1
EXHIBIT 10.25.3
As of December 20, 1996
International Sea Drilling Ltd. and Pool Company
c/o Pool Company
00000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: X. X. Xxxxxxxxx, Treasurer
Re: (a) Second Amendment to ISDL Term Loan Agreement, (b) Third
Amendment to Pool Company Restated Revolving Credit Agreement,
and (c) Third Amendment to Pool Company Restated Term Loan
Agreement
Gentlemen:
Reference is made to (a) the Term Loan Agreement dated as of November
30, 1995, as modified by the First Amendment dated as of July 31, 1996 (the
"ISDL AGREEMENT"), among International Sea Drilling Ltd. ("ISDL"), NationsBank
of Texas, N.A., National Bank of Canada and National Bank of Alaska
(collectively, "LENDERS"), and NationsBank of Texas, N.A., as agent ("AGENT"),
(b) the Restated Credit Agreement dated as of November 30, 1995, as modified by
the First Amendment and Waiver dated as of April 3, 1996, and the Second
Amendment dated as of July 31, 1996 (the "REVOLVING CREDIT AGREEMENT"), among
Pool Company, Lenders and Agent, and (c) the Restated Term Loan Agreement dated
as of November 30, 1995, as modified by the First Amendment and Waiver dated as
of April 3, 1996, and the Second Amendment dated as of July 31, 1996 (the "TERM
LOAN AGREEMENT"), among Pool Company, Lenders, and Agent. Unless otherwise
indicated, all capitalized terms herein are used as defined in the ISDL
Agreement, the Revolving Credit Agreement and the Term Loan Agreement.
ISDL and Pool Company have each advised Agent and Lenders that it
wishes to modify certain provisions of the ISDL Agreement, the Revolving Credit
Agreement and the Term Loan Agreement. Therefore, for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, ISDL,
Pool Company, Agent and Lenders agree as follows:
1. Increase in Total Credit Commitment. The cover page of the
Revolving Credit Agreement is hereby amended by deleting "$35,000,000" before
the phrase "Revolving Line of Credit" and inserting in lieu thereof
"$40,000,000", to reflect the increased credit commitment pursuant to this
Amendment.
2. Borrowing Base. SECTION 1.2(A) of the Revolving Credit
Agreement is hereby amended by deleting the previous maximum amounts described
therein, and inserting the amounts shown in bold and italics below so that such
SECTION 1.2(A) reads as follows:
a. 80% of domestic consolidated receivables of the
Material Obligors for inventory sold or services rendered in the
ordinary course of business, payable in cash, and outstanding less
than 121 days after the first invoice date; provided that (i) the
amount, if any, by which the total balance of accounts receivable
(notwithstanding any Charge-Offs) of any customer owing to the
Material Obligors exceeds $250,000 may only be included in the
Borrowing Base if first approved by Determining Lenders in their sole
discretion and in accordance with their respective customary credit
policies and credit procedures, and (ii) receivables owed by any
customer and not paid within 120 days after the first invoice date may
not be included in the calculation of the Borrowing Base, and, if the
current and delinquent receivables owed by that customer (including
Charge- Offs) aggregate:
(1) $250,000 or more, then the portion of the
receivables owed by that customer which exceeds $250,000,
regardless of aging, must be excluded from the calculation of
the Borrowing Base unless Determining Lenders in their sole
discretion determine that customer to be a reasonably
acceptable
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and Pool Company
As of December 20, 1996
Page 2
credit risk, in which event the receivables owed by that
customer and outstanding less than 121 days after the first
invoice date may be included in the calculation of the
Borrowing Base; or
(2) Less than $250,000, then all receivables owed
by that customer, regardless of aging, shall be excluded from
the calculation of the Borrowing Base unless Borrower's chief
financial officer or treasurer certifies to Lenders the
customer is a reasonably acceptable credit risk, that the
delinquency is not the result of a credit problem, and that
the Material Obligors are continuing to maintain a credit line
(and stipulating that the amount of that credit line equals or
exceeds the amount of that customer's receivables eligible for
inclusion in the calculation of the Borrowing Base) with that
customer, in which event the portion of the receivables owed
by that customer and outstanding less than 121 days after the
first invoice date may be included in the calculation of the
Borrowing Base up to an aggregate amount of receivables for
all such customers equal to the sum of:
(a) $2,500,000 (or such other amount
acceptable to Borrower and Determining Lenders) for
those customers for whom the delinquent (more than
120 days after first invoicing) amount of receivables
(including Charge-Offs) for each such customer equals
less than 10% of that customer's total accounts
receivable obligations to the Material Obligors
(including Charge-Offs); provided, that the maximum
amount for any customer whose delinquent amount of
receivables (including Charge-Offs) represents
between 3% and 10% of that customer's total accounts
receivable obligations to the Material Obligors
(including Charge-Offs) cannot exceed $500,000; plus
(b) $250,000 for those customers for
whom the delinquent (more than 120 days after first
invoicing) amount of receivables (including
Charge-Offs) for each such customer equals 10% or
more of that customer's total accounts receivable
obligations to the Material Obligors (including
Charge-Offs).
3. Collateral.
a. SECTION 4.2(D) of the Revolving Credit Agreement is
hereby amended by inserting the phrase "(or equivalent interests)"
after the words "capital stock" in the first line thereof, after the
words "such shares" in the second line thereof, and after the words
"such shares" in the fourth line thereof.
b. SECTION 4.2(F) of the Revolving Credit Agreement,
regarding the thirteen platform rigs operating the Gulf of Mexico
pledged by Borrower as security thereunder, is hereby deleted in its
entirety, and Agent hereby agrees to execute and deliver to Borrower
such documentation as may be necessary to terminate and release its
liens on such rigs. The effect of this provision is that such rigs
shall no longer be security under either the Revolving Credit
Agreement or the Term Loan Agreement.
4. Pool Company Debt for Asset Purchases. SECTION 7.11(H) of the
Revolving Credit Agreement and SECTION 7.11(H) of the Term Loan Agreement are
hereby amended in their entirety by deleting the previous maximum amount
described therein and inserting the amount shown in bold and italics below so
that SECTION 7.11(H) reads as follows:
(h) Debt relating to purchases of assets not exceeding
$1,000,000 in the aggregate outstanding at any one time for all of
PESCO and its consolidated Subsidiaries,
5. Pool Company Debt for ADSB Purchase and Credit Card Payment
Guarantees. SECTION 7.11 of the Revolving Credit Agreement and SECTION 7.11 of
the Term Loan Agreement are hereby further amended by revising
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and Pool Company
As of December 20, 1996
Page 3
clause (r), deleting clause (s), deleting the word "and" before clause (t),
redesignating clause (t) as clause (s), and adding a new clause (t), so that
clauses (r) through (t) of such section shall now read in their entirety as
follows:
(r) ADSB letters of credit and guarantees of up to $500,000 (or its
equivalent in other currencies) in the aggregate, (s) payroll transfer
guarantees of up to $400,000 by ISDL to allow for Rig 489 employees to
be paid by ISDL, and (t) a guaranty or guarantees by Borrower of up to
an aggregate of $14,100,000 in connection with the ADSB purchase,
pursuant to that certain $23,500,000 Loan Agreement, as amended,
between Antah Drilling Sdn. Bhd. and The Hongkong and Shanghai
Banking Corporation Limited (Offshore Banking Unit, Labuan) and that
certain $4,000,000 Loan Agreement, as amended, between Antah Drilling
Sdn. Bhd. and The Hongkong and Shanghai Banking Corporation Limited
(Offshore Banking Unit, Labuan), and (v) obligations of and guarantees
by the Borrower and/or its Subsidiaries under credit card purchasing
arrangements with respect to possible refunds of monies received by
the Borrower and/or its Subsidiaries.
6. Loans, Advances and Investments to Consolidated Subsidiaries.
SECTION 7.16(A) of the Revolving Credit Agreement and SECTION 7.16(A) of the
Term Loan Agreement are hereby amended by deleting the previous maximum amount
described therein, and inserting the amount shown in bold and italics below so
that such SECTION 7.16(A) reads as follows:
(a) advances to or investments in any of PESCO's consolidated
Subsidiaries, provided that such advances and investments made after
July 1, 1993, by the Material Obligors to or in Companies that are not
Material Obligors may not in the aggregate for all such Companies at
any time outstanding exceed $7,500,000;
7. Loans, Advances, and Investments to Unconsolidated
Subsidiaries and Joint Ventures. SECTION 7.16(B) of the Revolving Credit
Agreement and SECTION 7.16(B) of the Term Loan Agreement are hereby amended by
deleting the previous maximum amount described therein, and inserting the
amount shown in bold and italics below so that such SECTION 7.16(B) reads as
follows:
(b) advances or investments by Material Obligors to or in PESCO's
unconsolidated Subsidiaries and its or their Joint Ventures which are
not Companies which do not in the aggregate at any time outstanding
exceed $7,500,000, provided that such advances and investments shall
for purposes of this clause be deemed to be capital expenditures and
may not in the aggregate for all such entities exceed 40% of the
amount of capital expenditures permitted under SECTION 7.13;
8. Issuing Lender. SECTION 10.3 of the Revolving Credit
Agreement is hereby amended by revising the definition of "Issuing Lender" to
read in its entirety as follows:
ISSUING LENDER means, for any LC, NationsBank of Texas, N.A.,
or any other Lender selected by Borrower and approved in writing by
Agent (which approval may not be unreasonably withheld).
9. Termination Date. SECTION 10.3 of the Revolving Credit
Agreement is hereby further amended by revising the definition of "Termination
Date" to read in its entirety as follows:
TERMINATION DATE means 12:00 Noon on the earlier of either (a)
April 1, 1999, or (b) the date Lenders' Commitments are terminated in
accordance with this Agreement.
10. Material Obligors and Obligors. SECTION 10.3 of the Revolving
Credit Agreement and SECTION 10.3 of the Term Loan Agreement are hereby further
amended by revising the definitions of "Material Obligors" and "Obligors" to
read in their entirety as follows:
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and Pool Company
As of December 20, 1996
Page 4
MATERIAL OBLIGORS means PESCO, PESCO Subsidiary, Borrower,
Pool Alaska, PTX, Inc., Pool Houston #1, Inc., Pool Houston Ltd., Pool
Texas Ltd., PCNV, Inc., Associated Petroleum Services, Inc., Pool
Production Services, Inc., PCESI and Big 10.
OBLIGORS means PESCO, PESCO Subsidiary, Borrower and
Borrower's present and future consolidated Subsidiaries which are
incorporated within the United States (including, without limitation,
Pool Texas Ltd. and Pool Houston Ltd.)
11. Other Definitions. For purposes of this Amendment, Pool
Company Houston Ltd. is referred to as "POOL HOUSTON LTD." and Pool Company
Texas Ltd. is referred to as "POOL TEXAS LTD." SECTION 10.3 of the Revolving
Credit Agreement and SECTION 10.3 of the Term Loan Agreement are hereby amended
by adding the following definitions:
POOL HOUSTON LTD. means Pool Company Houston Ltd., a Texas
limited partnership, of which Borrower is the 1% general partner and
PCNV, Inc., a Nevada corporation and a wholly-owned subsidiary of
Borrower, is the 99% limited partner.
POOL TEXAS LTD. means Pool Company Texas Ltd., a Texas limited
partnership, of which Borrower is the 1% general partner and PCNV,
Inc., a Nevada corporation and a wholly-owned subsidiary of Borrower,
is the 99% limited partner.
12. PTX, Inc. The name of Pool Company (Texas) Inc. has been
changed to PTX, Inc. Accordingly, all references in any of the Loan Papers
described in the Revolving Credit Agreement and the Term Loan Agreement to
"Pool Company (Texas) Inc." and the defined term "Pool Texas" are hereby
amended to refer to "PTX, Inc."
13. Schedules. SCHEDULES 1(A), 5.1 and 5.2 of the Revolving
Credit Agreement and SCHEDULES 1, 5.1 and 5.2 of the Term Loan Agreement are
hereby amended in their entirety, and replaced by the new SCHEDULES 1 5.1 and
5.2, in the form attached hereto. All references to "Schedule 1(a)" or
"Schedule 1(b)" in the Revolving Credit Agreement are hereby amended to refer
to "Schedule 1."
14. Additional Lenders and Assignments. On the effective date of
this Amendment, the Revolving Credit Agreement, the Term Loan Agreement and the
ISDL Agreement (for purposes of this paragraph, collectively, the AGREEMENTS"),
are each hereby amended to add Bank One, Texas, N.A., and The Hongkong and
Shanghai Banking Corporation Ltd. (collectively, the "NEW LENDERS") as Lenders
thereunder, whose addresses for purposes of SECTION 12.3 of each Agreement
shall be as set forth on the SCHEDULE 1 attached to this Amendment.
Accordingly, NationsBank of Texas, N.A., National Bank of Canada, and National
Bank of Alaska (collectively, the "EXISTING LENDERS") hereby sell, assign,
transfer and convey, and the New Lenders hereby purchase and accept so much of
the indebtedness and all of the rights, titles, benefits, interests,
privileges, claims, liens, security interests, and obligations existing and to
exist under the Agreements such that each Lender's Commitment Percentage of the
outstanding Commitments under the Agreements, as amended by this Amendment
shall be as set forth on SCHEDULE 1 to the Revolving Credit Agreement (attached
hereto), with respect to the Revolving Credit Agreement, and EXHIBIT A to this
Amendment, with respect to the Term Loan Agreement and the ISDL Agreement. The
foregoing assignment, transfer and conveyance is made pursuant to SECTION 12.14
of each of the Agreements, and the terms and conditions of the assignment
agreement attached as Exhibit E to the Revolving Credit Agreement, Exhibit D to
the Term Loan Agreement and Exhibit D to the ISDL Agreement are hereby
incorporated by reference and made a part of this assignment by the Existing
Lenders, as Assignors, to the New Lenders, as Assignees. The requirements of
SECTION 12.14 of each of the Agreements that an assignment agreement be
delivered to Agent and that a fee be paid to Agent in connection with the
assignment are hereby waived, and the transfers and assignments shall be deemed
to be consummated upon the effective date of this Amendment.
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and Pool Company
As of December 20, 1996
Page 5
15. Conditions. This instrument shall not be effective until it
has been duly executed and delivered by all parties named below, and Agent has
received from Borrower any documentation that Agent may reasonably request
related hereto, including, without limitation, the following:
(a) A Guaranty from PCNV, Inc., Pool Texas Ltd. and Pool
Houston Ltd. in accordance with SECTIONS 4.2 and 7.29(A) of the
Revolving Credit Agreement and SECTION 7.28(A) of the Term Loan
Agreement.
(b) A Security Agreement (together with corresponding
Financing Statements) from PCNV, Inc., Pool Texas Ltd. and Pool
Houston Ltd. in accordance with SECTIONS 4.2 and 7.29(A) of the
Revolving Credit Agreement and SECTION 7.28(A) of the Term Loan
Agreement.
(c) Stock certificates and stock powers with respect to
the stock of PCNV, Inc., and replacement stock certificates and stock
powers with respect to the stock of PTX, Inc. and Pool Houston #1,
Inc.
(d) Pledge of partnership interests from Borrower and
PCNV, Inc. with respect to Pool Houston Ltd. and Pool Texas Ltd.
(e) New Notes payable to each Lender, reflecting the
assignments made pursuant to paragraph 14 above.
(f) With respect to PCNV, Inc., an Officer's Certificate
covering incumbency, authorizing resolutions, articles of
incorporation, bylaws and certificate of existence.
(g) With respect to Pool Texas Ltd. and Pool Houston
Ltd., certified consent of partners or other evidence satisfactory to
Agent that all necessary partnership action on the part of such
entities has been taken, together with copies of organizational
documents and certificates of existence.
(h) With respect to PTX, Inc. and Pool Houston #1, Inc.,
evidence of name changes, and UCC-3 Financing Statement amendments
with respect to such name changes.
(i) An amendment fee, payable to Agent for the ratable
account of the Lenders, is hereby waived.
16. Dissolution of Immaterial Subsidiaries. Agent and Lenders
hereby consent to the dissolution of Pool Horizontal Drilling Services Co.,
Pool Houston #1, Inc., and ENS Equipment Leasing B.V.
17. Representations and Warranties. ISDL and Pool Company each
represents and warrants that it possesses all requisite power and authority to
execute, deliver and comply with the terms of this instrument, which has been
duly authorized and approved by all necessary corporate action and for which no
consent of any person is required, and agrees to furnish Agent with evidence of
such authorization and approval upon request.
18. Fees and Expenses. Pool Company agrees to pay the reasonable
fees and expenses of counsel to Agent for services rendered in connection with
the preparation, negotiation and execution of this instrument.
19. Loan Paper; Effect. This instrument is a Loan Paper and,
therefore, is subject to the applicable provisions of SECTION 12 of the ISDL
Agreement, SECTION 12 of the Revolving Credit Agreement and SECTION 12 of the
Term Loan Agreement, all of which are incorporated herein by reference the same
as if set forth herein verbatim. Except as amended in this instrument, the
Loan Papers are and shall be unchanged and shall remain in full force and
effect. In the event of any inconsistency between the terms of the ISDL
Agreement, the Revolving Credit Agreement and the Term Loan Agreement as hereby
modified (the "AMENDED AGREEMENTS") and any other Loan Papers, the terms of the
Amended Agreements shall
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International Sea Drilling Ltd.
and Pool Company
As of December 20, 1996
Page 6
control and such other document shall be deemed to be amended hereby to conform
to the terms of the Amended Agreements. ISDL and Pool Company each hereby
releases Agent and Lenders from any liability for actions or failures to act in
connection with the Loan Papers prior to the date hereof.
20. No Waiver of Defaults. This instrument does not constitute a
waiver of Lenders' right to insist upon future compliance with each term,
covenant, condition and provision of the Loan Papers, and the Loan Papers shall
continue to be binding upon, and inure to the benefit of, ISDL, Pool Company,
Guarantors, Lenders, Agent, and their respective successors and assigns.
21. Multiple Counterparts. This instrument may be executed in
more than one counterpart, each of which shall be deemed an original, but all
of which when taken together shall constitute one instrument.
22. Final Agreement. THE LOAN PAPERS, AS AMENDED HEREBY,
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
If the foregoing terms and conditions are acceptable, please indicate
your acceptance by signing in the space provided below, whereupon this letter
shall become an agreement binding upon and inuring to the benefit of Agent,
Lenders, ISDL and Pool Company and their respective successors and assigns.
Very truly yours,
NATIONSBANK OF TEXAS, N.A., NATIONAL BANK OF CANADA,
as Agent and a Lender as a Lender
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXX
----------------------------- ------------------------------
Xxxxx X. Xxxxxx Xxxxxxx X. Xxxxx
Senior Vice President Vice President
NATIONAL BANK OF ALASKA, By: /s/ XXXX X. XXXXX
as a Lender ------------------------------
Name: Xxxx X. Xxxxx
-----------------------------
Title: Vice President
----------------------------
By: /s/ XXXXXXXX XXXXXX BENZ
-----------------------------
Xxxxxxxx Xxxxxx Benz
Vice President
THE HONGKONG AND SHANGHAI
BANK ONE, TEXAS, N.A., BANKING CORPORATION LTD.,
as a Lender as a Lender
By: /s/ XXXXX X. XXXXXX III By: /s/ XXXXXXXXXXX X. XXXXX
-------------------------------- ------------------------------
Name: Xxxxx X. Xxxxxx III Name: Xxxxxxxxxxx X. Xxxxx
------------------------------ ----------------------------
Title: Vice President Title: Vice President
----------------------------- ---------------------------
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and Pool Company
As of December 20, 1996
Page 7
Accepted and agreed to as of the day and year first set forth in the
foregoing letter.
INTERNATIONAL SEA DRILLING LTD.
POOL COMPANY
By: /s/ X. X. XXXXXXXXXX
----------------------------------
X. X. Xxxxxxxxxx
President of each of the above
Borrowers
By: /s/ X.X. XXXXXXXXX
----------------------------------
X. X. Xxxxxxxxx
Treasurer of each of the above
Borrowers
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and Pool Company
As of December 20, 1996
Page 8
GUARANTORS' CONSENT AND AGREEMENT
As an inducement to Agent and Lenders to execute, and in consideration
of Agent's and Lenders' execution of the foregoing, the undersigned hereby
consent thereto and agree that the same shall in no way release, diminish,
impair, reduce or otherwise adversely affect the respective obligations and
liabilities of each of the undersigned under the Guaranty described in the
Revolving Credit Agreement (and, in the case of Pool Energy Services Co., Pool
Energy Holding, Inc., and Pool Company, the Guaranty described in the ISDL
Agreement) executed by the undersigned, or any agreements, documents or
instruments executed by any of the undersigned to create liens, security
interests or charges to secure any of the indebtedness under the Loan Papers
(as described in the Revolving Credit Agreement, the Term Loan Agreement or the
ISDL Agreement), all of which obligations and liabilities are, and shall
continue to be, in full force and effect. This consent and agreement shall be
binding upon the undersigned, and the respective successors and assigns of
each, and shall inure to the benefit of Agent and Lenders, and respective
successors and assigns of each.
ASSOCIATED PETROLEUM SERVICES, INC. POOL COMPANY HOUSTON LTD.
BIG 10 FISHING TOOL COMPANY, INC. POOL COMPANY TEXAS LTD.
PCNV, INC.
POOL ALASKA, INC. By: POOL COMPANY, General Partner of
POOL AMERICAS, INC. each of the above Obligors
POOL-AUSTRALIA, INC.
POOL CALIFORNIA ENERGY SERVICES, INC.
POOL COMPANY By: /s/ X. X. XXXXXXXXXX
POOL ENERGY HOLDING, INC. -------------------------
POOL ENERGY SERVICES CO. X. X. Xxxxxxxxxx
POOL INTERNATIONAL, INC. President
POOL PRODUCTION SERVICES, INC.
PTX, INC.
THE INTERNATIONAL AIR DRILLING
COMPANY By: /s/ X. X. XXXXXXXXX
WESTEX PRODUCTION SERVICE, INC. --------------------------
X. X. Xxxxxxxxx
Treasurer
By: /s/ X. X. XXXXXXXXXX
-------------------------------------------
X. X. Xxxxxxxxxx
President of each of the above Obligors
By: /s/ X. X. XXXXXXXXX
-------------------------------------------
X. X. Xxxxxxxxx
Treasurer of each of the above Obligors
9
EXHIBIT A
Pool Company Term Loan ISDL Term Loan
Lenders and Commitment Percentage Committed Amount Committed Amount
--------------------------------- ---------------------- ----------------
NationsBank of Texas, N.A. [30%] $1,575,000 $1,450,739
National Bank of Canada [27.5%] $1,443,750 $1,329,844
National Bank of Alaska [14.5%] $ 761,250 $ 701,191
Bank One, Texas, N.A. [14%] $ 735,000 $ 677,012
The Hongkong and Shanghai Banking
Corporation Ltd. [14%] $ 735,000 $ 677,012
Total Outstanding as of December 20, 1996: $5,250,000 $4,835,798
10
REVOLVING CREDIT NOTE
$12,000,000 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, POOL COMPANY, a Texas corporation ("MAKER"),
hereby promises to pay to the order of NATIONSBANK OF TEXAS, N.A., a national
banking association ("PAYEE"), the principal amount of $12,000,000 or so much
thereof as may be disbursed and outstanding hereunder, together with interest,
as hereinafter described.
This promissory note has been executed and delivered under, and is
subject to the terms of, the $40,000,000 Restated Revolving Credit Agreement
(as amended, the "CREDIT AGREEMENT") dated as of November 30, 1995, among
Maker, NationsBank of Texas, N.A., as Agent, and Payee and the other Lenders
referred to therein, and is a "Note" referred to therein. Unless defined
herein or the context otherwise requires, capitalized terms used herein have
the meaning given to such terms in the Credit Agreement. Reference is made to
the Credit Agreement for provisions affecting this promissory note regarding
the place of payment, applicable interest rates, principal and interest payment
dates, final maturity, voluntary and mandatory prepayments, acceleration of
maturity, exercise of Rights, payment of attorneys' fees, court costs, and
other costs of collection, certain waivers by Maker and others now or hereafter
obligated for payment of any sums due hereunder, and security for the payment
hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Credit Agreement in
replacement for, but not as a novation of, those certain promissory notes of
Maker dated December 29, 1995, which were issued under the Credit Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
POOL COMPANY
By:/s/X. X. XXXXXXXXXX
---------------------------
X. X. Xxxxxxxxxx
President
By:/s/X. X. XXXXXXXXX
---------------------------
X.X. Xxxxxxxxx
Treasurer
11
REVOLVING CREDIT NOTE
$11,000,000 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, POOL COMPANY, a Texas corporation ("MAKER"),
hereby promises to pay to the order of NATIONAL BANK OF CANADA ("PAYEE"), the
principal amount of $11,000,000 or so much thereof as may be disbursed and
outstanding hereunder, together with interest, as hereinafter described.
This promissory note has been executed and delivered under, and is
subject to the terms of, the $40,000,000 Restated Revolving Credit Agreement
(as amended, the "CREDIT AGREEMENT") dated as of November 30, 1995, among
Maker, NationsBank of Texas, N.A., as Agent, and Payee and the other Lenders
referred to therein, and is a "Note" referred to therein. Unless defined
herein or the context otherwise requires, capitalized terms used herein have
the meaning given to such terms in the Credit Agreement. Reference is made to
the Credit Agreement for provisions affecting this promissory note regarding
the place of payment, applicable interest rates, principal and interest payment
dates, final maturity, voluntary and mandatory prepayments, acceleration of
maturity, exercise of Rights, payment of attorneys' fees, court costs, and
other costs of collection, certain waivers by Maker and others now or hereafter
obligated for payment of any sums due hereunder, and security for the payment
hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Credit Agreement in
replacement for, but not as a novation of, those certain promissory notes of
Maker dated December 29, 1995, which were issued under the Credit Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
POOL COMPANY
By:/s/X. X. XXXXXXXXXX
---------------------------
X. X. Xxxxxxxxxx
President
By:/s/X. X. XXXXXXXXX
---------------------------
X.X. Xxxxxxxxx
Treasurer
12
REVOLVING CREDIT NOTE
$5,800,000 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, POOL COMPANY, a Texas corporation ("MAKER"),
hereby promises to pay to the order of NATIONAL BANK OF ALASKA ("PAYEE"), the
principal amount of $5,800,000 or so much thereof as may be disbursed and
outstanding hereunder, together with interest, as hereinafter described.
This promissory note has been executed and delivered under, and is
subject to the terms of, the $40,000,000 Restated Revolving Credit Agreement
(as amended, the "CREDIT AGREEMENT") dated as of November 30, 1995, among
Maker, NationsBank of Texas, N.A., as Agent, and Payee and the other Lenders
referred to therein, and is a "Note" referred to therein. Unless defined
herein or the context otherwise requires, capitalized terms used herein have
the meaning given to such terms in the Credit Agreement. Reference is made to
the Credit Agreement for provisions affecting this promissory note regarding
the place of payment, applicable interest rates, principal and interest payment
dates, final maturity, voluntary and mandatory prepayments, acceleration of
maturity, exercise of Rights, payment of attorneys' fees, court costs, and
other costs of collection, certain waivers by Maker and others now or hereafter
obligated for payment of any sums due hereunder, and security for the payment
hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Credit Agreement in
replacement for, but not as a novation of, those certain promissory notes of
Maker dated December 29, 1995, which were issued under the Credit Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
POOL COMPANY
By:/s/X. X. XXXXXXXXXX
---------------------------
X. X. Xxxxxxxxxx
President
By:/s/X. X. XXXXXXXXX
---------------------------
X.X. Xxxxxxxxx
Treasurer
13
REVOLVING CREDIT NOTE
$5,600,000 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, POOL COMPANY, a Texas corporation ("MAKER"),
hereby promises to pay to the order of BANK ONE, TEXAS, N.A. ("PAYEE"), the
principal amount of $5,600,000 or so much thereof as may be disbursed and
outstanding hereunder, together with interest, as hereinafter described.
This promissory note has been executed and delivered under, and is
subject to the terms of, the $40,000,000 Restated Revolving Credit Agreement
(as amended, the "CREDIT AGREEMENT") dated as of November 30, 1995, among
Maker, NationsBank of Texas, N.A., as Agent, and Payee and the other Lenders
referred to therein, and is a "Note" referred to therein. Unless defined
herein or the context otherwise requires, capitalized terms used herein have
the meaning given to such terms in the Credit Agreement. Reference is made to
the Credit Agreement for provisions affecting this promissory note regarding
the place of payment, applicable interest rates, principal and interest payment
dates, final maturity, voluntary and mandatory prepayments, acceleration of
maturity, exercise of Rights, payment of attorneys' fees, court costs, and
other costs of collection, certain waivers by Maker and others now or hereafter
obligated for payment of any sums due hereunder, and security for the payment
hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Credit Agreement in
replacement for, but not as a novation of, those certain promissory notes of
Maker dated December 29, 1995, which were issued under the Credit Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
POOL COMPANY
By:/s/X. X. XXXXXXXXXX
---------------------------
X. X. Xxxxxxxxxx
President
By:/s/X. X. XXXXXXXXX
---------------------------
X.X. Xxxxxxxxx
Treasurer
14
REVOLVING CREDIT NOTE
$5,600,000 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, POOL COMPANY, a Texas corporation ("MAKER"),
hereby promises to pay to the order of THE HONGKONG AND SHANGHAI BANKING
CORPORATION LTD. ("PAYEE"), the principal amount of $5,600,000 or so much
thereof as may be disbursed and outstanding hereunder, together with interest,
as hereinafter described.
This promissory note has been executed and delivered under, and is
subject to the terms of, the $40,000,000 Restated Revolving Credit Agreement
(as amended, the "CREDIT AGREEMENT") dated as of November 30, 1995, among
Maker, NationsBank of Texas, N.A., as Agent, and Payee and the other Lenders
referred to therein, and is a "Note" referred to therein. Unless defined
herein or the context otherwise requires, capitalized terms used herein have
the meaning given to such terms in the Credit Agreement. Reference is made to
the Credit Agreement for provisions affecting this promissory note regarding
the place of payment, applicable interest rates, principal and interest payment
dates, final maturity, voluntary and mandatory prepayments, acceleration of
maturity, exercise of Rights, payment of attorneys' fees, court costs, and
other costs of collection, certain waivers by Maker and others now or hereafter
obligated for payment of any sums due hereunder, and security for the payment
hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Credit Agreement in
replacement for, but not as a novation of, those certain promissory notes of
Maker dated December 29, 1995, which were issued under the Credit Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
POOL COMPANY
By:/s/X. X. XXXXXXXXXX
---------------------------
X. X. Xxxxxxxxxx
President
By:/s/X. X. XXXXXXXXX
---------------------------
X.X. Xxxxxxxxx
Treasurer
15
PROMISSORY NOTE
$1,575,000 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, POOL COMPANY, a Texas corporation ("MAKER"),
hereby promises to pay to the order of NATIONSBANK OF TEXAS, N.A., a national
banking association ("PAYEE"), the principal amount of $1,575,000 together with
interest, as hereinafter described.
This promissory note has been executed and delivered under, and is
subject to the terms of, the $10,000,000 Restated Term Loan Agreement (as
amended, the "LOAN AGREEMENT") dated as of November 30, 1995, among Maker,
NationsBank of Texas, N.A., as Agent, and Payee and the other Lenders referred
to therein, and is a "Note" referred to therein. Unless defined herein or the
context otherwise requires, capitalized terms used herein have the meaning
given to such terms in the Loan Agreement. Reference is made to the Loan
Agreement for provisions affecting this promissory note regarding the place of
payment, applicable interest rates, principal and interest payment dates, final
maturity, voluntary prepayments, acceleration of maturity, exercise of Rights,
payment of attorneys' fees, court costs, and other costs of collection, certain
waivers by Maker and others now or hereafter obligated for payment of any sums
due hereunder, and security for the payment hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Loan Agreement in replacement
for, but not as a novation of, those certain promissory notes of Maker dated
December 29, 1995 which were issued under the Loan Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
POOL COMPANY
By: /s/ X. X. XXXXXXXXXX
------------------------------------
X. X. Xxxxxxxxxx
President
By: /s/ X. X. XXXXXXXXX
------------------------------------
X.X. Xxxxxxxxx
Treasurer
16
PROMISSORY NOTE
$1,443,750 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, POOL COMPANY, a Texas corporation ("MAKER"),
hereby promises to pay to the order of NATIONAL BANK OF CANADA ("PAYEE"), the
principal amount of $1,443,750 together with interest, as hereinafter
described.
This promissory note has been executed and delivered under, and is
subject to the terms of, the $10,000,000 Restated Term Loan Agreement (as
amended, the "LOAN AGREEMENT") dated as of November 30, 1995, among Maker,
NationsBank of Texas, N.A., as Agent, and Payee and the other Lenders referred
to therein, and is a "Note" referred to therein. Unless defined herein or the
context otherwise requires, capitalized terms used herein have the meaning
given to such terms in the Loan Agreement. Reference is made to the Loan
Agreement for provisions affecting this promissory note regarding the place of
payment, applicable interest rates, principal and interest payment dates, final
maturity, voluntary prepayments, acceleration of maturity, exercise of Rights,
payment of attorneys' fees, court costs, and other costs of collection, certain
waivers by Maker and others now or hereafter obligated for payment of any sums
due hereunder, and security for the payment hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Loan Agreement in replacement
for, but not as a novation of, those certain promissory notes of Maker dated
December 29, 1995 which were issued under the Loan Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
POOL COMPANY
By: /s/ X. X. XXXXXXXXXX
------------------------------------
X. X. Xxxxxxxxxx
President
By: /s/ X. X. XXXXXXXXX
------------------------------------
X.X. Xxxxxxxxx
Treasurer
17
PROMISSORY NOTE
$761,250 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, POOL COMPANY, a Texas corporation ("MAKER"),
hereby promises to pay to the order of NATIONAL BANK OF ALASKA ("PAYEE"), the
principal amount of $761,250 together with interest, as hereinafter described.
This promissory note has been executed and delivered under, and is
subject to the terms of, the $10,000,000 Restated Term Loan Agreement (as
amended, the "LOAN AGREEMENT") dated as of November 30, 1995, among Maker,
NationsBank of Texas, N.A., as Agent, and Payee and the other Lenders referred
to therein, and is a "Note" referred to therein. Unless defined herein or the
context otherwise requires, capitalized terms used herein have the meaning
given to such terms in the Loan Agreement. Reference is made to the Loan
Agreement for provisions affecting this promissory note regarding the place of
payment, applicable interest rates, principal and interest payment dates, final
maturity, voluntary prepayments, acceleration of maturity, exercise of Rights,
payment of attorneys' fees, court costs, and other costs of collection, certain
waivers by Maker and others now or hereafter obligated for payment of any sums
due hereunder, and security for the payment hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Loan Agreement in replacement
for, but not as a novation of, those certain promissory notes of Maker dated
December 29, 1995 which were issued under the Loan Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
POOL COMPANY
By: /s/ X. X. XXXXXXXXXX
------------------------------------
X. X. Xxxxxxxxxx
President
By: /s/ X. X. XXXXXXXXX
------------------------------------
X.X. Xxxxxxxxx
Treasurer
18
PROMISSORY NOTE
$735,000 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, POOL COMPANY, a Texas corporation ("MAKER"),
hereby promises to pay to the order of BANK ONE, TEXAS, N.A. ("PAYEE"), the
principal amount of $735,000 together with interest, as hereinafter described.
This promissory note has been executed and delivered under, and is
subject to the terms of, the $10,000,000 Restated Term Loan Agreement (as
amended, the "LOAN AGREEMENT") dated as of November 30, 1995, among Maker,
NationsBank of Texas, N.A., as Agent, and Payee and the other Lenders referred
to therein, and is a "Note" referred to therein. Unless defined herein or the
context otherwise requires, capitalized terms used herein have the meaning
given to such terms in the Loan Agreement. Reference is made to the Loan
Agreement for provisions affecting this promissory note regarding the place of
payment, applicable interest rates, principal and interest payment dates, final
maturity, voluntary prepayments, acceleration of maturity, exercise of Rights,
payment of attorneys' fees, court costs, and other costs of collection, certain
waivers by Maker and others now or hereafter obligated for payment of any sums
due hereunder, and security for the payment hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Loan Agreement in replacement
for, but not as a novation of, those certain promissory notes of Maker dated
December 29, 1995 which were issued under the Loan Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
POOL COMPANY
By: /s/ X. X. XXXXXXXXXX
------------------------------------
X. X. Xxxxxxxxxx
President
By: /s/ X. X. XXXXXXXXX
------------------------------------
X.X. Xxxxxxxxx
Treasurer
19
PROMISSORY NOTE
$735,000 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, POOL COMPANY, a Texas corporation ("MAKER"),
hereby promises to pay to the order of THE HONGKONG AND SHANGHAI BANKING
CORPORATION LTD. ("PAYEE"), the principal amount of $735,000 together with
interest, as hereinafter described.
This promissory note has been executed and delivered under, and is
subject to the terms of, the $10,000,000 Restated Term Loan Agreement (as
amended, the "LOAN AGREEMENT") dated as of November 30, 1995, among Maker,
NationsBank of Texas, N.A., as Agent, and Payee and the other Lenders referred
to therein, and is a "Note" referred to therein. Unless defined herein or the
context otherwise requires, capitalized terms used herein have the meaning
given to such terms in the Loan Agreement. Reference is made to the Loan
Agreement for provisions affecting this promissory note regarding the place of
payment, applicable interest rates, principal and interest payment dates, final
maturity, voluntary prepayments, acceleration of maturity, exercise of Rights,
payment of attorneys' fees, court costs, and other costs of collection, certain
waivers by Maker and others now or hereafter obligated for payment of any sums
due hereunder, and security for the payment hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Loan Agreement in replacement
for, but not as a novation of, those certain promissory notes of Maker dated
December 29, 1995 which were issued under the Loan Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
POOL COMPANY
By: /s/ X. X. XXXXXXXXXX
------------------------------------
X. X. Xxxxxxxxxx
President
By: /s/ X. X. XXXXXXXXX
------------------------------------
X.X. Xxxxxxxxx
Treasurer
20
PROMISSORY NOTE
$1,450,739 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, INTERNATIONAL SEA DRILLING LTD., a Cayman Islands
corporation ("MAKER"), hereby promises to pay to the order of NATIONSBANK OF
TEXAS, N.A., a national banking association ("PAYEE") the principal amount of
$1,450,739 together with interest, as hereinafter described.
This note has been executed and delivered under, and is subject to the
terms of, the $6,500,000 Term Loan Agreement (as amended, the "LOAN AGREEMENT")
dated as of November 30, 1995, among Maker, NationsBank of Texas, N.A., as
Agent, and Payee and the other Lenders referred to therein, and is a "Note"
referred to therein. Unless defined herein or the context otherwise requires,
capitalized terms used herein have the meaning given to such terms in the Loan
Agreement. Reference is made to the Loan Agreement for provisions affecting
this note regarding the place of payment, applicable interest rates, principal
and interest payment dates, final maturity, voluntary prepayments, acceleration
of maturity, exercise of Rights, payment of attorneys' fees, court costs, and
other costs of collection, certain waivers by Maker and others now or hereafter
obligated for payment of any sums due hereunder, and security for the payment
hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Loan Agreement in replacement
for, but not as a novation of, those certain promissory notes of Maker dated
December 29, 1995, which were issued under the Loan Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
INTERNATIONAL SEA DRILLING LTD.
By: /s/ X. X. XXXXXXXXXX
-----------------------------------
X. X. Xxxxxxxxxx
President
By: /s/ X. X. XXXXXXXXX
-----------------------------------
X. X. Xxxxxxxxx
Treasurer
21
PROMISSORY NOTE
$1,329,844 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, INTERNATIONAL SEA DRILLING LTD., a Cayman Islands
corporation ("MAKER"), hereby promises to pay to the order of NATIONAL BANK OF
CANADA ("PAYEE") the principal amount of $1,329,844 together with interest, as
hereinafter described.
This note has been executed and delivered under, and is subject to the
terms of, the $6,500,000 Term Loan Agreement (as amended, the "LOAN AGREEMENT")
dated as of November 30, 1995, among Maker, NationsBank of Texas, N.A., as
Agent, and Payee and the other Lenders referred to therein, and is a "Note"
referred to therein. Unless defined herein or the context otherwise requires,
capitalized terms used herein have the meaning given to such terms in the Loan
Agreement. Reference is made to the Loan Agreement for provisions affecting
this note regarding the place of payment, applicable interest rates, principal
and interest payment dates, final maturity, voluntary prepayments, acceleration
of maturity, exercise of Rights, payment of attorneys' fees, court costs, and
other costs of collection, certain waivers by Maker and others now or hereafter
obligated for payment of any sums due hereunder, and security for the payment
hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Loan Agreement in replacement
for, but not as a novation of, those certain promissory notes of Maker dated
December 29, 1995, which were issued under the Loan Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
INTERNATIONAL SEA DRILLING LTD.
By: /s/ X. X. XXXXXXXXXX
-----------------------------------
X. X. Xxxxxxxxxx
President
By: /s/ X. X. XXXXXXXXX
-----------------------------------
X. X. Xxxxxxxxx
Treasurer
22
PROMISSORY NOTE
$701,191 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, INTERNATIONAL SEA DRILLING LTD., a Cayman Islands
corporation ("MAKER"), hereby promises to pay to the order of NATIONAL BANK OF
ALASKA ("PAYEE") the principal amount of $701,191 together with interest, as
hereinafter described.
This note has been executed and delivered under, and is subject to the
terms of, the $6,500,000 Term Loan Agreement (as amended, the "LOAN AGREEMENT")
dated as of November 30, 1995, among Maker, NationsBank of Texas, N.A., as
Agent, and Payee and the other Lenders referred to therein, and is a "Note"
referred to therein. Unless defined herein or the context otherwise requires,
capitalized terms used herein have the meaning given to such terms in the Loan
Agreement. Reference is made to the Loan Agreement for provisions affecting
this note regarding the place of payment, applicable interest rates, principal
and interest payment dates, final maturity, voluntary prepayments, acceleration
of maturity, exercise of Rights, payment of attorneys' fees, court costs, and
other costs of collection, certain waivers by Maker and others now or hereafter
obligated for payment of any sums due hereunder, and security for the payment
hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Loan Agreement in replacement
for, but not as a novation of, those certain promissory notes of Maker dated
December 29, 1995, which were issued under the Loan Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
INTERNATIONAL SEA DRILLING LTD.
By: /s/ X. X. XXXXXXXXXX
-----------------------------------
X. X. Xxxxxxxxxx
President
By: /s/ X. X. XXXXXXXXX
-----------------------------------
X. X. Xxxxxxxxx
Treasurer
23
PROMISSORY NOTE
$677,012 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, INTERNATIONAL SEA DRILLING LTD., a Cayman Islands
corporation ("MAKER"), hereby promises to pay to the order of BANK ONE, TEXAS,
N.A. ("PAYEE") the principal amount of $677,012 together with interest, as
hereinafter described.
This note has been executed and delivered under, and is subject to the
terms of, the $6,500,000 Term Loan Agreement (as amended, the "LOAN AGREEMENT")
dated as of November 30, 1995, among Maker, NationsBank of Texas, N.A., as
Agent, and Payee and the other Lenders referred to therein, and is a "Note"
referred to therein. Unless defined herein or the context otherwise requires,
capitalized terms used herein have the meaning given to such terms in the Loan
Agreement. Reference is made to the Loan Agreement for provisions affecting
this note regarding the place of payment, applicable interest rates, principal
and interest payment dates, final maturity, voluntary prepayments, acceleration
of maturity, exercise of Rights, payment of attorneys' fees, court costs, and
other costs of collection, certain waivers by Maker and others now or hereafter
obligated for payment of any sums due hereunder, and security for the payment
hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Loan Agreement in replacement
for, but not as a novation of, those certain promissory notes of Maker dated
December 29, 1995, which were issued under the Loan Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
INTERNATIONAL SEA DRILLING LTD.
By: /s/ X. X. XXXXXXXXXX
-----------------------------------
X. X. Xxxxxxxxxx
President
By: /s/ X. X. XXXXXXXXX
-----------------------------------
X. X. Xxxxxxxxx
Treasurer
24
PROMISSORY NOTE
$677,012 Houston, Texas December 20, 1996
FOR VALUE RECEIVED, INTERNATIONAL SEA DRILLING LTD., a Cayman Islands
corporation ("MAKER"), hereby promises to pay to the order of THE HONGKONG AND
SHANGHAI BANKING CORPORATION LTD. ("PAYEE") the principal amount of $677,012
together with interest, as hereinafter described.
This note has been executed and delivered under, and is subject to the
terms of, the $6,500,000 Term Loan Agreement (as amended, the "LOAN AGREEMENT")
dated as of November 30, 1995, among Maker, NationsBank of Texas, N.A., as
Agent, and Payee and the other Lenders referred to therein, and is a "Note"
referred to therein. Unless defined herein or the context otherwise requires,
capitalized terms used herein have the meaning given to such terms in the Loan
Agreement. Reference is made to the Loan Agreement for provisions affecting
this note regarding the place of payment, applicable interest rates, principal
and interest payment dates, final maturity, voluntary prepayments, acceleration
of maturity, exercise of Rights, payment of attorneys' fees, court costs, and
other costs of collection, certain waivers by Maker and others now or hereafter
obligated for payment of any sums due hereunder, and security for the payment
hereof.
This promissory note and the similar promissory notes of Maker dated
of even date herewith have been issued under the Loan Agreement in replacement
for, but not as a novation of, those certain promissory notes of Maker dated
December 29, 1995, which were issued under the Loan Agreement.
This promissory note is being executed and delivered, and is intended
to be performed, in the State of Texas, and the Laws of such State and of the
United States of America shall govern the rights and duties of the parties and
the validity, construction, enforcement, and interpretation hereof.
THIS PROMISSORY NOTE, TOGETHER WITH THE OTHER LOAN PAPERS, REPRESENT
THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY (I)
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES, OR (II) ANY COMMITMENT LETTER AMONG THE PARTIES (ALL THE TERMS AND
CONDITIONS OF WHICH ARE SUPERSEDED BY LOAN PAPERS). THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
INTERNATIONAL SEA DRILLING LTD.
By: /s/ X. X. XXXXXXXXXX
-----------------------------------
X. X. Xxxxxxxxxx
President
By: /s/ X. X. XXXXXXXXX
-----------------------------------
X. X. Xxxxxxxxx
Treasurer
25
GUARANTY
THIS GUARANTY is executed as of December 20, 1996, by the undersigned
(whether one or more, "GUARANTOR"), for the benefit of NATIONSBANK OF TEXAS,
N.A. ("AGENT"), and the Lenders (the "LENDERS") named in the Credit Agreement
and the Term Loan Agreement (as hereinafter defined).
WHEREAS, POOL COMPANY ("BORROWER"), Agent and Lenders have executed
(a) a Restated Credit Agreement dated as of November 30, 1995 (as amended,
supplemented, or restated, the "REVOLVING CREDIT AGREEMENT"), together with
certain other Loan Papers, and (b) a Term Loan Agreement dated as of November
30, 1995 (as amended, supplemented, or restated, the "TERM LOAN AGREEMENT"),
together with certain other Loan Papers; and
WHEREAS, Guarantor is an Affiliate of Borrower incorporated or
organized in the United States; and
WHEREAS, it is expressly understood among Borrower, Guarantor, Agent
and each Lender that the execution and delivery of this Guaranty is an integral
part of the transactions contemplated by the Revolving Credit Agreement, the
Term Loan Agreement, and the Loan Papers and a condition precedent to Agent's
and Lenders' obligations under the Revolving Credit Agreement and the Term Loan
Agreement;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Guarantor hereby guarantees to Agent and
Lenders the prompt payment at maturity (by acceleration or otherwise), and at
all times thereafter, of the Guaranteed Indebtedness (hereinafter defined),
this Guaranty being upon the following terms and conditions:
1. Unless otherwise defined herein, all capitalized terms have
the meanings given to such terms in the Revolving Credit Agreement and the Term
Loan Agreement.
2. The term "BORROWER" shall include, without limitation,
Borrower, Borrower as a debtor-in-possession, and any receiver, trustee,
liquidator, conservator, custodian, or similar party hereafter appointed for
Borrower or all or substantially all of its assets pursuant to any liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar Debtor Relief Law from time to time in
effect affecting the rights of creditors generally.
3. The term "GUARANTEED INDEBTEDNESS" means the Obligation as
defined in the Revolving Credit Agreement and the Term Loan Agreement, together
with any and all costs, attorneys' fees, and expenses reasonably incurred by
Agent and Lenders by reason of Borrower's or Guarantor's default in payment of
any of the foregoing indebtedness.
4. This instrument shall be an absolute and continuing guaranty,
and the circumstance that at any time or from time to time the Guaranteed
Indebtedness may be paid in full shall not affect the obligation of Guarantor
with respect to the Guaranteed Indebtedness of Borrower to Agent and Lenders
thereafter incurred; provided that Guarantor may give written notice to Agent
and Lenders that Guarantor will not be liable hereunder for any indebtedness of
Borrower incurred after the giving of such notice (which notice shall not be
deemed to have been given until actually received by Agent and Lenders), and in
such event Guarantor shall remain liable for its obligations hereunder until
the payment in full of (a) the Guaranteed Indebtedness as it exists at the date
of the giving of such notice, and (b) loans made after such notice or pursuant
to any obligation of Agent and Lenders under any other commitment or agreement
made to or with Borrower prior to the giving of such notice.
5. Notwithstanding any contrary provision herein, Guarantor's
aggregate payments in respect of the Guaranteed Indebtedness shall never exceed
the greater of (a) 90% of its net worth (the amount by which the present fair
saleable value of its assets exceeds its liabilities on such date, without
giving effect to this Guaranty) or (b) the aggregate value of direct and
indirect benefits received under the Loan Papers.
6. If Guarantor becomes liable for any indebtedness owing by
Borrower to Agent or Lenders, by endorsement or otherwise, other than under
this Guaranty, such liability shall not be in any manner impaired or affected
hereby, and the rights of Agent and Lenders hereunder shall be cumulative of
any and all other rights that Agent and Lenders may ever have against
Guarantor. The exercise by Agent and Lenders of any right or remedy hereunder
or under any other agreement,
26
document, or instrument, or at law or in equity, shall not preclude the
concurrent or subsequent exercise of any other right or remedy. Guarantor
covenants and agrees that it will not assert any rights arising from payment or
other performance hereunder until all of Guarantor's liability shall have been
discharged in full and all of the Guaranteed Indebtedness existing at the time
of discharge shall have been paid and performed in full.
7. Upon the occurrence and continuance of a Default, Guarantor
shall, on demand and without further notice of dishonor, without any notice
having been given to Guarantor previous to such demand of the acceptance by
Agent and Lenders of this Guaranty, and without any notice having been given to
Guarantor previous to such demand of the creating or incurring of such
indebtedness, pay the amount of the Guaranteed Indebtedness then due and
payable to Agent and Lenders, and it shall not be necessary for Agent and
Lenders, in order to enforce such payment by Guarantor, first or
contemporaneously to institute suit or exhaust remedies against Borrower or
others liable on such indebtedness, or to enforce rights against any security
ever given to secure such indebtedness.
8. All principal of and interest on all indebtedness,
liabilities, and obligations of Borrower to Guarantor (the "SUBORDINATED
DEBT"), whether direct, indirect, fixed, contingent, liquidated, unliquidated,
joint, several, or joint and several, now or hereafter existing, due or to
become due to Guarantor, or held or to be held by Guarantor, whether created
directly or acquired by assignment or otherwise, and whether evidenced by
written instrument or not, shall be expressly subordinated to the final payment
in full of the Guaranteed Indebtedness. Guarantor agrees not to receive or
accept any payment from Borrower with respect to the Subordinated Debt at any
time a Default has occurred and is continuing; and, in the event Guarantor
receives any payment on the Subordinated Debt in violation of the foregoing,
Guarantor will hold any such payment in trust for Agent and Lenders and
forthwith turn it over to Agent and Lenders, in the form received (with any
necessary endorsements), to be applied to the Guaranteed Indebtedness.
9. Guarantor shall not assert, enforce, or otherwise exercise (a)
any right of subrogation to any of the rights or liens of Agent and Lenders or
any other beneficiary against Borrower or any other obligor on the Guaranteed
Indebtedness or any collateral or other security, or (b) any right of recourse,
reimbursement, contribution, indemnification, or similar right against Borrower
or any other obligor on all or any part of the Guaranteed Indebtedness or any
guarantor thereof, and Guarantor hereby irrevocably waives any and all of the
foregoing rights. Guarantor irrevocably waives the benefit of, and any right
to participate in, any collateral or other security given to Agent and Lenders
or any other beneficiary to secure payment of the Guaranteed Indebtedness.
10. Guarantor hereby agrees that its obligations under the terms
of this Guaranty shall not be released, diminished, impaired, reduced, or
affected by the occurrence of any one or more of the following events: (a)
Agent's or any Lender's taking or accepting of any other security or guaranty
for any or all of the Guaranteed Indebtedness; (b) any release, surrender,
exchange, subordination, or loss of any security at any time existing in
connection with any or all of the Guaranteed Indebtedness; (c) any partial
release of the liability of Guarantor (or if there is more than one person or
entity signing this Guaranty, the release of any one or more of them) or the
release of any other obligor on the Obligation; (d) the insolvency, bankruptcy,
or lack of corporate or partnership power of Borrower, the undersigned, or any
party at any time liable for the payment of any or all of the Guaranteed
Indebtedness, whether now existing or hereafter occurring; (e) any renewal,
extension, or rearrangement of the payment of any or all of the Guaranteed
Indebtedness, either with or without notice to or consent of Guarantor, or any
adjustment, indulgence, forbearance, or compromise that may be granted or given
by Agent or Lenders to Borrower, Guarantor, or any other obligor on the
Obligation; (f) any neglect, delay, omission, failure, or refusal of Agent or
any Lender to take or prosecute any action for the collection of any or all of
the Guaranteed Indebtedness or to foreclose or take or prosecute any action in
connection with any instrument or agreement evidencing or securing any or all
of the Guaranteed Indebtedness; (g) any failure of Agent or any Lender to
notify Guarantor of any renewal, extension, or assignment of any or all of the
Guaranteed Indebtedness, or the release of any security or of any other action
taken or refrained from being taken by Agent or any Lender against Borrower or
any new agreement between Agent or any Lender and Borrower, it being understood
that Agent and Lenders shall not be required to give Guarantor any notice of
any kind under any circumstances whatsoever with respect to or in connection
with the Guaranteed Indebtedness, other than any notice required to be given to
Borrower or Guarantor elsewhere herein; (h) the unenforceability of any part of
the Guaranteed Indebtedness against Borrower by reason of the fact that the
Guaranteed Indebtedness exceeds the amount permitted by law, the act of
creating the Guaranteed Indebtedness, or any part thereof, is ultra xxxxx, or
the officers creating same exceeded their authority or violated their fiduciary
duties in connection therewith; or (i) any payment by Borrower to Agent or
Lenders is held to constitute a preference under the bankruptcy laws or if for
any other reason Agent or any Lender is required to refund such payment or make
payment to someone else.
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27
11. Guarantor hereby waives all rights by which it might be
entitled to require suit on an accrued right of action in respect of any of the
Guaranteed Indebtedness or require suit against Borrower or others, whether
arising pursuant to Section 34.02 of the Texas Business and Commerce Code, as
amended (regarding Guarantor's right to require Agent or Lenders to xxx
Borrower on accrued right of action following Guarantor's written notice to
Agent or Lenders), Section 17.001 of the Texas Civil Practice and Remedies
Code, as amended (allowing suit against Guarantor without suit against
Borrower, but precluding entry of judgment against Guarantor prior to entry of
judgment against Borrower), Rule 31 of the Texas Rules of Civil Procedure, as
amended (requiring Agent and Lenders to join Borrower in any suit against
Guarantor unless judgment has been previously entered against Borrower), or
otherwise.
12. Guarantor acknowledges that certain representations and
warranties set forth in Sections 5.1 through 5.15 of the Revolving Credit
Agreement and the Term Loan Agreement are applicable to Guarantor, and
Guarantor reaffirms that each such representation and warranty is true and
correct, except that with respect to any Guarantor that is a limited
partnership, the representations of Section 5.1(a) of the Revolving Credit
Agreement and the Term Loan Agreement are applicable to the general and limited
partners of such Guarantor and such Guarantor hereby affirms that such
representations are true and correct, and such Guarantor further affirms that
it is a limited partnership, duly formed and organized, validly existing and,
where applicable, in good standing under the Laws of its jurisdiction of
organization. Furthermore, Guarantor represents and warrants to Agent and
Lenders that the value of the consideration received and to be received by
Guarantor is reasonably worth at least as much as the liability and obligation
of Guarantor hereunder, and such liability and obligation may reasonably be
expected to benefit Guarantor directly or indirectly.
13. Guarantor acknowledges that certain covenants set forth in
Sections 7.1, 7.2, 7.4 through 7.29 of the Revolving Credit Agreement and the
Term Loan Agreement are applicable to the Guarantor or shall be imposed upon
the Guarantor, and Guarantor covenants and agrees to promptly and properly
perform, observe, and comply with each such covenant.
14. Guarantor expressly assumes all responsibilities to remain
informed of the financial condition of Borrower and any circumstances affecting
(a) Borrower's ability to perform under the Revolving Credit Agreement, the
Term Loan Agreement, and the other Loan Papers to which it is a party or (b)
collateral securing all or any part of the Guaranteed Indebtedness.
15. The Guaranteed Indebtedness shall not be reduced, discharged,
or released because or by reason of any existing or future offset, claim, or
defense (except for the defense of payment) of Borrower or any other party
against Agent or any Lender or against payment of the Guaranteed Indebtedness,
whether such offset, claim, or defense arises in connection with the Guaranteed
Indebtedness or otherwise. Such claims and defenses include, without
limitation, failure of consideration, breach of warranty, fraud, statute of
frauds, bankruptcy, infancy, statute of limitations, lender liability, accord
and satisfaction, and usury.
16. This Guaranty is for the benefit of Agent and Lenders and
their respective successors and assigns. Guarantor acknowledges that in the
event of an assignment of the Guaranteed Indebtedness, or any part thereof, the
rights and benefits hereunder, to the extent applicable to the indebtedness so
assigned, may be transferred with such indebtedness. This Guaranty is binding
on Guarantor and its successors and assigns.
17. This Guaranty is a Loan Paper and, therefore, this Guaranty is
subject to the applicable provisions of Section 12 of the Revolving Credit
Agreement and the Term Loan Agreement, all of which applicable provisions are
incorporated herein by reference the same as if set forth herein verbatim.
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28
This Guaranty is executed as of the first date set forth herein.
The address and fax no. for
each of the undersigned is:
00000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: X.X. Xxxxxxxxx,
Treasurer
FAX No.: (000) 000-0000 PCNV, INC.
By: /s/ X. X. XXXXXXXXXX
------------------------------------
X. X. Xxxxxxxxxx,
President
By: /s/ X. X. XXXXXXXXX
------------------------------------
X. X. Xxxxxxxxx,
Treasurer
POOL COMPANY HOUSTON LTD.
By: POOL COMPANY, its general partner
By: /s/ X. X. XXXXXXXXXX
--------------------------------
X. X. Xxxxxxxxxx,
President
By: /s/ X. X. XXXXXXXXX
--------------------------------
X. X. Xxxxxxxxx,
Treasurer
POOL COMPANY TEXAS LTD.
By: POOL COMPANY, its general partner
By: /s/ X. X. XXXXXXXXXX
--------------------------------
X. X. Xxxxxxxxxx,
President
By: /s/ X. X. XXXXXXXXX
--------------------------------
X. X. Xxxxxxxxx,
Treasurer
4
29
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is executed as of December 20, 1996, by PCNV,
Inc., Pool Company Texas Ltd., and Pool Company Houston Ltd. (collectively
referred to herein as "DEBTOR") for the benefit of NationsBank of Texas, N.A.,
as Agent ("AGENT") and the Lenders ("LENDERS") named in the Revolving Credit
Agreement (as hereinafter defined) and the Term Loan Agreement (as hereinafter
defined) and for the benefit of NationsBank of Texas, N.A. ("NATIONSBANK") for
its own account with respect to its net exposure on foreign exchange contracts
between it and any Company (as defined in such Revolving Credit Agreement).
NationsBank, Agent and Lenders are each a SECURED PARTY, and are collectively
referred to herein as "SECURED PARTIES".
WHEREAS, Pool Company, a Texas Corporation ("BORROWER"), and Secured
Parties have entered into (i) a Restated Credit Agreement dated as of November
30, 1995 (as renewed, extended, or amended from time to time, the "REVOLVING
CREDIT AGREEMENT"), together with certain other Loan Papers, and (ii) a Term
Loan Agreement dated as of November 30, 1995 (as renewed, extended, or amended
from time to time, the "TERM LOAN AGREEMENT") together with certain other Loan
Papers; and
WHEREAS, Debtor is a direct or indirect consolidated Subsidiary of
Borrower incorporated or organized in the United States; and
WHEREAS, in Debtor's judgment, (a) the value of consideration received
and to be received by Debtor in connection with the transaction described above
is reasonably worth at least as much as the liability and obligation of Debtor
hereunder, and (b) such liability and obligation may reasonably be expected to
directly or indirectly benefit Debtor; and
WHEREAS, it is expressly understood among Secured Parties and Debtor
that the contemplated execution and delivery of this agreement is an integral
part of the transactions contemplated by the Loan Papers and a condition
precedent to Secured Parties' obligations to extend credit under the Revolving
Credit Agreement;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Debtor hereby covenants and agrees with
Secured Parties as follows:
1. Certain Definitions. Unless otherwise defined herein, or the
context hereof otherwise requires, (a) capitalized terms have the meaning
ascribed to such terms in the Revolving Credit Agreement and the Term Loan
Agreement, and (b) each term defined in the UCC is used in this agreement with
the same meaning; provided that if any definition given a term in Chapter 9 of
the UCC conflicts with the definition given that term in any other chapter of
the UCC, the Chapter 9 definition shall prevail. As used herein, the following
terms have the meanings indicated:
Collateral has the meaning set forth in Paragraph 3.
Default has the meaning set forth in Paragraph 6.
Obligation means (a) the "Obligation" as defined in the
Revolving Credit Agreement, (b) the "Obligation" as defined in the Term Loan
Agreement, (c) NationsBank's net exposure on all foreign exchange contracts
between Debtor and NationsBank, (d) all indebtedness, liabilities, and
obligations of Debtor arising under this agreement, (e) interest accruing on,
and attorneys' fees, court costs, and other costs of collection reasonably
incurred in the collection or enforcement of, any of the indebtedness,
liabilities, or obligations described in clauses (a) through (d) above, and (f)
any and all renewals and extensions of, or amendments to, any of the
indebtedness, liabilities, and obligations described in clauses (a) through (e)
above. The foregoing includes future advances, it being the intention and
contemplation of Debtor and Secured Parties that future advances will be made
to Borrower under the Revolving Credit Agreement for a variety of purposes, and
that payment and repayment of all of the foregoing are intended to and shall be
part of the Obligation secured hereby.
Obligor means any person or entity obligated with respect to
any of the Collateral, whether as an account debtor, obligor on an instrument,
issuer of securities, or otherwise.
30
Related Papers means (a) this agreement, (b) all present and
future agreements, documents, and instruments now or hereafter evidencing any
of the Obligation, or assuring or securing payment thereof, (c) all agreements,
documents, and instruments now or hereafter executed in connection herewith,
including, without limitation, the Loan Papers, and (d) any and all future
renewals and extensions or restatements of, or amendments or supplements to,
all or any part of the foregoing.
Security Interest means the security interest granted and the
pledge and assignment made under Paragraph 2.
UCC means the Uniform Commercial Code as enacted in the State
of Texas or other applicable jurisdiction, as amended at the time in question
2. Security Interest. In order to secure the full and complete
payment and performance of (a) the Obligation when due, and (b) NationsBank's
net exposure on all foreign exchange contracts between any Company and
NationsBank when due, Debtor hereby grants to Secured Parties a security
interest in the Collateral and pledges and assigns the Collateral to Secured
Parties, all upon and subject to the terms and conditions of this agreement.
Such Security Interest is granted and such pledge and assignment are made as
security only and shall not subject Secured Parties to, or transfer or in any
way affect or modify, any obligation of Debtor with respect to any of the
Collateral or any transaction involving or giving rise thereto. For purposes
of clarification, "net exposure on all foreign exchange contracts" refers to
the amount, if any, by which the purchase or sales prices stipulated in any
foreign exchange contracts on which a Company is in default are (i) less, in
the case of contracts to purchase currencies, or (ii) greater, in the case of
contracts to sell currencies, respectively, than the market prices for such
currencies (as determined on the agreed value date specified in each such
contract).
3. Collateral. As used herein, COLLATERAL includes all of the
following items and types of property now owned or hereafter acquired
(collectively, the "COLLATERAL"):
(a) All present and future accounts of Debtor, including,
without limitation, all accounts receivable and all other rights of Debtor to
payment for goods sold or leased or for services rendered, and all cash and
noncash proceeds, increases, profits, combinations, reclassifications,
substitutions, and replacements of or for all or any part of the foregoing;
(b) All present and future deposit accounts, restricted
and unrestricted cash collateral accounts, and cash equivalent instruments
(including, without limitation, certificates of deposit) of Debtor now or
hereafter held by or specifically assigned or granted to Secured Parties
(including, without limitation, the cash collateral account described in
Section 4.3 of the Revolving Credit Agreement, together with all present and
future funds on deposit therein and investments therefrom);
(c) All present and future Rights, titles, and interests
Debtor may have or be or become entitled to under or by virtue of the
Contingent Support Agreement and all cash and noncash proceeds, increases,
profits, combinations, reclassifications, substitutions, and replacements of or
for all or any part of the foregoing; and
(d) The present and future shares of the capital stock
(or equivalent interests) now or hereafter issued by the following entities to
Debtor, up to the percentage set forth below, and the certificates representing
such shares (or equivalent interests), and all dividends, cash, instruments,
and other property from time to time received, receivable, or otherwise
distributed in respect of or in exchange for any such shares (or equivalent
interests), and increases, proceeds, combinations, reclassifications,
substitutions, and replacements of or for all or any part of the foregoing:
100% All present and future consolidated
Subsidiaries which are incorporated
or formed within the United States
of America
66% All present and future consolidated
Subsidiaries which are not
incorporated or formed within the
United States of America
4. Representations and Warranties. Debtor acknowledges that
certain representations and warranties set forth in the Revolving Credit
Agreement and the Term Loan Agreement are applicable to Debtor, and Debtor
reaffirms that
2
31
each such representation and warranty is true and correct. In addition, Debtor
represents and warrants to Secured Parties that:
(a) With respect to any Debtor that is a limited
partnership, the representations of Section 5.1(a) of the Revolving Credit
Agreement and the Term Loan Agreement are applicable to the general and limited
partners of such Guarantor and such representations are true and correct, and
such Guarantor is a limited partnership, duly formed and organized, validly
existing and, where applicable, in good standing under the Laws of its
jurisdiction of organization.
(b) Debtor's chief executive office is where Debtor is
entitled to receive notices hereunder, and the present and foreseeable location
of Debtor's books and records concerning any Collateral that is accounts is as
set forth on Schedule 1 attached hereto.
(c) All Collateral that is securities is duly authorized,
validly issued, fully paid, and non-assessable, and its transfer is not subject
to any restrictions other than restrictions imposed by applicable securities
and corporate Laws.
(d) All Collateral that is accounts included in
calculating the Borrowing Base is free from any claim for credit, deduction, or
allowance of an Obligor (except for credits, deductions, or allowances granted
in the ordinary course of business), and free from any defense, dispute,
setoff, or counterclaim, and there is no extension or indulgence with respect
thereto.
(e) The Contingent Support Agreement is in full force and
effect; there have been no renewals or extensions of, or amendments,
modifications, or supplements to, any thereof about which Secured Parties have
not been advised in writing; and no default or potential default has occurred
and is continuing thereunder.
(f) Debtor owns all presently existing Collateral, and
will keep said Collateral and all hereafter-acquired Collateral, free and clear
of all Liens except Permitted Liens.
The delivery at any time by Debtor to any Secured Party of Collateral or of
additional specific descriptions of certain Collateral shall constitute a
representation and warranty by Debtor to Secured Parties that the
representations and warranties of this Paragraph 4 are true and correct in all
material respects with respect to each item of such Collateral.
5. Certain Covenants. Debtor acknowledges that certain covenants
set forth in the Revolving Credit Agreement and the Term Loan Agreement are
applicable to Debtor or shall be imposed upon Debtor, and Debtor covenants and
agrees to promptly and properly perform, observe, and comply with each such
covenant. In addition, Debtor further covenants and agrees with Secured
Parties that Debtor will:
(a) Maintain at one or more of the addresses set forth on
Schedule 1 a current record of where all Collateral is located, permit
representatives of any Secured Party (at such Secured Party's expense to the
extent so provided in the Revolving Credit Agreement) at any time during normal
business hours to inspect and make abstracts from such records, and furnish to
such Secured Party, at such intervals as such Secured Party may request, such
documents, lists, descriptions, certificates, and other information as may be
necessary or proper to keep such Secured Party informed with respect to the
identity, location, status, condition, and value of the Collateral.
(b) Perform in accordance with normal business practices
all of Debtor's duties under and in connection with each transaction to which
any Collateral relates.
(c) Promptly notify Secured Parties of any claim, action,
or proceeding affecting title to all or any of the Collateral or the Security
Interest and, at the request of any Secured Party, appear in and defend, at
Debtor's expense, any such action or proceeding.
(d) From time to time promptly execute and deliver to
Agent all such other assignments, certificates, supplemental documents, and
financing statements, and do all other acts or things as Secured Parties may
reasonably request in order to more fully create, evidence, perfect, continue,
and preserve the priority of the Security Interest.
(e) Not sell, lease, or otherwise dispose of, or permit
the sale, lease, or disposition of, any Collateral except for sales, leases,
and other dispositions permitted by the terms of the Revolving Credit
Agreement.
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32
(f) Not create, incur, or suffer or permit to be created
or incurred or to exist any Lien upon or against any of the Collateral, except
for Permitted Liens.
(g) Not use, or permit the use of, any of the Collateral
for any unlawful purpose or in any manner inconsistent with the provisions or
requirements of any applicable insurance policy.
(h) Not amend, modify, surrender, cancel, terminate, or
replace, nor permit any such amendment, modification, surrender, cancellation,
termination, or replacement of, (i) the Contingent Support Agreement, without
each Secured Party's written consent, or (ii) other than in the ordinary course
of business, any other material contract to which any of the Collateral
relates.
(i) Not relocate Debtor's principal place of business,
chief executive office, or place where Debtor's books and records related to
accounts are kept, or otherwise relocate any of the other Collateral, to an
address in a Louisiana parish or other state other than to those Louisiana
parishes or other states in which addresses set forth on Schedule 1 are
located, or change Debtor's name or address to which it is entitled to receive
notices hereunder, unless prior thereto Debtor (i) gives Secured Parties 30
days prior written notice of such proposed relocation or change (such notice to
include, without limitation, the name of the Louisiana parish or other state
into which the Collateral is being relocated, and the new name and address of
Debtor) and (ii) (unless the Collateral is being relocated to a jurisdiction in
which existing financing statements or other required filings have previously
been made to perfect the Security Interest in such Collateral) executes and
delivers all such additional documents and performs all additional acts as
Secured Parties in their sole discretion may request in order to continue or
maintain the existence and priority of the Security Interest in such
Collateral.
6. Default. The term "Default," as used herein, means the
occurrence of any one or more of the events described in Section 8 of the
Revolving Credit Agreement or Section 8 of the Term Loan Agreement.
7. Remedies. Upon the occurrence and continuance of a Default,
Secured Parties may exercise any and all rights and remedies available to a
secured party under the UCC, in addition to any and all other rights and
remedies afforded by the Related Papers, at law, in equity, or otherwise,
including, without limitation, the rights and remedies described in Section 9
of the Revolving Credit Agreement and the Term Loan Agreement.
(a) Notice. Reasonable notification of the time and
place of any public sale of the Collateral, or reasonable notification of the
time after which any private sale or other intended disposition of the
Collateral is to be made, shall be sent to the Debtor and to any other Person
entitled to notice under the UCC; provided that if any of the Collateral
threatens to decline speedily in value or is of the type customarily sold on a
recognized market, Secured Parties may sell or otherwise dispose of the
Collateral without notification, advertisement, or other notice of any kind.
It is agreed that (i) notice sent or given not less than five Business Days
prior to the taking of the action to which the notice relates is reasonable
notification and notice for the purposes of this subparagraph, and (ii) any
sale of the Collateral may be conducted with reserve.
(b) Sales of Securities. In connection with the sale of
any Collateral that is securities, Secured Parties are authorized, but not
obligated, to limit prospective purchasers to the extent deemed necessary or
desirable by Secured Parties to render such sale exempt from the registration
requirements of the Securities Exchange Act of 1934 (as amended, the EXCHANGE
ACT) and any applicable state securities Laws, and no sale so made in good
faith by Secured Parties shall be deemed not to be "commercially reasonable"
because so made.
(c) Application of Proceeds. Secured Parties shall apply
the proceeds or any sale or other disposition of the Collateral under this
Paragraph 7 in the following order: First, to the payment of all its expenses
incurred in retaking, holding, and preparing any of the Collateral for sale(s)
or other disposition, in arranging for such sale(s) or other disposition, and
in actually selling or disposing of the same (all of which are part of the
Obligation); second, toward repayment of amounts expended by Secured Parties
under Paragraph 8; third, subject to Section 9.1 of the Revolving Credit
Agreement and the Term Loan Agreement, toward payment of the balance of the
Obligation and NationsBank's net exposure then existing under all foreign
exchange contracts between any Company and NationsBank in such order and manner
as Secured Parties, in their discretion, may deem advisable. Any surplus
remaining shall be delivered to the Debtor or Borrower or as a court of
competent jurisdiction may direct. If the proceeds are insufficient to pay the
Obligation in full, Borrower shall remain liable for any deficiency.
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8. Other Rights of Secured Parties.
(a) Performance. If any covenant, duty, or agreement of
Debtor is not performed in accordance with its material terms, Secured Parties
may, at their option, perform, or attempt to perform, such covenant, duty, or
agreement on behalf of Debtor. Any amount reasonably expended by Secured
Parties in such performance or attempted performance shall be payable by Debtor
to Secured Parties on demand, shall become part of the Obligation, and shall
bear interest at the Default Rate from the date of such expenditure by Secured
Parties until paid. Notwithstanding the foregoing, it is expressly understood
that no Secured Party shall assume or have, except by express written consent
of such Secured Party, any liability or responsibility for the performance of
any covenant, duty, or agreement of Debtor.
(b) Collection. Upon notice from any Secured Party, each
Obligor with respect to any payments on any of the Collateral (including,
without limitation, dividends and other distributions with respect to
securities and insurance proceeds payable by reason of loss or damage to any of
the Collateral) is hereby authorized and directed by Debtor to make payment
directly to such Secured Party, regardless of whether Debtor was previously
making collections thereon. Subject to Paragraph 8(e), until such notice is
given, Debtor is authorized to retain and expend all payments made on
Collateral. Each Secured Party shall have the right in its own name or in the
name of Debtor to compromise or extend time of payment with respect to all or
any portion of the Collateral for such amounts and upon such terms as such
Secured Party may determine; to demand, collect, receive, receipt for, xxx for,
compound, and give acquittances for any and all amounts due or to become due
with respect to Collateral; to take control of cash and other proceeds of any
Collateral; to endorse the name of Debtor on any notes, acceptances, checks,
drafts, money orders, or other evidences of payment on Collateral that may come
into the possession of such Secured Party; to sign the name of Debtor on any
invoice or xxxx of lading relating to any Collateral, on any drafts against
Obligors or other persons or entities making payment with respect to
Collateral, on assignments and verifications of accounts or other Collateral
and on notices to Obligors making payment with respect to Collateral; to send
requests for verification of obligations to any Obligor; and to do all other
acts and things necessary to carry out the intent of this agreement. If any
Obligor fails or refuses to make payment on any Collateral when due, each
Secured Party is authorized, in its sole discretion, either in its own name or
in the name of Debtor, to take such action as such Secured Party shall deem
appropriate for the collection of any amounts owed with respect to Collateral
or upon which a delinquency exists. Regardless of any other provision hereof,
however, a Secured Party shall never be liable for its failure to collect, or
for its failure to exercise diligence in the collection of, any amounts owed
with respect to Collateral, nor shall it be under any duty whatever to anyone
except Debtor to account for funds that it shall actually receive hereunder.
Without limiting the generality of the foregoing, no Secured Party shall have
responsibility for ascertaining any maturities, calls, conversions, exchanges,
offers, tenders, or similar matters relating to any Collateral, or for
informing Debtor with respect to any of such matters (irrespective of whether
such Secured Party actually has, or may be deemed to have, knowledge thereof).
The release of any Secured Party to any Obligor shall be a full and complete
release, discharge, and acquittance to such Obligor, to the extent of any
amount so paid to such Secured Party. The rights granted Secured Parties under
this subparagraph may be exercised only upon the occurrence and continuance of
a Default.
(c) Record Ownership of Securities. Upon the occurrence
and continuance of a Default, Secured Parties may have any Collateral that is
securities and that is in the possession of a Secured Party, or its nominee or
nominees, registered in its name, or in the name of its nominee or nominees, as
pledgee; and, as to any securities so registered, Debtor shall execute and
deliver (or cause to be executed and delivered) to such Secured Party all such
proxies, powers of attorney, dividend coupons or orders, and other documents as
such Secured Party may reasonably request for the purpose of enabling such
Secured Party to exercise the voting rights and powers which it is entitled to
exercise under this agreement or to receive the dividends and other payments in
respect of securities which it is authorized to receive and retain under this
agreement.
(d) Voting of Securities. As long as a Default has not
occurred and is not continuing, Debtor shall be entitled to exercise all voting
rights pertaining to any Collateral that is securities. After the occurrence
and during the continuance of a Default, the right to vote any Collateral that
is securities shall be vested exclusively in Secured Parties. To this end,
Debtor hereby irrevocably constitutes and appoints Agent, on behalf of Secured
Parties, the proxy and attorney-in-fact of Debtor, with full power of
substitution, to vote, and to act with respect to, any and all Collateral that
is securities standing in the name of Debtor or with respect to which Debtor is
entitled to vote and act, subject to the understanding that such proxy may not
be exercised unless a Default has occurred and is continuing. The proxy herein
granted is coupled with an interest, is irrevocable, and shall continue until
the Obligation has been paid and performed in full.
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(e) Certain Proceeds. Notwithstanding any contrary
provision herein, any and all stock dividends or other non-cash distributions
made on or in respect of any Collateral that is securities, and any proceeds of
any Collateral that is securities, whether such dividends, distributions, or
proceeds result from a subdivision, combination, or reclassification of the
outstanding capital stock of any issuer thereof or as a result of any merger,
consolidation, acquisition, or other exchange of assets to which any issuer may
be a party, or otherwise, shall be part of the Collateral hereunder, shall, if
received by Debtor, be held in trust for the benefit of Secured Parties, and
shall be delivered promptly to Secured Parties or to Agent, on behalf of
Secured Parties, (accompanied by proper instruments of assignment and/or stock
and/or bond powers executed by Debtor in accordance with Secured Parties'
instructions) to be held subject to the terms of this agreement. Any cash
proceeds of Collateral which come into the possession of any Secured Party
(including, without limitation, insurance proceeds) may, at such Secured
Party's option, be applied in whole or in part to the Obligation (to the extent
then due) and to NationsBank's net exposure then existing under all foreign
exchange contracts between any Company and NationsBank, be released in whole or
in part to or on the written instructions of Debtor for any general or specific
purpose, or be retained in whole or in part by such Secured Party as additional
Collateral. Any cash Collateral in the possession of any Secured Party may be
invested by such Secured Party in (a) obligations of the United States of
America and agencies thereof and obligations guaranteed by the United States of
America maturing within one year from the date of acquisition, and (b)
certificates of deposit issued by commercial banks organized under the Laws of
the United States of America or any state thereof and having combined capital,
surplus, and undivided profits of not less than $100,000,000, which have a
rating from Xxxxx'x Investors Service, Inc., and Standard & Poors Corporation
of at least P-1 and A-1, respectively, or are insured by the Federal Deposit
Insurance Corporation. Secured Parties shall never be obligated to make any
such investment and shall never have any liability to Debtor for any loss which
may result therefrom. All interest and other amounts earned from any
investment of Collateral may be dealt with by Secured Parties in the same
manner as other cash Collateral. The provisions of this subparagraph shall be
applicable only upon the occurrence and continuance of a Default.
(f) Use and Operation of Collateral. Debtor covenants to
promptly reimburse and pay to any Secured Party, at such Secured Party's
request, the amount of all expenses reasonably incurred by such Secured Party
in connection with its custody and preservation of Collateral, and all such
expenses shall bear interest until repaid (i) at the lesser of the Designated
Rate or the Highest Lawful Rate, if no Default has occurred and is continuing,
and (ii) at the lesser of the Default Rate or the Highest Lawful Rate, upon the
occurrence and continuance of a Default. Such expenses, together with such
interest, shall be payable by Debtor to any Secured Party upon demand and shall
become part of the Obligation. However, the risk of accidental loss or damage
to, or diminution in value of, Collateral is on Debtor. With respect to
Collateral that is in the possession of a Secured Party, such Secured Party
shall have no duty to fix or preserve rights against prior parties to such
Collateral and shall never be liable for any failure to use diligence to
collect any amount payable in respect of such Collateral, but shall be liable
only to account to Debtor for what it may actually collect or receive thereon.
The provisions of this subparagraph shall be applicable whether or not a
Default has occurred and is continuing.
(g) INDEMNIFICATION. DEBTOR HEREBY ASSUMES ALL LIABILITY
FOR THE COLLATERAL, FOR THE SECURITY INTEREST, AND FOR ANY USE, POSSESSION,
MAINTENANCE, AND MANAGEMENT OF, ALL OR ANY OF THE COLLATERAL, INCLUDING,
WITHOUT LIMITATION, ANY TAXES ARISING AS A RESULT OF, OR IN CONNECTION WITH,
THE TRANSACTIONS CONTEMPLATED HEREIN, AND AGREES TO ASSUME LIABILITY FOR, AND
TO INDEMNIFY AND HOLD SECURED PARTIES HARMLESS FROM AND AGAINST, ANY AND ALL
CLAIMS, CAUSES OF ACTION, OR LIABILITY, FOR INJURIES TO OR DEATHS OF PERSONS
AND DAMAGE TO PROPERTY, HOWSOEVER ARISING FROM OR INCIDENT TO SUCH USE,
POSSESSION, MAINTENANCE, AND MANAGEMENT, WHETHER SUCH PERSONS BE AGENTS OR
EMPLOYEES OF DEBTOR OR OF THIRD PARTIES, OR SUCH DAMAGE TO PROPERTY OF DEBTOR
OR OF OTHERS. UNLESS EXPRESSLY PROHIBITED BY APPLICABLE LAW, DEBTOR AGREES TO
INDEMNIFY, SAVE, AND HOLD SECURED PARTIES HARMLESS FROM AND AGAINST, AND
COVENANTS TO DEFEND SECURED PARTIES AGAINST, ANY AND ALL LOSSES, DAMAGES,
CLAIMS, COSTS, PENALTIES, LIABILITIES, AND EXPENSES, INCLUDING, WITHOUT
LIMITATION, COURT COSTS AND ATTORNEYS' FEES, HOWSOEVER ARISING OR INCURRED
BECAUSE OF, INCIDENT TO, OR WITH RESPECT TO COLLATERAL OR ANY USE, POSSESSION,
MAINTENANCE, OR MANAGEMENT THEREOF, PROVIDED THAT DEBTOR SHALL NOT BE LIABLE
FOR LOSSES, DAMAGES, CLAIMS, COSTS, PENALTIES, LIABILITIES, AND EXPENSES
RESULTING FROM ANY SECURED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
9. Miscellaneous.
(a) Reference to Miscellaneous Provisions. This
agreement is a Loan Paper, and, therefore, this agreement is subject to the
applicable provisions of Section 12 of the Revolving Credit Agreement, all of
which applicable provisions are incorporated herein by reference the same as if
set forth herein verbatim. Until changed by notice, the address
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and facsimile number for each party hereto for purposes of communications are
as appear on the signature page(s) of this agreement.
(b) Term. This agreement shall terminate upon full and
final payment and performance of (a) the Obligation, and (b) all foreign
exchange contracts between each Company and NationsBank. No Obligor, if any,
on any of the Collateral shall ever be obligated to make inquiry as to the
termination of this agreement, but shall be fully protected in making payment
directly to Agent, on behalf of Secured Parties.
(c) Actions Not Releases. The Security Interest and
Debtor's obligations and Secured Parties' rights hereunder shall not be
released, diminished, impaired, or adversely affected by the occurrence of any
one or more of the following events: (i) The taking or accepting of any other
security or assurance for any or all of the Obligation; (ii) any release,
surrender, exchange, subordination, or loss of any security or assurance at any
time existing in connection with any or all of the Obligation; (iii) the
modification of, amendment to, or waiver of compliance with any terms of any of
its or any other Related Paper without the notification or consent of Debtor,
except as required therein (the right to such notification and consent being
specifically waived by Debtor); (iv) the insolvency, bankruptcy, or lack of
corporate, partnership or trust power of any party at any time liable for the
payment of any or all of the Obligation, whether now existing or hereafter
occurring; (v) any renewal, extension, or rearrangement of the payment of any
or all of the Obligation, either with or without notice to or consent of
Debtor, or any adjustment, indulgence, forbearance, or compromise that may be
granted or given by Secured Parties to Debtor; (vi) any neglect, delay,
omission, failure, or refusal of any Secured Party to take or prosecute any
action in connection with any other agreement, document, guaranty, or
instrument evidencing, securing, or assuring the payment of all or any of the
Obligation; (vii) any failure of any Secured Party to notify Debtor of any
renewal, extension, or assignment of the Obligation or any part thereof, or the
release of any security, or of any other action taken or refrained from being
taken by any Secured Party against Debtor or any new agreement between any
Secured Party and Debtor, it being understood that no Secured Party shall be
required to give Debtor (other than Borrower) any notice of any kind under any
circumstances whatsoever with respect to or in connection with the Obligation,
including, without limitation, notice of acceptance of this security agreement
or any Collateral ever delivered to or for the account of such Secured Party
hereunder; (viii) the illegality, invalidity, or unenforceability of all or any
part of the Obligation against any party obligated with respect thereto by
reason of the fact that the Obligation, or the interest paid or payable with
respect thereto, exceeds the amount permitted by Law, the act of creating the
Obligation, or any part thereof, is ultra xxxxx, or the officers, partners, or
trustees creating same acted in excess of their authority, or for any other
reason; or (ix) if any payment by any party obligated with respect thereto is
held to constitute a preference under applicable Laws or for any other reason
any Secured Party is required to refund such payment or pay the amount thereof
to someone else.
(d) Waivers. Unless otherwise expressly provided herein
or in any other Related Paper, Debtor waives (i) any right to require Secured
Parties to proceed against any other Person, to exhaust its rights in
Collateral, or to pursue any other right which Secured Parties may have; (ii)
with respect to the Obligation, presentment and demand for payment, protest,
notice of protest and nonpayment, and notice of the intention to accelerate;
and (iii) all rights of marshaling in respect of any and all of the Collateral.
(e) Financing Statement. Secured Parties may file this
agreement or a carbon, photographic, or other reproduction of this agreement,
as a financing statement, but the failure of Secured Parties to do so shall not
impair the validity or enforceability of this agreement.
(f) Information. Except as otherwise provided by Law,
the charge of Secured Parties for furnishing each statement of account or each
list of Collateral shall be $10.00.
(g) Multiple Counterparts. This agreement has been
executed in a number of identical counterparts, each of which shall be deemed
an original for all purposes and all of which constitute, collectively, one
agreement; but, in making proof of this agreement, it shall not be necessary to
produce or account for more than one such counterpart.
(h) Parties Bound; Assignment. This agreement shall be
binding on and inure to the benefit of Debtor, Secured Parties, and their
respective successors and assigns. Debtor's obligations and agreements
hereunder are joint and several and shall be binding upon their respective
successors and assigns, and delivery or other accounting of Collateral to any
one or more of them shall discharge Secured Parties of all liability therefor.
Debtor may not, without the prior written consent of Secured Parties, assign
any rights, duties, or obligations hereunder. In the event of an assignment
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of all or part of the Obligation, the Security Interest and other rights and
benefits hereunder, to the extent applicable to the part of the Obligation so
assigned, may be transferred therewith.
EXECUTED as of the day and year first herein set forth.
NATIONSBANK OF TEXAS, N.A. NATIONSBANK OF TEXAS, N.A., individually
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx and as Agent
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx, By: /s/ XXXXX X. XXXXXX
Senior Vice President -------------------------------------
FAX No.: (000) 000-0000 Xxxxx X. Xxxxxx
Senior Vice President
The address and fax no. for PCNV, INC.
each of the undersigned is:
10375 Richmond Avenue By: /s/ X. X. XXXXXXXXXX
Xxxxxxx, Xxxxx 00000 -------------------------------------
Attn: X. X. Xxxxxxxxx, X. X. Xxxxxxxxxx, President
Treasurer
FAX No.: (000) 000-0000
By: /s/ X. X. XXXXXXXXX
-------------------------------------
X. X. Xxxxxxxxx, Treasurer
POOL COMPANY HOUSTON LTD.
By: POOL COMPANY, its general partner
By: /s/ X. X. XXXXXXXXXX
---------------------------------
X. X. Xxxxxxxxxx, President
By: /s/ X. X. XXXXXXXXX
---------------------------------
X. X. Xxxxxxxxx, Treasurer
POOL COMPANY TEXAS LTD.
By: POOL COMPANY, its general partner
By: /s/ X. X. XXXXXXXXXX
---------------------------------
X. X. Xxxxxxxxxx, President
By: /s/ X. X. XXXXXXXXX
---------------------------------
X. X. Xxxxxxxxx, Treasurer
8
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PLEDGE OF PARTNERSHIP INTERESTS
THIS SECURITY AGREEMENT is executed as of December 20, 1996, by Pool
Company, a Texas corporation ("BORROWER") for the benefit of NationsBank of
Texas, N.A., as Agent ("AGENT") and the Lenders ("LENDERS") named in the
Revolving Credit Agreement (as hereinafter defined) and the Term Loan Agreement
(as hereinafter defined) and for the benefit of NationsBank of Texas, N.A.
("NATIONSBANK") for its own account with respect to its net exposure on foreign
exchange contracts between it and any Company (as defined in such Revolving
Credit Agreement). NationsBank, Agent and Lenders are each a SECURED PARTY,
and are collectively referred to herein as "SECURED PARTIES".
WHEREAS, Borrower and Secured Parties have entered into (i) a Restated
Credit Agreement dated as of November 30, 1995 (as renewed, extended, or
amended from time to time, the "REVOLVING CREDIT AGREEMENT"), together with
certain other Loan Papers, and (ii) a Term Loan Agreement dated as of November
30, 1995 (as renewed, extended, or amended from time to time, the "TERM LOAN
AGREEMENT") together with certain other Loan Papers; and
WHEREAS, Borrower is (i) the general partner of Pool Company Texas
Ltd., a Texas limited partnership ("POOL TEXAS LTD."), and (ii) the general
partner of Pool Company Houston Ltd., a Texas limited partnership ("POOL
HOUSTON LTD."); and
WHEREAS, in Borrower's judgment, (a) the value of consideration
received and to be received by Borrower in connection with the transaction
described above is reasonably worth at least as much as the liability and
obligation of Borrower hereunder, and (b) such liability and obligation may
reasonably be expected to directly or indirectly benefit Borrower; and
WHEREAS, it is expressly understood among Secured Parties and Borrower
that the contemplated execution and delivery of this agreement is an integral
part of the transactions contemplated by the Loan Papers and a condition
precedent to Secured Parties' obligations to extend credit under the Revolving
Credit Agreement;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Borrower hereby covenants and agrees with
Secured Parties as follows:
1. Certain Definitions. Unless otherwise defined herein, or the
context hereof otherwise requires, (a) capitalized terms have the meaning
ascribed to such terms in the Revolving Credit Agreement and the Term Loan
Agreement, and (b) each term defined in the UCC is used in this agreement with
the same meaning; provided that if any definition given a term in Chapter 9 of
the UCC conflicts with the definition given that term in any other chapter of
the UCC, the Chapter 9 definition shall prevail. As used herein, the following
terms have the meanings indicated:
Collateral has the meaning set forth in Paragraph 3.
Default has the meaning set forth in Paragraph 6.
Obligation means (a) the "Obligation" as defined in the
Revolving Credit Agreement, (b) the "Obligation" as defined in the Term Loan
Agreement, (c) NationsBank's net exposure on all foreign exchange contracts
between Borrower and NationsBank, (d) all indebtedness, liabilities, and
obligations of Borrower arising under this agreement, (e) interest accruing on,
and attorneys' fees, court costs, and other costs of collection reasonably
incurred in the collection or enforcement of, any of the indebtedness,
liabilities, or obligations described in clauses (a) through (d) above, and (f)
any and all renewals and extensions of, or amendments to, any of the
indebtedness, liabilities, and obligations described in clauses (a) through (e)
above. The foregoing includes future advances, it being the intention and
contemplation of Borrower and Secured Parties that future advances will be made
to Borrower under the Revolving Credit Agreement for a variety of purposes, and
that payment and repayment of all of the foregoing are intended to and shall be
part of the Obligation secured hereby.
38
Related Papers means (a) this agreement, (b) all present and
future agreements, documents, and instruments now or hereafter evidencing any
of the Obligation, or assuring or securing payment thereof, (c) all agreements,
documents, and instruments now or hereafter executed in connection herewith,
including, without limitation, the Loan Papers, and (d) any and all future
renewals and extensions or restatements of, or amendments or supplements to,
all or any part of the foregoing.
Security Interest means the security interest granted and the
pledge and assignment made under Paragraph 2.
UCC means the Uniform Commercial Code as enacted in the State
of Texas or other applicable jurisdiction, as amended at the time in question
2. Security Interest. In order to secure the full and complete
payment and performance of (a) the Obligation when due, and (b) NationsBank's
net exposure on all foreign exchange contracts between any Company and
NationsBank when due, Borrower hereby grants to Secured Parties a security
interest in the Collateral and pledges and assigns the Collateral to Secured
Parties, all upon and subject to the terms and conditions of this agreement.
Such Security Interest is granted and such pledge and assignment are made as
security only and shall not subject Secured Parties to, or transfer or in any
way affect or modify, any obligation of Borrower with respect to any of the
Collateral or any transaction involving or giving rise thereto. For purposes
of clarification, "net exposure on all foreign exchange contracts" refers to
the amount, if any, by which the purchase or sales prices stipulated in any
foreign exchange contracts on which a Company is in default are (i) less, in
the case of contracts to purchase currencies, or (ii) greater, in the case of
contracts to sell currencies, respectively, than the market prices for such
currencies (as determined on the agreed value date specified in each such
contract).
3. Collateral. As used herein, COLLATERAL includes all of
Borrower's right, title and interest in and to its partnership interests in
Pool Texas Ltd. and Pool Houston Ltd. now owned or hereafter acquired, and all
proceeds thereof (collectively, the "COLLATERAL").
4. Representations and Warranties. Borrower acknowledges that
certain representations and warranties set forth in the Revolving Credit
Agreement are applicable to Borrower, and Borrower reaffirms that each such
representation and warranty is true and correct. In addition, Borrower
represents and warrants to Secured Parties that:
(a) Borrower's chief executive office is where Borrower
is entitled to receive notices hereunder, and the present and foreseeable
location of Borrower's books and records concerning any Collateral is at the
address of Borrower set forth on the signature page attached hereto.
(b) All Collateral was duly authorized and validly issued
and its transfer is not subject to any restrictions other than restrictions
imposed by applicable securities and corporate Laws.
(c) Borrower owns all presently existing Collateral, and
will keep said Collateral and all hereafter-acquired Collateral, free and clear
of all Liens except Permitted Liens.
(d) Borrower has not executed any prior transfer,
assignment, pledge, security interest, or hypothecation covering the Collateral
or any interest in the Collateral.
(e) This Agreement creates a legal, valid and binding
Lien in and to the Collateral in favor of Secured Party and enforceable against
Borrower. The Security Interest created under this Agreement will be duly
perfected once the action required for perfection under applicable Law has been
taken. Once perfected, the Security Interest will constitute a first and prior
lien on the Collateral, subject only to Permitted Liens. The creation of the
Security Interest does not require the consent of any third party.
(f) Borrower has full power and authority to execute this
Agreement without breaching any material agreement to which Borrower is a
party.
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The delivery at any time by Borrower to any Secured Party of Collateral or of
additional specific descriptions of certain Collateral shall constitute a
representation and warranty by Borrower to Secured Parties that the
representations and warranties of this Paragraph 4 are true and correct in all
material respects with respect to each item of such Collateral.
5. Certain Covenants. Borrower acknowledges that certain
covenants set forth in the Revolving Credit Agreement are applicable to
Borrower or shall be imposed upon Borrower, and Borrower covenants and agrees
to promptly and properly perform, observe, and comply with each such covenant.
In addition, Borrower further covenants and agrees with Secured Parties that
Borrower will:
(a) Maintain at the address of Borrower set forth on the
signature page hereto a current record of where all Collateral is located,
permit representatives of any Secured Party (at such Secured Party's expense to
the extent so provided in the Revolving Credit Agreement) at any time during
normal business hours to inspect and make abstracts from such records, and
furnish to such Secured Party, at such intervals as such Secured Party may
request, such documents, lists, descriptions, certificates, and other
information as may be necessary or proper to keep such Secured Party informed
with respect to the identity, location, status, condition, and value of the
Collateral.
(b) Perform in accordance with normal business practices
all of Borrower's duties under and in connection with each transaction to which
any Collateral relates.
(c) Promptly notify Secured Parties of any claim, action,
or proceeding affecting title to all or any of the Collateral or the Security
Interest and, at the request of any Secured Party, appear in and defend, at
Borrower's expense, any such action or proceeding.
(d) From time to time promptly execute and deliver to
Agent all such other assignments, certificates, supplemental documents, and
financing statements, and do all other acts or things as Secured Parties may
reasonably request in order to more fully create, evidence, perfect, continue,
and preserve the priority of the Security Interest.
(e) Not sell, lease, or otherwise dispose of, or permit
the sale, lease, or disposition of, any Collateral except for sales, leases,
and other dispositions permitted by the terms of the Revolving Credit
Agreement.
(f) Not create, incur, or suffer or permit to be created
or incurred or to exist any Lien upon or against any of the Collateral, except
for Permitted Liens.
(g) Not amend, modify, surrender, cancel, terminate, or
replace, nor permit any such amendment, modification, surrender, cancellation,
termination, or replacement of any of the Collateral or the Agreements of
Limited Partnership of Pool Texas Ltd. or Pool Houston Ltd. without Secured
Party's written consent as to the form and content of the amendment, alteration
or modification.
(h) After a Default occurs, take all actions Secured
Party requests to obtain any Tribunal's consent to or approval of Secured
Party's Rights under this Agreement, including, without limitation, the Right
to sell all or any part of the Collateral upon a Default without the Tribunal's
further consent or approval. Borrower agrees that Secured Party's remedies at
law for Borrower's failure to comply with this provision would be inadequate
and that the harm to Secured Party would not be adequately compensable in
damages. Borrower agrees that this provision may be specifically enforced.
6. Default. The term "Default," as used herein, means the
occurrence of any one or more of the events described in Section 8 of the
Revolving Credit Agreement and the Term Loan Agreement.
7. Remedies. Upon the occurrence and continuance of a Default,
Secured Parties may exercise any and all rights and remedies available to a
secured party under the UCC, in addition to any and all other rights and
remedies afforded by the Related Papers, at law, in equity, or otherwise,
including, without limitation, the rights and remedies described in Section 9
of the Revolving Credit Agreement and the Term Loan Agreement.
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(a) Partnership Interest. Borrower acknowledges that
Secured Party must, in exercising its Rights to foreclose upon and sell the
Collateral, conduct itself in accordance with the applicable requirements of
the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, and state securities laws (collectively, and together with any rules
and regulations promulgated pursuant thereto, the "SECURITIES LAWS").
Accordingly, Secured Party may have difficulty, by reason of legal restrictions
and limitations imposed by the Securities Laws, in selling the Collateral at a
price which approximates its fair market value, were it not for such
restrictions. Borrower acknowledges and agrees that (i) Secured Party may seek
to dispose of the Collateral without registration or qualification under the
Securities Laws, and in any such transaction may require the purchaser or
purchasers thereof to represent and warrant their intent not to distribute the
Collateral in violation of the Securities Laws, and any disposition so effected
shall not thereby be deemed "commercially unreasonable," and (ii) Secured Party
may disclose any information it has obtained concerning any issuer of
Collateral, even if obtained in confidence, if Secured Party considers such
disclosure to potential purchasers of the Collateral at a foreclosure sale to
be useful or necessary to comply with the Securities Laws.
(b) Borrower's Agent. Secured Party shall be deemed to
be irrevocably appointed as Borrower's agent and attorney-in-fact with all
right and power to enforce all of Borrower's rights and remedies under or in
connection with the Collateral. All reasonable costs, expenses and liabilities
incurred and all payments made by Secured Party as Borrower's agent and
attorney-in-fact, including, without limitation, reasonable attorney's fees and
expenses, shall be considered a loan by Secured Party to Borrower which shall
be repayable on demand and shall accrue interest at the Default Rate. This
power of attorney is a power coupled with an interest and shall be irrevocable
until the Obligation is paid in full. The Secured Party shall be under no duty
to exercise or withhold the exercise of any of the rights, powers, privileges,
and options expressly or implicitly granted to it in this Agreement, and shall
not be liable for any failure to do so or any delay in doing so. This power of
attorney is conferred on Secured Party solely to protect, preserve, maintain,
and realize upon its Security Interest in the Collateral. Neither Secured
Party nor any of the Lenders shall be responsible for any decline or diminution
in the value of any of the Collateral, and neither Secured Party nor any of the
Lenders shall be required to take any steps to protect or preserve any of the
Collateral or any rights against prior parties or to protect, preserve, or
maintain any security interest or Lien given to secure the Collateral.
(c) Notice. Reasonable notification of the time and
place of any public sale of the Collateral, or reasonable notification of the
time after which any private sale or other intended disposition of the
Collateral is to be made, shall be sent to the Borrower and to any other Person
entitled to notice under the UCC; provided that if any of the Collateral
threatens to decline speedily in value or is of the type customarily sold on a
recognized market, Secured Parties may sell or otherwise dispose of the
Collateral without notification, advertisement, or other notice of any kind.
It is agreed that (i) notice sent or given not less than five Business Days
prior to the taking of the action to which the notice relates is reasonable
notification and notice for the purposes of this subparagraph, and (ii) any
sale of the Collateral may be conducted with reserve.
(d) Sales of Securities. In connection with the sale of
any Collateral that is securities, Secured Parties are authorized, but not
obligated, to limit prospective purchasers to the extent deemed necessary or
desirable by Secured Parties to render such sale exempt from the registration
requirements of the Securities Exchange Act of 1934 (as amended, the EXCHANGE
ACT) and any applicable state securities Laws, and no sale so made in good
faith by Secured Parties shall be deemed not to be "commercially reasonable"
because so made.
(e) Application of Proceeds. Secured Parties shall apply
the proceeds or any sale or other disposition of the Collateral under this
Paragraph 7 in the following order: First, to the payment of all its expenses
incurred in retaking, holding, and preparing any of the Collateral for sale(s)
or other disposition, in arranging for such sale(s) or other disposition, and
in actually selling or disposing of the same (all of which are part of the
Obligation); second, toward repayment of amounts expended by Secured Parties
under Paragraph 8; third, subject to Section 9.1 of the Revolving Credit
Agreement and the Term Loan Agreement, toward payment of the balance of the
Obligation and NationsBank's net exposure then existing under all foreign
exchange contracts between any Company and NationsBank in such order and manner
as Secured Parties, in their discretion, may deem advisable. Any surplus
remaining shall be delivered to the Borrower or Borrower or as a court of
competent jurisdiction may direct. If the proceeds are insufficient to pay the
Obligation in full, Borrower shall remain liable for any deficiency.
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8. Other Rights of Secured Parties.
(a) Performance. If any covenant, duty, or agreement of
Borrower is not performed in accordance with its material terms, Secured
Parties may, at their option, perform, or attempt to perform, such covenant,
duty, or agreement on behalf of Borrower. Any amount reasonably expended by
Secured Parties in such performance or attempted performance shall be payable
by Borrower to Secured Parties on demand, shall become part of the Obligation,
and shall bear interest at the Default Rate from the date of such expenditure
by Secured Parties until paid. Notwithstanding the foregoing, it is expressly
understood that no Secured Party shall assume or have, except by express
written consent of such Secured Party, any liability or responsibility for the
performance of any covenant, duty, or agreement of Borrower.
(b) Record Ownership of Partnership Interest. If a
Default exists, Secured Party may have the Collateral registered in its name,
or in the name of its nominee or nominees, as pledgee, and, as to any
Collateral so registered, Borrower shall execute and deliver (or cause to be
executed and delivered) to Secured Party all such proxies, powers of attorney,
dividend coupons or orders, and other documents as Secured Party may reasonably
request to exercise the voting rights and powers to which it is entitled under
this Agreement or to receive any distributions and other payments with respect
to such Collateral which it is authorized to receive and retain under this
Agreement.
(c) Voting. If no Default exists and Borrower has not
received the notice referred to in the following sentence, Borrower may
exercise all voting rights pertaining to the Collateral. If a Default exists,
the right to vote the Collateral may, in Secured Party's sole discretion, be
vested exclusively in Secured Party by Secured Party giving notice of such
election to Borrower. Borrower hereby irrevocably constitutes and appoints
Secured Party the proxy and attorney-in-fact of Borrower, with full power of
substitution, to vote and to act with respect to any and all Collateral
standing in the name of Borrower or with respect to which Borrower is entitled
to vote and act, but such proxy may not be exercised unless a Default exists.
The proxy herein granted is coupled with an interest, is irrevocable, and shall
continue until the Obligation has been paid and performed in full.
(d) Certain Proceeds. All non-cash distributions made
on or with respect to the Collateral and any proceeds of any Collateral
(whether such distributions or proceeds result from a subdivision, combination
or reclassification of the outstanding partnership interests of Pool Houston
Ltd. or Pool Texas Ltd., or as a result of any merger, consolidation,
acquisition or other exchange of assets or otherwise) shall be part of the
Collateral hereunder, shall be held in trust for the benefit of Secured Party
and shall be delivered promptly to Secured Party (accompanied by proper
instruments of assignment and transfer powers executed by Borrower in
accordance with Secured Party's instructions) to be held subject to the terms
of this Agreement.
(e) INDEMNIFICATION. BORROWER HEREBY ASSUMES ALL
LIABILITY FOR THE COLLATERAL, FOR THE SECURITY INTEREST, AND FOR ANY USE,
POSSESSION, MAINTENANCE, AND MANAGEMENT OF, ALL OR ANY OF THE COLLATERAL,
INCLUDING, WITHOUT LIMITATION, ANY TAXES ARISING AS A RESULT OF, OR IN
CONNECTION WITH, THE TRANSACTIONS CONTEMPLATED HEREIN, AND AGREES TO ASSUME
LIABILITY FOR, AND TO INDEMNIFY AND HOLD SECURED PARTIES HARMLESS FROM AND
AGAINST, ANY AND ALL CLAIMS, CAUSES OF ACTION, OR LIABILITY, HOWSOEVER ARISING
FROM OR INCIDENT TO SUCH USE, POSSESSION, MAINTENANCE, AND MANAGEMENT, WHETHER
SUCH PERSONS BE AGENTS OR EMPLOYEES OF BORROWER OR OF THIRD PARTIES, OR SUCH
DAMAGE TO PROPERTY OF BORROWER OR OF OTHERS. UNLESS EXPRESSLY PROHIBITED BY
APPLICABLE LAW, BORROWER AGREES TO INDEMNIFY, SAVE, AND HOLD SECURED PARTIES
HARMLESS FROM AND AGAINST, AND COVENANTS TO DEFEND SECURED PARTIES AGAINST, ANY
AND ALL LOSSES, DAMAGES, CLAIMS, COSTS, PENALTIES, LIABILITIES, AND EXPENSES,
INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS' FEES, HOWSOEVER
ARISING OR INCURRED BECAUSE OF, INCIDENT TO, OR WITH RESPECT TO COLLATERAL OR
ANY USE, POSSESSION, MAINTENANCE, OR MANAGEMENT THEREOF, PROVIDED THAT BORROWER
SHALL NOT BE LIABLE FOR LOSSES, DAMAGES, CLAIMS, COSTS, PENALTIES, LIABILITIES,
AND EXPENSES RESULTING FROM ANY SECURED PARTY'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
9. Miscellaneous.
(a) Reference to Miscellaneous Provisions. This
agreement is a Loan Paper, and, therefore, this agreement is subject to the
applicable provisions of Section 12 of the Revolving Credit Agreement, all of
which applicable provisions are incorporated herein by reference the same as if
set forth herein verbatim. Until changed by notice, the address
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and facsimile number for each party hereto for purposes of communications are
as appear on the signature page(s) of this agreement.
(b) Term. This agreement shall terminate upon full and
final payment and performance of (a) the Obligation, and (b) all foreign
exchange contracts between each Company and NationsBank.
(c) Actions Not Releases. The Security Interest and
Borrower's obligations and Secured Parties' rights hereunder shall not be
released, diminished, impaired, or adversely affected by the occurrence of any
one or more of the following events: (i) The taking or accepting of any other
security or assurance for any or all of the Obligation; (ii) any release,
surrender, exchange, subordination, or loss of any security or assurance at any
time existing in connection with any or all of the Obligation; (iii) the
modification of, amendment to, or waiver of compliance with any terms of any of
its or any other Related Paper without the notification or consent of Borrower,
except as required therein (the right to such notification and consent being
specifically waived by Borrower); (iv) the insolvency, bankruptcy, or lack of
corporate, partnership or trust power of any party at any time liable for the
payment of any or all of the Obligation, whether now existing or hereafter
occurring; (v) any renewal, extension, or rearrangement of the payment of any
or all of the Obligation, either with or without notice to or consent of
Borrower, or any adjustment, indulgence, forbearance, or compromise that may be
granted or given by Secured Parties to Borrower; (vi) any neglect, delay,
omission, failure, or refusal of any Secured Party to take or prosecute any
action in connection with any other agreement, document, guaranty, or
instrument evidencing, securing, or assuring the payment of all or any of the
Obligation; (vii) any failure of any Secured Party to notify Borrower of any
renewal, extension, or assignment of the Obligation or any part thereof, or the
release of any security, or of any other action taken or refrained from being
taken by any Secured Party against Borrower or any new agreement between any
Secured Party and Borrower, it being understood that no Secured Party shall be
required to give Borrower (other than Borrower) any notice of any kind under
any circumstances whatsoever with respect to or in connection with the
Obligation, including, without limitation, notice of acceptance of this
security agreement or any Collateral ever delivered to or for the account of
such Secured Party hereunder; (viii) the illegality, invalidity, or
unenforceability of all or any part of the Obligation against any party
obligated with respect thereto by reason of the fact that the Obligation, or
the interest paid or payable with respect thereto, exceeds the amount permitted
by Law, the act of creating the Obligation, or any part thereof, is ultra
xxxxx, or the officers, partners, or trustees creating same acted in excess of
their authority, or for any other reason; or (ix) if any payment by any party
obligated with respect thereto is held to constitute a preference under
applicable Laws or for any other reason any Secured Party is required to refund
such payment or pay the amount thereof to someone else.
(d) Waivers. Unless otherwise expressly provided herein
or in any other Related Paper, Borrower waives (i) any right to require Secured
Parties to proceed against any other Person, to exhaust its rights in
Collateral, or to pursue any other right which Secured Parties may have; (ii)
with respect to the Obligation, presentment and demand for payment, protest,
notice of protest and nonpayment, and notice of the intention to accelerate;
and (iii) all rights of marshaling in respect of any and all of the Collateral.
(e) Financing Statement. Secured Parties may file this
agreement or a carbon, photographic, or other reproduction of this agreement,
as a financing statement, but the failure of Secured Parties to do so shall not
impair the validity or enforceability of this agreement.
(f) Information. Except as otherwise provided by Law,
the charge of Secured Parties for furnishing each statement of account or each
list of Collateral shall be $10.00.
(g) Multiple Counterparts. This agreement has been
executed in a number of identical counterparts, each of which shall be deemed
an original for all purposes and all of which constitute, collectively, one
agreement; but, in making proof of this agreement, it shall not be necessary to
produce or account for more than one such counterpart.
(h) Parties Bound; Assignment. This agreement shall be
binding on and inure to the benefit of Borrower, Secured Parties, and their
respective successors and assigns. Borrower's obligations and agreements
hereunder are joint and several and shall be binding upon their respective
successors and assigns, and delivery or other accounting of Collateral to any
one or more of them shall discharge Secured Parties of all liability therefor.
Borrower may not, without the prior written consent of Secured Parties, assign
any rights, duties, or obligations hereunder. In the event of an assignment
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of all or part of the Obligation, the Security Interest and other rights and
benefits hereunder, to the extent applicable to the part of the Obligation so
assigned, may be transferred therewith.
EXECUTED as of the day and year first herein set forth.
NATIONSBANK OF TEXAS, N.A. NATIONSBANK OF TEXAS, N.A.,
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx individually and as Agent
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx,
Senior Vice President By: /s/ XXXXX X. XXXXXX
FAX No.: (000) 000-0000 --------------------------------
Xxxxx X. Xxxxxx
Senior Vice President
POOL COMPANY POOL COMPANY
00000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: X. X. Xxxxxxxxx,
Treasurer By: /s/ X. X. XXXXXXXXXX
FAX No.: (000) 000-0000 --------------------------------
X. X. Xxxxxxxxxx, President
By: X. X. XXXXXXXXX
--------------------------------
X. X. Xxxxxxxxx, Treasurer
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PLEDGE OF PARTNERSHIP INTERESTS
THIS SECURITY AGREEMENT is executed as of December 20, 1996, by PCNV,
Inc., a Nevada corporation ("PLEDGOR") for the benefit of NationsBank of Texas,
N.A., as Agent ("AGENT") and the Lenders ("LENDERS") named in the Revolving
Credit Agreement (as hereinafter defined) and the Term Loan Agreement (as
hereinafter defined) and for the benefit of NationsBank of Texas, N.A.
("NATIONSBANK") for its own account with respect to its net exposure on foreign
exchange contracts between it and any Company (as defined in such Revolving
Credit Agreement). NationsBank, Agent and Lenders are each a SECURED PARTY,
and are collectively referred to herein as "SECURED PARTIES".
WHEREAS, Pool Company, a Texas corporation ("BORROWER") and Secured
Parties have entered into (i) a Restated Credit Agreement dated as of November
30, 1995 (as renewed, extended, or amended from time to time, the "REVOLVING
CREDIT AGREEMENT"), together with certain other Loan Papers, and (ii) a Term
Loan Agreement dated as of November 30, 1995 (as renewed, extended, or amended
from time to time, the "TERM LOAN AGREEMENT") together with certain other Loan
Papers; and
WHEREAS, Pledgor is a wholly-owned subsidiary of Borrower; and
WHEREAS, Pledgor is (i) the limited partner of Pool Company Texas Ltd.,
a Texas limited partnership ("POOL TEXAS LTD."), and (ii) the limited partner
of Pool Company Houston Ltd., a Texas limited partnership ("POOL HOUSTON
LTD."); and
WHEREAS, in Pledgor's judgment, (a) the value of consideration received
and to be received by Pledgor in connection with the transaction described
above is reasonably worth at least as much as the liability and obligation of
Pledgor hereunder, and (b) such liability and obligation may reasonably be
expected to directly or indirectly benefit Pledgor; and
WHEREAS, it is expressly understood among Secured Parties and Pledgor
that the contemplated execution and delivery of this agreement is an integral
part of the transactions contemplated by the Loan Papers and a condition
precedent to Secured Parties' obligations to extend credit under the Revolving
Credit Agreement;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Pledgor hereby covenants and agrees with Secured
Parties as follows:
1. Certain Definitions. Unless otherwise defined herein, or the
context hereof otherwise requires, (a) capitalized terms have the meaning
ascribed to such terms in the Revolving Credit Agreement and the Term Loan
Agreement, and (b) each term defined in the UCC is used in this agreement with
the same meaning; provided that if any definition given a term in Chapter 9 of
the UCC conflicts with the definition given that term in any other chapter of
the UCC, the Chapter 9 definition shall prevail. As used herein, the following
terms have the meanings indicated:
Collateral has the meaning set forth in Paragraph 3.
Default has the meaning set forth in Paragraph 6.
Obligation means (a) the "Obligation" as defined in the
Revolving Credit Agreement, (b) the "Obligation" as defined in the Term Loan
Agreement, (c) NationsBank's net exposure on all foreign exchange contracts
between Borrower and NationsBank, (d) all indebtedness, liabilities, and
obligations of Pledgor arising under this agreement, (e) interest accruing on,
and attorneys' fees, court costs, and other costs of collection reasonably
incurred in the collection or enforcement of, any of the indebtedness,
liabilities, or obligations described in clauses (a) through (d) above, and (f)
any and all renewals and extensions of, or amendments to, any of the
indebtedness, liabilities, and obligations described in clauses (a) through (e)
above. The foregoing includes future advances, it being the intention and
contemplation of Pledgor and Secured Parties that future advances will be made
to Borrower under the Revolving Credit Agreement for a variety of purposes, and
that payment and repayment of all of the foregoing are intended to and shall be
part of the Obligation secured hereby.
45
Related Papers means (a) this agreement, (b) all present and
future agreements, documents, and instruments now or hereafter evidencing any
of the Obligation, or assuring or securing payment thereof, (c) all agreements,
documents, and instruments now or hereafter executed in connection herewith,
including, without limitation, the Loan Papers, and (d) any and all future
renewals and extensions or restatements of, or amendments or supplements to,
all or any part of the foregoing.
Security Interest means the security interest granted and the
pledge and assignment made under Paragraph 2.
UCC means the Uniform Commercial Code as enacted in the State of
Texas or other applicable jurisdiction, as amended at the time in question
2. Security Interest. In order to secure the full and complete
payment and performance of (a) the Obligation when due, and (b) NationsBank's
net exposure on all foreign exchange contracts between any Company and
NationsBank when due, Pledgor hereby grants to Secured Parties a security
interest in the Collateral and pledges and assigns the Collateral to Secured
Parties, all upon and subject to the terms and conditions of this agreement.
Such Security Interest is granted and such pledge and assignment are made as
security only and shall not subject Secured Parties to, or transfer or in any
way affect or modify, any obligation of Pledgor with respect to any of the
Collateral or any transaction involving or giving rise thereto. For purposes
of clarification, "net exposure on all foreign exchange contracts" refers to
the amount, if any, by which the purchase or sales prices stipulated in any
foreign exchange contracts on which a Company is in default are (i) less, in
the case of contracts to purchase currencies, or (ii) greater, in the case of
contracts to sell currencies, respectively, than the market prices for such
currencies (as determined on the agreed value date specified in each such
contract).
3. Collateral. As used herein, COLLATERAL includes all of Pledgor's
right, title and interest in and to its partnership interests in Pool Texas
Ltd. and Pool Houston Ltd. now owned or hereafter acquired, and all proceeds
thereof (collectively, the "COLLATERAL").
4. Representations and Warranties. Pledgor acknowledges that
certain representations and warranties set forth in the Revolving Credit
Agreement are applicable to Pledgor, and Pledgor reaffirms that each such
representation and warranty is true and correct. In addition, Pledgor
represents and warrants to Secured Parties that:
(a) Pledgor's chief executive office is where Pledgor is
entitled to receive notices hereunder, and the present and foreseeable location
of Pledgor's books and records concerning any Collateral is at the address of
Pledgor set forth on the signature page attached hereto.
(b) All Collateral was duly authorized and validly issued and
its transfer is not subject to any restrictions other than restrictions imposed
by applicable securities and corporate Laws.
(c) Pledgor owns all presently existing Collateral, and will
keep said Collateral and all hereafter-acquired Collateral, free and clear of
all Liens except Permitted Liens.
(d) Pledgor has not executed any prior transfer, assignment,
pledge, security interest, or hypothecation covering the Collateral or any
interest in the Collateral.
(e) This Agreement creates a legal, valid and binding Lien in
and to the Collateral in favor of Secured Party and enforceable against
Pledgor. The Security Interest created under this Agreement will be duly
perfected once the action required for perfection under applicable Law has been
taken. Once perfected, the Security Interest will constitute a first and prior
lien on the Collateral, subject only to Permitted Liens. The creation of the
Security Interest does not require the consent of any third party.
(f) Pledgor has full power and authority to execute this
Agreement without breaching any material agreement to which Pledgor is a party.
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46
The delivery at any time by Pledgor to any Secured Party of Collateral or of
additional specific descriptions of certain Collateral shall constitute a
representation and warranty by Pledgor to Secured Parties that the
representations and warranties of this Paragraph 4 are true and correct in all
material respects with respect to each item of such Collateral.
5. Certain Covenants. Pledgor acknowledges that certain covenants
set forth in the Revolving Credit Agreement are applicable to Pledgor or shall
be imposed upon Pledgor, and Pledgor covenants and agrees to promptly and
properly perform, observe, and comply with each such covenant. In addition,
Pledgor further covenants and agrees with Secured Parties that Pledgor will:
(a) Maintain at the address of Pledgor set forth on the
signature page hereto a current record of where all Collateral is located,
permit representatives of any Secured Party (at such Secured Party's expense to
the extent so provided in the Revolving Credit Agreement) at any time during
normal business hours to inspect and make abstracts from such records, and
furnish to such Secured Party, at such intervals as such Secured Party may
request, such documents, lists, descriptions, certificates, and other
information as may be necessary or proper to keep such Secured Party informed
with respect to the identity, location, status, condition, and value of the
Collateral.
(b) Perform in accordance with normal business practices all
of Pledgor's duties under and in connection with each transaction to which any
Collateral relates.
(c) Promptly notify Secured Parties of any claim, action, or
proceeding affecting title to all or any of the Collateral or the Security
Interest and, at the request of any Secured Party, appear in and defend, at
Pledgor's expense, any such action or proceeding.
(d) From time to time promptly execute and deliver to Agent
all such other assignments, certificates, supplemental documents, and financing
statements, and do all other acts or things as Secured Parties may reasonably
request in order to more fully create, evidence, perfect, continue, and
preserve the priority of the Security Interest.
(e) Not sell, lease, or otherwise dispose of, or permit the
sale, lease, or disposition of, any Collateral except for sales, leases, and
other dispositions permitted by the terms of the Revolving Credit Agreement.
(f) Not create, incur, or suffer or permit to be created or
incurred or to exist any Lien upon or against any of the Collateral, except for
Permitted Liens.
(g) Not amend, modify, surrender, cancel, terminate, or
replace, nor permit any such amendment, modification, surrender, cancellation,
termination, or replacement of any of the Collateral or the Agreements of
Limited Partnership of Pool Texas Ltd. or Pool Houston Ltd. without Secured
Party's written consent as to the form and content of the amendment, alteration
or modification.
(h) After a Default occurs, take all actions Secured Party
requests to obtain any Tribunal's consent to or approval of Secured Party's
Rights under this Agreement, including, without limitation, the Right to sell
all or any part of the Collateral upon a Default without the Tribunal's further
consent or approval. Pledgor agrees that Secured Party's remedies at law for
Pledgor's failure to comply with this provision would be inadequate and that
the harm to Secured Party would not be adequately compensable in damages.
Pledgor agrees that this provision may be specifically enforced.
6. Default. The term "Default," as used herein, means the
occurrence of any one or more of the events described in Section 8 of the
Revolving Credit Agreement and the Term Loan Agreement.
7. Remedies. Upon the occurrence and continuance of a Default,
Secured Parties may exercise any and all rights and remedies available to a
secured party under the UCC, in addition to any and all other rights and
remedies afforded by the Related Papers, at law, in equity, or otherwise,
including, without limitation, the rights and remedies described in Section 9
of the Revolving Credit Agreement and the Term Loan Agreement.
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(a) Partnership Interest. Pledgor acknowledges that Secured
Party must, in exercising its Rights to foreclose upon and sell the Collateral,
conduct itself in accordance with the applicable requirements of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
state securities laws (collectively, and together with any rules and
regulations promulgated pursuant thereto, the "SECURITIES LAWS"). Accordingly,
Secured Party may have difficulty, by reason of legal restrictions and
limitations imposed by the Securities Laws, in selling the Collateral at a
price which approximates its fair market value, were it not for such
restrictions. Pledgor acknowledges and agrees that (i) Secured Party may seek
to dispose of the Collateral without registration or qualification under the
Securities Laws, and in any such transaction may require the purchaser or
purchasers thereof to represent and warrant their intent not to distribute the
Collateral in violation of the Securities Laws, and any disposition so effected
shall not thereby be deemed "commercially unreasonable," and (ii) Secured Party
may disclose any information it has obtained concerning any issuer of
Collateral, even if obtained in confidence, if Secured Party considers such
disclosure to potential purchasers of the Collateral at a foreclosure sale to
be useful or necessary to comply with the Securities Laws.
(b) Pledgor's Agent. Secured Party shall be deemed to be
irrevocably appointed as Pledgor's agent and attorney-in-fact with all right
and power to enforce all of Pledgor's rights and remedies under or in
connection with the Collateral. All reasonable costs, expenses and liabilities
incurred and all payments made by Secured Party as Pledgor's agent and
attorney-in-fact, including, without limitation, reasonable attorney's fees and
expenses, shall be considered a loan by Secured Party to Pledgor which shall be
repayable on demand and shall accrue interest at the Default Rate. This power
of attorney is a power coupled with an interest and shall be irrevocable until
the Obligation is paid in full. The Secured Party shall be under no duty to
exercise or withhold the exercise of any of the rights, powers, privileges, and
options expressly or implicitly granted to it in this Agreement, and shall not
be liable for any failure to do so or any delay in doing so. This power of
attorney is conferred on Secured Party solely to protect, preserve, maintain,
and realize upon its Security Interest in the Collateral. Neither Secured
Party nor any of the Lenders shall be responsible for any decline or diminution
in the value of any of the Collateral, and neither Secured Party nor any of the
Lenders shall be required to take any steps to protect or preserve any of the
Collateral or any rights against prior parties or to protect, preserve, or
maintain any security interest or Lien given to secure the Collateral.
(c) Notice. Reasonable notification of the time and place of
any public sale of the Collateral, or reasonable notification of the time after
which any private sale or other intended disposition of the Collateral is to be
made, shall be sent to the Pledgor and to any other Person entitled to notice
under the UCC; provided that if any of the Collateral threatens to decline
speedily in value or is of the type customarily sold on a recognized market,
Secured Parties may sell or otherwise dispose of the Collateral without
notification, advertisement, or other notice of any kind. It is agreed that
(i) notice sent or given not less than five Business Days prior to the taking
of the action to which the notice relates is reasonable notification and notice
for the purposes of this subparagraph, and (ii) any sale of the Collateral may
be conducted with reserve.
(d) Sales of Securities. In connection with the sale of any
Collateral that is securities, Secured Parties are authorized, but not
obligated, to limit prospective purchasers to the extent deemed necessary or
desirable by Secured Parties to render such sale exempt from the registration
requirements of the Securities Exchange Act of 1934 (as amended, the EXCHANGE
ACT) and any applicable state securities Laws, and no sale so made in good
faith by Secured Parties shall be deemed not to be "commercially reasonable"
because so made.
(e) Application of Proceeds. Secured Parties shall apply the
proceeds or any sale or other disposition of the Collateral under this
Paragraph 7 in the following order: First, to the payment of all its expenses
incurred in retaking, holding, and preparing any of the Collateral for sale(s)
or other disposition, in arranging for such sale(s) or other disposition, and
in actually selling or disposing of the same (all of which are part of the
Obligation); second, toward repayment of amounts expended by Secured Parties
under Paragraph 8; third, subject to Section 9.1 of the Revolving Credit
Agreement and the Term Loan Agreement, toward payment of the balance of the
Obligation and NationsBank's net exposure then existing under all foreign
exchange contracts between any Company and NationsBank in such order and manner
as Secured Parties, in their discretion, may deem advisable. Any surplus
remaining shall be delivered to the Pledgor or Pledgor or as a court of
competent jurisdiction may direct. If the proceeds are insufficient to pay the
Obligation in full, Pledgor shall remain liable for any deficiency.
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8. Other Rights of Secured Parties.
(a) Performance. If any covenant, duty, or agreement of
Pledgor is not performed in accordance with its material terms, Secured Parties
may, at their option, perform, or attempt to perform, such covenant, duty, or
agreement on behalf of Pledgor. Any amount reasonably expended by Secured
Parties in such performance or attempted performance shall be payable by
Pledgor to Secured Parties on demand, shall become part of the Obligation, and
shall bear interest at the Default Rate from the date of such expenditure by
Secured Parties until paid. Notwithstanding the foregoing, it is expressly
understood that no Secured Party shall assume or have, except by express
written consent of such Secured Party, any liability or responsibility for the
performance of any covenant, duty, or agreement of Pledgor.
(b) Record Ownership of Partnership Interest. If a Default
exists, Secured Party may have the Collateral registered in its name, or in the
name of its nominee or nominees, as pledgee, and, as to any Collateral so
registered, Pledgor shall execute and deliver (or cause to be executed and
delivered) to Secured Party all such proxies, powers of attorney, dividend
coupons or orders, and other documents as Secured Party may reasonably request
to exercise the voting rights and powers to which it is entitled under this
Agreement or to receive any distributions and other payments with respect to
such Collateral which it is authorized to receive and retain under this
Agreement.
(c) Voting. If no Default exists and Pledgor has not received
the notice referred to in the following sentence, Pledgor may exercise all
voting rights pertaining to the Collateral. If a Default exists, the right to
vote the Collateral may, in Secured Party's sole discretion, be vested
exclusively in Secured Party by Secured Party giving notice of such election to
Pledgor. Pledgor hereby irrevocably constitutes and appoints Secured Party the
proxy and attorney-in-fact of Pledgor, with full power of substitution, to vote
and to act with respect to any and all Collateral standing in the name of
Pledgor or with respect to which Pledgor is entitled to vote and act, but such
proxy may not be exercised unless a Default exists. The proxy herein granted
is coupled with an interest, is irrevocable, and shall continue until the
Obligation has been paid and performed in full.
(d) Certain Proceeds. All non-cash distributions made on or
with respect to the Collateral and any proceeds of any Collateral (whether such
distributions or proceeds result from a subdivision, combination or
reclassification of the outstanding partnership interests of Pool Houston Ltd.
or Pool Texas Ltd., or as a result of any merger, consolidation, acquisition or
other exchange of assets or otherwise) shall be part of the Collateral
hereunder, shall be held in trust for the benefit of Secured Party and shall be
delivered promptly to Secured Party (accompanied by proper instruments of
assignment and transfer powers executed by Pledgor in accordance with Secured
Party's instructions) to be held subject to the terms of this Agreement.
(e) INDEMNIFICATION. PLEDGOR HEREBY ASSUMES ALL LIABILITY FOR
THE COLLATERAL, FOR THE SECURITY INTEREST, AND FOR ANY USE, POSSESSION,
MAINTENANCE, AND MANAGEMENT OF, ALL OR ANY OF THE COLLATERAL, INCLUDING,
WITHOUT LIMITATION, ANY TAXES ARISING AS A RESULT OF, OR IN CONNECTION WITH,
THE TRANSACTIONS CONTEMPLATED HEREIN, AND AGREES TO ASSUME LIABILITY FOR, AND
TO INDEMNIFY AND HOLD SECURED PARTIES HARMLESS FROM AND AGAINST, ANY AND ALL
CLAIMS, CAUSES OF ACTION, OR LIABILITY, HOWSOEVER ARISING FROM OR INCIDENT TO
SUCH USE, POSSESSION, MAINTENANCE, AND MANAGEMENT, WHETHER SUCH PERSONS BE
AGENTS OR EMPLOYEES OF PLEDGOR OR OF THIRD PARTIES, OR SUCH DAMAGE TO PROPERTY
OF PLEDGOR OR OF OTHERS. UNLESS EXPRESSLY PROHIBITED BY APPLICABLE LAW,
PLEDGOR AGREES TO INDEMNIFY, SAVE, AND HOLD SECURED PARTIES HARMLESS FROM AND
AGAINST, AND COVENANTS TO DEFEND SECURED PARTIES AGAINST, ANY AND ALL LOSSES,
DAMAGES, CLAIMS, COSTS, PENALTIES, LIABILITIES, AND EXPENSES, INCLUDING,
WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS' FEES, HOWSOEVER ARISING OR
INCURRED BECAUSE OF, INCIDENT TO, OR WITH RESPECT TO COLLATERAL OR ANY USE,
POSSESSION, MAINTENANCE, OR MANAGEMENT THEREOF, PROVIDED THAT PLEDGOR SHALL NOT
BE LIABLE FOR LOSSES, DAMAGES, CLAIMS, COSTS, PENALTIES, LIABILITIES, AND
EXPENSES RESULTING FROM ANY SECURED PARTY'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
9. Miscellaneous.
(a) Reference to Miscellaneous Provisions. This agreement is
a Loan Paper, and, therefore, this agreement is subject to the applicable
provisions of Section 12 of the Revolving Credit Agreement, all of which
applicable provisions are incorporated herein by reference the same as if set
forth herein verbatim. Until changed by notice, the address
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and facsimile number for each party hereto for purposes of communications are
as appear on the signature page(s) of this agreement.
(b) Term. This agreement shall terminate upon full and final
payment and performance of (a) the Obligation, and (b) all foreign exchange
contracts between each Company and NationsBank.
(c) Actions Not Releases. The Security Interest and Pledgor's
obligations and Secured Parties' rights hereunder shall not be released,
diminished, impaired, or adversely affected by the occurrence of any one or
more of the following events: (i) The taking or accepting of any other security
or assurance for any or all of the Obligation; (ii) any release, surrender,
exchange, subordination, or loss of any security or assurance at any time
existing in connection with any or all of the Obligation; (iii) the
modification of, amendment to, or waiver of compliance with any terms of any of
its or any other Related Paper without the notification or consent of Pledgor,
except as required therein (the right to such notification and consent being
specifically waived by Pledgor); (iv) the insolvency, bankruptcy, or lack of
corporate, partnership or trust power of any party at any time liable for the
payment of any or all of the Obligation, whether now existing or hereafter
occurring; (v) any renewal, extension, or rearrangement of the payment of any
or all of the Obligation, either with or without notice to or consent of
Pledgor, or any adjustment, indulgence, forbearance, or compromise that may be
granted or given by Secured Parties to Pledgor; (vi) any neglect, delay,
omission, failure, or refusal of any Secured Party to take or prosecute any
action in connection with any other agreement, document, guaranty, or
instrument evidencing, securing, or assuring the payment of all or any of the
Obligation; (vii) any failure of any Secured Party to notify Pledgor of any
renewal, extension, or assignment of the Obligation or any part thereof, or the
release of any security, or of any other action taken or refrained from being
taken by any Secured Party against Pledgor or any new agreement between any
Secured Party and Pledgor, it being understood that no Secured Party shall be
required to give Pledgor (other than Pledgor) any notice of any kind under any
circumstances whatsoever with respect to or in connection with the Obligation,
including, without limitation, notice of acceptance of this security agreement
or any Collateral ever delivered to or for the account of such Secured Party
hereunder; (viii) the illegality, invalidity, or unenforceability of all or any
part of the Obligation against any party obligated with respect thereto by
reason of the fact that the Obligation, or the interest paid or payable with
respect thereto, exceeds the amount permitted by Law, the act of creating the
Obligation, or any part thereof, is ultra xxxxx, or the officers, partners, or
trustees creating same acted in excess of their authority, or for any other
reason; or (ix) if any payment by any party obligated with respect thereto is
held to constitute a preference under applicable Laws or for any other reason
any Secured Party is required to refund such payment or pay the amount thereof
to someone else.
(d) Waivers. Unless otherwise expressly provided herein or in
any other Related Paper, Pledgor waives (i) any right to require Secured
Parties to proceed against any other Person, to exhaust its rights in
Collateral, or to pursue any other right which Secured Parties may have; (ii)
with respect to the Obligation, presentment and demand for payment, protest,
notice of protest and nonpayment, and notice of the intention to accelerate;
and (iii) all rights of marshaling in respect of any and all of the Collateral.
(e) Financing Statement. Secured Parties may file this
agreement or a carbon, photographic, or other reproduction of this agreement,
as a financing statement, but the failure of Secured Parties to do so shall not
impair the validity or enforceability of this agreement.
(f) Information. Except as otherwise provided by Law, the
charge of Secured Parties for furnishing each statement of account or each list
of Collateral shall be $10.00.
(g) Multiple Counterparts. This agreement has been executed in
a number of identical counterparts, each of which shall be deemed an original
for all purposes and all of which constitute, collectively, one agreement; but,
in making proof of this agreement, it shall not be necessary to produce or
account for more than one such counterpart.
(h) Parties Bound; Assignment. This agreement shall be binding
on and inure to the benefit of Pledgor, Secured Parties, and their respective
successors and assigns. Pledgor's obligations and agreements hereunder are
joint and several and shall be binding upon their respective successors and
assigns, and delivery or other accounting of Collateral to any one or more of
them shall discharge Secured Parties of all liability therefor. Pledgor may
not, without the prior written consent of Secured Parties, assign any rights,
duties, or obligations hereunder. In the event of an assignment
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of all or part of the Obligation, the Security Interest and other rights and
benefits hereunder, to the extent applicable to the part of the Obligation so
assigned, may be transferred therewith.
EXECUTED as of the day and year first herein set forth.
NATIONSBANK OF TEXAS, N.A. NATIONSBANK OF TEXAS, N.A., individually and
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx as Agent
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx,
Senior Vice President By: /s/ XXXXX X. XXXXXX
FAX No.: (000) 000-0000 ---------------------------------
Xxxxx X. Xxxxxx
Senior Vice President
PCNV, INC. PCNV, INC.
00000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: X. X. Xxxxxxxxx,
Treasurer By: /s/ X. X. XXXXXXXXXX
FAX No.: (000) 000-0000 ---------------------------------
X. X. Xxxxxxxxxx, President
By: /s/ X. X. XXXXXXXXX
---------------------------------
X. X. Xxxxxxxxx, Treasurer
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