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RESTATED CREDIT AGREEMENT
AMONG
NEWPARK RESOURCES, INC.
AS BORROWER
AND
SOLOCO, L.L.C., NEWPARK SHIPHOLDING TEXAS, L.P.,
MALLARD & MALLARD OF LA., INC.,
SOLOCO TEXAS L.P., XXXXXX-MILL, L.P.,
N.I.D., L.P., NEWPARK TEXAS, L.L.C.,
NEWPARK HOLDINGS, INC., NEWPARK ENVIRONMENTAL
MANAGEMENT COMPANY, L.L.C., NEWPARK ENVIRONMENTAL
SERVICES OF TEXAS L.P., XXXXXX BILBO XXXXXX
DRILLING FLUIDS MANAGEMENT, INC.,
SUPREME CONTRACTORS, INC., EXCALIBAR MINERALS, INC.,
EXCALIBAR MINERALS OF LA., L.L.C.,
SUPREME CONTRACTORS INTERNATIONAL, INC.,
CHEMICAL TECHNOLOGIES, INC., NEWPARK ENVIRONMENTAL
SERVICES, INC., AND FMI WHOLESALE DRILLING FLUIDS U.S.A., L.P.
AS GUARANTORS
AND
BANK ONE, LOUISIANA, NATIONAL ASSOCIATION,
DEUTSCHE BANK A.G., NEW YORK BRANCH AND/OR CAYMAN
ISLANDS BRANCH AND HIBERNIA NATIONAL BANK
AS BANKS
BANK ONE, LOUISIANA, NATIONAL ASSOCIATION
AS ADMINISTRATIVE
AND SYNDICATION AGENT
DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH,
AS DOCUMENTATION AGENT
$90,000,000 REVOLVING CREDIT FACILITY
JUNE 30, 1997
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TABLE OF CONTENTS
Page No.
1. Definitions............................................................................................ 2
2. Commitments of the Bank................................................................................ 13
(a) Terms of Revolving Commitment................................................................. 13
(b) Procedure for Borrowing....................................................................... 13
(c) Letters of Credit............................................................................. 14
(d) Procedure for Obtaining Letters of Credit..................................................... 15
(e) Voluntary Reduction of Revolving Commitment................................................... 16
(f) Several Obligations........................................................................... 16
3. Notes Evidencing Loans................................................................................. 16
(a) Form of Notes ................................................................................ 16
(b) Issuance of Additional Notes.................................................................. 17
(c) Interest Rate................................................................................. 17
(d) Payment of Interest........................................................................... 17
(e) Payment of Principal.......................................................................... 17
(f) Payment to Banks.............................................................................. 17
(g) Sharing of Payments, Etc...................................................................... 18
(h) Non-Receipt of Funds by the Agent............................................................. 18
(i) Capital Adequacy.............................................................................. 18
4. Interest Rates......................................................................................... 19
(a) Options....................................................................................... 19
(b) Interest Rate Determination................................................................... 20
(c) Conversion Option............................................................................. 20
(d) Recoupment.................................................................................... 20
5. Special Provisions Relating to Eurodollar Loans........................................................ 20
(a) Unavailability of Funds or Inadequacy of Pricing.............................................. 20
(b) Reserve Requirements.......................................................................... 21
(c) Taxes......................................................................................... 21
(d) Change in Laws................................................................................ 22
(e) Option to Fund................................................................................ 22
(f) Indemnity..................................................................................... 22
(g) Payments Not at End of Interest Period........................................................ 23
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6. Collateral Security.................................................................................... 23
7. Fees................................................................................................... 24
(a) Unused Fee.................................................................................... 24
(b) Facility Fee.................................................................................. 24
(c) The Letter of Credit Fee...................................................................... 24
(d) Agency Fees................................................................................... 24
8. Prepayments............................................................................................ 24
(a) Voluntary Prepayments......................................................................... 24
(b) Mandatory Prepayment.......................................................................... 24
9. Representations and Warranties......................................................................... 25
(a) Creation and Existence........................................................................ 25
(b) Power and Authority........................................................................... 25
(c) Binding Obligations........................................................................... 25
(d) No Legal Bar or Resultant Lien................................................................ 25
(e) No Consent.................................................................................... 25
(f) Financial Condition........................................................................... 26
(g) Liabilities................................................................................... 26
(h) Litigation.................................................................................... 26
(i) Taxes; Governmental Charges................................................................... 26
(j) Titles, Etc................................................................................... 26
(k) Defaults...................................................................................... 26
(l) Casualties; Taking of Properties.............................................................. 27
(m) Use of Proceeds; Margin Stock................................................................. 27
(n) Location of Business and Offices.............................................................. 27
(o) Compliance with the Law....................................................................... 27
(p) No Material Misstatements..................................................................... 28
(q) ERISA......................................................................................... 28
(r) Public Utility Holding Company Act............................................................ 28
(s) Environmental Matters......................................................................... 28
(t) Liens......................................................................................... 29
(u) Subsidiaries.................................................................................. 29
10. Conditions of Lending.................................................................................. 29
11. Affirmative Covenants.................................................................................. 31
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(a) Financial Statements and Reports.............................................................. 31
(b) Certificates of Compliance.................................................................... 32
(c) Taxes and Other Liens......................................................................... 32
(d) Compliance with Laws.......................................................................... 32
(e) Further Assurances............................................................................ 33
(f) Performance of Obligations.................................................................... 33
(g) Insurance..................................................................................... 33
(h) Accounts and Records.......................................................................... 33
(i) Right of Inspection........................................................................... 33
(j) Notice of Certain Events...................................................................... 34
(k) ERISA Information and Compliance.............................................................. 34
(l) Environmental Compliance...................................................................... 34
(m) Environmental Notifications................................................................... 35
(n) Environmental Indemnifications................................................................ 36
(o) Change of Principal Place of Business......................................................... 36
(p) Payables and Other Indebtedness............................................................... 36
(q) Removal of Equipment and Other Inventory...................................................... 36
(r) Permits and Exclusivity Rights................................................................ 36
(s) Lock Box Agreements/Cash Control Accounts..................................................... 37
(t) New Guarantors................................................................................ 38
(u) Discharge Liens............................................................................... 39
12. Negative Covenants..................................................................................... 39
(a) Negative Pledge............................................................................... 39
(b) Current Ratio................................................................................. 39
(c) Debt Service Coverage Ratio................................................................... 39
(d) Maximum Total Debt Ratio...................................................................... 39
(e) Tangible Net Worth............................................................................ 40
(f) Losses........................................................................................ 40
(g) Consolidations and Mergers.................................................................... 40
(h) Debts, Guaranties and Other Obligations....................................................... 40
(i) Dividends..................................................................................... 41
(j) Loans and Advances............................................................................ 41
(k) Sale or Discount of Receivables............................................................... 42
(l) Nature of Business............................................................................ 42
(m) Transactions with Affiliates.................................................................. 42
(n) Investment.................................................................................... 42
(o) Amendment to Articles of Incorporation or Partnership Agreements.............................. 42
(p) Stock of Guarantors........................................................................... 43
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13. Events of Default...................................................................................... 43
14. The Agent and the Banks................................................................................ 45
(a) Appointment and Authorization................................................................. 45
(b) Note Holders.................................................................................. 46
(c) Consultation with Counsel..................................................................... 46
(d) Documents..................................................................................... 46
(e) Resignation or Removal of Agent............................................................... 47
(f) Responsibility of Agent....................................................................... 47
(g) Independent Investigation..................................................................... 48
(h) Indemnification............................................................................... 48
(i) Benefit of Section 14......................................................................... 49
(j) Pro Rata Treatment............................................................................ 49
(k) Assumption as to Payments..................................................................... 49
(l) Other Financings.............................................................................. 49
(m) Interests of Banks............................................................................ 50
(n) Investments................................................................................... 50
(o) Withholding Tax............................................................................... 50
15. Exercise of Rights..................................................................................... 51
16. Notices................................................................................................ 51
17. Expenses............................................................................................... 51
18. Indemnity.............................................................................................. 52
19. Governing Law.......................................................................................... 52
20. Invalid Provisions..................................................................................... 52
21. Maximum Interest Rate.................................................................................. 53
22. Amendments or Waivers.................................................................................. 53
23. Multiple Counterparts.................................................................................. 54
24. Conflict............................................................................................... 54
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25. Survival............................................................................................... 54
26. Parties Bound.......................................................................................... 54
27. Assignments and Participations......................................................................... 54
28. Construction........................................................................................... 56
29. Termination............................................................................................ 56
30. Other Agreements....................................................................................... 56
31. Jury Trial Waiver...................................................................................... 56
32. Financial Terms........................................................................................ 57
33. L.A. R.S.ss.6:1121...................................................................................... 57
EXHIBITS
Exhibit "A" - Notice of Borrowing
Exhibit "B" - Note
Exhibit "C" - Certificate of Compliance
Exhibit "D" - Assignment and Acceptance Agreement
SCHEDULES
Schedule 1 - Liens
Schedule 2 - Financial Condition
Schedule 3 - Liabilities
Schedule 4 - Litigation
Schedule 5 - Material Subsidiaries
Schedule 6 - Environmental Matters
Schedule 7 - Principal Place of Business of Each Guarantor
Schedule 8 - Loans and Advances
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RESTATED CREDIT AGREEMENT
THIS RESTATED CREDIT AGREEMENT (hereinafter referred to as the
"Agreement") executed as of the 30th day of June, 1997, by and among NEWPARK
RESOURCES, INC., a Delaware corporation ("Borrower"), SOLOCO, L.L.C., a
Louisiana limited liability company ("SOLOCO, L.L.C."), NEWPARK SHIPHOLDING
TEXAS, L.P., a Texas limited partnership ("Newpark Shipholding"), MALLARD &
MALLARD OF LA., INC., a Louisiana corporation ("Mallard"), SOLOCO TEXAS L.P., a
Texas limited partnership ("SOLOCO Texas"), XXXXXX-MILL, L.P., a Texas limited
partnership ("Batson"), N.I.D., L.P., a Texas limited partnership ("N.I.D."),
NEWPARK TEXAS, L.L.C., a Louisiana limited liability company ("Newpark Texas"),
NEWPARK HOLDINGS, INC., a Louisiana corporation ("Holdings"), NEWPARK
ENVIRONMENTAL MANAGEMENT COMPANY, L.L.C., a Louisiana limited liability company
("Environmental L.L.C."), NEWPARK ENVIRONMENTAL SERVICES OF TEXAS L.P., a Texas
limited partnership ("Environmental L.P."), XXXXXX XXXXX XXXXXX DRILLING FLUIDS
MANAGEMENT, INC., a Texas corporation ("SBM"), SUPREME CONTRACTORS, INC., a
Louisiana corporation ("Supreme"), EXCALIBAR MINERALS, INC., a Texas
corporation ("Excalibar"), EXCALIBAR MINERALS OF LA., L.L.C., a Louisiana
limited liability company ("Excalibar Minerals"), SUPREME CONTRACTORS
INTERNATIONAL, INC., a Delaware corporation ("Supreme International"), CHEMICAL
TECHNOLOGIES, INC., a Texas corporation ("Chemical"), NEWPARK ENVIRONMENTAL
SERVICES, INC., a Delaware corporation ("Newpark Services") and FMI WHOLESALE
DRILLING FLUIDS U.S.A., L.P., a Texas limited partnership ("FMI") (SOLOCO,
L.L.C., Newpark Shipholding, Mallard, SOLOCO Texas, Batson, N.I.D., Newpark
Texas, Holdings, Environmental L.L.C., Environmental L.P., SBM, Supreme,
Excalibar, Excalibar Minerals, Supreme International, Chemical, Newpark
Services and FMI are herein collectively referred to as the "Guarantors", and
individually, "Guarantor"), BANK ONE, LOUISIANA, NATIONAL ASSOCIATION, a
national banking association ("Bank One"), DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH ("Deutsche"), HIBERNIA NATIONAL BANK, a national
banking association ("Hibernia") and each of the financial institutions which
is a party hereto (as evidenced by the signature pages to this Agreement) or
which may from time to time become a party hereto pursuant to the provisions of
Section 27 hereof or any successor or assignee thereof (hereinafter
collectively referred to as "Banks", and individually, "Bank") and Bank One, as
Administrative and Syndication Agent ("Agent") and Deutsche as Documentation
Agent ("Co-Agent").
W I T N E S S E T H:
WHEREAS, Borrower, certain of the Guarantors, Bank One and Hibernia
entered into a Credit Agreement dated as of June 29, 1995 under the terms of
which Bank One and Hibernia agreed to provide Borrower with a revolving loan
facility in amounts of up to $25,000,000.00 and a term loan facility in amounts
of up to $25,000,000.00; and
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WHEREAS, the Credit Agreement has been heretofore amended by Letter
Agreements thereto dated October 9, 1995 and January 8, 1996 (the said Letter
Agreements are herein referred to as the "First Amendment"), by a Second
Amendment and Supplement to Credit Agreement dated as of March 5, 1996 (the
"Second Amendment"), by a Third Amendment and Supplement to Credit Agreement
dated as of June 27, 1996 (the "Third Amendment"), by a Fourth Amendment and
Supplement to Credit Agreement dated as of December 23, 1996 (the "Fourth
Amendment"), by a Fifth Amendment and Supplement to Credit Agreement dated as
of March 31, 1997 (the "Fifth Amendment") and by a Sixth Amendment and
Supplement to Credit Agreement dated as June 4, 1997 (the "Sixth Amendment")
(the Credit Agreement as amended by the First Amendment, the Second Amendment,
the Third Amendment, the Fourth Amendment, the Fifth Amendment and the Sixth
Amendment is hereinafter referred to collectively as the "Credit Agreement");
and
WHEREAS, the Borrower has requested that Bank One and Hibernia
consolidate the revolving loan facility and the term loan facility in one
facility and that the maximum amount available under such loan facility be
increased to $90,000,000.00 and the Agent, the Co-Agent and the Banks are
willing to consolidate such facilities and increase the amount thereof to
Borrower.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereby agree to restate the Credit
Agreement as follows:
1. DEFINITIONS. When used herein the terms "Agent",
"Agreement", "Bank", "Banks", "Bank One", "Xxxxxx", "Borrower", "Co-Agent",
"Chemical", "Credit Agreement", "Deutsche", "Environmental L.L.C.",
"Environmental L.P.", "Excalibar", "Excalibar Minerals", "FMI", "Guarantor",
"Guarantors", "Hibernia", "Holdings", "Mallard", "Newpark Services", "Newpark
Shipholding", "Newpark Texas", "N.I.D.", "SBM", "SOLOCO, L.L.C.", "SOLOCO
Texas", "Supreme" and "Supreme International" shall have the meanings indicated
above. When used herein the following terms shall have the following meanings:
"Advance or Advances" shall mean a loan or loans hereunder.
"Affiliate" shall mean any Person which, directly or
indirectly, controls, is controlled by or is under common control with
the relevant Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any Person,
shall mean a member of the board of directors, a partner or an officer
of such Person, or any other Person with possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, through the ownership (of
record, as trustee, or by proxy) of voting shares, partnership
interests or voting rights, through a management contract or
otherwise. Any Person owning or controlling directly or indirectly ten
percent or
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more of the voting shares, partnership interests or voting
rights, or other equity interest of another Person shall be deemed to
be an Affiliate of such Person.
"Assignment and Acceptance" shall mean a document
substantially in the form of Exhibit "E" hereto.
"Base Rate" shall mean, as of any date, the fluctuating rate
of interest per annum established from time to time by Agent as its
Base Rate (which rate of interest may not be the lowest, best or most
favorable rate of interest which Agent may charge on loans to its
customers). Each change in the Base Rate shall become effective
without prior notice to Borrower automatically as of the opening of
business on the date of such change in the Base Rate.
"Base Rate Interest Period" shall mean, with respect to any
Base Rate Loan, the period ending on the last day of each month,
provided, however, that (i) if any Base Rate Interest Period would end
on a day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day, and (ii) if any Base
Rate Interest Period would otherwise end after the Maturity Date such
Interest Period shall end on the Maturity Date.
"Base Rate Loans" shall mean any loan during any period which
bears interest based upon the Base Rate or which would bear interest
based upon the Base Rate if the Maximum Rate ceiling was not in effect
at that particular time.
"Base Rate Margin" shall mean 0%.
"Borrowing Date" shall mean the date elected by Borrower
pursuant to Section 2(b) hereof for an Advance on the Revolving Loan.
"Business Day" shall mean the normal banking hours during any
day (other than Saturdays or Sundays) that banks are legally open for
business in Lafayette, Louisiana and New York, New York.
"Capital Leases" shall mean any lease in respect of which the
obligations thereunder constitute Capitalized Lease Obligations.
"Capitalized Lease Obligations" shall mean, without
duplication, all obligations of any Person to pay rent or amounts
under any lease of, or other arrangement conveying the
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right to use, real or personal property, or a combination thereof,
which obligations shall have been or should be, in accordance with
GAAP, capitalized on the books of such Person.
"Cash Equivalents" shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than six months from
the date of acquisition, (ii) U.S. dollar denominated time deposits,
certificates of deposit and bankers' acceptances of (x) any Bank, (y)
any domestic commercial bank of recognized standing having capital and
surplus in excess of $500,000,000 or (z) any Bank (or the parent
company of such bank) whose short-term commercial paper rating from
Standard & Poor's Ratings Group ("S&P") is at least A-1 or the
equivalent thereof or from Xxxxx'x Investors Service, Inc. ("Xxxxx'x")
is at least P-1 or the equivalent thereof (any such bank, an "Approved
Bank"), in each case with maturities of not more than six months from
the date of acquisition, (iii) repurchase obligations with a term of
not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper
issued by any Bank or Approved Bank or by the parent company of any
Bank or Approved Bank and commercial paper issued by, or guaranteed
by, any industrial or financial company with a short-term commercial
paper rating of at least A-1 or the equivalent thereof by S&P or at
least P-1 or the equivalent thereof by Moody's (any such company, an
"Approved Company"), or guaranteed by any industrial company with a
long term unsecured debt rating of at least A or A2 or the equivalent
of each thereof, from S&P or Moody's, as the case may be, and in each
case maturing within six months after the date of acquisition and (v)
investments in money market funds substantially all of whose assets
are comprised of securities of the type described in clauses (i)
through (iv) above.
"Change of Control" shall occur if 50% or more of the members
of the board of directors of Borrower shall change after the Effective
Date.
"Consolidated Adjusted EBITDA" shall mean Consolidated EBITDA
less the sum of (i) income taxes paid and (ii) dividends paid, as of
the end of each fiscal quarter for the previous twelve (12) months
ending on such date.
"Consolidated Current Assets" shall mean the current assets
of Borrower and its Subsidiaries on a consolidated basis determined in
accordance with GAAP and in a manner consistent with prior periods.
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"Consolidated Current Liabilities" shall mean the current
liabilities of Borrower and its Subsidiaries as determined in
accordance with GAAP and in a manner consistent with prior periods.
"Consolidated Debt Service" shall mean, as of any date of
determination, current maturities of all long term Debt and
Capitalized Lease Obligations plus interest expense thereon for the
period being measured. For the purpose of calculating Consolidated
Debt Service one-fifth of the principal balance due on the Revolving
Commitment will be included in current maturities of long term debt
plus interest for a one-year period on that portion of the Revolving
Commitment, calculated on the basis of the Eurodollar Rate then in
effect plus the lesser of (i) 1.50% or (ii) the then applicable
Eurodollar Margin.
"Consolidated EBITDA" shall mean for any period, an amount
equal to (i) all amounts which would be included as consolidated
income of the Borrower and its Subsidiaries on a consolidated basis
before income taxes and extraordinary items, plus, (ii) the Borrower's
consolidated depreciation, amortization and other non-cash items plus
(iii) Consolidated Interest Expense, all determined in accordance with
GAAP and in a manner consistent with prior periods as of the end of
each fiscal quarter for the previous twelve (12) months ending on such
date.
"Consolidated Equity" shall mean, at any time, the
shareholder's equity of Borrower and its Subsidiaries on a
consolidated basis as determined in accordance with GAAP and in a
manner consistent with prior periods.
"Consolidated Funded Debt" shall mean indebtedness created by
the Borrower and its Subsidiaries, issued or incurred for (i) borrowed
money (whether by loan or the issuance and sale of debt securities);
(ii) obligations to pay the deferred purchase or acquisition price of
property or services, other than trade accounts payable (other than
for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business; (iii) Debt of others secured by a Lien on
the property of Borrower and the Guarantor whether or not the
respective Debt so secured has been assumed; (iv) Letter of Credit
obligations; and (v) Capital Leases or non-cancellable operating
leases.
"Consolidated Interest Expense" shall mean, for any period,
total interest expense (including that attributable to Capitalized
Lease Obligations) of Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, with respect to
all outstanding Debt of Borrower and its Subsidiaries, including,
without limitation, all commissions, discounts and other fees and
charges owed with respect to Letters of Credit and bankers' acceptance
financing.
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"Consolidated Net Income" shall mean, for any period, the net
income (or loss) of Borrower and its Subsidiaries on a consolidated
basis for such period determined in accordance with GAAP and in a
manner consistent with prior periods.
"Consolidated Tangible Net Worth" shall mean, at any time,
the Consolidated Equity of the Borrower and its Subsidiaries on a
consolidated basis determined in accordance with GAAP and in a manner
consistent with prior periods, less all unamortized debt discount and
expense, unamortized deferred charges, goodwill, patents, trademarks,
service marks, trade names, copyrights and organization expense.
"Debt" shall mean as to the Borrower and its Subsidiaries,
all obligations and liabilities of the Borrower and its Subsidiaries
to any other Person, including, without limitation, all debts, claims
and indebtedness, heretofore, now and/or from time to time hereafter
owing, due or payable, however evidenced, created, incurred, acquired
or owing and however arising, whether under written or oral agreement,
operation of law, or otherwise.
"Default" shall mean any Event of Default and the occurrence
of an event or condition which would with the giving of any requisite
notice and/or passage of time or both constitute an Event of Default.
"Default Rate" shall mean the Base Rate plus 5% per annum.
"Defaulting Bank" is used herein as defined in Section 3(f)
hereof.
"Effective Date" shall mean the date of this Agreement.
"Eligible Assignee" shall mean any of (i) a Bank or any
Affiliate of a Bank; (ii) a commercial bank organized under the laws
of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (iii) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development, or a political
subdivision of any such country, and having a combined capital and
surplus of at least $100,000,000, provided that such bank is acting
through a branch or agency located in the United States; and (iv) a
Person that is primarily engaged in the business of commercial banking
and that (A) is a subsidiary of a Bank, (B) a subsidiary of a Person
of which a Bank is a subsidiary, or (C) a Person of which a Bank is a
subsidiary.
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"Environmental Laws" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended by the Super Fund Amendments and Reauthorization Act of 1986,
42 U.S.C.A. ss.9601, et seq., the Resource Conservation and Recovery
Act, as amended by the Hazardous and Solid Waste Amendment of 1984, 42
U.S.C.A. ss.6901, et seq., the Clean Air Act, 42 U.S.C.A. ss.1251, et
seq., the Clean Water Act of 1977, 33 U.S.C.A. ss.1251 et seq, the
Toxic Substances Control Act, 15 U.S.C.A. ss.2601, et seq., The Oil
Pollution Act of 1990, 33 U.S.G. ss.2701, et seq., and all other laws,
statutes, codes, acts, ordinances, orders, judgments, decrees,
injunctions, rules, regulations, order and restrictions of any
Governmental Authority, relating to air pollution, water pollution,
noise control and/or the handling, discharge, disposal or recovery of
on-site or off-site Hazardous Substances as each of the foregoing may
be amended from time to time.
"Environmental Liability" shall mean any claim, demand,
obligation, cause of action, order, violation, damage, injury,
judgment, penalty or fine, cost of enforcement, cost of remedial
action or any other costs or expense whatsoever, including reasonable
attorneys' fees and disbursements, resulting from the violation or
alleged violation of any Environmental Law or the imposition of any
Environmental Lien (as hereinafter defined) which could reasonably be
expected to individually or in the aggregate have a Material Adverse
Effect.
"Environmental Lien" shall mean a Lien in favor of any
Governmental Authority or any other Person (i) for any Environmental
Liability or (ii) for damages arising from or cost incurred by such
court or Governmental Authority or other person in response to a
release or threatened release of any Hazardous Substance into the
environment.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"Eurodollar Business Day" shall mean a Business Day on which
dealings in U.S. Dollar deposits are carried on in the London
interbank market.
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"Eurodollar Interest Period" shall mean with respect to any
Eurodollar Loan (i) initially, the period commencing on the date such
Eurodollar Loan is made and ending one (1), two (2) or three (3)
months thereafter as selected by Borrower pursuant to Section
4(a)(ii), and (ii) thereafter, each period commencing on the day
following the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one (1), two (2) or
three (3) months thereafter, as selected by Borrower pursuant to
Section 4(a)(ii); provided, however, that (a) if any Eurodollar
Interest Period would otherwise expire on a day which is not a
Eurodollar Business Day, such Interest Period shall expire on the next
succeeding Eurodollar Business Day unless the result of such extension
would be to extend such Interest Period into the next calendar month,
in which case such Interest Period shall end on the immediately
preceding Eurodollar Business Day, (b) if any Eurodollar Interest
Period begins on the last Eurodollar Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) such Interest
Period shall end on the last Eurodollar Business Day of a calendar
month, and (c) any Eurodollar Interest Period which would otherwise
expire after the Maturity Date shall end on such Maturity Date.
"Eurodollar Loan" shall mean any loan during any period which
bears interest at the Eurodollar Rate, or which would bear interest at
such rate if the Maximum Rate ceiling was not in effect at a
particular time.
"Eurodollar Margin" shall mean, with respect to each
Eurodollar Loan:
(i) two percent (2%) per annum whenever the
Borrower's ratio of Consolidated Funded Debt to Consolidated
EBITDA is equal to or greater than 1.75 to 1.0; or
(ii) one and three-fourths percent (1.75%) per annum
whenever Borrower's ratio of Consolidated Funded Debt to
Consolidated EBITDA is equal to or greater than 1.5 to 1.0
but less than 1.75 to 1.0; or
(iii) one and one-half percent (1.50%) per annum
whenever Borrower's ratio of Consolidated Funded Debt to
Consolidated EBITDA is equal to or greater than 1.25 to 1.0
but less than 1.5 to 1.0; or
(iv) one and one-quarter percent (1.25%) per annum
whenever Borrower's ratio of Consolidated Funded Debt to
Consolidated EBITDA is equal to or greater than 1.0 to 1.0
but less than 1.25 to 1.0; or
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(v) one percent (1%) per annum whenever Borrower's
ratio of Consolidated Funded Debt to Consolidated EBITDA is
less than 1.0 to 1.0.
The Eurodollar Margin shall be determined at the end of each fiscal
quarter of Borrower and calculated on a trailing four quarter basis
and shall immediately apply to each existing and new Tranche.
"Eurodollar Rate" shall mean with respect to each Eurodollar
Interest Period, the rate of interest per annum (rounded upward, if
necessary, to the nearest 1/6 of 1%) at which deposits in immediately
available and freely transferable funds in U.S. Dollars are offered to
the Agent (at approximately 11:00 a.m., Lafayette, Louisiana time two
(2) Eurodollar Business Days prior to the first day of each Eurodollar
Interest Period) in the London interbank market for delivery on the
first day of such Eurodollar Interest Period in an amount equal to or
comparable to the principal amount of the Eurodollar Loan to which
such Eurodollar Interest Period relates. Each determination of the
Eurodollar Rate by the Agent shall, in the absence of error, be
conclusive and binding.
"Event of Default" is used herein as defined in Section 13
hereof.
"Financial Statements" shall mean balance sheets, income
statements, statements of cash flow and appropriate footnotes and
schedules, prepared in accordance with GAAP and in a manner consistent
with prior periods.
"GAAP" shall mean generally accepted accounting principles,
consistently applied.
"Guaranties" shall mean the unconditional guarantees of the
Guarantors of all obligations owed the Banks hereunder, under the
Notes and other Loan Documents.
"Governmental Authority" shall mean any nation or government,
any federal, state, province, city, town, municipality, county, local
or other political subdivision thereof or thereto and any department,
commission, board, bureau, instrumentality, agency or other entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Hazardous Substances" shall mean petroleum and used oil, or
any other pollutant or contaminant, hazardous, dangerous or toxic
waste, substance or material as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Sec. 9601, et seq.; the Resource Conversation and
Recovery Act, as amended, 42 U.S.C. 6901, et seq.; the Toxic
Substances Control Act, as amended, 15 U.S.C.
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Sec. 2601 et seq.; the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. Sec. 1801, et seq; the Oil Pollution Act of 1990,
Pub. L. No. 101-380, 104 Stat. 484 (1990); or any other statute, law,
ordinance, code or regulation of any Governmental Agency relating to
or imposing liability or standards of conduct concerning the use,
production, generation, treatment, storage, recycling, handling,
transportation, release, threatened release or disposal of any
hazardous, dangerous or toxic waste, substance or material, currently
in effect or at any time hereafter adopted.
"Interest Payment Date" shall mean (i) with respect to
Eurodollar Loans, the last day of each Interest Period or (ii) with
respect to Base Rate Loans, the last day of each calendar month.
"Interest Period" shall mean any Base Rate Interest Period,
or Eurodollar Interest Period.
"Letters of Credit" is used herein as defined in Section 2(c)
hereof.
"Lien" shall mean any mortgage, deed of trust, pledge,
security interest, assignment, encumbrance or lien (statutory or
otherwise) of every kind and character.
"Loan Documents" shall mean this Agreement, the Notes, the
Security Instruments and all other documents executed in connection
with the transaction described in this Agreement.
"Lock Box Agreement" is used herein as defined in Section
11(s) hereof.
"Majority Banks" shall mean Banks holding 100% of the
Revolving Commitments.
"Material Adverse Effect" shall mean any circumstance or
event which has or could have a material adverse effect on (i) the
assets or properties, liabilities, financial condition, business,
operations, or prospects of the Borrower and the Guarantors, taken as
a whole, or (ii) the ability of the Borrower and the Guarantors, taken
as a whole, to carry out their respective businesses as of the date of
this Agreement or as proposed at the date of this Agreement to be
conducted, or (iii) the ability of the Borrower and the Guarantors, to
meet their obligations under the Notes, this Agreement or the other
Loan Documents on a timely basis, or (iv) the validity or
enforceability of any Loan Document against Borrower or any Guarantor.
"Maturity Date" shall mean June 30, 2000.
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"Maximum Rate" shall mean at any particular time in question,
the maximum non-usurious rate of interest which under applicable law
may then be charged on the Notes. If such Maximum Rate changes after
the date hereof, the Maximum Rate shall be automatically increased or
decreased, as the case may be, without notice to Borrower from time to
time as the effective date of each change in such Maximum Rate.
"Note or Notes" shall mean the revolving notes substantially
in the form of Exhibit "B" hereto issued or to be issued hereunder to
each Bank, respectively, to evidence the indebtedness to such Bank
arising by reason of the Advances on the Revolving Loans, together
with all modifications, renewals and extensions thereof or any part
thereof.
"Notice of Borrowing" is used herein as defined in Section
2(b) hereof.
"Other Financings" is used herein as defined in Section 14(l)
hereof.
"Payor" is used herein as defined in Section 3(h) hereof.
"Permitted Liens" shall mean (i) Liens for taxes,
governmental charges, levies or other assessments that are not yet
delinquent (or that, if delinquent, are being contested in good faith
by appropriate proceedings, levy and execution thereon having been
stayed and continue to be stayed and for which Borrower or any
Guarantor has set aside on its books adequate reserves in accordance
with GAAP); (ii) maritime, materialmen's, mechanic's, repairmen's,
employee's, warehousemen's, landlord's, carrier's, contractor's,
sub-contractor's and other similar Liens (including any financing
statements filed in respect thereof) incidental to obligations
incurred by Borrower or any Guarantor in connection with the
construction, maintenance, transportation, storage or operation of
Borrower's or any Guarantor's assets or properties to the extent not
delinquent (or which, if delinquent, are being contested in good faith
by appropriate proceedings and for which Borrower or any Guarantor has
set aside on its books adequate reserves in accordance with GAAP);
(iii) all contracts, agreements and instruments, and all defects and
irregularities and other matters affecting Borrower's or any
Guarantor's assets and properties which were in existence at the time
Borrower's or any Guarantor's assets and properties were originally
acquired by Borrower or any Guarantor and all routine operational
agreements entered into in the ordinary course of business, which
contracts, agreements, instruments, defects, irregularities and other
matters and routine operational agreements are not such as to,
individually or in the aggregate, interfere materially with the
operation, value or use of Borrower's or any Guarantor's assets and
properties, considered in the aggregate; (iv) liens in connection with
workmen's compensation, unemployment insurance or other social
security, old age pension or public liability
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obligations; (v) legal or equitable encumbrances deemed to exist by
reason of the existence of any litigation or other legal proceeding or
arising out of a judgment or award with respect to which an appeal is
being prosecuted in good faith and levy and execution thereon have
been stayed and continue to be stayed; (vi) Liens incurred pursuant to
the Security Instruments; and (vii) Liens existing at the date of this
Agreement which have been disclosed to Banks in Schedule "1" hereto.
"Person" shall mean an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an
agency or instrumentality thereof.
"Plan" shall mean any plan subject to Title IV of ERISA and
maintained by Borrower, or its Subsidiaries, or any such plan to which
Borrower or its Subsidiaries are required to contribute on behalf of
its employees.
"Pro Rata or Pro Rata Part" shall mean for each Bank, (i) for
all purposes where no Revolving Loan is outstanding, such Bank's
Revolving Commitment Percentage and (ii) otherwise, the proportion
which the portion of the outstanding Revolving Loans owed to such Bank
bears to the aggregate outstanding Revolving Loans owed to all Banks
at the time in question.
"Reimbursement Obligations" shall mean at any time, the
obligations of Borrower in respect of all Letters of Credit which have
been drawn on and at any time remain outstanding to reimburse amounts
paid by any Bank in respect of any drawing or drawings under a Letter
of Credit.
"Required Payment" is used herein as defined in Section 3(h)
hereof.
"Revolving Commitment" shall mean (A) for all Banks,
$90,000,000 as reduced from time to time pursuant to Sections 2(e) and
8(b) hereof and (B) as to any Bank, its obligation to make Advances
hereunder on the Revolving Loans and purchase participations in
Letters of Credit issued hereunder by the Agent in amounts not
exceeding, in the aggregate, the amount set forth opposite the name of
such Bank on the signature pages hereto under the heading "Revolving
Commitment" or in its Assignment and Acceptance.
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"Revolving Commitment Percentage" shall mean for each Bank
the percentage derived by dividing its Revolving Commitment at the
time of determination by Revolving Commitments of all Banks at the
time of determination. At the Effective Date, the Revolving Commitment
Percentages shall be as follows:
Bank One 39.44%
Deutsche 35.56%
Hibernia 25.00%
"Revolving Loans" shall mean loans made under the Revolving
Commitment pursuant to Section 2 hereof.
"Security Instruments" shall mean this Agreement, Security
Agreements of Borrower and each Guarantor covering accounts, inventory
and equipment and other collateral documents covering all such
documents to be in form and substance satisfactory to Agent.
"Subsidiary" shall mean any corporation or other entity of
which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly
owned by Borrower or another subsidiary.
"Total Capitalization" shall mean Consolidated Tangible Net
Worth plus Debt.
"Total Outstandings" shall mean as of any date, the sum of
(i) the total principal balance outstanding on the Notes, plus (ii)
the total face amount of all outstanding Letters of Credit plus (iii)
the total amount of all unpaid Reimbursement Obligations.
"Tranches" shall mean Eurodollar Loans or Base Rate Loans.
"Unused Commitment Fee" is used herein as defined in Section
7(a) hereof.
"Unused Fee Rate" shall mean:
(i) one-half percent (.50%) per annum whenever
Borrower's ratio of Consolidated Funded Debt to Consolidated
EBITDA is equal to or greater than 1.75 to 1.0;
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(ii) seven-sixteenths percent (.4375%) per annum
whenever Borrower's ratio of Consolidated Funded Debt to
Consolidated EBITDA is equal to or greater than 1.5 to 1.0
but less than 1.75 to 1.0;
(iii) three-eighths percent (.375%) per annum
whenever Borrower's ratio of Consolidated Funded Debt to
Consolidated EBITDA is equal to or greater than 1.25 to 1.0
but less than 1.5 to 1.0;
(iv) five-sixteenths percent (.3125%) per annum
whenever Borrower's ratio of Consolidated Funded Debt to
Consolidated EBITDA is equal to or greater than 1.0 to 1.0
but less than to 1.25 to 1.0;
(v) one-quarter percent (.25%) per annum whenever
Borrower's ratio of Consolidated Funded Debt to Consolidated
EBITDA is less than 1.0 to 1.0.
The Unused Fee Rate shall be measured at the end of each fiscal
quarter and calculated on a trailing four quarter basis.
2. COMMITMENTS OF THE BANK.
(a) Terms of Revolving Commitment. On the
terms and conditions hereinafter set forth, each Bank agrees
severally to make Advances to Borrower and participate in Letters of
Credit issued by the Agent on behalf of the Borrower from time to
time during the period beginning on the Effective Date and ending on
the Maturity Date in such amounts as Borrower may request up to an
amount not to exceed, in the aggregate principal amount outstanding
at any time, the Revolving Commitment. Subject to the terms hereof,
the Borrower may borrow, repay and reborrow. The obligation of
Borrower hereunder shall be evidenced by this Agreement and the Note
or Notes issued in connection herewith, said Note or Notes to be as
described in Section 3 hereof. Notwithstanding any other provision
of this Agreement, no Advance shall be required to be made hereunder
if any Default or Event of Default (as hereinafter defined) has
occurred and is continuing. Each Advance under the Revolving
Commitment shall be an amount of at least $500,000 or whole
multiples of $100,000 in excess thereof. Irrespective of the face
amount of the Note or Notes, the Banks shall never have the
obligation to Advance any amount or amounts in excess of the
Revolving Commitment or to increase the Revolving Commitment. The
total number of Tranches under the Revolving Commitment which may be
outstanding at any time hereunder shall never exceed four (4),
whether such Tranches are Base Rate Loans, Eurodollar Loans, or a
combination thereof.
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(b) Procedure for Borrowing. Whenever
Borrower desires an Advance hereunder, it shall give Agent
telegraphic, telex, facsimile or telephonic notice ("Notice of
Borrowing") of such requested Advance, which in the case of
telephonic notice, shall be promptly confirmed in writing. Each
Notice of Borrowing shall be in the form of Exhibit "A" attached
hereto and shall be received by Agent not later than 11:00 a.m.
Lafayette, Louisiana time, (i) one Business Day prior to the date
upon which any such Advance is requested to be funded (the
"Borrowing Date") in the case of the Base Rate Loan, or (ii) three
(3) Eurodollar Business Days prior to any proposed Borrowing Date in
the case of Eurodollar Loans. Upon receipt of such Notice, Agent
shall advise each Bank thereof; provided, that if the Banks have
received at least one (1) Business Day's notice of such Advance
prior to funding of a Base Rate Loan, or at least two (2) Eurodollar
Business Days' notice of each Advance prior to funding in the case
of a Eurodollar Loan, each Bank shall provide Agent at its office at
000 X. Xxxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, not later than 1:00
p.m., Lafayette, Louisiana time, on the Borrowing Date, in
immediately available funds, its Pro Rata Part of the requested
Advance, but the aggregate of all such fundings by each Bank shall
never exceed such Bank's Revolving Commitment. Not later than 2:00
p.m., Lafayette, Louisiana time, on the Borrowing Date, Agent shall
make available to Borrower at the same office, in like funds, the
aggregate amount of such requested Advance. Neither Agent nor any
Bank shall incur any liability to Borrower in acting upon any Notice
of Borrowing referred to above which Agent or such Bank believes in
good faith to have been given by a duly authorized officer or other
person authorized to borrow on behalf of Borrower or for otherwise
acting in good faith under this Section 2(b). Upon funding of
Advances by Banks in accordance with this Agreement, pursuant to any
such Notice of Borrowing, Borrower shall have effected Advances
hereunder.
(c) Letters of Credit. On the terms and
conditions hereinafter set forth, the Agent shall from time to time
during the period beginning on the Effective Date and ending on the
Maturity Date upon request of Borrower issue standby and/or
commercial Letters of Credit for the account of Borrower (the
"Letters of Credit") in such face amounts as Borrower may request,
but not to exceed in the aggregate face amount at any time
outstanding the sum of Five Million Dollars ($5,000,000.00). The
face amount of all Letters of Credit issued and outstanding
hereunder shall be considered as non-interest bearing Advances on
the Revolving Commitment and all payments made by the Agent on such
Letters of Credit shall be considered as Advances under the Note.
Each Letter of Credit issued for the account of Borrower hereunder
shall (i) be in favor of such beneficiaries as specifically
requested by Borrower, (ii) have an expiration date not exceeding
the Maturity Date, and (iii) contain such other terms and provisions
as
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may be required by Agent. Each Bank (other than Agent) agrees that,
upon issuance of any Letter of Credit hereunder, it shall
automatically acquire a participation in the Agent's liability under
such Letter of Credit in an amount equal to such Bank's Revolving
Commitment Percentage of such liability, and each Bank (other than
Agent) thereby shall absolutely, unconditionally and irrevocably
assumes, as primary obligor and not as surety, and shall be
unconditionally obligated to Agent to pay and discharge when due,
its Revolving Commitment Percentage of Agent's liability under such
Letter of Credit. Borrower hereby unconditionally agrees to
immediately pay and reimburse the Agent for the amount of each
demand for payment under any Letter of Credit that is in substantial
compliance with the provisions of any such Letter of Credit at or
prior to the date on which payment is to be made by the Agent to the
beneficiary thereunder, without presentment, demand, protest or
other formalities of any kind. Upon receipt from any beneficiary of
any Letter of Credit of any demand for payment under such Letter of
Credit, the Agent shall promptly notify Borrower of the demand and
the date upon which such payment is to be made by the Agent to such
beneficiary in respect of such demand. Forthwith upon receipt of
such notice from the Agent, Borrower shall advise the Agent whether
or not it intends to borrow hereunder to finance its obligations to
reimburse the Agent, and if so, submit a Notice of Borrowing as
provided in Section 2(b) hereof. If Borrower fails to immediately
pay and reimburse Agent as aforesaid, whether by borrowing hereunder
or otherwise, Borrower hereby authorizes Agent to make an Advance
hereunder as a Base Rate Loan in the amount of any payment made by
Agent with respect to any Letters of Credit. The failure of the
Borrower to pay such amounts in full to the Agent as required herein
by the date specified by the Agent and the inability of the Agent to
make an Advance as provided for in the foregoing sentence for any
reason shall result in the Borrower being liable for interest on
such amounts for the number of days that elapse from the day Agent
honors such draft to the date on which such amounts are paid to the
Agent by the Borrower at a rate per annum equal to the Default Rate.
(d) Procedure for Obtaining Letters of
Credit. The amount and date of issuance, renewal, extension or
reissuance of a Letter of Credit pursuant to the Banks' commitment
above in Section 2(c) shall be designated by Borrower's written
request delivered to Agent at least three (3) Business Days prior to
the date of such issuance, renewal, extension or reissuance.
Concurrently with or promptly following the delivery of the request
for a Letter of Credit, Borrower shall execute and deliver to the
Agent an application and agreement with respect to the Letter of
Credit, said application and agreement to be in the form used by the
Agent. The Agent shall not be obligated to issue, renew, extend or
reissue such Letters of Credit if (A) the conditions precedent
specified in Section 10 hereof shall not have been satisfied, or (B)
the amount thereon when added to the amount of the outstanding
Letters of
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Credit exceeds Five Million Dollars ($5,000,000.00) or (C) the
amount thereof when added to the Total Outstandings would exceed the
Revolving Commitment. On the Effective Date, there are outstanding
Letters of Credit in the total amount of $1,650,000. Once issued,
the Agent shall have the authority (subject to the terms and
conditions hereof) to renew and extend from time to time the expiry
date of any Letter of Credit without the requirement of the joinder
of any of the Banks, except that the Agent shall not renew or extend
the expiry date of any such Letter of Credit beyond the Maturity
Date. Borrower agrees to pay the Agent for the benefit of the Banks
commissions for issuing the Letters of Credit (calculated separately
for each Letter of Credit) in an amount equal to the greater of (i)
seven-eighths of one percent (.875%) per annum (based upon the
actual days elapsed in a year consisting of 365, or, if appropriate,
366 days) on the maximum face amount of the Letter of Credit or (ii)
$400.00. Borrower further agrees to pay Agent (i) an additional fee
equal to one-eighth of one percent (.125%) per annum (based upon the
actual days elapsed in a year consisting of 365, or, if appropriate,
366 days) on the maximum face amount of each Letter of Credit, and
(ii) an amendment fee for any amendment to letters of credit issued
hereunder, said fee to be in the amount of $50.00 per amendment and
shall be due upon the issuance of such amendment. Such commissions
shall be payable prior to the issuance of each Letter of Credit and
thereafter on each anniversary date of such issuance while such
Letter of Credit is outstanding.
(e) Voluntary Reduction of Revolving
Commitment. Borrower may at any time, or from time to time, upon not
less than three (3) Business Days prior written notice to Agent,
reduce or terminate the Revolving Commitment; provided, however,
that (i) each reduction in the Revolving Commitment must be in the
amount of at least $1,000,000 or in increments of $1,000,000 and
(ii) each reduction must be accompanied by a prepayment of the Notes
in the amount by which the outstanding principal balance of the
Notes exceed the Revolving Commitment as reduced pursuant to this
Section 2(e). Any such reduction in the Revolving Commitment shall
be permanent and not subject to reinstatement.
(f) Several Obligations. The obligations of
the Banks under the Revolving Commitment are several and not joint.
The failure of any Bank to make an Advance required to be made by it
shall not relieve any other Bank of its obligation to make its
Advance, and no Bank shall be responsible for the failure of any
other Bank to make the Advance to be made by such other Bank. No
Bank shall be required to lend hereunder any amount in excess of its
legal lending limit.
3. NOTES EVIDENCING LOANS. The loans described above in
Section 2 shall be evidenced by notes of the Borrower as follows:
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(a) Form of Notes - The Revolving Loans shall
be evidenced by Notes in the aggregate face amount of $90,000,000,
in favor of each Bank in the amount of their Pro Rata Part and shall
be in the form of Exhibit "B" hereto with appropriate insertions.
Notwithstanding the face amount of the Notes, the actual principal
amount due from Borrower to Banks on account of the Notes, as of any
date of computation, shall be the sum of Advances then and
theretofore made on account thereof, plus outstanding Reimbursement
Obligations less all principal payments actually received by Banks
in collected funds with respect thereto. Although the Notes may be
dated as of the Effective Date, interest in respect thereof shall be
payable only for the period during which the loans evidenced thereby
are outstanding and, although the stated amount of the Notes may be
higher, the Notes shall be enforceable, with respect to Borrower's
obligation to pay the principal amount thereof, only to the extent
of the unpaid principal amount of the loans.
(b) Issuance of Additional Notes - At the
Effective Date there shall be outstanding (i) three (3) Notes in the
aggregate face amount of $90,000,000; one payable to Bank One in the
face amount of $35,500,000, one payable to Deutsche in the face
amount of $32,000,000 and one payable to Hibernia in the face amount
of $22,500,000. From time to time new Notes may be issued to other
Banks as such Banks become parties to this Agreement. Upon request
from Agent, Borrower shall execute and deliver to Agent any such new
or additional Notes. From time to time as new Notes are issued the
Agent shall require each Bank to exchange its Notes for newly issued
Notes to reflect the extent of each Bank's Revolving Commitments
hereunder.
(c) Interest Rates - The unpaid principal
balance of the Notes shall bear interest from time to time as set
forth in Section 4 hereof.
(d) Payment of Interest - Interest on the
Notes shall be payable on each Interest Payment Date
(e) Payment of Principal - Principal of the
Notes shall be due and payable to the Agent for the ratable benefit
of the Banks on the Maturity Date unless earlier due in whole or in
part as a result of an acceleration of the amount due or pursuant to
the mandatory prepayment provisions of Section 8(b) hereof.
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(f) Payment to Banks - Each Bank's Pro Rata
Part of payment or prepayment of the Notes shall be directed by wire
transfer to such Bank by the Agent at the address provided to the
Agent for such Bank for payments no later than 2:00 p.m., Lafayette,
Louisiana, time on the Business Day such payments or prepayments are
deemed hereunder to have been received by Agent; provided, however,
in the event that any Bank shall have failed to make an Advance as
contemplated under Section 2 hereof (a "Defaulting Bank") and the
Agent or another Bank or Banks shall have made such Advance, payment
received by Agent for the account of such Defaulting Bank or Banks
shall not be distributed to such Defaulting Bank or Banks until such
Advance or Advances shall have been repaid in full to the Bank or
Banks who funded such Advance or Advances. Any payment or prepayment
received by Agent at any time after 12:00 noon, Lafayette,
Louisiana, time on a Business Day shall be deemed to have been
received on the next Business Day. Interest shall cease to accrue on
any principal as of the end of the day preceding the Business Day on
which any such payment or prepayment is deemed hereunder to have
been received by Agent. If Agent fails to transfer any principal
amount to any Bank as provided above, then Agent shall promptly
direct such principal amount by wire transfer to such Bank.
(g) Sharing of Payments, Etc. - If any Bank
shall obtain any payment (whether voluntary, involuntary, or
otherwise) on account of the Revolving Loans or any Letter of
Credit, (including, without limitation, any set-off) which is in
excess of its Pro Rata Part of payments on the Revolving Loans or
such Letter of Credit, such Bank shall purchase from the other Banks
such participation as shall be necessary to cause such purchasing
Bank to share the excess payment pro rata with each of them;
provided that, if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, the purchase shall
be rescinded and the purchase price restored to the extent of the
recovery. Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section may, to the
fullest extent permitted by law, exercise all of its rights of
payment (including the right of offset) with respect to such
participation as fully as if such Bank were the direct creditor of
Borrower in the amount of such participation.
(h) Non-Receipt of Funds by the Agent -
Unless the Agent shall have been notified by a Bank or Borrower (the
"Payor") prior to the date on which such Bank is to make payment to
the Agent of the proceeds of a Revolving Loan to be made by it
hereunder or Borrower is to make a payment to the Agent for the
account of one or more of the Banks, as the case may be (such
payment being herein called the "Required Payment"), which notice
shall be effective upon receipt, that the Payor does not intend to
make the Required Payment to the
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Agent, the Agent may assume that the Required Payment has been made
and may, in reliance upon such assumption (but shall not be required
to), make the amount thereof available to the intended recipient on
such date and, if the Payor has not in fact made the Required
Payment to the Agent, the recipient of such payment shall, on
demand, pay to the Agent the amount made available to it together
with interest thereon in respect of the period commencing on the
date such amount was made available by the Agent until the date the
Agent recovers such amount at the rate applicable to such portion of
the applicable Revolving Loan.
(i) Capital Adequacy - If either (i) the
introduction or implementation of or the compliance with or any
change in or in the interpretation of any law, rule or regulation or
(ii) the introduction or implementation of or the compliance with
any mandatory request, directive or guideline from any central bank
or other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or
expected to be maintained by any Bank or any corporation controlling
any Bank as a result of maintaining the Revolving Loans, then within
fifteen (15) days after demand by such Bank, Borrower will pay to
such Bank, from time to time as specified by such Bank, such
additional amount or amounts which such Bank shall reasonably
determine to be appropriate to compensate such Bank or any
corporation controlling such Bank in light of such circumstances, to
the extent that such Bank reasonably determines that the amount of
any such capital would be increased, or the rate of return on any
such capital would be reduced in whole or in part, based on the
existence of the amount of the Revolving Loans or such Bank's
Revolving Commitment under this Agreement.
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4. INTEREST RATES.
(a) Options
(i) Base Rate Loans. Borrower agrees to pay interest
on the Revolving Loans calculated utilizing a 360 day daily
interest factor over the number of days in an actual calendar
year (365, or if appropriate, 366 days) with respect to the
unpaid principal amount of each Base Rate Loan from the date
the proceeds thereof are made available to Borrower until
maturity (whether by acceleration or otherwise), at a varying
rate per annum equal to the lesser of (i) the Maximum Rate
(defined herein), or (ii) the sum of the Base Rate plus the
Base Rate Margin. Subject to the provisions of this Agreement
as to prepayment, the principal of the Notes representing
Base Rate Loans shall be payable as specified in Section 3(e)
hereof and the interest in respect of each Base Rate Loan
shall be payable on each Interest Payment Date. Past due
principal and, to the extent permitted by law, past due
interest in respect to each Base Rate Loan, shall bear
interest, payable on demand, at a rate per annum equal to the
Default Rate.
(ii) Eurodollar Loans. Borrower agrees to pay
interest calculated utilizing a 360 day daily interest factor
over the number of days in an actual calendar year (365, or
if appropriate, 366 days) with respect to the unpaid
principal amount of each Eurodollar Loan from the date the
proceeds thereof are made available to Borrower until
maturity (whether by acceleration or otherwise), at a varying
rate per annum equal to the lesser of (i) the Maximum Rate,
or (ii) the Eurodollar Rate plus the Eurodollar Margin.
Subject to the provisions of this Agreement with respect to
prepayment, the principal of the Notes shall be payable as
specified in Section 3(e) hereof and the interest with
respect to each Eurodollar Loan shall be payable on each
Interest Payment Date. Past due principal and, to the extent
permitted by law, past due interest shall bear interest,
payable on demand, at a rate per annum equal to the Default
Rate. Upon two (2) Eurodollar Business Days' written notice
prior to the making by the Banks of any Eurodollar Loan (in
the case of the initial Interest Period therefor) or the
expiration date of each succeeding Interest Period (in the
case of subsequent Interest Periods therefor), Borrower shall
have the option, subject to compliance by Borrower with all
of the provisions of this Agreement, as long as no Event of
Default exists, to specify whether the Interest Period
commencing on any
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such date shall be a one (1), two (2) or three (3) month
period. If Agent shall not have received timely notice of a
designation of such Interest Period as herein provided,
Borrower shall be deemed to have elected to convert all
maturing Eurodollar Loans to Base Rate Loans.
(b) Interest Rate Determination. The Agent
shall determine each interest rate applicable to the Revolving Loans
hereunder pursuant to the terms of this Agreement. The Agent shall
give prompt notice to Borrower of each rate of interest so
determined and its determination thereof shall be conclusive absent
error.
(c) Conversion Option. Borrower may elect
from time to time (i) to convert all or any part of its Eurodollar
Loans to Base Rate Loans by giving Agent irrevocable notice of such
election in writing prior to 10:00 a.m. (Lafayette, Louisiana time)
on the conversion date and such conversion shall be made on the
requested conversion date, provided that any such conversion of
Eurodollar Loan shall only be made on the last day of the Eurodollar
Interest Period with respect thereof, (ii) to convert all or any
part of its Base Rate Loans to Eurodollar Loans by giving the Agent
irrevocable written notice of such election two (2) Eurodollar
Business Days prior to the proposed conversion and such conversion
shall be made on the requested conversion date or, if such requested
conversion date is not a Eurodollar Business Day or a Business Day,
as the case may be, on the next succeeding Eurodollar Business Day
or Business Day, as the case may be. Any such conversion shall not
be deemed to be a prepayment of any of the loans for purposes of
this Agreement on the Notes.
(d) Recoupment. If at any time the applicable
rate of interest selected pursuant to Sections 4(a)(i) or 4(a)(ii)
above shall exceed the Maximum Rate, thereby causing the interest on
the Notes to be limited to the Maximum Rate, then any subsequent
reduction in the interest rate so selected or subsequently selected
shall not reduce the rate of interest on the Notes below the Maximum
Rate until the total amount of interest accrued on the Note equals
the amount of interest which would have accrued on the Notes if the
rate or rates selected pursuant to Sections 4(a)(i) or (ii), as the
case may be, had at all times been in effect.
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5. SPECIAL PROVISIONS RELATING TO EURODOLLAR LOANS.
(a) Unavailability of Funds or Inadequacy of
Pricing. In the event that, in connection with any proposed
Eurodollar Loan, any Bank (i) shall have determined that U.S. Dollar
deposits of the relevant amount and for the relevant Eurodollar
Interest Period for Eurodollar Loans are not available to such Bank
in the London interbank market; or (ii) in good faith determines
that the Eurodollar Interest Rate will not adequately reflect the
cost to such Bank of maintaining or funding the Eurodollar Loans for
such Interest Period, the obligations of the Banks to make the
Eurodollar Loans, as the case may be, shall be suspended until such
time such Bank in its sole discretion reasonably exercised
determines that the event resulting in such suspension has ceased to
exist. If any Bank shall make such determination it shall promptly
notify the Agent in writing, Agent shall promptly notify Borrower in
writing, and Borrower shall either repay the outstanding Eurodollar
Loans owed to such Bank, without penalty, on the last day of the
current Interest Period or convert the same to Base Rate Loans in
the case of Eurodollar Loans on the last day of the then current
Interest Period for such Eurodollar Loan.
(b) Reserve Requirements. In the event of any
change in any applicable law, treaty or regulation or in the
interpretation or administration thereof, or in the event any
central bank or other fiscal monetary or other authority having
jurisdiction over any Bank or the loans contemplated by this
Agreement shall impose, modify or deem applicable any reserve
requirement of the Board of Governors of the Federal Reserve System
on any Eurodollar Loan or loans, or any other reserve, special
deposit, or similar requirements against assets to, deposits with or
for the account of, or credit extended by, the Banks or shall impose
on any Bank or the London interbank market, as the case may be, any
other condition affecting this Agreement or the Eurodollar Loans and
the result of any of the foregoing is to increase the cost to any
Bank in making or maintaining its Eurodollar Loans or to reduce any
amount (or the effective return on any amount) received by any Bank
hereunder, then Borrower shall pay to the Banks upon demand of any
Bank as additional interest on the Notes evidencing the Eurodollar
Loans such additional amount or amounts as will reimburse the Banks
for such additional cost or such reduction. The Banks shall give
notice to Borrower upon becoming aware of any such change or
imposition which may result in any such increase or reduction. A
certificate of any Bank setting forth the basis for the
determination of such amount necessary to compensate Banks as
aforesaid shall be delivered to Borrower and shall be conclusive as
to such determination and such amount, absent error.
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(c) Taxes. Both principal and interest on the
Notes evidencing the Eurodollar Loans and any other payment due
pursuant to any Loan Document are payable without withholding or
deduction for or on account of any taxes. If any taxes are levied or
imposed on or with respect to the Notes evidencing the Eurodollar
Loans or on any payment on the Notes evidencing the Eurodollar Loans
made to any Bank, then, and in any such event, Borrower shall pay to
the Banks upon demand of any Bank such additional amounts as may be
necessary so that every net payment of principal and interest on the
Notes evidencing the Eurodollar Loans, after withholding or
deduction for or on account of any such taxes, will not be less than
any amount provided for herein. In addition, if at any time when the
Eurodollar Loans are outstanding any laws enacted or promulgated, or
any court of law or governmental agency interprets or administers
any law, which, in any such case, materially changes the basis of
taxation of payments to any Bank of principal of or interest on the
Notes evidencing the Eurodollar Loans by reason of subjecting such
payments to double taxation or otherwise (except through an increase
in the rate of tax on the overall net income of such Bank or Banks)
then Borrower will pay the amount of loss to the extent that such
loss is caused by such a change. The Banks shall give notice to
Borrower upon becoming aware of the amount of any loss incurred by
any Bank through enactment or promulgation of any such law which
materially changes the basis of taxation of payments to one or more
of the Banks. The Banks shall also give notice on becoming aware of
any such enactment or promulgation which may result in such payments
becoming subject to double taxation or otherwise. A certificate of
any Bank setting forth the basis for the determination of such loss
and the computation of such amounts shall be delivered to Borrower
and shall be conclusive of such determination and such amount,
absent error.
(d) Change in Laws. If at any time any new
law or any change in existing laws or in the interpretation of any
new or existing laws shall make it unlawful for the Banks to
maintain or fund its Eurodollar Loans hereunder, then the Banks
shall promptly notify Borrower in writing and Borrower shall either
repay the outstanding Eurodollar Loans owed to the Banks, without
penalty, on the last day of the current Interest Periods (or, if any
Bank may not lawfully continue to maintain and fund such Eurodollar
Loans, immediately), or Borrower may convert such Eurodollar Loans
at such appropriate time to Base Rate Loans.
(e) Option to Fund. The Banks shall each have
the option if Borrower elect a Eurodollar Loan, to purchase one or
more deposits in order to fund or maintain its funding of the
principal balance of its Note to which such Eurodollar Loan is
applicable during the Interest Period in question; it being
understood that the provisions of this Agreement relating to such
funding are included only for the
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purpose of determining the rate of interest to be paid under such
Eurodollar Loan and any amounts owing hereunder and under the Notes.
Any Bank shall be entitled to fund and maintain its funding of all
or any part of that portion of the principal balance of the Notes in
any manner it sees fit, but all such determinations hereunder shall
be made as if such Bank has actually funded and maintained that
portion of the principal balance of the Notes to which a Eurodollar
Loan is applicable during the applicable Interest Period through the
purchase of deposits in an amount equal to the principal balance of
the Notes to which such Eurodollar Loan is applicable and having a
maturity corresponding to such Interest Period. Any Bank may fund
the outstanding principal balance of the Notes which is to be
subject to any Eurodollar Loan from any branch or office of such
Bank as any Bank may designate from time to time.
(f) Indemnity. Borrower shall indemnify and
hold harmless the Banks against all reasonable and necessary
out-of-pocket costs and expenses which the Banks may sustain (i) as
a consequence of any Default or Event of Default by Borrower under
this Agreement, or (ii) outside of their ordinary course of business
in making and servicing any loan or loans as Eurodollar Loans under
this Agreement.
(g) Payments Not at End of Interest Period.
If Borrower makes any payment of principal with respect to any
Eurodollar Loan on any day other than the last day of the Interest
Period applicable to such Eurodollar Loan or if Borrower fails to
reborrow or convert after giving notice of its intent to do so, then
Borrower shall reimburse the Banks on demand for any loss, cost or
expense incurred by the Banks as a result of the timing of such
payment or in redepositing such principal amount, including the sum
of (i) the cost of funds to the Banks in respect of such principal
amount so paid, for the remainder of the Interest Period applicable
to such sum, reduced, if any Bank is able to redeposit such
principal amount so paid for the balance of the Interest Period, by
the interest earned by such Bank as a result of so redepositing such
principal amount, plus (ii) any expense or penalty incurred by the
Bank in redepositing such principal amount. A certificate of any
Bank setting forth the basis for the determination of the amount
owed by Borrower pursuant to this Section 5(g) shall be delivered to
Borrower and shall be conclusive in the absence of manifest error.
6. COLLATERAL SECURITY. To secure the performance by
Borrower and the Guarantors of their obligations hereunder, and under the Notes
and Security Instruments, whether now or hereafter incurred, matured or
unmatured, direct or contingent, joint or several, or joint and several,
including extensions, modifications, renewals and
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increases thereof, and substitutions therefore, Borrower and the Guarantors
have either previously granted or assigned to Agent, or shall contemporaneously
with or prior to the execution of this Agreement and the Notes, grant and
assign to Agent for the ratable benefit of the Banks a first and prior Lien on
accounts, general intangibles, inventory and equipment located in the States of
Louisiana and Texas. The accounts, general intangibles, inventory and equipment
and other collateral in which Borrower and each Guarantor has heretofore or
herewith granted or hereafter grants to Agent for the ratable benefit of the
Banks a first and prior Lien (to the satisfaction of the Agent) in accordance
with this Section 6, as such properties and interests are from time to time
constituted, are hereinafter collectively called the "Collateral."
The granting and assigning of such security interests and Liens by
Borrower and the Guarantors shall be pursuant to Security Instruments in form
and substance reasonably satisfactory to the Agent. Borrower and the Guarantors
will cause to be executed and delivered to the Agent, in the future, additional
Security Instruments if the Agent reasonably deems such are necessary to insure
perfection or maintenance of Banks' Liens in the Collateral or any part
thereof.
In addition to the granting of the first and prior Liens referred to
above, Borrower and the Guarantors have either previously, or shall
contemporaneously herewith grant to the Banks a negative pledge on all of their
other assets.
7. FEES.
(a) Unused Fee. Borrower shall pay to Agent
for the ratable benefit of the Banks an unused commitment fee (the
"Unused Commitment Fee") equivalent to the Unused Fee Rate
(utilizing a 360-day daily interest factor over the number of days
in an actual calendar year consisting of 365, or, if appropriate,
366 days) on the daily average of the unadvanced portion of the
Revolving Commitment less the outstanding amount of each unfunded
Letter of Credit issued by the Agent pursuant to Section 2(c)
hereof. The Unused Commitment Fee shall be payable in arrears on the
last Business Day of each calendar quarter beginning September 30,
1997 with the final fee payment due on the Maturity Date for any
period then ending for which the Unused Commitment Fee shall not
have been theretofore paid. In the event the Revolving Commitment
terminates on any date prior to the end of any such monthly period,
Borrower shall pay to the Agent for the ratable benefit of the
Banks, on the date of such termination, the total Unused Commitment
Fee due for the period in which such termination occurs.
(b) Facility Fee. Borrower shall pay to the
Agent for the ratable benefit of the Banks a facility fee equal to
1/8 of 1% of the Revolving Commitment, such fee to be payable on the
Effective Date.
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(c) The Letter of Credit Fee. Borrower shall
pay to the Agent the Letter of Credit fees required above in Section
2(d).
(d) Agency Fees. Borrower shall pay to the
Agent and the Co-Agent certain fees for acting as Agent hereunder in
amounts to be negotiated between Borrower, the Agent and the
Co-Agent.
8. PREPAYMENTS.
(a) Voluntary Prepayments. Subject to the
provisions of Section 5(g) hereof with respect to Eurodollar Loans,
Borrower may at any time and from time to time, without penalty or
premium, prepay the Notes, in whole or in part. Each such prepayment
shall be made on at least one (1) Business Day's notice to Agent and
shall be in an amount of at least $500,000 or whole multiples of
$100,000 in excess thereof or the unpaid balance on the Notes,
whichever is less, plus accrued interest thereon to the date of
prepayment.
(b) Mandatory Prepayment. Subject to the
provisions of Section 5(g) hereof, in the event the Total
Outstandings ever exceed the Revolving Commitment, the Borrower
shall immediately prepay, without premium or penalty, the principal
amount of the Notes in an amount at least equal to such excess plus
accrued but unpaid interest thereon to the date of such prepayment.
9. REPRESENTATIONS AND WARRANTIES. REPRESENTATIONS AND
WARRANTIES. In order to induce the Banks to enter into this Agreement, Borrower
and each Guarantor hereby represents and warrants to the Banks (which
representations and warranties will survive the delivery of the Notes) that:
(a) Creation and Existence. Borrower and each
Guarantor is a corporation, partnership or limited liability company
duly organized, validly existing and in good standing under the laws
of the jurisdiction in which it was formed and is duly qualified in
all jurisdictions wherein failure to qualify may result in a
Material Adverse Effect. Borrower and each Guarantor has all power
and authority to own its respective properties and assets and to
transact the business in which it is engaged.
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(b) Power and Authority. Borrower is duly
authorized and empowered to create and issue the Notes; and Borrower
and each Guarantor is duly authorized and empowered to execute,
deliver and perform its obligations under the Loan Documents to
which it is a party, including this Agreement; and all corporate or
partnership action on Borrower's and each Guarantor's part requisite
for the due creation and issuance of the Notes and on Borrower's and
each Guarantor's part requisite for the due execution, delivery and
performance of the Loan Documents, including this Agreement, has
been duly and effectively taken.
(c) Binding Obligations. This Agreement does,
and the Notes and other Loan Documents upon their creation,
issuance, execution and delivery will, constitute valid and binding
obligations of Borrower and each Guarantor, enforceable in
accordance with their respective terms (except that enforcement may
be subject to any applicable bankruptcy, insolvency, or similar
debtor relief laws now or hereafter in effect and relating to or
affecting the enforcement of creditors rights generally).
(d) No Legal Bar or Resultant Lien. The Notes
and the Loan Documents, including this Agreement, do not and will
not, to the best of Borrower's or any Guarantor's knowledge, violate
any provisions of any contract, agreement, law, regulation, order,
injunction, judgment, decree or writ to which either Borrower or any
Guarantor is subject, or result in the creation or imposition of any
lien or other encumbrance upon any assets or properties of Borrower
or any Guarantor, other than those contemplated by this Agreement.
(e) No Consent. The execution, delivery and
performance by Borrower of the Notes and the Loan Documents,
including this Agreement and the execution and delivery by each
Guarantor of the Guaranties and the Loan Documents, including this
Agreement, do not require the consent or approval of any other
person or entity, including, without limitation, any regulatory
authority or governmental body of the United States or any state
thereof or any political subdivision of the United States or any
state thereof.
(f) Financial Condition. The unaudited
Consolidated Financial Statements of Borrower dated March 31, 1997,
which have been delivered to the Agent are complete and correct in
all material respects, and fully and accurately reflect in all
material respects the consolidated financial condition and results
of the operations and cash flow of Borrower as of the date or dates
and for the period or periods stated. No change has since occurred
in the condition, financial or otherwise, of
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Borrower which is reasonably expected to have a Material Adverse
Effect, except as disclosed to the Banks in Schedule "2" attached
hereto.
(g) Liabilities. Neither Borrower nor any
Guarantor has any material (individually or in the aggregate)
liability, direct or contingent, except as disclosed to the Banks in
the Financial Statements and on Schedule "3" attached hereto. No
unusual or unduly burdensome restrictions, restraint, or hazard
exists by contract, law or governmental regulation or otherwise
relative to the business, assets or properties of Borrower or any
Subsidiary which is reasonably expected to have a Material Adverse
Effect.
(h) Litigation. Except as described in the
Financial Statements, or as otherwise disclosed to the Banks in
Schedule "4" attached hereto, there is no litigation, legal or
administrative proceeding, investigation or other action of any
nature pending or, to the knowledge of the officers of either
Borrower or any Guarantor, threatened against or affecting either
Borrower or any Guarantor which involves the possibility of any
judgment or liability not fully covered by insurance, and which is
reasonably expected to have a Material Adverse Effect.
(i) Taxes; Governmental Charges. Borrower and
each Guarantor has filed all tax returns and reports required to be
filed and has paid all taxes, assessments, fees and other
governmental charges levied upon it or its assets, properties or
income which are due and payable, including interest and penalties,
the failure of which to pay could reasonably be expected to have a
Material Adverse Effect, except such as are being contested in good
faith by appropriate proceedings and for which adequate reserves for
the payment thereof as required by GAAP has been provided and levy
and execution thereon have been stayed and continue to be stayed.
(j) Titles, Etc. Borrower and each Guarantor
has good and defensible title to all of their respective assets,
free and clear of all liens or other encumbrances except Permitted
Liens.
(k) Defaults. Neither Borrower nor any
Guarantor is in default and no event or circumstance has occurred
which, but for the passage of time or the giving of notice, or both,
would constitute a default under any loan or credit agreement,
indenture, mortgage, deed of trust, security agreement or other
agreement or instrument to which Borrower or any Guarantor is a
party in any respect that would be
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reasonably expected to have a Material Adverse Effect. No Event of
Default hereunder has occurred and is continuing.
(l) Casualties; Taking of Properties. Since
the dates of the latest Financial Statements of Borrower delivered
to Banks, neither the business nor the assets or properties of
Borrower or any Guarantor have been affected (to the extent it is
reasonably likely to cause a Material Adverse Effect) as a result of
any fire, explosion, earthquake, flood, drought, windstorm,
accident, strike or other labor disturbance, embargo, requisition or
taking of property or cancellation of contracts, permits or
concessions by any domestic or foreign government or any agency
thereof, riot, activities of armed forces or acts of God or of any
public enemy.
(m) Use of Proceeds; Margin Stock. The
availability under the Revolving Commitment will be used by Borrower
for the purposes of (i) refinancing existing debt, (ii) letters of
credit, (iii) working capital and (iv) general corporate purposes.
Borrower is not engaged principally or as one of its important
activities in the business of extending credit for the purpose of
purchasing or carrying any "margin stock" as defined in Regulation U
of the Board of Governors of the Federal Reserve System (12 C.F.R.
Part 221), or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry a
margin stock or for any other purpose which might constitute this
transaction a "purpose credit" within the meaning of said Regulation
U.
Neither Borrower nor any person or entity acting on behalf
of Borrower has taken or will take any action which might cause the
loans hereunder or any of the Loan Documents, including this
Agreement, to violate Regulation U or any other regulation of the
Board of Governors of the Federal Reserve System or to violate the
Securities Exchange Act of 1934 or any rule or regulation
thereunder, in each case as now in effect or as the same may
hereafter be in effect.
(n) Location of Business and Offices. The
principal place of business and chief executive offices of Borrower
is located at the address stated in Section 16 hereof. The principal
place of business of each Guarantor is located at the address shown
on Schedule "7" hereto.
(o) Compliance with the Law. To the best of
Borrower's and each Guarantor's knowledge, neither Borrower nor such
Guarantor:
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(i) is in violation of any law, judgment,
decree, order, ordinance, or governmental rule or
regulation to which Borrower, or any of its assets or
properties are subject; or
(ii) has failed to obtain any license, permit,
franchise or other governmental authorization necessary to
the ownership of any of its assets or properties or the
conduct of its business;
which violation or failure is reasonably expected to have a Material
Adverse Effect.
(p) No Material Misstatements. No
information, exhibit or report furnished by Borrower or any
Guarantor to the Banks in connection with the negotiation of this
Agreement contained any material misstatement of fact or omitted to
state a material fact or any fact necessary to make the statement
contained therein not materially misleading.
(q) ERISA. Borrower and each Guarantor is in
compliance in all material respects with the applicable provisions
of ERISA, and no "reportable event", as such term is defined in
Section 403 of ERISA, has occurred with respect to any Plan of
Borrower or any Guarantor.
(r) Public Utility Holding Company Act.
Neither Borrower nor any Guarantor is a "holding company", or
"subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding
company", or a "public utility" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(s) Environmental Matters.ronmental Matters
(i) Except as disclosed on Borrower's 1996 Form 10-K
or on Schedule "6" hereto, neither Borrower nor any Guarantor
(a) has received notice of any Environmental Liability, (b)
has received notice of any threatened or actual liability in
connection with the release of any toxic or hazardous waste
into the environment which would be reasonably likely to
individually or in the aggregate have a Material Adverse
Effect or (c) has received notice of any federal or state
investigation evaluating whether any remedial action is
needed to respond to a release or threatened release of any
toxic or Hazardous Waste into the environment for
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which Borrower or any Guarantor is or may be liable which
would be reasonably likely to result in a Material Adverse
Effect.
(ii) The Borrower and each Guarantor have obtained
all permits, licenses and authorizations which are required
under all Environmental Laws, including, without limitation,
laws relating to emissions, discharges, releases, or
threatened releases of Hazardous Materials (including,
without limitation, ambient air, surface water, ground water,
or land) or otherwise relating to the manufacture, processing
distribution, use, treatment, storage, disposal, transport,
or handling of Hazardous Materials), except to the extent
that failure to have or obtain any such permit, license or
authorization would not have a Material Adverse Effect . The
Borrower and each of the Guarantors is in compliance with all
terms and conditions of the permits, licenses and
authorizations required to be obtained by it, and is also in
compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables contained in those
laws or contained in any regulations, code, plan, order,
injunction, notice or demand letter issued, entered,
promulgated, or approved thereunder, except to the extent
that failure to comply would not have a Material Adverse
Effect.
(t) Liens. Except (i) as disclosed on
Schedule "1" hereto and (ii) for Permitted Liens, the assets and
properties of Borrower and each Guarantor is free and clear of all
liens and encumbrances.
(u) Subsidiaries. All of Borrower's
Subsidiaries are listed on Schedule "5" hereto. With the exception
of The Loma Company, L.L.C. and International Mat Co. Ltd., the
Guarantors are the only Subsidiaries and affiliated companies of the
Borrower that are operating and conducting business on the date of
execution of this Agreement.
10. CONDITIONS OF LENDING.
(a) The effectiveness of this Agreement, and
the obligation to make the initial Advance under the Revolving
Commitment or the initial issuance (or deemed issuance) of a
Letter of Credit shall be subject to satisfaction of the
following conditions precedent:
(i) Execution and Delivery. Borrower shall have
executed and delivered the Notes, the Agreement, the Security
Instruments and other required documents, all in form and
substance satisfactory to the Agent;
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(ii) Guarantor's Execution and Delivery. Each
Guarantor shall have executed and delivered its Guaranty in
the form of Exhibit "C" hereto, this Agreement, its Security
Instruments and all other required documents, all in form and
substance satisfactory to Agent;
(iii) Legal Opinion. The Agent shall have received
from Borrower's and Guarantors' legal counsel a favorable
legal opinion in form and substance satisfactory to Agent and
its legal counsel;
(iv) Corporate Resolutions. The Agent shall have
received appropriate certified resolutions of Borrower, each
corporate and limited liability company Guarantor and the
general partner of each limited partnership Guarantor;
(v) Good Standing. The Agent shall have received
evidence of existence and good standing for Borrower and each
Guarantor;
(vi) Incumbency. The Agent shall have received a
signed certificate of Borrower, certifying the names of the
officers of Borrower and each Guarantor authorized to sign
loan documents on behalf of Borrower and each Guarantor,
together with the true signatures of each such officer. The
Agent may conclusively rely on such certificate until the
Agent receives a further certificate of Borrower or any
Guarantor canceling or amending the prior certificate and
submitting signatures of the officers named in such further
certificate;
(vii) Articles of Incorporation and Bylaws. The
Agent shall have received copies of the Certificate or
Articles of Incorporation of Borrower and each corporate
Guarantor and all amendments thereto, certified by the
Secretary of State of the State of its incorporation, and a
copy of the bylaws of Borrower and each Guarantor certified
by Borrower and each Guarantor as being true, correct and
complete;
(viii) Partnership Agreements. The Agent shall
have received copies of the partnership agreements of each
Guarantor that is a limited partnership, and all amendments
thereto, certified to as true and correct by the general
partner of each such limited partnership;
(ix) Articles of Organization and Regulations. The
Agent shall have received copies of the Articles of
Organization (or the equivalent) of each limited liability
company Guarantor and all amendments thereto certified by the
Secretary of State of the state of each such Guarantor's
formation and a copy of the regulations
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(or the equivalent) of each such Guarantor and all amendments
thereto, certified to by one or more officers of such
Guarantor as being true, correct and complete;
(x) Representation and Warranties. The
representations and warranties of Borrower under this
Agreement are true and correct in all material respects as of
such date, as if then made (except to the extent that such
representations and warranties related solely to an earlier
date);
(xi) No Default or Event of Default. No Default or
Event of Default shall have occurred and be continuing;
(xii) Other Documents. Agent shall have received
such other instruments and documents incidental and
appropriate to the transaction provided for herein as Agent
or its counsel may reasonably request, and all such documents
shall be in form and substance reasonably satisfactory to the
Agent; and
(xiii) Legal Matters Satisfactory. All legal
matters incident to the consummation of the transactions
contemplated hereby shall be reasonably satisfactory to
special counsel for Agent retained at the expense of
Borrower.
(b) The obligation of the Banks to make any Advance on the
Revolving Commitment and the obligation of Agent to issue, extend or
renew any Letter of Credit (including the initial Advance or initial
Letter of Credit, as the case may be) shall be subject to the
following additional conditions precedent that, at the date of
making each such Advance and after giving effect thereto:
(i) Representation and Warranties. The
representations and warranties of Borrower under this
Agreement are true and correct in all material respects as of
such date, as if then made (except to the extent that such
representations and warranties related solely to an earlier
date);
(ii) No Default or Event of Default. No Default or
Event of Default shall have occurred and be continuing;
(iii) Other Documents. Agent shall have received
such other instruments and documents incidental and
appropriate to the transaction provided for herein as Agent
or its counsel may reasonably request, and all such documents
shall be in form and substance reasonably satisfactory to the
Agent; and
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(iv) Legal Matters Satisfactory. All legal matters
incident to the consummation of the transactions contemplated
hereby shall be reasonably satisfactory to special counsel
for Agent retained at the expense of Borrower.
11. AFFIRMATIVE COVENANTS. The Borrower and each Guarantor
covenants and agrees with the Banks, the Agent and the Co-Agent that, so long as
any Revolving Commitment, Revolving Loan, Letter of Credit, Reimbursement
Obligation or any fee, expense, or any other amount payable under any Loan
Document shall remain unpaid and outstanding:
(a) Financial Statements and Reports.
Borrower shall promptly furnish to the Banks from time to time upon
request such information regarding the business and affairs and
financial condition of Borrower, as the Banks may reasonably
request, and will furnish to the Banks:
(i) Annual Financial Statements. As soon as
available, and in any event within ninety (90) days after the
close of each fiscal year, the annual audited consolidated
Financial Statements and unaudited consolidating Financial
Statements of Borrower, prepared in accordance with GAAP and
in a manner consistent with prior years;
(ii) Quarterly Financial Statements. As soon as
available, and in any event within forty-five (45) days after
the end of each calendar quarter of each year (except the
last calendar quarter of any fiscal year), the quarterly
unaudited consolidated and consolidating Financial Statements
of Borrower prepared in accordance with GAAP and in a manner
consistent with prior periods;
(iii) SEC Reports. As soon as available, and in
any event within five (5) days of filing, copies of all
filings made by Borrower with the U.S. Securities and
Exchange Commission;
(iv) Additional Information. Promptly upon request
of the Agent from time to time any additional financial
information or other information that the Agent may
reasonably request.
All such reports, information, balance sheets and Financial Statements
referred to in Subsection 11(a) above shall be in such detail as the
Agent may reasonably request.
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(b) Certificates of Compliance. Concurrently
with the furnishing of the annual Financial Statements pursuant to
Subsection 11(a)(i) hereof and the quarterly unaudited Financial
Statements pursuant to Subsection 11(a)(ii) hereof, Borrower will
furnish or cause to be furnished to the Agent a certificate in the
form of Exhibit "D" attached hereto, signed by the President or
Chief Financial Officer of Borrower.
(c) Taxes and Other Liens. Borrower and each
Guarantor will pay and discharge promptly all lawful taxes,
assessments and governmental charges or levies imposed upon Borrower
or any Guarantor or upon the income or any assets or property of
Borrower or any Guarantor as well as all claims of any kind
(including claims for labor, materials, supplies and rent) which, if
unpaid, might become a Lien or other encumbrance upon any or all of
the assets or property of Borrower or any Guarantor and which could
reasonably be expected to result in a Material Adverse Effect;
provided, however, that the Borrower and each Guarantor shall not be
required to pay any such tax, assessment, charge, levy or claim if
the amount, applicability or validity thereof shall currently be
contested in good faith by appropriate proceedings diligently
conducted, levy and execution thereon have been stayed and continue
to be stayed and if Borrower or such Guarantor shall have set up
adequate reserves therefor, if required, under GAAP.
(d) Compliance with Laws. Borrower and each
Guarantor shall observe and comply with all applicable laws,
statutes, codes, acts, ordinances, orders, judgments, decrees,
injunctions, rules, regulations, orders and restrictions relating to
environmental standards or controls or to energy regulations of all
federal, state, county, municipal and other governments,
departments, commissions, boards, agencies, courts, authorities,
officials and officers, domestic or foreign, where the failure to so
observe and comply is reasonably expected to have a Material Adverse
Effect.
(e) Further Assurances. Borrower will cure
promptly any defects in the creation and issuance of any Note and
the execution and delivery of the Notes and the Loan Documents,
including this Agreement. Each Guarantor will cure promptly all
defects in the execution and delivery of their Guaranties. Borrower
at its sole expense will promptly execute and deliver to Agent upon
its reasonable request all such other and further documents,
agreements and instruments in compliance with or accomplishment of
the covenants and agreements in this Agreement, or to correct any
omissions in any Note or more fully to state the obligations set out
herein.
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(f) Performance of Obligations. Borrower will
pay the Notes and other obligations incurred by it hereunder
according to the reading, tenor and effect thereof and hereof.
(g) Insurance. Borrower and each Guarantor
now maintains and will continue to maintain insurance with insurers
which it reasonably believes to be financially sound and reputable
with respect to its assets against such liabilities, fires,
casualties, risks, environmental risks, and contingencies and in
such types and amounts as is customary in the case of persons
engaged in the same or similar businesses and similarly situated and
in amounts which are consistent with prudent business practices.
Upon request of the Agent, Borrower and each of the Guarantors will
furnish or cause to be furnished to the Agent from time to time a
summary of the respective insurance coverage of Borrower and each
Guarantor in form and substance satisfactory to the Agent, and, if
requested, will furnish the Agent copies of the applicable policies.
(h) Accounts and Records. Borrower and each
Guarantor shall keep books, records and accounts in which full, true
and correct entries will be made of all dealings or transactions in
relation to its business and activities, prepared in a manner
consistent with prior years, subject to changes suggested by
Borrower's or any Guarantor's auditors.
(i) Right of Inspection. Borrower and each
Guarantor will permit any officer, employee or agent of the Agent or
any Bank to examine Borrower's and each Guarantor's books, records
and accounts, and take copies and extracts therefrom, all at such
reasonable times during normal business hours and as often as the
Agent or such Bank may reasonably request.
(j) Notice of Certain Events. Borrower shall
promptly notify the Agent if Borrower learns of the occurrence of
(i) any event which constitutes an Event of Default together with a
detailed statement by Borrower of the steps being taken to cure the
Event of Default; or (ii) any legal, judicial or regulatory
proceedings affecting Borrower, any Guarantor, or any of the assets
or properties of Borrower or any Guarantor which, if adversely
determined, could reasonably be expected to have a Material Adverse
Effect; or (iii) any dispute between Borrower or any Guarantor and
any governmental or regulatory body or any other person or entity
which, if adversely determined, might reasonably be expected to
cause a Material Adverse Effect; or (iv) any other matter which in
Borrower's opinion is reasonably expected to have a Material Adverse
Effect.
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(k) ERISA Information and Compliance.
Borrower and each Guarantor shall promptly furnish to the Agent
immediately upon becoming aware of the occurrence of any "reportable
event", as such term is defined in Section 4043 of ERISA, or of any
"prohibited transaction", as such term is defined in Section 4975 of
the Internal Revenue Code of 1954, as amended, in connection with
any Plan or any trust created thereunder, a written notice signed by
the chief financial officer of such Borrower or such Guarantor
specifying the nature thereof, what action Borrower or such
Guarantor is taking or proposes to take with respect thereto, and,
when known, any action taken by the Internal Revenue Service with
respect thereto.
(l) Environmental Compliance.mental
Compliance
(i) The Borrower and each Guarantor will comply with
and will use its best efforts to cause its agents,
contractors and sub-contractors (while such Persons are
acting within the scope of their contractual relationship
with the Borrower and the Guarantors) to so comply with (A)
all applicable environmental, health and safety laws, codes
and ordinances, and all rules and regulations promulgated
thereunder of all Governmental Authorities and (B) the terms
and conditions of all applicable permits, licenses,
certificates and approvals of all Governmental Authorities
now or hereafter granted or obtained with respect to
properties owned or operated by the Borrower or any Guarantor
unless such compliance would violate the laws or regulations
of the jurisdictions in which the assets are located.
(ii) The Borrower and each Guarantor will use its
best efforts and safety practices to prevent the unauthorized
release, discharge, disposal, escape or spill of Hazardous
Substances on or about properties owned or operated by the
Borrower or the Guarantors.
(m) Environmental Notifications. The Borrower
and the Guarantors shall notify the Agent, in writing, within five
(5) Business Days of any of the following events occurring after the
date of this Agreement:
(i) Any written notification made by Borrower or any
Guarantor to any federal, state or local environmental agency
required under any federal, state or local environmental
statute, regulation or ordinance relating to a spill or
unauthorized discharge or release of any Hazardous Substance
to the environment at, from, or as a
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result of any operations on, the properties and operations
owned or operated by the Borrower or any Guarantor.
(ii) Knowledge by an officer of the Borrower or any
Guarantor of receipt of service by Borrower or such Guarantor
of any complaint, compliance order, compliance schedule,
notice letter, notice of violation, citation or other similar
notice or any judicial demand by any court, federal, state or
local environmental agency, alleging (A) any spill,
unauthorized discharge or release of any Hazardous Substance
to the environment from, or as a result of the operations on,
the properties owned or operated by the Borrower or such
Guarantor or (B) violations of applicable laws, regulations
or permits regarding the generation, storage, handling,
treatment, transportation, recycling, release or disposal of
Hazardous Substances on or as a result of operations on the
properties and operations owned or operated by the Borrower
or such Guarantor.
(iii) It is understood by the parties hereto that
the aforementioned notices are solely for the Agent's and the
Banks' information, may not otherwise be required by any
federal, state or local environmental laws, regulations or
ordinances, and are to be considered confidential information
by the Banks and the Agent.
(iv) The term "environmental agency" as used herein
shall include, but not be limited to, the United States
Environmental Protection Agency, the United States Coast
Guard, the United States Mineral Management Service, the
United States Department of Transportation (in its
administration of the Hazardous Materials Transportation Act,
49 U.S.C. Sec. 1801, et seq.), the Louisiana Department of
Natural Resources, the Railroad Commission of the State of
Texas, the Texas Natural Resource Conservation Commission and
other analogous or similar Governmental Authorities
regulating or administering statutes, regulations or
ordinances relating to or imposing liability or standards of
conduct concerning the generation, storage, use, production,
transportation, handling, treatment, recycling, release or
disposal of any Hazardous Substance.
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(n) Environmental Indemnifications.
Indemnifications
(i) The Borrower and the Guarantors hereby agree,
jointly and severally, to indemnify and hold the Agent, the
Co-Agent and each Bank harmless from and against any and all
claims, losses, liability, damages and injuries of any kind
whatsoever asserted against the Agent, the Co-Agent and the
Banks with respect to or as a direct result of the presence,
escape, seepage, spillage, release, leaking, discharge or
migration from any properties owned or operated by the
Borrower or any Guarantor of any Hazardous Substance,
including without limitation, any claims asserted or arising
under any applicable environmental, health and safety laws,
codes and ordinances, and all rules and regulations
promulgated thereunder of all Governmental Authorities,
regardless of whether or not caused by or within the control
of the Borrower or any Guarantor.
(ii) It is the parties' understanding that the
Agent, the Co-Agent, the and the Banks do not now, have never
and do not intend in the future to exercise any operational
control or maintenance over the properties and operations
owned or operated by the Borrower or any Guarantor, nor have
they in the past, presently, or intend in the future to,
maintain an ownership interest in the properties owned or
operated by the Borrower or any Guarantor except as may arise
upon enforcement of the rights under the Security
Instruments.
(o) Change of Principal Place of Business.
Borrower and each Guarantor shall give Agent at least thirty (30)
days prior written notice of its intention to move its principal
place of business from the address set forth in Section 16 hereof.
(p) Payables and Other Indebtedness. Borrower
and each Guarantor shall pay their trade payables and other Debt
that arise in the ordinary course of business promptly as they
become due except to the extent any such trade payables or Debt are
being contested in good faith.
(q) Removal of Equipment and Other Inventory.
In the event that the Borrower or any Guarantor removes any
equipment and/or inventory (which removal is permitted if in the
ordinary course of business) mortgaged to the Agent for the ratable
benefit of the Banks, to a location other than a location in the
States of Louisiana and Texas, details concerning such move shall be
furnished to the Agent upon request. Borrower and each Guarantor
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agrees that it will not mortgage, pledge, sell, assign or grant a
security interest on such moved equipment and/or inventory to any
Person other than the Agent and the Banks.
(r) Permits and Exclusivity Rights. The
Borrower and each of the Guarantors shall provide the Banks upon
request of the Agent, a listing (i) of all key permits required for
business purposes and (ii) if applicable, all rights to exclusivity,
particularly pertaining to mats.
(s) Lock Box Agreements/Cash Control
Accounts. As a condition precedent to the Banks' agreement to extend
the Revolving Commitment, each of the Guarantors shall maintain a
lock box for the collection of its respective accounts receivable,
which lock boxes have been established by the Borrower, the
Guarantors, and the Agent on behalf of the Banks. Further, the Agent
has established through its Cash Management Department a cash
control account (collectively, the "Control Accounts") for each of
the Guarantors for the deposit by the Agent of all accounts
receivable payments made to the lock boxes. The lock boxes and the
Control Accounts are subject to (i) the terms and provisions of the
letter agreements heretofore entered into by each of the Guarantors
and the Agent, (collectively, the "Lock Box Agreements"), and (ii)
the following terms and provisions:
(i) Access to the lock boxes shall be restricted to
the Agent until such time as the Notes and all other
obligations hereunder and under the other Loan Documents are
paid in full and the Notes cancelled.
(ii) In no event shall the Agent or any of the Banks
be liable for special or consequential damages to the
Borrower, the Guarantors or any third party related to or
arising from the performance or non-performance of lockbox
services or the breach thereof, or relating to equipment. In
addition, the Agent or any of the Banks shall not be liable
in damages for lost profits or for any claim or demand
asserted against the Agent or any of the Banks by any party.
(iii) The Borrower and the Guarantors are not
entitled to write checks on the Control Accounts.
(iv) On each Business Day the Agent will collect the
contents of each lock box and the same will be processed and
deposited by the Agent into the Control Accounts.
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(v) The Agent, the Banks, the Borrower, and the
Guarantors agree that the Agent's duties and responsibilities
shall be limited to those set forth herein and in the Lock
Box Agreements and in performing services hereunder and
thereunder the Agent's legal duty to the Borrower and the
Guarantors is limited to the exercise of ordinary care.
Failure to exercise ordinary care shall not be inferable or
presumed by reason of the loss of an item or other
non-compliance with or non-performance of the terms hereof
without and in addition thereto, proof of the Agent's failure
to exercise such ordinary care as would legally constitute
negligence on the part of the Agent. Establishment of and
substantial compliance with the procedures attached to the
Lock Box Agreements shall be deemed conclusive proof of the
Agent's exercise of ordinary care in respect to the
transactions in which the loss (whether of money, items or
otherwise) or other non-performance or non-compliance with
the provisions of this Agreement occurred. In no event shall
the Agent be liable for loss or damages resulting from its
failure to perform duties pursuant to the provisions hereof
if such failure is due to the occurrence of any of the
following events: any act or omission taken or omitted by any
of the Guarantors or by the Borrower, electrical, mechanical
or other failure of computer or other equipment whether used,
operated or controlled by the Agent or others; strikes or
lockouts; delay or loss of items in the transmitting items to
or from the Agent; fire or other casualty; riot or civil
commotion; hurricanes, floods or other acts of nature; delay
in transportation, any government regulations or
interferences; or any event beyond the Agent's reasonable
control.
(vi) Upon the occurrence of an Event of Default, the
Agent shall be entitled to apply all collected balances in
the Control Accounts to the outstanding amount under the
Revolving Commitment as evidenced by the Notes on a Pro Rata
basis. So long as there is no Event of Default under the
Agreement, the Agent agrees to deposit all collected balances
in the Control Accounts to the said operating accounts.
(vii) The Guarantors are authorized to carry forward
on their books the uncollected balance in their respective
Control Accounts at the end of each month.
(viii) Each of the Guarantors agrees to immediately
deposit in its Control Account all accounts receivable
payments made directly to it.
(ix) The Guarantors do hereby grant to the Agent for
the pro rata benefit of the Banks a continuing security
interest in the lock boxes and the Control Accounts as
security for the indebtedness due under this Agreement and
the Notes.
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(x) Upon the Borrower's payment in full of the Notes
and all obligations hereunder and the termination of the
Revolving Commitment, the Agent will terminate the Lock Box
Agreements.
(t) New Guarantors. Borrower shall cause any
new Subsidiary to execute and deliver to the Banks a guaranty in
form and substance similar to the Guaranties, together with the same
information provided by the other Guarantors pursuant to Section
10(a)(iv) through (viii) hereof. If such new Subsidiary is located
in, or doing business in, the States of Louisiana and/or Texas,
Borrower shall cause such new Subsidiary to execute and delivery
Security Instruments covering such new Subsidiary's accounts,
general intangibles, equipment, inventory, and all proceeds
therefrom, said Security Instruments to be in the form of the
Security Instruments executed and delivered by the other Guarantors,
together with a negative pledge covering all other assets of said
new Subsidiary; provided, however, that notwithstanding any of the
foregoing, if any new Subsidiary is acquired by Borrower for a cost
of less than $10,000,000, such new Subsidiary shall have a period of
six (6) months after the date of its acquisition to either (i) merge
with an existing Guarantor, or (ii) execute and deliver the
Guaranty, the information and the Security Instruments, if any,
required by this Section 11(t).
(u) Discharge Liens. Borrower and each
Guarantor will discharge promptly any Lien, other than Permitted
Liens, that may either arise by operation of law or otherwise
without the active conduct of Borrower or any Guarantor.
12. NEGATIVE COVENANTS. The Borrower and each Guarantor
covenants and agrees with the Banks, the Agent and the Co-Agent that, so long as
any Revolving Commitment, Revolving Loan, Letter of Credit, Reimbursement
Obligation or any fee, expense, or any other amount payable under any Loan
Document shall remain unpaid and outstanding:
(a) Negative Pledge. Neither the Borrower
nor any Guarantor shall without the prior written consent of the
Banks:
(i) create, incur or assume any Lien, security
interest or other encumbrance on any of its assets
or properties now owned or hereafter acquired, except
Permitted Liens; or
(ii) sell, lease, transfer or otherwise dispose of,
in any fiscal year, any of its material assets or properties,
except for (A) sales, leases, transfers or other
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dispositions made in the ordinary course of its business, and
(B) sales of assets not in excess of $5,000,000 in the
aggregate in any fiscal year.
(b) Current Ratio. Borrower will not allow
the ratio of Consolidated Current Assets to Consolidated Current
Liabilities to be less than 1.20 to 1.0 as of the end of any fiscal
quarter.
(c) Debt Service Coverage Ratio. Borrower
will not allow the ratio of Consolidated Adjusted EBITDA to
Consolidated Debt Service to be less than 1.50 to 1.0 as of the end
of any fiscal quarter.
(d) Maximum Total Debt Ratio. Borrower will
not allow the ratio of total Debt (including Capitalized Lease
Obligations) to Total Capitalization to ever exceed 50% as of the
end of any fiscal quarter.
(e) Tangible Net Worth. Borrower will not
allow the Consolidated Tangible Net Worth to be less than
$119,883,000 plus seventy-five percent (75%) of Borrower's
Consolidated Net Income, if positive, for each fiscal quarter ending
after December 31, 1996, tested at the end of each fiscal quarter.
(f) Losses. The Borrower will not permit its
Consolidated Net Income to be negative for any two consecutive
fiscal quarters.
(g) Consolidations and Mergers. Neither the
Borrower nor any Guarantor shall consolidate or merge with or into
any other Person, except that (i) the Borrower or any Guarantor may
merge with another Person if Borrower or such Guarantor is the
surviving entity in such merger; provided, however, that any such
merger the cost of which exceeds $10,000,000 (which amount shall be
calculated based upon either the cash price paid or the value, as of
the date of the acquisition, of the stock or other assets used, as
consideration for such merger or consolidation) shall require the
prior consent of Majority Banks, which consent shall not be
unreasonably withheld; and (ii) any Guarantor may merge with any
other Guarantor, if, after giving effect to any such merger or
consolidation, no Default or Event of Default shall have occurred
and be continuing.
(h) Debts, Guaranties and Other Obligations.
Neither the Borrower nor any of the Guarantors will incur, create,
assume or in any manner become or be liable in respect of any Debt,
nor will
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Borrower or any Guarantor guarantee or otherwise in any manner
become or be liable in respect of any indebtedness, liabilities or
other obligations of any other person or entity, whether by
agreement to purchase the indebtedness of any other person or entity
or agreement for the furnishing of funds to any other person or
entity through the purchase or lease of goods, supplies or services
(or by way of stock purchase, capital contribution, advance or loan)
for the purpose of paying or discharging the indebtedness of any
other person or entity, or otherwise, except that the foregoing
restrictions shall not apply to:
(i) the Notes and any renewal or increase thereof;
or
(ii) on the indebtedness of Borrower or any
Guarantor heretofore disclosed to Banks on Schedule "3"
hereto;
(iii) taxes, assessments or other government charges
which are not yet due or are being contested in good faith by
appropriate action promptly initiated and diligently
conducted, if such reserve as shall be required by GAAP shall
have been made therefor and levy and execution thereon have
been stayed and continue to be stayed; or
(iv) additional indebtedness for borrowed money or
letters of credit not in excess of $5,000,000.00 in the
aggregate during any fiscal year; or
(v) intercompany indebtedness between Borrower and
the Guarantors; or
(vi) indebtedness incurred in the ordinary course of
the Borrower's and the Guarantors' business; or
(vii) the obligations of Borrower pursuant to that
certain Reimbursement Agreement between Borrower, Bank One and
The Loma Company, L.L.C. ("Loma") dated April 1, 1997 pursuant
to which Bank One issued a letter of credit in the face amount
of $7,592,465.76 as a credit enhancement for bonds issued by
Loma, which Reimbursement Agreement, the Reimbursement Note
issued in connection therewith and the letter of credit are
secured by, among other things, a subordinate lien on all of
the assets of Borrower and the Guarantors which are also
Collateral for the Revolving Commitment; or
(viii) guaranties by Borrower of obligations of its
Affiliates in amounts of up to $5,000,000; or
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(ix) guaranties by Borrower dated August 29, 1996
for the benefit of Xxxxxx Financial Leasing Incorporated on
behalf of Newpark Shipbuilding and Repair, Inc. in an amount
not to exceed 80.65% of the outstanding balance owed by
Newpark Shipbuilding and Repair, Inc. to Xxxxxx Financial
Leasing Incorporated or $10,000,000, whichever is less; or
(x) renewals or extensions (but not increases in) of
any or all of the foregoing.
(i) Dividends. Borrower will not declare or
pay any dividend (other than stock dividends), purchase, redeem or
otherwise acquire for value any of its stock now or hereafter
outstanding, return any capital to its stockholders, or make any
distribution of its assets to its stockholders as such, except the
foregoing shall not apply to cash dividends not exceeding 25% of
Borrower's Consolidated Net Income in any year, provided that no
Default or Event of Default has occurred and is continuing or would
result from the payment of such dividends.
(j) Loans and Advances. Neither Borrower nor
any Guarantor shall make or permit to remain outstanding any loans
or advances to or in any person or entity, except that the foregoing
restriction shall not apply to:
(i) loans or advances to any Person, the material
details of which have been set forth in the Financial
Statements of Borrower heretofore furnished to Banks on
Schedule "8" hereto; or
(ii) intercompany loans or advances between the
Borrower and the Guarantors; or
(iii) loans or advances to Loma not exceeding in the
aggregate at any time outstanding the amount of $3,000,000.
(k) Sale or Discount of Receivables. Neither
Borrower nor any Guarantor will discount or sell with recourse, or
sell for less than the greater of the face or market value thereof,
any of its accounts receivable.
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(l) Nature of Business. Neither Borrower nor
any Guarantor will permit any material change to be made in the
character of its business as carried on at the date hereof.
(m) Transactions with Affiliates. Neither
Borrower nor any Guarantor will enter into any transaction with any
Affiliate, except transactions upon terms that are no less favorable
to it than would be obtained in a transaction negotiated at arm's
length with an unrelated third party.
(n) Investments. Neither Borrower nor any
Guarantor shall make any investment in any person or entity, except
such restriction shall not apply to:
(i) investments existing at the Effective Date as
disclosed in the Financial Statements; and
(ii) investments consisting of Cash Equivalents; and
(iii) investments in new Subsidiaries up to an
amount of $10,000,000 (which amount shall be calculated based
upon either the cash price paid or the value, as of the date
of the acquisition, of the stock or other assets used, as
consideration for such investment) per new Subsidiary
(investments in excess of $10,000,000 shall require the prior
written consent of Majority Banks, which consent shall not be
unreasonably withheld).
(o) Amendment to Articles of Incorporation or
Partnership Agreements. Neither Borrower nor any corporate Guarantor
will permit any material amendment to, or any material alteration
of, its Articles of Incorporation. No limited partnership Guarantor
will permit any material amendment to, or material alteration of,
its partnership agreement. Borrower shall immediately notify Agent
of any name change of Borrower or any Guarantor.
(p) Stock of Guarantors. Borrower shall not
sell, transfer or otherwise dispose of any of the voting stock of
any of the Guarantors to any Person other than another Guarantor.
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13. EVENTS OF DEFAULT. Any one or more of the following
events shall be considered an "Event of Default" as that term is used herein:
(a) Borrower shall fail to pay when due or
declared due the principal of, and the interest on, the Notes, or
any fee, reimbursement obligation or any other indebtedness of
Borrower incurred pursuant to this Agreement or any other Loan
Document; or
(b) Any representation or warranty made under
this Agreement, or in any certificate or statement furnished or made
to the Banks pursuant hereto, or in connection herewith, or in
connection with any document furnished hereunder, shall prove to be
untrue in any material respect as of the date on which such
representation or warranty is made (or deemed made), or any
representation, statement (including financial statements),
certificate, report or other data furnished or to be furnished or
made under any Loan Document, including this Agreement, proves to
have been untrue in any material respect, as of the date as of which
the facts therein set forth were stated or certified; or
(c) Default shall be made in the due
observance or performance of any of the covenants or agreements
contained in the Loan Documents, including this Agreement (excluding
covenants contained in Section 12 of the Agreement for which there
is no cure period), and such default shall continue for more than
thirty (30) days; or
(d) Default shall be made in the due
observance or performance of the covenants contained in Section 12
of this Agreement; or
(e) Default by Borrower or any Guarantor
shall be made in respect of any obligation for borrowed money, other
than the Notes, for which Borrower or any Guarantor is liable
(directly, by assumption, as guarantor or otherwise), or any
obligations secured by any mortgage, pledge or other security
interest, lien, charge or encumbrance with respect thereto, on any
asset or property of Borrower or any Guarantor or in respect of any
agreement relating to any such obligations unless neither Borrower
nor any Guarantor is liable for same (i.e., unless remedies or
recourse for failure to pay such obligations is limited to
foreclosure of the collateral security therefor), and if such
default shall continue beyond the applicable grace period, if any;
or
(f) Borrower or any Guarantor shall commence
a voluntary case or other proceedings seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking an appointment of a trustee,
receiver, liquidator, custodian or other similar official of
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it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors,
or shall fail generally to pay its debts as they become due, or shall
take any corporate action authorizing the foregoing; or
(g) An involuntary case or other proceeding
shall be commenced against Borrower or any Guarantor seeking
liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period
of thirty (30) days; or an order for relief shall be entered against
Borrower or any Guarantor under the federal bankruptcy laws as now
or hereinafter in effect; or
(h) A final judgment or order for the payment
of money in excess of $1,000,000 (or judgments or orders aggregating
in excess of $1,000,000 outstanding at any one time) shall be
rendered against Borrower or any Guarantor and such judgments or
orders shall continue unsatisfied and unstayed for a period of
thirty (30) days unless such judgment or orders are fully covered by
insurance or supersedeas bond; or
(i) In the event the aggregate principal
amount outstanding under the Notes shall at any time exceed the
Revolving Commitment established for the Notes, and Borrower shall
fail to comply with the provisions of Section 8(b) hereof; or
(j) A Change of Control shall occur; or
(k) Any Guarantor shall repudiate its
Guaranty; or
(l) In the event Borrower or any Guarantor
fails to maintain a first priority perfected security interest on
the Collateral in favor of the Banks.
Upon occurrence of any Event of Default specified in Subsections
13(f) or (g) hereof, the entire principal amount due under the Notes and all
interest then accrued thereon, and any other liabilities of Borrower hereunder,
shall become immediately due and payable all without notice and without
presentment, demand, protest, notice of protest or dishonor or any other notice
of default of any kind, all of which are hereby expressly waived by Borrower.
In any other Event of Default, the Agent, upon request of Majority Banks, shall
by notice to Borrower declare the principal of, and all interest then accrued
on, the Notes and any other liabilities hereunder to be forthwith due and
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payable, whereupon the same shall forthwith become due and payable without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other notice of any kind, all of which Borrower and each
Guarantor hereby expressly waive, anything contained herein or in the Notes to
the contrary notwithstanding. Nothing contained in this Section 13 shall be
construed to limit or amend in any way the Events of Default enumerated in the
Notes, or any other document executed in connection with the transaction
contemplated herein.
Upon the occurrence and during the continuance of any Event of
Default, the Banks are hereby authorized at any time and from time to time,
without notice to Borrower or any Guarantor (any such notice being expressly
waived by Borrower and each Guarantor), to set-off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by any of the Banks to or for the
credit or the account of Borrower or any Guarantor against any and all of the
indebtedness of Borrower or any Guarantor under the Notes and the Loan
Documents, including this Agreement, irrespective of whether or not the Banks
shall have made any demand under the Loan Documents, including this Agreement
or the Notes and although such indebtedness may be unmatured. Any amount
set-off by any of the Banks shall be applied against the indebtedness owed the
Banks by Borrower and the Guarantors pursuant to this Agreement and the Notes.
The Banks agree promptly to notify Borrower and the Guarantors after any such
setoff and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of the Bank
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Banks may have.
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14.THE AGENT AND THE BANKS.
(a) Appointment and Authorization. Each Bank
hereby appoints Agent as its agent, on its behalf: (i) to act as
agent on behalf of such Bank in and under all Loan Documents; (ii)
to arrange the means whereby the funds of Banks are to be made
available to Borrower under the Loan Documents; (iii) to take such
action as may be requested by any Bank under the Loan Documents
(when such Bank is entitled to make such request under the Loan
Documents); (iv) to receive all documents and items to be furnished
to Banks under the Loan Documents; (v) to be the secured party,
mortgagee, beneficiary, and similar party in respect of, and to
receive, as the case may be, any collateral for the benefit of
Banks; (vi) to promptly distribute to each Bank all material
information, requests, documents and items received from Borrower
under the Loan Documents; (vii) to promptly distribute to each Bank
such Bank's Pro Rata Part of each payment or prepayment (whether
voluntary, as proceeds of insurance thereon, or otherwise) in
accordance with the terms of the Loan Documents and (viii) to
deliver to the appropriate Persons requests, demands, approvals and
consents received from Banks. Each Bank hereby authorizes Agent to
take all actions and to exercise such powers under the Loan
Documents as are specifically delegated to such Agent by the terms
hereof or thereof, together with all other powers reasonably
incidental thereto. With respect to its commitments hereunder and
the Notes issued to it, Agent and any successor Agent shall have the
same rights under the Loan Documents as any other Bank and may
exercise the same as though it were not the Agent; and the term
"Bank" or "Banks" shall, unless otherwise expressly indicated,
include Agent and any successor Agent in its capacity as a Bank.
Agent and any successor Agent and its Affiliates may accept deposits
from, lend money to, act as trustee under indentures of and
generally engage in any kind of business with Borrower, and any
person which may do business with Borrower, all as if Agent and any
successor Agent were not Agent hereunder and without any duty to
account therefor to the Banks; provided that, if any payments in
respect of any property (or the proceeds thereof) now or hereafter
in the possession or control of Agent which may be or become
security for the obligations of Borrower arising under the Loan
Documents by reason of the general description of indebtedness
secured or of property contained in any other agreements, documents
or instruments related to any such other business shall be applied
to reduction of the obligations of Borrower arising under the Loan
Documents, then each Bank shall be entitled to share in such
application according to its Pro Rata Part thereof. Each Bank, upon
request of any other Bank, shall disclose to all other Banks all
indebtedness and liabilities, direct and contingent, of Borrower to
such Bank as of the time of such request and Borrower hereby
irrevocably consents to any such disclosure.
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(b) Note Holders. From time to time as other
Banks become a party to this Agreement, Agent shall obtain execution
by Borrower of additional Notes in amounts representing the
Revolving Commitment of each such new Bank, up to an aggregate face
amount of all Notes not exceeding the Revolving Commitment. The
obligation of such Bank shall be governed by the provisions of this
Agreement, including but not limited to, the obligations specified
in Section 2 hereof. From time to time, Agent may require that the
Banks exchange their Notes for newly issued Notes to better reflect
the Revolving Commitments of the Banks. Agent may treat the payee of
any Note as the holder thereof until written notice of transfer has
been filed with it, signed by such payee and in form satisfactory to
Agent.
(c) Consultation with Counsel. Banks agree
that Agent may consult with legal counsel selected by Agent and
shall not be liable for any action taken or suffered in good faith
by it in accordance with the advice of such counsel.
(d) Documents. Agent shall not be under a
duty to examine or pass upon the validity, effectiveness,
enforceability, genuineness or value of any of the Loan Documents or
any other instrument or document furnished pursuant thereto or in
connection therewith, and Agent shall be entitled to assume that the
same are valid, effective, enforceable and genuine and what they
purport to be.
(e) Resignation or Removal of Agent. Subject
to the appointment and acceptance of a successor Agent as provided
below, Agent may resign at any time by giving written notice thereof
to Banks and Borrower, and Agent may be removed at any time with or
without cause by Majority Banks. If no successor Agent has been so
appointed by Majority Banks (and approved by Borrower) and has
accepted such appointment within 30 days after the retiring Agent's
giving of notice of resignation or removal of the retiring Agent,
then the retiring Agent may, on behalf of Banks, appoint a successor
Agent. Any successor Agent must be approved by Borrower, which
approval will not be unreasonably withheld. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with
all the rights and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder.
After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Section 14 shall continue in effect
for its benefit in respect to any actions taken or omitted to be
taken by it while it was acting as Agent.
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(f) Responsibility of Agent. It is expressly
understood and agreed that the obligations of Agent under the Loan
Documents are only those expressly set forth in the Loan Documents
and that Agent, as the case may be, shall be entitled to assume that
no Default or Event of Default has occurred and is continuing,
unless Agent, as the case may be, has actual knowledge of such fact
or has received notice from a Bank or Borrower that such Bank or
Borrower consider that a Default or an Event of Default has occurred
and is continuing and specifying the nature thereof. Neither Agent
nor any of their directors, officers, attorneys or employees shall
be liable for any action taken or omitted to be taken by them under
or in connection with the Loan Documents, except for its or their
own gross negligence or willful misconduct. Agent shall incur no
liability under or in respect of any of the Loan Documents by acting
upon any notice, consent, certificate, warranty or other paper or
instrument believed by it to be genuine or authentic or to be signed
by the proper party or parties, or with respect to anything which it
may do or refrain from doing in the reasonable exercise of its
judgment, or which may seem to it to be necessary or desirable.
Agent shall not be responsible to Banks for
any of Borrower's or any Guarantor's recitals, statements,
representations or warranties contained in any of the Loan
Documents, or in any certificate or other document referred to or
provided for in, or received by any Bank under, the Loan Documents,
or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of or any of the Loan Documents or for
any failure by Borrower or any Guarantor to perform any of their
obligations hereunder or thereunder. Agent may employ agents and
attorneys-in-fact and shall not be answerable, except as to money or
securities received by it or its authorized agents, for the
negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
The relationship between Agent and each Bank is only that of
agent and principal and has no fiduciary aspects. Nothing in the
Loan Documents or elsewhere shall be construed to impose on Agent
any duties or responsibilities other than those for which express
provision is therein made. In performing its duties and functions
hereunder, Agent does not assume and shall not be deemed to have
assumed, and hereby expressly disclaims, any obligation or
responsibility toward or any relationship of agency or trust with or
for Borrower or any of its beneficiaries or other creditors. As to
any matters not expressly provided for by the Loan Documents, Agent
shall not be required to exercise any discretion or take any action,
but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the
instructions of all Banks and such instructions shall be binding
upon all Banks and all holders of the Notes; provided, however, that
Agent shall not be required to take any action which is contrary to
the Loan Documents or applicable law.
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(g) Independent Investigation. Each Bank
severally represents and warrants to Agent that it has made its own
independent investigation and assessment of the financial condition
and affairs of Borrower in connection with the making and
continuation of its participation hereunder and has not relied
exclusively on any information provided to such Bank by Agent in
connection herewith, and each Bank represents, warrants and
undertakes to Agent that it shall continue to make its own
independent appraisal of the credit worthiness of Borrower while the
Notes are outstanding or its commitments hereunder are in force.
Agent shall not be required to keep itself informed as to the
performance or observance by Borrower of this Agreement or any other
document referred to or provided for herein or to inspect the
properties or books of Borrower. Other than as provided in this
Agreement, Agent shall not have any duty, responsibility or
liability to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of Borrower
which may come into the possession of Agent.
(h) Indemnification. Banks agree to indemnify
Agent, ratably according to their respective Revolving Commitments
on a Pro Rata basis, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any proper and reasonable kind
or nature whatsoever which may be imposed on, incurred by or
asserted against Agent in any way relating to or arising out of the
Loan Documents or any action taken or omitted by Agent under the
Loan Documents, provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from Agent's gross negligence or willful
misconduct. Each Bank shall be entitled to be reimbursed by the
Agent for any amount such Bank paid to Agent under this Section
14(h) to the extent the Agent has been reimbursed for such payments
by Borrower or any other Person. THE PARTIES INTEND FOR THE
PROVISIONS OF THIS SECTION TO APPLY TO AND PROTECT THE AGENT FROM
THE CONSEQUENCES OF ANY LIABILITY INCLUDING STRICT LIABILITY IMPOSED
OR THREATENED TO BE IMPOSED ON AGENT AS WELL AS FROM THE
CONSEQUENCES OF ITS OWN NEGLIGENCE, WHETHER OR NOT THAT NEGLIGENCE
IS THE SOLE, CONTRIBUTING OR CONCURRING CAUSE OF ANY SUCH LIABILITY.
(i) Benefit of Section 14. The agreements
contained in this Section 14 are solely for the benefit of Agent and
the Banks and are not for the benefit of, or to be relied upon by,
Borrower, any affiliate of Borrower or any other person.
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(j) Pro Rata Treatment. Subject to the
provisions of this Agreement, each payment (including each
prepayment) by Borrower or any Guarantor and collection by Banks
(including offsets) on account of the principal of and interest on
the Notes and fees provided for in this Agreement, shall be made Pro
Rata; provided, however, in the event that any Defaulting Bank shall
have failed to make an Advance as contemplated under Section 3
hereof and Agent or another Bank or Banks shall have made such
Advance, payment received by Agent for the account of such
Defaulting Bank or Banks shall not be distributed to such Defaulting
Bank or Banks until such Advance or Advances shall have been repaid
in full to the Bank or Banks who funded such Advance or Advances.
(k) Assumption as to Payments. Except as
specifically provided herein, unless Agent shall have received
notice from Borrower prior to the date on which any payment is due
to Banks hereunder that Borrower will not make such payment in full,
Agent may, but shall not be required to, assume that Borrower has
made such payment in full to Agent on such date and Agent may, in
reliance upon such assumption, cause to be distributed to each Bank
on such due date an amount equal to the amount then due such Bank.
If and to the extent Borrower shall not have so made such payment in
full to Agent, each Bank shall repay to Agent forthwith on demand
such amount distributed to such Bank together with interest thereon,
for each day from the date such amount is distributed to such Bank
until the date such Bank repays such amount to Agent, at the
interest rate applicable to such portion of the Revolving Loans.
(l) Other Financings. Without limiting the
rights to which any Bank otherwise is or may become entitled, such
Bank shall have no interest, by virtue of this Agreement or the Loan
Documents, in (a) any present or future loans from, letters of
credit issued by, or leasing or other financial transactions by, any
other Bank to, on behalf of, or with Borrower or any Guarantor
(collectively referred to herein as "Other Financings") other than
the obligations hereunder; (b) any present or future guarantees by
or for the account of Borrower or any Guarantor which are not
contemplated by the Loan Documents; (c) any present or future
property taken as security for any such Other Financings; or (d) any
property now or hereafter in the possession or control of any other
Bank which may be or become security for the obligations of Borrower
or any Guarantor arising under any loan document by reason of the
general description of indebtedness secured or property contained in
any other agreements, documents or instruments relating to any such
Other Financings.
(m) Interests of Banks. Nothing in this
Agreement shall be construed to create a partnership or joint
venture between Banks
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for any purpose. Agent, Banks and Borrower recognize that the
respective obligations of Banks under the Revolving Commitments
shall be several and not joint and that neither Agent, nor any of
Banks shall be responsible or liable to perform any of the
obligations of the other under this Agreement. Each Bank is deemed
to be the owner of an undivided interest in and to all rights,
titles, benefits and interests belonging and accruing to Agent
under the Security Instruments, including, without limitation,
liens and security interests in any collateral, fees and payments
of principal and interest by Borrower under the Revolving
Commitments on a Pro Rata basis. Each Bank shall perform all duties
and obligations of Banks under this Agreement in the same
proportion as its ownership interest in the Loans outstanding at
the date of determination thereof.
(n) Investments. Whenever Agent in good faith
determines that it is uncertain about how to distribute to Banks any
funds which it has received, or whenever Agent in good faith
determines that there is any dispute among the Banks about how such
funds should be distributed, Agent may choose to defer distribution
of the funds which are the subject of such uncertainty or dispute.
If Agent in good faith believes that the uncertainty or dispute will
not be promptly resolved, or if Agent is otherwise required to
invest funds pending distribution to the Banks, Agent may invest
such funds pending distribution (at the risk of Borrower). All
interest on any such investment shall be distributed upon the
distribution of such investment and in the same proportions and to
the same Persons as such investment. All monies received by Agent
for distribution to the Banks (other than to the Person who is Agent
in its separate capacity as a Bank) shall be held by the Agent
pending such distribution solely as Agent for such Banks, and Agent
shall have no equitable title to any portion thereof.
(o) Withholding Tax. Each Bank agrees to
furnish (if it is organized under the laws of any jurisdiction other
than the United States or any State thereof) to the Agent and the
Borrower prior to the time that the Borrower is required to make any
payment of principal, interest or fees hereunder, to such Bank,
duplicate executed originals of either U.S. Internal Revenue Service
Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such
Bank claims entitlement to the benefits of a tax treaty that
provides for a complete exemption from U.S. federal income
withholding tax on all payments hereunder) and agrees to provide new
Forms 4224 of 1001 upon the expiration of any previously delivered
from or comparable statements in accordance with applicable U.S. law
and regulations and amendments thereto, and agrees to comply with
all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
15. EXERCISE OF RIGHTS. No failure to exercise, and no
delay in exercising, on the part of the Agent or the Banks, any right
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hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right. The rights of the Agent and the Banks hereunder shall be in
addition to all other rights provided by law. No modification or waiver of any
provision of the Loan Documents, including this Agreement, or the Notes, nor
consent to departure therefrom, shall be effective unless in writing, and no
such consent or waiver shall extend beyond the particular case and purpose
involved. No notice or demand given in any case shall constitute a waiver of
the right to take other action in the same, similar or other circumstances
without such notice or demand.
16. NOTICES. Any notices or other communications
required or permitted to be given by this Agreement or any other documents and
instruments referred to herein must be given in writing either by facsimile
transmission or personally delivered or couriered or mailed by prepaid
certified or registered mail to the party to whom such notice or communication
is directed at the address of such party either as shown on Schedule "7" hereto
or as follows: (a) BORROWER: c/o NEWPARK RESOURCES, INC., 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxxx 00000, Facsimile No. (000) 000-0000;
Attention: Xxxxxxx X. Xxxxxx, Vice President of Finance and Chief Financial
Officer; (b) AGENT: Bank One, Louisiana, National Association, 000 X. Xxxxxxxx,
0xx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Facsimile No. (000) 000-0000, Attention:
Xxxx X. Xxxxxx, Vice President and (c) any Bank at its address shown on any
addendum hereto. Any such notice or other communication shall be deemed to have
been given (whether actually received or not) on the day it is personally
delivered or delivered by facsimile as aforesaid or, if mailed, on the third
day after it is mailed as aforesaid. Any party may change its address for
purposes of this Agreement by giving notice of such change to the other party
pursuant to this Section 16.
17. EXPENSES. Borrower shall pay (i) all reasonable and
necessary out-of-pocket expenses of the Banks, including reasonable fees and
disbursements of special counsel for the Agent, in connection with the
preparation of this Agreement, the other Loan Documents, title and other due
diligence and closing of the transaction described in this Agreement, any waiver
or consent hereunder or any amendment hereof or any default or Event of Default
or alleged default or Event of Default hereunder, (ii) all reasonable and
necessary out-of-pocket expenses of the Agent, including reasonable fees and
disbursements of special counsel for the Agent in connection with the
preparation of any participation agreement for a participant or participants
requested by Borrower or any amendment thereof and (iii) if a default or an
Event of Default occurs, all reasonable and necessary out-of-pocket expenses
incurred by the Banks, including fees and disbursements of counsel, in
connection with such default and Event of Default and collection and other
enforcement proceedings resulting therefrom. Borrower shall indemnify the Banks
against any transfer taxes, document taxes, assessments or charges made by any
governmental authority by reason of the execution, delivery and filing of the
Loan Documents.
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18. INDEMNITY. Borrower agrees to indemnify and hold
harmless the Banks and their respective officers, employees, agents, attorneys
and representatives (singularly, an "Indemnified Party", and collectively, the
"Indemnified Parties") from and against any loss, cost, liability, damage or
expense (including the reasonable fees and out-of-pocket expenses of counsel to
the Banks, including all local counsel hired by such counsel) ("Claim") incurred
by the Banks in investigating or preparing for, defending against, or providing
evidence, producing documents or taking any other action in respect of any
commenced or threatened litigation, administrative proceeding or investigation
under any federal securities law, federal or state environmental law, or any
other statute of any jurisdiction, or any regulation, or at common law or
otherwise, which is alleged to arise out of or is based upon any acts, practices
or omissions or alleged acts, practices or omissions of Borrower or its agents
or arises in connection with the duties, obligations or performance of the
Indemnified Parties in negotiating, preparing, executing, accepting, keeping,
completing, countersigning, issuing, selling, delivering, releasing, assigning,
handling, certifying, processing or receiving or taking any other action with
respect to the Loan Documents and all documents, items and materials
contemplated thereby even if any of the foregoing arises out of an Indemnified
Party's ordinary negligence. The indemnity set forth herein shall be in addition
to any other obligations or liabilities of Borrower to the Banks hereunder or at
common law or otherwise, and shall survive any termination of this Agreement,
the expiration of the Revolving Loans and the payment of all indebtedness of
Borrower to the Banks hereunder and under the Notes, provided that Borrower
shall have no obligation under this Section to the Bank with respect to any of
the foregoing arising out of the gross negligence or willful misconduct of any
Indemnified Party. If any Claim is asserted against any Indemnified Party, the
Indemnified Party shall endeavor to notify Borrower of such Claim (but failure
to do so shall not affect the indemnification herein made except to the extent
of the actual harm caused by such failure). The Indemnified Party shall have the
right to employ, at Borrower's expense, counsel of the Indemnified Parties'
choosing and to control the defense of the Claim. Borrower may at its own
expense also participate in the defense of any Claim. Each Indemnified Party may
employ separate counsel in connection with any Claim to the extent such
Indemnified Party believes it reasonably prudent to protect such Indemnified
Party. THE PARTIES INTEND FOR THE PROVISIONS OF THIS SECTION TO APPLY TO AND
PROTECT EACH INDEMNIFIED PARTY FROM THE CONSEQUENCES OF ANY LIABILITY INCLUDING
STRICT LIABILITY IMPOSED OR THREATENED TO BE IMPOSED ON AGENT AS WELL AS FROM
THE CONSEQUENCES OF ITS OWN NEGLIGENCE, WHETHER OR NOT THAT NEGLIGENCE IS THE
SOLE, CONTRIBUTING, OR CONCURRING CAUSE OF ANY CLAIM.
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19. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF
LOUISIANA AND THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF
THE PARTIES HERETO AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND
INTERPRETATION OF THIS AGREEMENT, THE NOTES AND THE GUARANTIES AND OTHER LOAN
DOCUMENTS.
20. INVALID PROVISIONS. If any provision of this Agreement
is held to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Agreement, such provisions shall be fully
severable and this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this Agreement,
and the remaining provisions of the Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Agreement.
21. MAXIMUM INTEREST RATE. Regardless of any provisions
contained in this Agreement or in any other documents and instruments referred
to herein, the Banks shall never be deemed to have contracted for or be entitled
to receive, collect or apply as interest on the Notes any amount in excess of
the Maximum Rate, and in the event any Bank ever receives, collects or applies
as interest any such excess, or if an acceleration of the maturities of any
Notes or if any prepayment by Borrower result in Borrower having paid any
interest in excess of the Maximum Rate, such amount which would be excessive
interest shall be applied to the reduction of the unpaid principal balance of
the Notes for which such excess was received, collected or applied, and, if the
principal balance of such Note is paid in full, any remaining excess shall
forthwith be paid to Borrower. All sums paid or agreed to be paid to the Banks
for the use, forbearance or detention of the indebtedness evidenced by the Notes
and/or this Agreement shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of such
indebtedness until payment in full so that the rate or amount of interest on
account of such indebtedness does not exceed the Maximum Rate. In determining
whether or not the interest paid or payable under any specific contingency
exceeds the Maximum Rate of interest permitted by law, Borrower and the Banks
shall, to the maximum extent permitted under applicable law, (i) characterize
any non-principal payment as an expense, fee or premium, rather than as
interest; and (ii) exclude voluntary prepayments and the effect thereof; and
(iii) compare the total amount of interest contracted for, charged or received
with the total amount of interest which could be contracted for, charged or
received throughout the entire contemplated term of the Notes at the Maximum
Rate.
22. AMENDMENTS OR WAIVERS. Neither this Agreement nor any
other Loan Document nor any terms hereof or thereof
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may be changed, waived or discharged or terminated unless such change,
waiver, discharge or termination is in writing signed by the Borrower and the
Majority Banks, provided that no such change, waiver, discharge or termination
shall, without the consent of each Bank (other than a Defaulting Bank) affected
thereby, (i) extend the Maturity Date (it being understood that any waiver of
the application of any prepayment of the Revolving Loans or the method of
application of any prepayment shall not constitute any such extension), to
reduce the rate or extend the time of payment of interest (other than as a
result of waiving the applicability of any post-default increase in interest
rates) or fees thereon, or reduce the principal amount thereof, (ii) increase
the Revolving Commitment of any Bank over the amount thereof then in effect (it
being understood that a waiver of any condition, covenant, Default or Event of
Default shall not constitute a change in the terms of any Revolving Commitment
of any Bank), (iii) release or permit the release of any Collateral from the
Lien of the respective Security Instruments or any of the Guaranties, (iv)
amend, modify or waive any provision of this Section 22, (v) reduce the
percentage specified in the definition of Majority Banks (it being understood
and agreed that, with the consent of the Majority Banks, additional extensions
of credit pursuant to this Agreement may be included in the determination of
Majority Banks on substantially the same basis as the Revolving Commitments
(and related extensions of credit) are included on the Effective Date), (vi)
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement or (vii) waive, change the timing or amount
of, or extend any mandatory reduction in the Revolving Commitment. No provision
of Sections 2 or 14, or any other provisions relating to and issue of Letters
of Credit or the Agent may be modified without the consent of the Agent.
23. MULTIPLE COUNTERPARTS. This Agreement may be executed
in a number of identical separate counterparts, each of which for all purposes
is to be deemed an original, but all of which shall constitute, collectively,
one agreement. No party to this Agreement shall be bound hereby until a
counterpart of this Agreement has been executed by all parties hereto.
24. CONFLICT. In the event any term or provision hereof is
inconsistent with or conflicts with any provision of the Loan Documents, the
terms or provisions contained in this Agreement shall be controlling.
25. SURVIVAL. All covenants, agreements, undertakings,
representations and warranties made in the Loan Documents, including this
Agreement, the Notes, the Guaranties or other documents and instruments referred
to herein shall survive all closings hereunder and shall not be affected by any
investigation made by any party.
26. PARTIES BOUND. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors,
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assigns, heirs, legal representatives and estates, provided, however, that
Borrower may not, without the prior written consent of the Banks, assign any
rights, powers, duties or obligations hereunder.
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27. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Bank shall have the right to sell,
assign or transfer all or any part of its Note or Notes, its
Revolving Commitments and its rights and obligations hereunder to an
Eligible Assignee; provided, that with each sale, assignment or
transfer (other than to an Affiliate, a Bank or a Federal Reserve
Bank), shall require the consent of Borrower and Agent, which
consents will not be unreasonably withheld, and the assignee,
transferee or recipient shall have, to the extent of such sale,
assignment, or transfer, the same rights, benefits and obligations
as it would if it were such Bank and a holder of such Note,
Revolving Commitment and rights and obligations, including, without
limitation, the right to vote on decisions requiring consent or
approval of all Banks or Majority Banks and the obligation to fund
its Revolving Commitment; provided, further, that (1) each such
sale, assignment, or transfer (other than to an Affiliate, a Bank or
a Federal Reserve Bank) shall be in an amount not less than
$5,000,000, (2) each remaining Bank shall at all times maintain
Revolving Commitment then outstanding in a principal amount at least
equal to $5,000,000; (3) no Bank may offer to sell its Note or
Notes, Revolving Commitment, rights and obligations or interests
therein in violation of any securities laws; and (4) no such
assignments (other than to a Federal Reserve Bank) shall become
effective until the assigning Bank and its assignees delivers to
Agent and Borrower an Assignment and Acceptance and the Note or
Notes subject to such assignment and other documents evidencing any
such assignment. An assignment fee in the amount of $2,500 for each
such assignment (other than to an Affiliate, a Bank or the Federal
Reserve Bank) will be payable to Agent by assignor or assignee.
Within five (5) Business Days after its receipt of copies of the
Assignment and Acceptance and the other documents relating thereto
and the Note or Notes, Borrower shall execute and deliver to Agent
(for delivery to the relevant assignee) a new Note or Notes
evidencing such assignee's assigned Revolving Commitment and if the
assignor Bank has retained a portion of its Revolving Commitment, a
replacement Note in the principal amount of the Revolving Commitment
retained by the assignor (except as provided in the last sentence of
this paragraph (a) such Note or Notes to be in exchange for, but not
in payment of, the Note or Notes held by such Bank). On and after
the effective date of an assignment hereunder, the assignee shall
for all purposes be a Bank, party to this Agreement and any other
Loan Document executed by the Banks and shall have all the rights
and obligations of a Bank under the Loan Documents, to the same
extent as if it were an original party thereto, and no further
consent or action by Borrower, Banks or the Agent shall be required
to release the transferor Bank with respect to its Revolving
Commitment assigned to such assignee and the transferor Bank shall
henceforth be so released.
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(b) Each Bank shall have the right to grant
participations in all or any part of such Bank's Notes and Revolving
Commitment hereunder to one or more pension plans, investment funds,
financial institutions or other Persons, provided, that:
(i) each Bank granting a participation shall retain
the right to vote hereunder, and no participant shall be
entitled to vote hereunder on decisions requiring consent or
approval of Bank or Majority Banks (except as set forth in
(iii) below);
(ii) in the event any Bank grants a participation
hereunder, such Bank's obligations under the Loan Documents
shall remain unchanged, such Bank shall remain solely
responsible to the other parties hereto for the performance
of such obligations, such Bank shall remain the holder of any
such Note or Notes for all purposes under the Loan Documents,
and Agent, each Bank and Borrower shall be entitled to deal
with the Bank granting a participation in the same manner as
if no participation had been granted; and
(iii) no participant shall ever have any right by
reason of its participation to exercise any of the rights of
Banks hereunder, except that any Bank may agree with any
participant that such Bank will not, without the consent of
such participant (which consent may not be unreasonably
withheld) consent to any amendment or waiver requiring
approval of all Banks.
(c) It is understood and agreed that any Bank
may provide to assignees and participants and prospective assignees
and participants financial information and reports and data
concerning Borrower's properties and operations which was provided
to such Bank pursuant to this Agreement.
(d) Upon the reasonable request of either
Agent or Borrower, each Bank will identify those to whom it has
assigned or participated any part of its Notes and Revolving
Commitment, and provide the amounts so assigned or participated.
28. CONSTRUCTION. Each party hereto acknowledges that each
has had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement and all related Loan Documents and other
papers with its legal counsel and that this Agreement and the related Loan
Documents and other papers shall be construed as if jointly drafted by the
parties hereto.
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29. TERMINATION. This Agreement shall not terminate until
the Secured Obligations and any and all liabilities and obligations owed to the
Banks by the Borrower in connection with the transactions contemplated by this
Agreement have been fully satisfied and the Banks shall have no further
obligation to make any advances hereunder or otherwise to the Borrower.
30. OTHER AGREEMENTS. THIS AGREEMENT, THE NOTE OR NOTES
AND THE GUARANTIES SET FORTH THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND SUPERSEDE ALL PRIOR WRITTEN AND ORAL
UNDERSTANDINGS BETWEEN THE BORROWER, THE GUARANTORS, THE AGENT AND THE BANKS AND
ANY OTHER PARTIES WITH RESPECT TO THE MATTERS HEREIN SET FORTH. THIS WRITTEN
CREDIT AGREEMENT REPRESENTS 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 UNWRITTEN ORAL AGREEMENTS BETWEEN THE
BANKS AND ANY OF THE OTHER PARTIES TO THIS AGREEMENT.
31. JURY TRIAL WAIVER. IN THE EVENT IT IS NECESSARY TO
RESORT TO JUDICIAL ACTION TO ENFORCE RIGHTS HEREUNDER, THEN THE AGENT, THE
BANKS, THE GUARANTORS AND THE BORROWER, HEREBY AGREE THAT TO THE EXTENT
PERMITTED BY APPLICABLE LAW ANY SUCH JUDICIAL ACTION, INCLUDING ANY OPPOSITION
TO SUCH ACTION, RECONVENTIONAL DEMANDS, AND CROSS CLAIMS, SHALL BE TRIED BEFORE
A JUDGE WITHOUT A JURY, ALL PARTIES HERETO HEREBY WAIVING THEIR RIGHT TO A JURY
TRIAL.
32. FINANCIAL TERMS. All accounting terms used in this
Agreement which are not specifically defined herein shall be construed in
accordance with GAAP.
33. L.A. R.S. SS.6:1121. THIS AGREEMENT IS A CREDIT OR
LOAN AGREEMENT AS DESCRIBED IN L.A. R.S. ss.1121 ET SEQ.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
BORROWER:
NEWPARK RESOURCES, INC.
a Delaware corporation
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
GUARANTORS:
CHEMICAL TECHNOLOGIES, INC.,
EXCALIBAR MINERALS, INC., EXCALIBAR
MINERALS OF LA., INC., NEWPARK
ENVIRONMENTAL SERVICES, INC.,
MALLARD & MALLARD OF LA., INC.,
NEWPARK HOLDINGS, INC., XXXXXX
BILBO XXXXXX DRILLING FLUIDS
MANAGEMENT, INC., SUPREME
CONTRACTORS, INC. AND SUPREME
CONTRACTORS INTERNATIONAL, INC.
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
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NEWPARK ENVIRONMENTAL MANAGEMENT
COMPANY, L.L.C., NEWPARK TEXAS,
L.L.C. AND SOLOCO L.L.C.
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
XXXXXX-MILL, L.P., FMI WHOLESALE
DRILLING FLUIDS U.S.A., L.P.
NEWPARK ENVIRONMENTAL SERVICES OF
TEXAS, L.P., NEWPARK SHIPHOLDING
TEXAS, L.P., N.I.D., L.P. AND
SOLOCO TEXAS, L.P.
By: Newpark Holdings, Inc., the
general partner of each
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
BANKS:
Revolving Commitment: BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION,
$35,500,000 a national banking association
By:
------------------------------
Xxxx X. Xxxxxx, Vice President
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Revolving Commitment: DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
$32,000,000
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
Revolving Commitment: HIBERNIA NATIONAL BANK
$22,500,000
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
AGENT:
BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION,
a national banking association
By:
------------------------------
Xxxx X. Xxxxxx, Vice President
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CO-AGENT:
DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
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EXHIBIT "A"
NOTICE OF BORROWING
The undersigned hereby certifies that he is the ____________ of
NEWPARK RESOURCES, INC., a Delaware corporation ("Borrower"), and that as such
he is authorized to execute this Notice of Borrowing on behalf of Borrower.
With reference to that certain Restated Credit Agreement dated as of June 30,
1997 (as same may be amended, modified, increased, supplemented and/or restated
from time to time, the "Agreement") entered into by and among Borrower,
Guarantors and BANK ONE, LOUISIANA, N.A., a national banking association ("Bank
One"), DEUTSCHE BANK A.G., NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH
("Deutsche") and HIBERNIA NATIONAL BANK, a national banking association
("Hibernia") and each other financial institution which may from time to time
become a party thereto pursuant to the provisions of Section 28 thereof or any
successor or assignee thereof (hereinafter collectively referred to as "Banks",
and individually, "Bank") and Bank One, as Administrative and Syndication Agent
("Agent") and Deutsche as Co-Agent ("Co- Agent"), the undersigned further
certifies, represents and warrants on behalf of Borrower that all of the
following statements are true and correct (each capitalized term used herein
having the same meaning given to it in the Agreement unless otherwise
specified):
(a) Borrower requests that the Banks advance to Borrower
on the Revolving Loan the aggregate sum of $________________ by no
later than __________________. Immediately following such Advance,
the aggregate outstanding balance of Advances shall equal
$_________________.
(b) This Advance shall be a: Base Rate Loan __________,
or a Eurodollar Loan ________ (If a Eurodollar Loan, please state
requested Interest Period:_______ months).
(c) As of the date hereof, and as a result of the making
of the requested Advance, there does not and will not exist any
Default or Event of Default.
(d) Borrower has performed and complied with all
agreements and conditions contained in the Agreement which are
required to be performed or complied with by Borrower before or on the
date hereof.
(e) The representations and warranties contained in the
Agreement are true and correct in all material respects as of the date
hereof and shall be true and correct upon the making of the Advance,
with the same force and effect as though made on and as of the date
hereof and thereof.
(f) No change that would cause a Material Adverse Effect
to the condition, financial or otherwise, of Borrower has occurred
since the most recent Financial Statement provided to the Banks.
76
EXECUTED AND DELIVERED this _____ day of ___________ 199__.
NEWPARK RESOURCES, INC.
a Delaware corporation
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
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EXHIBIT "B"
REVOLVING NOTE
$_____________ Lafayette, Louisiana _________, 1997
FOR VALUE RECEIVED, the undersigned, NEWPARK RESOURCES, INC., a
Delaware corporation (referred to herein as "Borrower") hereby unconditionally,
promises to pay to the order of ___________________, a _______________________
(referred to herein as "Bank"), at the offices of BANK ONE, LOUISIANA, N.A.
(the "Agent") in Lafayette, Louisiana, the principal sum of ___________ MILLION
AND NO/100 DOLLARS ($_____________), or so much thereof as may be advanced and
outstanding to or for the benefit of Borrower by Bank pursuant to the Restated
Credit Agreement (as hereinafter defined), in lawful money of the United States
of America together with interest from the date hereof until paid at the rates
specified in the Restated Credit Agreement. All payments of principal and
interest due hereunder are payable at the offices of Agent at 000 X. Xxxxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, attention: Energy Department, or at such other
address as Bank shall designate in writing to Borrower in accordance with the
Restated Credit Agreement.
The principal and all accrued interest on this Revolving Note (the
"Note") shall be due and payable in accordance with the terms and provisions of
the Restated Credit Agreement.
This Note is executed pursuant to that certain Restated Credit
Agreement dated of even date herewith among the Borrower, Guarantors, the Agent
and the Banks signatory thereto (the "Restated Credit Agreement"), and is one
of the Notes referred to therein. This Note is secured by certain Security
Instruments (as such term is defined in the Restated Credit Agreement) of even
date herewith between Borrower, the Guarantors and Agent. Reference is made to
the Restated Credit Agreement and the Security Instruments for a statement of
prepayment rights and obligations of Borrower, description of the properties
mortgaged and assigned, the nature and extent of such security and the rights
of the parties under the Security Instruments in respect to such security and
for a statement of the terms and conditions under which the due date of this
Note may be accelerated. Upon the occurrence of an Event of Default, as that
term is defined in the Restated Credit Agreement and Security Instruments, the
holder hereof (subject to the provisions of the Restated Credit Agreement) (i)
may declare forthwith to be entirely and immediately due and payable the
principal balance hereof and the interest accrued hereon, and (ii) shall have
all rights and remedies under the Restated Credit Agreement and Security
Instruments. This Note may be prepaid at any time in full or in part without
any premium or fee in accordance with the terms and provisions of the Restated
Credit Agreement.
Regardless of any provision contained in this Note, the holder hereof
shall never be entitled to receive, collect or apply, as interest on this Note,
any amount in excess of the Maximum Rate (as such term is defined in the
Restated Credit Agreement), and, if the holder hereof ever receives, collects,
or applies as interest, any such amount which would be in excess of the Maximum
Rate, it
78
shall be deemed a partial prepayment of principal and treated hereunder as
such; and, if the indebtedness evidenced hereby is paid in full, any remaining
excess shall forthwith be paid to Borrower. In determining whether or not the
interest paid or payable, under any specific contingency, exceeds the Maximum
Rate, Borrower and the holder hereof shall, to the maximum extent permitted
under applicable law (i) characterize any non-principal payment as an expense,
fee or premium rather than as interest, (ii) exclude voluntary prepayments and
the effects thereof, and (iii) spread the total amount of interest throughout
the entire contemplated term of the obligations evidenced by this Note and/or
referred to in the Restated Credit Agreement so that the interest rate is
uniform throughout the entire term of this Note; provided that, if this Note is
paid and performed in full prior to the end of the full contemplated term
thereof and if the interest received for the actual period of existence thereof
exceeds the Maximum Rate, the holder hereof shall refund to Borrower the amount
of such excess or credit the amount of such excess against the indebtedness
evidenced hereby, and, in such event, the holder hereof shall not be subject to
any penalties provided by any laws for contracting for, charging, taking,
reserving or receiving interest in excess of the Maximum Rate.
If any payment of principal or interest on this Note shall become due
on a Saturday, Sunday or public holiday or while the Agent is not open for
business, such payment shall be made on the next succeeding business day unless
required to be made on a different day pursuant to the provisions of the
Restated Credit Agreement and such extension of time shall in such case be
included in computing interest in connection with such payment.
If this Note is placed in the hands of an attorney for collection, or
if it is collected through any legal proceeding at law or in equity or in
bankruptcy, receivership or other court proceedings, Borrower agrees to pay all
costs of collection, including, but not limited to, court costs and reasonable
attorneys' fees.
Borrower and each surety, endorser, guarantor and other party ever
liable for payment of any sums of money payable on this Note, jointly and
severally waive presentment and demand for payment, notice of intention to
accelerate the maturity, notice of acceleration of the maturity, protest,
notice of protest and nonpayment, as to this Note and as to each and all
installments hereof, and agree that their liability under this Note shall not
be affected by any renewal or extension in the time of payment hereof, or in
any indulgences, or by any release or change in any security for the payment of
this Note, and hereby consent to any and all renewals, extensions, indulgences,
releases or changes.
This Note shall be governed by and construed in accordance with the
applicable laws of the United States of America and the laws of the State of
Louisiana.
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THIS WRITTEN NOTE, THE RESTATED CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
EXECUTED as of the ______ day of _______________, 1997.
Borrower:
NEWPARK RESOURCES, INC.
a Delaware corporation
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
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EXHIBIT "C"
CONTINUING GUARANTY
CONTINUING GUARANTY (this "Agreement") made and entered into as of
June 30, 1997 by _____________________________, a ____________________________
("_______________") (hereinafter referred to as "Guarantor"), in favor of BANK
ONE, LOUISIANA, NATIONAL ASSOCIATION of Lafayette, Louisiana ("Bank One"),
DEUTSCHE BANK A.G., NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH ("Deutsche"),
HIBERNIA NATIONAL BANK, a national banking association ("Hibernia") and each
other financial institution which may become a party to that certain Restated
Credit Agreement dated as of June 30, 1997, by and among Borrower (as
hereinafter defined), the Agent, Bank One, Deutsche and Hibernia (the "Restated
Credit Agreement") (hereinafter referred to as "Lenders"), guarantying the
Indebtedness (as defined) of NEWPARK RESOURCES, INC., a Delaware corporation
(hereinafter referred to as "Borrower").
WITNESSETH:
FOR VALUE RECEIVED, and in consideration of and for credit and
financial accommodations extended, to be extended, or continued to or for the
account of the above named Borrower, the undersigned Guarantor, whether one or
more, hereby jointly, severally and solidary, agrees as follows:
SECTION 1. CONTINUING GUARANTY OF BORROWER'S INDEBTEDNESS. Guarantor
hereby absolutely and unconditionally agrees to, and by these presents does
hereby, guarantee the prompt and punctual payment, performance and satisfaction
of any and all loans, extensions of credit and/or other obligations that
Borrower may now and/or in the future owe to and/or incur in favor of Lenders
under or pursuant to the Restated Credit Agreement, including without
limitation the indebtedness of Borrower evidenced by (i) that certain Revolving
Note dated of even date herewith in the face amount of $25,000,000 made by
Borrower pursuant to the Restated Credit Agreement and payable to the order of
Hibernia, (ii) that certain Revolving Note dated of even date herewith in the
face amount of $29,500,000 made by Borrower pursuant to the Restated Credit
Agreement and payable to the order of Deutsche and (iii) that certain Revolving
Note dated of even date herewith in the face amount of $35,500,000 made by
Borrower pursuant to the Restated Credit Agreement and payable to the order of
Bank One, as said Revolving Notes may be renewed from time to time and in
effect or replaced pursuant to the provisions of the Restated Credit Agreement,
and whether such indebtedness and/or obligations are absolute or contingent,
liquidated or unliquidated, due or to become due, secured or unsecured, and
whether now existing or hereafter arising, of any nature or kind whatsoever
(with all of Borrower's indebtedness and/or obligations being hereinafter
individually and collectively referred to under this Agreement as "Borrower's
Indebtedness" or the "Indebtedness").
Notwithstanding any other provision herein to the contrary but subject
to Section 2 hereof, the maximum principal amount of Borrower's Indebtedness in
favor of Lenders guaranteed by Guarantor under this Agreement is limited to the
greater of (i) NINETY MILLION AND NO/100 DOLLARS ($90,000,000.00) or (ii) the
Total Outstanding (as defined in the Restated Credit Agreement) under the
Restated Credit Agreement (interest, costs, and attorney's fees under
Borrower's Indebtedness are additionally guaranteed hereunder.)
SECTION 2. LIMITATION ON LIABILITY. The liability of any Guarantor
hereunder with respect to the Indebtedness shall be limited to the maximum
amount of liability that can be incurred without rendering this Agreement, as
it relates to any Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and not for any greater amount.
81
SECTION 3. JOINT, SEVERAL AND SOLIDARITY LIABILITY. Guarantor
further agrees that its obligations and liabilities for the prompt and punctual
payment, performance and satisfaction of all of Borrower's Indebtedness shall
be on a "joint and several" and "solidary" basis along with Borrower to the
same degree and extent as if Guarantor had been and/or will be a co-borrower,
co-principal obligor and/or co-maker of all of Borrower's Indebtedness. In the
event that there is more than one guarantor under this Agreement, or in the
event that there are other guarantors, endorsers or sureties of all or any
portion of Borrower's Indebtedness, Guarantor's obligations and liabilities
hereunder shall be on a "joint and several" and "solidary" basis along with
such other guarantor or guarantors, endorsers and/or sureties.
SECTION 4. DURATION; CANCELLATION OF AGREEMENT. This Agreement and
Guarantor's obligations and liabilities hereunder shall remain in full force
and effect until such time as each and every Indebtedness of Borrower shall be
paid, performed and/or satisfied in full, in principal, interest, costs and
attorneys' fees, or until such time as this Agreement may be cancelled or
otherwise terminated by Lenders under a written cancellation instrument in
favor of Guarantor (subject to the automatic reinstatement provision
hereinbelow). Unless otherwise indicated under such a written cancellation
instrument, Lenders' agreement to terminate or otherwise cancel this Agreement
shall only effect and shall be expressly limited to Guarantor's continuing
obligations and liabilities to guarantee the prompt and punctual payment,
performance and satisfaction of Borrower's Indebtedness incurred, originated
and/or extended or committed to by Lenders after the date of such a written
cancellation instrument; with Guarantor remaining fully obligated and liable
under this Agreement for the prompt and punctual payment, performance and
satisfaction of any and all of Borrower's then outstanding Indebtedness
together with continuing assessment of interest thereon) that was incurred,
originated, extended or committed to prior to the date of such a written
cancellation instrument. Nothing under this Agreement or under any other
agreement or understanding by and between Guarantor and Lenders, shall in any
way obligate, or be construed to obligate, Lenders to agree to the subsequent
termination or cancellation of Guarantor's obligations and liabilities
hereunder, it being fully understood and agreed by Guarantor that Lenders may,
within their sole and uncontrolled discretion and judgment, refuse to release
Guarantor from any of its obligations and liabilities under this Agreement for
any reason whatsoever as long as any of Borrower's Indebtedness remains unpaid
and outstanding.
SECTION 5. DEFAULT OF BORROWER. Should Borrower default under any of
its Indebtedness in favor of Lenders as provided in the Restated Credit
Agreement, Guarantor unconditionally and absolutely agrees to pay the full then
unpaid amount of all of Borrower's Indebtedness guaranteed hereunder, in
principal, interest, costs and reasonable attorneys' fees. Such payment or
payments shall be made immediately following demand by Lenders at Agent's
offices at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000. Guarantor
hereby waives notice of acceptance of this Agreement and of any Indebtedness to
which it applies or may apply. Guarantor further waives presentation and
demand for payment of Borrower's Indebtedness, notice of dishonor and of
nonpayment, notice of intention to accelerate, notice of acceleration, protest
and notice of protest, collection or institution of any suit or other action by
Lenders in collection thereof, including any notice of default in payment
thereof or other notice to, or demand for payment thereof on any party.
Guarantor additionally waives any and all rights and pleas of division and
discussion as provided under Louisiana State law, as well as, to the degree
applicable, any similar rights as may be provided under the laws of any other
state.
SECTION 6. GUARANTOR'S SUBORDINATION OF RIGHTS TO LENDERS. In the
event that Guarantor should for any reason (i) make any payment for and on
behalf of Borrower under any of Borrower's Indebtedness, and/or (ii) make any
payments to Lenders in total or partial satisfaction of Guarantor's obligations
and liabilities hereunder, Guarantor hereby agrees that any and all rights that
Guarantor may have or acquire to collect or to be reimbursed by Borrower (or by
any guarantor,
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endorser or surety of Borrower's Indebtedness), whether Guarantor's rights of
collection or reimbursement arise by way of subrogation to the rights of
Lenders or otherwise, shall in all respects be subordinate, inferior and junior
to Lenders' rights to collect and enforce payment, performance and satisfaction
of Borrower's then remaining Indebtedness, until such time as all of Borrower's
Indebtedness is fully paid and satisfied. Upon the occurrence and continuance
of an Event of Default (as defined in the Restated Credit Agreement) any and
all amounts owed by Borrower to Guarantor shall in all respects be subordinate,
inferior and junior to Lenders' rights to collect and enforce payment,
performance and satisfaction of Borrower's then remaining Indebtedness, until
such time as all of Borrower's Indebtedness is fully paid and satisfied.
Guarantor further agrees to refrain from attempting to collect and/or enforce
any of Guarantor's aforesaid rights against Borrower (or any other guarantor,
surety or endorser of Borrower's Indebtedness), arising by way of subrogation
or otherwise, until such time as all of Borrower's then remaining Indebtedness
in favor of Lenders is fully paid and satisfied, in principal, interest, costs
and attorneys' fees.
SECTION 7. ADDITIONAL COVENANTS. Guarantor further agrees that
Lenders may, at their sole option, at any time, and from time to time, without
the consent of or notice to Guarantor, or any one of them, or to any other
party, and without incurring any responsibility to Guarantor or to any other
party, and without impairing or releasing the obligations of Guarantor under
this Agreement:
(A) Discharge or release any party (including, but not
limited to, Borrower or any guarantor under this Agreement) who is or may be
liable to Lenders for any of Borrower's Indebtedness;
(B) Sell, exchange, release, surrender, realize upon or
otherwise deal with, in any manner and in any order, any collateral directly or
indirectly securing repayment of any of Borrower's Indebtedness;
(C) Change the manner, place or terms of payment, or
change or extend the time of payment of or renew, as often and for such periods
as Lenders may determine, or after, any of Borrower's Indebtedness;
(D) Settle or compromise any of Borrower's Indebtedness;
(E) Subordinate and/or agree to subordinate the payment
of all or any of Borrower's Indebtedness or Lenders' security rights in and/or
to any collateral directly or indirectly securing any such indebtedness, to the
payment and/or security rights of any other present and/or future creditors of
Borrower;
(F) Apply any sums paid to any of Borrower's
Indebtedness, with such payments being applied in such priority or with such
preferences as Lenders may determine in its sole discretion, regardless of what
Indebtedness of Borrower remains unpaid;
(G) Take or accept any other security for any or all of
Borrower's Indebtedness; and/or
(H) Enter into, deliver, modify, amend or waive
compliance with, any Instrument or arrangement evidencing, securing or
otherwise affecting, all or any part of Borrower's Indebtedness.
In addition, no course of dealing between Lenders and Borrower
(or any other guarantor, surety or endorser of Borrower's Indebtedness), nor
any failure or delay on the part of Lenders to exercise any of Lenders' rights
and remedies, or any other agreement or agreements by and
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between Lenders and Borrower (or any other guarantor, surety or endorser) shall
have the affect of impairing or releasing Guarantor's obligations and
liabilities to Lenders or of waiving any of Lenders' rights and remedies. Any
partial exercise of any rights and remedies granted to Lenders shall
furthermore not constitute a waiver of any of Lenders' other rights and
remedies, it being Guarantor's intent and agreement that Lenders' rights and
remedies shall be cumulative in nature. Guarantor further agrees that, should
Borrower default under any of its Indebtedness, any waiver or forbearance on
the part of Lenders to pursue the rights and remedies available to Lenders
shall be binding upon Lenders only to the extent that Lenders specifically
agree to such waiver or forbearance in writing. A waiver or forbearance on the
part of Lenders as to one event of default shall not constitute a waiver of
forbearance as to any other default.
SECTION 8. NO RELEASE OF GUARANTOR. Guarantor's obligations and
liabilities under this Agreement shall not be released, impaired, reduced or
otherwise affected by, and shall continue in full force and effect,
notwithstanding the occurrence of any event, including without limitation any
one of the following events:
(A) Death, insolvency, bankruptcy, arrangement,
adjustment, composition, liquidation, disability, dissolution or lack of
authority (whether corporate, partnership or trust) of Borrower (or any person
acting on Borrower's behalf), or any other guarantor, surety or endorser of any
of Borrower's Indebtedness;
(B) Partial payment or payments of any amount due and/or
outstanding under any of Borrower's Indebtedness;
(C) Any payment of Borrower or any other party to Lenders
is held to constitute a preferential transfer or a fraudulent conveyance under
any applicable law, or for any reason, Lenders is required to refund such
payment or pay such amount to Borrower or to any other person;
(D) Any dissolution of Borrower or any sale, lease or
transfer of all or any part of Borrower's assets;
(E) Any failure of Lenders to notify Guarantor of the
acceptance of this Agreement or of the making of loans or other extensions of
credit in reliance on this Agreement or of the failure of Borrower to make any
payment due by Borrower to Lenders;
(F) Apply any sums paid to any of Borrower's
Indebtedness, with such payments being applied in such priority or with such
preferences as Lenders may determine in its own discretion, regardless of what
Indebtedness of Borrower remains unpaid;
(G) Take or accept any other security for any or all of
Borrower's Indebtedness; and/or
(H) Enter into, deliver, modify, amend or waive
compliance with, any Instrument or arrangement evidencing, securing or
otherwise affecting, all or any part of Borrower's Indebtedness.
This Agreement and Guarantor's obligations and liabilities
hereunder shall continue to be effective, and/or shall automatically and
retroactively be reinstated if a release or discharge has occurred, as the case
may be, if at any time any payment or part thereof to Lenders with respect to
any of Borrower's Indebtedness is rescinded or must otherwise be restored by
Lenders pursuant to any insolvency, bankruptcy, reorganization, receivership,
or any other debt relief granted to Borrower or to
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any other party. In the event that Lenders must rescind or restore any payment
received by Lenders in satisfaction of Borrower's Indebtedness, any prior
release or discharge from the terms of this Agreement given to Guarantor shall
be without effect, and this Agreement and Guarantor's obligations and
liabilities hereunder shall automatically be renewed or reinstated and shall
remain in full force and effect to the same degree and extent as if such a
release or discharge was never granted. It is the intention of Lenders and
Guarantor that Guarantor's obligations and liabilities hereunder shall not be
discharged except by Guarantor's full and complete performance of such
obligations and liabilities and then only to the extent of such performance.
SECTION 9. ENFORCEMENT OF GUARANTOR'S OBLIGATIONS AND LIABILITIES.
Guarantor agrees that, should Lenders deem it necessary to file an appropriate
collection action to enforce Guarantor's obligations and liabilities under this
Agreement, Lenders may commence such a civil action against Guarantor without
the necessity of first (i) attempting to collect Borrower's Indebtedness from
Borrower or from any other guarantor, surety or endorser, whether through
filing of suit or otherwise, (ii) attempting to exercise against any collateral
directly or indirectly securing repayment of any of Borrower's Indebtedness,
whether through the filing of an appropriate foreclosure action or otherwise,
or (iii) including Borrower or any other guarantor, surety or endorser of any
of Borrower's Indebtedness as an additional party defendant in such a
collection action against Guarantor. If there is more than one guarantor under
this Agreement, each guarantor additionally agrees that Lenders may file an
appropriate collection and/or enforcement action against any one or more of
them, without impairing the rights of Lenders against any other guarantor under
this Agreement. In the event that Lenders should ever deem it necessary to
refer this Agreement to an attorney-at-law for the purpose of enforcing
Guarantor obligations and liabilities hereunder, or of protecting or preserving
Lenders' rights hereunder, Guarantor (and each of them, on a joint, several and
solidary basis) agrees to reimburse Lenders for the reasonable fees of such an
attorney. Guarantor additionally agrees that Lenders shall not be liable for
failure to use diligence in the collection of any of Borrower's Indebtedness or
any collateral security therefor, or in creating or preserving the liability of
any person liable on any such Indebtedness, or in creating, perfecting or
preserving any security for any such Indebtedness.
SECTION 10. ADDITIONAL DOCUMENTS. Upon the reasonable request of
Lenders, Guarantor will, at any time, and from time to time, duly execute and
deliver to Lenders any and all such further instruments and documents, and
supply such additional information as may be necessary or advisable in the
opinion of Lenders, to obtain the full benefits of this Agreement.
SECTION 11. TRANSFER OF INDEBTEDNESS. This agreement is for the
benefit of Lenders and for such other person or persons as may from time to
time become or be the holders of any of Borrower's Indebtedness hereby
guaranteed and this Agreement shall be transferable and negotiable, with the
same force and effect and to the same extent as Borrower's Indebtedness may be
transferable, it being understood that, upon the transfer or assignment by
Lenders of any of Borrower's Indebtedness hereby guaranteed, the legal holder
of such Indebtedness shall have all the rights granted to Lenders under this
Agreement.
Guarantor hereby recognizes and agrees that Lenders may, from time to
time, one or more times, transfer all or any portion of Borrower's Indebtedness
to one or more third parties. Such transfers may include, but are not limited
to, sales of a participation or syndication interest in such Indebtedness in
favor of one or more third parties. Guarantor specifically agrees and consents
to all such transfers and assignments and Guarantor further waives any
subsequent notice of and right to consent to any such transfers and assignments
as may be provided under applicable Louisiana law. Guarantor additionally
agrees that the purchaser of a participation or syndication interest in
Borrower's Indebtedness will be considered as the absolute owner of an interest
in, or a percentage interest of, such
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Indebtedness and that such a purchaser shall have all of the rights granted to
the purchaser under any participation agreement governing the sale of such a
participation or syndication interest. Guarantor further waives any right of
offset that Guarantor may have against Lenders and/or any purchaser of such a
participation or syndication interest in Borrower's Indebtedness and Guarantor
unconditionally agrees that either Lenders or such a purchaser may enforce
Guarantor's obligations and liabilities under this Agreement, irrespective of
the failure or insolvency of Lenders or any such purchaser. Guarantor further
agrees that, upon any transfer of all or any portion of Borrower's
Indebtedness, Lenders may transfer and deliver any and all collateral securing
repayment of such Indebtedness including, but not limited to, any collateral
provided by Guarantor) to the transferee of such Indebtedness and such
collateral (again, including but not limited to Guarantor's collateral) shall
secure any and all of Borrower's Indebtedness in favor of such transferee.
Guarantor additionally agrees that, after any such transfer or assignment has
taken place, Lenders shall be fully discharged from any and all liability and
responsibility to Borrower (and Guarantor) with respect to such collateral, and
the transferee thereafter shall be vested with all the powers and rights with
respect to such collateral.
SECTION 12. RIGHT OF OFFSET. As collateral security for the
repayment of Guarantor's obligations and liabilities under this Agreement,
Guarantor hereby grants Lenders, as well as their successors and assigns, the
right to apply, upon the occurrence of an Event of Default under the Restated
Credit Agreement and the expiration of any applicable grace period allowed to
cure the Event of Default, any and all funds that Guarantor may then have on
deposit with or in the possession or control of any Lender and its successors
or assigns (with the exception of funds deposited in XXX, pension or other
tax-deferred deposit accounts), towards repayment of any of Borrower's
Indebtedness subject to this Agreement.
SECTION 13. CONSTRUCTION. The provisions of this Agreement shall be
in addition to and cumulative of, and not in substitution, novation or
discharge of, any and all prior or contemporaneous guaranty or other agreements
by Guarantor (or any one or more of them), in favor of Lenders or assigned to
Lenders by others, all of which shall be construed as complementing each other.
Nothing herein contained shall prevent Lenders from enforcing any and all such
guaranties or agreements in accordance with their respective terms.
SECTION 14. AMENDMENT. No amendment, modification, consent or waiver
of any provision of this Agreement, and no consent to any departure by
Guarantor therefrom, shall be effective unless the same shall be in writing
signed by a duly authorized officer of Lenders, and then shall be effective
only to the specific instance and for the specific purpose for which given.
SECTION 15. SUCCESSORS AND ASSIGNS BOUND. Guarantor's obligations
and liabilities under this Agreement shall be binding upon Guarantor's
successors, heirs, legatees, devisees, administrator executors and assigns.
The rights and remedies granted to Lenders under this Agreement shall also
inure to the benefit of Lenders' successors and assigns, as well as to any and
all subsequent holder or holders of any of Borrower's Indebtedness subject to
this Agreement.
SECTION 16. CAPTION HEADING. Caption headings of the sections of
this Agreement are for convenience purposes only and are not to be used to
interpret or to define their provisions. In this Agreement, whenever the
context so requires, the singular includes the plural and the plural also
includes the singular.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF LOUISIANA.
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SECTION 18. SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws effective
during the term hereof; such provision shall be fully severable, this Agreement
shall be construed and enforceable as if the illegal, invalid or unenforceable
provision had never comprised a part of it, and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this Agreement, a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and legal, valid and enforceable.
IN WITNESS WHEREOF, Guarantor has executed this Agreement in favor of
Lenders on the day, month, and year first written above.
GUARANTOR:
---------------------------------------------
a
--------------------------------------------
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
ACCEPTED:
BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION
AS AGENT FOR ITSELF
AND THE LENDERS
By: DATE: June 30, 1997
------------------------
Xxxx X. Xxxxxx
Vice President
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EXHIBIT "D"
CERTIFICATE OF COMPLIANCE
(Date)
Bank One, Louisiana, National Association
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
ATTENTION: Xxxx X. Xxxxxx
Re: Compliance Certificate
Dear Xx. Xxxxxx:
This compliance certificate is submitted pursuant to Section 11 of
that certain Restated Credit Agreement dated as of June 30, 1997 (the "Restated
Credit Agreement"), by and among the undersigned and Bank One, Louisiana,
National Association, individually and as Agent, certain Guarantors, Deutsche
Bank A.G., New York Branch and/or Cayman Islands Branch and Hibernia National
Bank.
Under the appropriate sections of the Restated Credit Agreement, we
certify that, to the best of our knowledge and belief, no condition, event, or
act which, with or without notice or lapse of time or both, would constitute an
Event of Default under the terms of the Restated Credit Agreement, as amended,
has occurred during the three month period ending ______________ and is
continuing (the "Reporting Period"). Also, to the best of our knowledge, the
undersigned and the Guarantors (as defined in the Restated Credit Agreement)
have complied with all of their obligations and agreements under the Restated
Credit Agreement, and all representations and warranties made in the Restated
Credit Agreement continue (except to the extent they relate solely to an
earlier date) to be true and correct in all material respects. No Event of
Default has occurred under the Restated Credit Agreement.
Additionally, the undersigned submits the following information for
the Reporting Period in accordance with the covenants contained in Section 12
of the Restated Credit Agreement.
Current Ratio
=============
(measured quarterly)
Consolidated Current Assets . . . . . . . . . . . . . . . . $
---------------
Consolidated Current Liabilities . . . . . . . . . . . . . . $
---------------
Current Ratio . . . . . . . . . . . . . . . . . . . . . . .
---------------
Minimum Current Ratio Allowed . . . . . . . . . . . . . . . 1.20 to 1
---------------
88
Losses
======
(measured quarterly)
Amount, if any, of quarterly losses . . . . . . . . . . . . . $
-------------
Debt Service Coverage
=====================
(measured quarterly)
Consolidated Adjusted EBITDA . . . . . . . . . . . . . . . . $
-------------
Consolidated Debt Service . . . . . . . . . . . . . . . . . . $
-------------
Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . .
-------------
Minimum Ratio Allowed . . . . . . . . . . . . . . . . . . . . 1.50 to 1
-------------
Maximum Total Debt
==================
(measured quarterly)
Total Debt plus Capitalized Lease Obligations . . . . . . . . $
-------------
Total Capitalization . . . . . . . . . . . . . . . . . . . . . $
-------------
Total Debt to Total Capitalization . . . . . . . . . . . . . . %
-------------
Maximum Total Debt to Total Capitalization Allowed . . . . . . 50%
-------------
Tangible Net Worth
==================
(measured quarterly)
Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . $
-------------
Other Indebtedness
==================
Other Aggregate Direct Indebtedness of
Borrower and Guarantors . . . . . . . . . . . . . . . . . . $
-------------
Maximum Amount Permitted $5,000,000.00
------------
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Investments in Subsidiaries
===========================
Total Value of Year to Date Mergers, Consolidations
and Investments with or in New Subsidiaries . . . . . . . . $
------------
[List each acquired Subsidiary and
the investment therein]
Sincerely,
NEWPARK RESOURCES, INC.
a Delaware corporation
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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EXHIBIT "E"
ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
Acceptance") dated as of __________, 199_ is made between ____________________
(the "Assignor") and ____________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Restated Credit
Agreement dated as of June 30, 1997 (as extended, renewed, amended or restated
from time to time, the "Credit Agreement") by and among Newpark Resources,
Inc., a Delaware corporation (the "Company"), certain Guarantors, the Banks
signatory thereto (the "Banks") and Bank One, Louisiana, N.A., as Agent (in
such capacity, the "Agent") (unless otherwise defined herein, capitalized terms
used herein have the respective meanings assigned to them in the Restated
Credit Agreement);
WHEREAS, as provided under the Restated Credit Agreement, the Assignor
has committed to make Revolving Loans and participate in letters of credit (the
"Committed Loans") to the Company in aggregate amounts not to exceed $_______
(the "Revolving Commitment"), such Revolving Commitment being evidenced by a
Revolving Note in the face amount of $____________ (the "Note");
WHEREAS, [the Assignor has made Committed Loans to the Company in the
aggregate principal amount of $________ on the Revolving Commitment and
$______________ in outstanding Letters of Credit [no Committed Loans and no
Letters of Credit are outstanding under the Restated Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part] [all] of
the rights and obligations of the Assignor under the Restated Credit Agreement
in respect of its Revolving Commitment, in an amount equal to $_______ on the
Revolving Commitment (the "Assigned Amount") on the terms and subject to the
conditions set forth herein and the Assignee wishes to accept assignment of
such rights and assume such obligations from the Assignor on such terms and
subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
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1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this Assignment and
Acceptance (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty (except
as provided in this Assignment and Acceptance) __% (the "Assignee's Percentage
Share") of (A) the Revolving Commitment [and the Committed Loans] of the
Assignor, (B) the Note, and (C) all related rights, benefits, obligations,
liabilities and indemnities of the Assignor under and in connection with the
Restated Credit Agreement and the Loan Documents.
[If appropriate, add paragraph specifying payment to Assignor by
Assignee of outstanding principal of, accrued interest on, and fees with
respect to, Committed Loans assigned.]
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Restated Credit
Agreement and succeed to all of the rights and be obligated to perform all of
the obligations of a Bank under the Restated Credit Agreement, including the
requirements concerning confidentiality and the payment of indemnification,
with a Revolving Commitment in an amount equal to the Assigned Amount. The
Assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Restated Credit Agreement are required to
be performed by it as a Bank. It is the intent of the parties hereto that the
Revolving Commitment of the Assignor shall, as of the Effective Date, be
reduced by an amount equal to the Assigned Amount and the Assignor shall
relinquish its rights and be released from its obligations under the Restated
Credit Agreement to the extent such obligations have been assumed by the
Assignee.
(c) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignee's Revolving Commitment will be
$_______.
(d) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignor's Commitment will be $_______.
(e) On the Effective Date, the Assignor's Commitment shall be
evidenced by a Revolving Note in the face amount of $____________.
(f) On the Effective Date, the Assignee's Commitment shall be
evidenced by a Revolving Note in the face amount of $____________.
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2. Payments.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to $_______,
representing the Assignee's Pro Rata Part of the principal amount of all
Committed Loans plus unreimbursed Letters of Credit.
(b) The [Assignor] [Assignee] further agrees to pay to the Agent a
processing fee in the amount specified in Section 27 of the Credit Agreement.
3. Reallocation of Payments. Any interest, fees and other
payments accrued to the Effective Date with respect to the Revolving
Commitment, the Committed Loans and the Notes shall be for the account of the
Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the Assigned Amount shall be for the account of
the Assignee. Each of the Assignor and the Assignee agrees that it will hold
in trust for the other party any interest, fees and other amounts which it may
receive to which the other party is entitled pursuant to the preceding sentence
and pay to the other party any such amounts which it may receive promptly upon
receipt.
4. Independent Credit Decision. The Assignee (a) acknowledges
that it has received a copy of the Restated Credit Agreement and the Schedules
and Exhibits thereto, together with copies of the most recent financial
statements referred to in Section 11(a) of the Restated Credit Agreement, and
such other documents and information as it has deemed appropriate to make its
own credit and legal analysis and decision to enter into this Assignment and
Acceptance; and (b) agrees that it will, independently and without reliance
upon the Assignor, the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit and legal decisions in taking or not taking action under the Restated
Credit Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the effective date
for this Assignment and Acceptance shall be _________, 199__ (the "Effective
Date"); provided that the following conditions precedent have been satisfied on
or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee, together with the Note;
(ii) the consent of the Agent and the Company required for
an effective assignment of the Assigned Amount by the Assignor to the
Assignee under Section 27 of the Restated Credit Agreement shall have
been duly obtained and shall be in full force and effective as of the
Effective Date (the consent of the Company
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shall be evidenced by the execution and delivery of a Revolving Note
payable to the order of Assignee);
(iii) the Assignee shall pay to the Assignor all amounts
due to the Assignor under this Assignment and Acceptance;
(iv) the processing fee referred to in Section 2(b) hereof
and in Section 27 of the Restated Credit Agreement shall have been
paid to the Agent; and
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Company and the Agent for
acknowledgement by the Agent and the Company, a Notice of Assignment
substantially in the form attached hereto as Schedule 1.
6. Agent. [INCLUDE ONLY IF ASSIGNOR IS AGENT]
(a) The Assignee hereby appoints and authorizes the Assignor to
take such action as agent on its behalf and to exercise such powers under the
Restated Credit Agreement as are delegated to the Agent by the Banks pursuant
to the terms of the Restated Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by the
Assignor in its capacity as Agent under the Restated Credit Agreement.]
7. Withholding Tax. The Assignee (a) represents and warrants to
the Assignor, the Agent and the Company that as of the date hereof under
applicable law and treaties no tax will be required to be withheld by the
Company with respect to any payments to be made to the Assignee hereunder, (b)
agrees to furnish (if it is organized under the laws of any jurisdiction other
than the United States or any State thereof) to the Agent and the Company prior
to the time that the Agent or Company is required to make any payment of
principal, interest or fees hereunder, duplicate executed originals of either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
101 (wherein the Assignee claims entitlement to the benefits of a tax treaty
that provides for a complete exemption from U.S. federal income withholding tax
on all payments hereunder) and agrees to provide new Forms 4224 or 1001 upon
the expiration of any previously delivered form or comparable statements in
accordance with applicable U.S. law and regulations and amendments thereto,
duly executed and completed by the Assignee, and (c) agrees to comply with all
applicable U.S. laws and regulations with regard to such withholding tax
exemption.
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8. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any Lien or other adverse claim; (ii) it is
duly organized and existing and it has the full power and authority to take,
and has taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to
fulfill its obligations hereunder; (iii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance, and apart from any agreements or undertakings or
filings required by the Restated Credit Agreement, no further action by, or
notice to, or filing with, any Person is required of it for such execution,
delivery or performance; and (iv) this Assignment and Acceptance has been duly
executed and delivered by it and constitutes the legal, valid and binding
obligation of the Assignor, enforceable against the Assignor in accordance with
the terms hereof, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application relating to or
affecting creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Restated Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Restated Credit Agreement or any other instrument or document furnished
pursuant thereto. The Assignor makes no representation or warranty in
connection with, and assumes no responsibility with respect to, the solvency,
financial condition or statements of the Company, or the performance or
observance by the Company, of any of its respective obligations under the
Restated Credit Agreement or any other instrument or document furnished in
connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance; and apart from any agreements or undertakings or
filings required by the Restated Credit Agreement, no further action by, or
notice to, or filing with, any Person is required of it for such execution,
delivery or performance; (iii) this Assignment and Acceptance has been duly
executed and delivered by it and constitutes the legal, valid and binding
obligation of the Assignee, enforceable against the Assignee in accordance with
the terms hereof, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application relating to or
affecting creditors' rights and to general equitable principles; and (iv) it is
an Eligible Assignee.
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9. Further Assurances. The Assignor and the Assignee each hereby
agree to execute and deliver such other instruments, and take such other
action, as either party may reasonably request in connection with the
transactions contemplated by this Assignment and Acceptance, including the
delivery of any notices or other documents or instruments to the Company or the
Agent, which may be required in connection with the assignment and assumption
contemplated hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this Assignment
and Acceptance shall be in writing and signed by the parties hereto. No
failure or delay by either party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof and any waiver of any
breach of the provisions of this Assignment and Acceptance shall be without
prejudice to any rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any set-off
or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation, execution
and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any number
of counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF LOUISIANA. The Assignor
and the Assignee each irrevocably submits to the non-exclusive jurisdiction of
any State or Federal court sitting in Louisiana over any suit, action or
proceeding arising out of or relating to this Assignment and Acceptance and
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such Louisiana State or Federal court. Each party
to this Assignment and Acceptance hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE RESTATED CREDIT
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AGREEMENT, ANY RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT,
COURSE OF DEALING OR STATEMENTS (WHETHER ORAL OR WRITTEN).
(g) Assignee hereby provides the administrative detail on Addendum 1
hereto.
[Other provisions to be added as may be negotiated between the
Assignor and the Assignee, provided that such provisions are not inconsistent
with the Restated Credit Agreement.]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the data first above written.
[ASSIGNOR]
By:
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Title:
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By:
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Title:
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Address:
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[ASSIGNEE]
By:
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Title:
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By:
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Title:
----------------------------------
Address:
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