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EXHIBIT 10.3B
AGREEMENT AND CONSENT, dated as of October __, 1997 (this
"Agreement and Consent"), to the CREDIT AGREEMENT, dated as of March 31, 1997,
among ENERGY SERVICES INTERNATIONAL LTD., a Delaware corporation (the
"Parent"), IRI INTERNATIONAL CORPORATION, a Delaware corporation (the
"Borrower"), the several banks and other financial institutions or entities
from time to time parties thereto (the "Lenders"), CREDIT LYONNAIS NEW YORK
BRANCH, as Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent"), XXXXXX COMMERCIAL PAPER INC., as advisor and arranger
with respect to the credit facilities contained therein (the "Arranger"), and
XXXXXX COMMERCIAL PAPER INC., as syndication agent with respect to the credit
facilities contained therein (the "Syndication Agent").
W I T N E S S E T H:
WHEREAS, the Parent owns all of the issued and outstanding
capital stock of the Borrower;
WHEREAS, in connection with an initial public offering of
capital stock, the Parent has determined that it is in the best interest of the
Parent to merge (the "Merger") the Borrower into the Parent with the Parent
being the surviving corporation (the "Surviving Corporation");
WHEREAS, on the effective date of the Merger, the Surviving
Corporation shall be renamed IRI International Corporation;
WHEREAS, the Parent and the Borrower have requested the
Lenders to consent to the Merger;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreement herein contained, the parties hereto agree as follows:
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1. Definitions. Unless otherwise defined herein, terms
defined in the Credit Agreement shall be used as so defined.
2. Representations and Warranties of the Parent and the
Borrower. To induce the Administrative Agent and the Lenders to enter into
this Agreement and Consent, the Parent and the Borrower hereby represent and
warrant to the Administrative Agent and each Lender that:
(a) Each of the Parent and the Borrower has the power and
authority and the legal right to make, deliver and perform this Agreement and
Consent and to consummate the Merger. Each of the Parent and the borrower has
taken all necessary action to authorize the execution, delivery and performance
of this Agreement and Consent and the consummation of the Merger.
(b) No material consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the Merger, other than the filing
of a Certificate of Ownership and Merger with the Delaware Secretary of State
or with the execution, delivery, performance, validity or enforceability of
this Agreement and Consent. This Agreement and Consent has been duly executed
and delivered on behalf of the Parent and the Borrower. This Agreement and
Consent constitutes, and upon execution of the Assumption Agreement (as defined
below) will constitute, a legal, valid and binding obligation of the Parent and
the Borrower, enforceable against each such party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(c) The execution, delivery and performance of this
Agreement and Consent and the consummation of the Merger will not violate any
Requirement of Law or Contractual Obligation of the Parent, the Borrower or of
any of their Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on
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any of their respective properties or revenues pursuant to any such Requirement
of Law or Contractual Obligation.
(d) No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of the Parent or the Borrower, threatened by or against the Parent, the
borrower or any of their Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to any of this Agreement and Consent or
the Merger or (b) which could reasonably be expected to have a Material Adverse
Effect.
(e) At all times prior to the Effective Date (as defined
below), the Parent has been in compliance with Section 7.17 of the Credit
Agreement.
(f) The Merger will not cause a material tax liability to
the Parent or the Borrower.
(g) Since March 31, 1997, there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
3. Consent of Lenders to Merger. The Lenders hereby
consent to the Merger and the assumption by the Surviving Corporation as
primary obligor of all of the payment and performance obligations of the
Borrower under the Credit Agreement and the other Loan Document on the
Effective Date.
4. Effective Date. This Agreement and Consent will
become effective as of the date hereof upon:
(i) its execution by the Parent, the Borrower and
the Required Lenders in accordance with the terms of the
Credit Agreement;
(ii) receipt by the Administrative Agent, with copies
for each of the Lenders, of a certificate of the Secretary or
Assistant Secretary of the Surviving Corporation dated the
Effective Date and certifying (A) that attached thereto is a
true and complete copy of
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the certificate of incorporation and by-laws of the Surviving
Corporation as in effect on the date of such certification;
(B) that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of the Surviving
Corporation authorizing the assumption of obligations of the
Borrower under the Credit Agreement and the other Loan
Documents and the execution, delivery and performance in
accordance with their respective terms of any documents
required or contemplated hereunder (such certificate to state
that the resolutions thereby certified have not been amended,
modified, revoked or rescinded and shall be in form and
substance satisfactory to the Administrative Agent); (C) as to
the incumbency and specimen signature of each officer of the
Surviving Corporation executing any document delivered by it
in connection herewith (such certificate to contain a
certification by another officer of the Surviving Corporation
as to the incumbency and signature of the officer signing the
certificate referred to in this paragraph (i); and (D) that
the Merger has become effective in accordance with the law of
the State of Delaware; and
(iii) delivery by the Surviving Corporation of a
written agreement (the "Assumption Agreement") pursuant to
which it assumes as primary obligor all of the payment and
performance obligations of the Borrower under the Credit
Agreement and the other Loan Documents.
5. Representations and Warranties. The Parent and the
Borrower represent and warrant to each Lender that on the date hereof and on
the Effective Date, prior to and after giving effect to the effectiveness of
this Agreement and Consent and the Merger (a) the representations and
warranties made by the Loan Parties in the Loan Documents are true and correct
in all material respects (except to the extent that such representations and
warranties are expressly stated to relate to an earlier date, in which case
such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date) and (b) no Default or Event
of Default has occurred and is continuing.
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6. Continuing Effect. Except as expressly waived
hereby, the Credit Agreement shall continue to be and shall remain in full
force and effect in accordance with its terms.
7. GOVERNING LAW. THIS AGREEMENT AND CONSENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
8. Counterparts. This Agreement and Consent may be
executed by the parties hereto in any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
9. Payment of Expenses. The Loan Parties agree to pay
and reimburse the Administrative Agent for all of its out-of-packet costs and
reasonable expenses incurred in connection with this Agreement and Consent,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement and Consent to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
ENERGY SERVICES INTERNATIONAL LTD.
By:
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Title:
IRI INTERNATIONAL CORPORATION
By:
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Title:
XXXXXX COMMERCIAL PAPER INC., as
Arranger and as a Lender
By:
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Title:
XXXXXX SYNDICATED LOAN INC., as a
lender
By:
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Title:
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