________
Xxxxxxx X. Xxxxx
President
VERITAS DGC LAND INC.
By: ___________________________________________
Xxxxx X. Xxxxxxxx
President
VIKING MARITIME INC.
By: ___________________________________________
Xxxxxxx X. Xxxxx
President
Signature Page -- Third Amendment to Credit Agreement
VERITAS DGC INC.
RC SURVIVOR CORP.
By: ___________________________________________
Xxxxx X. Xxxxxx
Vice President
VERITAS DGC ASIA PACIFIC LTD.
By: ___________________________________________
Xxxxxxx X. Xxxxx
President
Signature Page -- Third Amendment to Credit Agreement
VERITAS DGC INC.
