EXHIBIT 10.11
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY (this "Guaranty"), dated as of
January 31, 2002, is executed by EXCALIBAR MINERALS INC., MALLARD & MALLARD OF
LA., INC., NEWPARK HOLDINGS, INC., SUPREME CONTRACTORS, L.L.C., NEWPARK DRILLING
FLUIDS, LLC, NEWPARK ENVIRONMENTAL SERVICES, L.L.C., NEWPARK ENVIRONMENTAL
MANAGEMENT COMPANY, L.L.C., NEWPARK TEXAS, L.L.C., EXCALIBAR MINERALS OF LA.,
L.L.C., SOLOCO, L.L.C., XXXXXX MILL, L.P., NEWPARK ENVIRONMENTAL SERVICES OF
TEXAS, L.P., NEWPARK SHIPHOLDING TEXAS, L.P., NID, L.P., SOLOCO TEXAS, L.P., NES
PERMIAN BASIN, L.P., and NEWPARK ENVIRONMENTAL SERVICES MISSISSIPPI, L.P.
(collectively, the "Subsidiary Guarantors") in favor of Bank One, NA, as
Administrative Agent (the "Administrative Agent"), for the benefit of the
Administrative Agent, the Lenders and their Affiliates and the LC Issuer
pursuant to the Credit Agreement referred to below.
WITNESSETH:
A. Pursuant to that certain Amended and Restated Credit
Agreement dated January 31, 2001 as amended (as so amended, the "Original Credit
Agreement") by and among Newpark Resources, Inc. as Borrower, the Subsidiary
Guarantors as Guarantors, Bank One, NA, as Administrative Agent and LC Issuer,
and the Lenders party thereto, the Subsidiary Guarantors executed a certain
Amended and Restated Guaranty dated as of January 31, 2001 (the "Original
Guaranty").
B. The Borrower, the Subsidiary Guarantors as Guarantors, and
Bank One, N.A. as Administrative Agent and the LC Issuer and the Lenders party
thereto are amending and restating the Original Credit Agreement pursuant to
that certain Amended and Restated Credit Agreement dated as of January 31, 2002
(as the same may be amended, modified or restated from time to time, the "Credit
Agreement").
C. The Subsidiary Guarantors and the Administrative Agent
desire to amend and restate the Original Guaranty.
D. In consideration of the financial and other support that
the Borrower has provided, and such financial and other support as the Borrower
may in the future provide, to the Subsidiary Guarantors, and in order to induce
the Lenders and the LC Issuer and the Administrative Agent to enter into the
Credit Agreement, and one or more of the Lenders and their Affiliates to enter
into one or more Rate Management Transactions with the Borrower, and because
each Subsidiary Guarantor has determined that executing this Guaranty is in its
interest and to its financial benefit, each of the Subsidiary Guarantors is
willing to guarantee the obligations of the
Borrower under the Credit Agreement, any Note, any Rate Management Transaction
between the Borrower and any Lender or Affiliate thereof, and the other Loan
Documents.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Subsidiary Guarantors do hereby amend and restate the Original
Guaranty, effective as of the Closing Date, and hereto agree as follows:
SECTION l.1. Selected Terms Used Herein.
BORROWER. The term "Borrower" refers to Newpark Resources,
Inc., and its successors and assigns.
GUARANTEED OBLIGATIONS. The term "Guaranteed Obligations" is
defined in Section 3 below.
LC ISSUER. The term "LC Issuer" refers to Bank One, NA, as LC
Issuer under the Credit Agreement and its successors and
assigns.
LENDERS. The term "Lenders" refers individually and
collectively to the Lenders now or hereafter party to the
Credit Agreement, their successors and assigns, and any
subsequent holder or holder of any portion of Secured
Obligations.
OBLIGATIONS. The term "Obligations" means any and all existing
and future indebtedness, obligation and liability of every
kind, nature and character, direct or indirect, absolute or
contingent (including all renewals, extensions and
modifications thereof and all fees, costs and expenses
incurred by the Administrative Agent or the Lenders or the LC
Issuer in connection with the preparation, administration,
collection or enforcement thereof), of the Borrower to the
Administrative Agent or any Lender or the LC Issuer or any
branch, subsidiary or affiliate thereof, arising under or
pursuant to this Agreement, the Credit Agreement, any
promissory note or notes now or hereafter issued under the
Credit Agreement, and the other Loan Documents.
RATE MANAGEMENT TRANSACTION. The term "Rate Management
Transaction" means any transaction (including an agreement
with respect thereto) now existing or hereafter entered into
between the Borrower and any Lender or Affiliate thereof which
is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, forward transaction, currency
swap transaction, cross-currency rate swap transaction,
currency option or any
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other similar transaction (including any option with respect
to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial
measures.
RATE MANAGEMENT OBLIGATIONS. The term "Rate Management
Obligations" means any and all obligations of the Borrower,
whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all Rate Management
Transactions, and (ii) without duplication of (i), any and all
cancellations, buy backs, reversals, terminations or
assignments of any Rate Management Transactions.
SECURED OBLIGATIONS. Secured Obligations means the Obligations
and Rate Management Obligations entered into with one or more
of the Lenders or their Affiliates.
SECURED PARTIES. The term "Secured Parties" shall mean the
Administrative Agent, the Lenders and their Affiliates, the LC
Issuer, and their respective successors and assigns, and any
subsequent holder of any portion of the Guaranteed
Obligations.
SECTION 1.2. Terms in Credit Agreement. Other capitalized terms used
herein but not defined herein shall have the meaning set forth in the Credit
Agreement.
SECTION 2.1. Representations and Warranties. Each of the Subsidiary
Guarantors represents and warrants (which representations and warranties shall
be deemed to have been renewed upon each Borrowing Date under the Credit
Agreement) that:
(a) It is a corporation, partnership or limited liability
company duly and properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization and
has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
(b) It has the power and authority and legal right to execute
and deliver this Guaranty and to perform its obligations hereunder. The
execution and delivery by it of this Guaranty and the performance of its
obligations hereunder have been duly authorized by proper corporate proceedings,
and this Guaranty constitutes a legal, valid and binding obligation of such
Subsidiary Guarantor enforceable against it in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
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(c) Neither the execution and delivery by it of this Guaranty,
nor the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof will violate (i) any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on it or any of its
subsidiaries or (ii) its articles or certificate of incorporation, partnership
agreement, certificate of partnership, articles or certificate of organization,
by-laws, or operating or other management agreement, as the case may be, or
(iii) the provisions of any indenture, instrument or agreement to which it or
any of its subsidiaries is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, or
result in, or require, the creation or imposition of any Lien in, of or on the
Property of such Subsidiary Guarantor or a subsidiary thereof pursuant to the
terms of any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect of
any governmental or public body or authority, or any subdivision thereof, which
has not been obtained by it or any of its subsidiaries, is required to be
obtained by it or any of its subsidiaries in connection with the execution and
delivery of this Guaranty or the performance by it of its obligations hereunder
or the legality, validity, binding effect or enforceability of this Guaranty.
SECTION 2.2. Covenants. Each of the Subsidiary Guarantors covenants
that, so long as any Lender has any Commitment outstanding under the Credit
Agreement, the LC Issuer has any Facility LCs outstanding, any Rate Management
Transaction between Borrower and any Lender or Affiliate thereof remains in
effect, or any of the Guaranteed Obligations shall remain unpaid, that it will,
and, if necessary, will enable the Borrower to, fully comply with those
covenants and agreements set forth in the Credit Agreement.
SECTION 3. The Guaranty. Subject to Section 9 hereof, each of the
Subsidiary Guarantors hereby absolutely and unconditionally guarantees, as
primary obligor and not as surety, the full and punctual payment (whether at
stated maturity, upon acceleration or early termination or otherwise, and at all
times thereafter) and performance of all Secured Obligations owing to any
Secured Party, including without limitation any such Secured Obligations
incurred or accrued during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, whether or not allowed or allowable in
such proceeding (collectively, subject to the provisions of Section 9 hereof,
being referred to collectively as the "Guaranteed Obligations"). Upon failure by
the Borrower to pay punctually any such amount, each of the Subsidiary
Guarantors agrees that it shall forthwith on demand pay to the Administrative
Agent for the benefit of the Secured Parties the amount not so paid at the place
and in the manner specified in the Credit Agreement, any Note, any Rate
Management Transaction or the relevant Loan Document, as the case may be. This
Guaranty is a guaranty of payment and not of collection. Each of the Subsidiary
Guarantors waives any right to require the Administrative Agent or any Secured
Party to xxx the Borrower, any other guarantor, or any other person obligated
for all or any part of the Guaranteed Obligations, or otherwise to enforce its
payment against any collateral securing all or any part of the Guaranteed
Obligations.
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SECTION 4. Guaranty Unconditional. Subject to Section 9 hereof, the
obligations of each of the Subsidiary Guarantors hereunder shall be
unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or release
in respect of any of the Guaranteed Obligations, by operation of law or
otherwise, or any obligation of any other guarantor of any of the
Guaranteed Obligations, or any default, failure or delay, willful or
otherwise, in the payment or performance of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to the Credit
Agreement, any Facility LC, any Note, any Rate Management Transaction
or any other Loan Document;
(iii) any release, nonperfection or invalidity of any direct or
indirect security for any obligation of the Borrower under the Credit
Agreement, any Facility LC, any Note, the Collateral Documents, any
Rate Management Transaction, any other Loan Document, or any
obligations of any other guarantor of any of the Guaranteed
Obligations, or any action or failure to act by the Administrative
Agent or any Secured Party with respect to any collateral securing all
or any part of the Guaranteed Obligations;
(iv) any change in the corporate existence, structure or ownership of
the Borrower or any other guarantor of any of the Guaranteed
Obligations, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Borrower, or any other guarantor of
the Guaranteed Obligations, or its assets or any resulting release or
discharge of any obligation of the Borrower, or any other guarantor of
any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the
Subsidiary Guarantors may have at any time against the Borrower, any
other guarantor of any of the Guaranteed Obligations, the
Administrative Agent, any Secured Party, or any other Person, whether
in connection herewith or any unrelated transactions;
(vi) any invalidity or unenforceability relating to or against the
Borrower, or any other guarantor of any of the Guaranteed Obligations,
for any reason related to the Credit Agreement, any Facility LC, any
Note, any Rate Management Transaction, any other Loan Document, or any
provision of applicable law or regulation purporting to prohibit the
payment by the Borrower, or any other guarantor of the Guaranteed
Obligations, of the principal of or interest on any Note or any other
amount payable by the Borrower under the Credit Agreement, any Note,
any Facility LC, any Rate Management Transaction or any other Loan
Document; or
(vii) any other act or omission to act or delay of any kind by the
Borrower, any other guarantor of the Guaranteed Obligations, the
Administrative Agent, any Secured Party, or any other Person or any
other circumstance whatsoever which might, but for the provisions of
this paragraph, constitute a legal or equitable discharge of any
Subsidiary Guarantor's obligations hereunder.
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SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In
Certain Circumstances. Each of the Subsidiary Guarantor's obligations hereunder
shall remain in full force and effect until all Guaranteed Obligations shall
have been indefeasibly paid in full, the Commitments under the Credit Agreement
shall have terminated or expired, all Facility LCs have terminated or expired
and all Rate Management Transactions have terminated or expired. If at any time
any payment of the principal of or interest on any Note or any other amount
payable by the Borrower or any other party under the Credit Agreement, any
Facility LC, any Rate Management Transaction or any other Loan Document is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, each of the
Subsidiary Guarantor's obligations hereunder with respect to such payment shall
be reinstated as though such payment had been due but not made at such time.
SECTION 6. Waivers. Each of the Subsidiary Guarantors irrevocably
waives acceptance hereof, presentment, demand, division, discussion, protest
and, to the fullest extent permitted by law, any notice not provided for herein,
as well as any requirement that at any time any action be taken by any Person
against the Borrower, any other guarantor of any of the Guaranteed Obligations,
or any other Person.
SECTION 7. Subrogation. Each of the Subsidiary Guarantors hereby agrees
not to assert any right, claim or cause of action, including, without
limitation, a claim for subrogation, reimbursement, indemnification or
otherwise, against the Borrower arising out of or by reason of this Guaranty or
the obligations hereunder, including, without limitation, the payment or
securing or purchasing of any of the Guaranteed Obligations by any of the
Subsidiary Guarantors unless and until the Guaranteed Obligations are
indefeasibly paid in full, the Commitments under the Credit Agreement shall have
terminated or expired, all Facility LCs have terminated or expired and all Rate
Management Transactions have terminated or expired.
SECTION 8. Stay of Acceleration. If acceleration of the time for
payment of any of the Guaranteed Obligations is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower, all such amounts otherwise subject
to acceleration under the terms of the Credit Agreement, any Facility LC, any
Note, any Rate Management Transaction or any other Loan Document shall
nonetheless be payable by each of the Subsidiary Guarantors hereunder forthwith
on demand by the Administrative Agent made at the request of the Required
Lenders.
SECTION 9. Limitation on Obligations. (a) The provisions of this
Guaranty are severable, and in any action or proceeding involving any state
corporate law, or any state, federal or foreign bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors generally, if the
obligations of any Subsidiary Guarantor under this Guaranty would otherwise be
held or determined to be avoidable, invalid or unenforceable on account of the
amount of such Subsidiary Guarantor's liability under this Guaranty, then,
notwithstanding any other provision of this Guaranty to the contrary, the amount
of such liability shall, without any further action by the
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Subsidiary Guarantors, the Administrative Agent or any Secured Party, be
automatically limited and reduced to the highest amount that is valid and
enforceable as determined in such action or proceeding (such highest amount
determined hereunder being the relevant Subsidiary Guarantor's "Maximum
Liability"). This Section 9(a) with respect to the Maximum Liability of the
Subsidiary Guarantors is intended solely to preserve the rights of the
Administrative Agent and Secured Parties hereunder to the maximum extent not
subject to avoidance under applicable law, and neither the Subsidiary Guarantor
nor any other person or entity shall have any right or claim under this Section
9(a) with respect to the Maximum Liability, except to the extent necessary so
that the obligations of the Subsidiary Guarantor hereunder shall not be rendered
voidable under applicable law.
(b) Each of the Subsidiary Guarantors agrees that the Guaranteed
Obligations may at any time and from time to time exceed the Maximum Liability
of each Subsidiary Guarantor, and may exceed the aggregate Maximum Liability of
all other Subsidiary Guarantors, without impairing this Guaranty or affecting
the rights and remedies of the Administrative Agent or Secured Parties
hereunder. Nothing in this Section 9(b) shall be construed to increase any
Subsidiary Guarantor's obligations hereunder beyond its Maximum Liability.
(c) In the event any Subsidiary Guarantor (a "Paying Subsidiary
Guarantor") shall make any payment or payments under this Guaranty or shall
suffer any loss as a result of any realization upon any collateral granted by it
to secure its obligations under this Guaranty, each other Subsidiary Guarantor
(each a "Non-Paying Subsidiary Guarantor") shall contribute to such Paying
Subsidiary Guarantor an amount equal to such Non-Paying Subsidiary Guarantor's
"Pro Rata Share" of such payment or payments made, or losses suffered, by such
Paying Subsidiary Guarantor. For the purposes hereof, each Non-Paying Subsidiary
Guarantor's "Pro Rata Share" with respect to any such payment or loss by a
Paying Subsidiary Guarantor shall be determined as of the date on which such
payment or loss was made by reference to the ratio of (i) such Non-Paying
Subsidiary Guarantor's Maximum Liability as of such date (without giving effect
to any right to receive, or obligation to make, any contribution hereunder) or,
if such Non-Paying Subsidiary Guarantor's Maximum Liability has not been
determined, the aggregate amount of all monies received by such Non-Paying
Subsidiary Guarantor from the Borrower after the date hereof (whether by loan,
capital infusion or by other means) to (ii) the aggregate Maximum Liability of
all Subsidiary Guarantors hereunder (including such Paying Subsidiary Guarantor)
as of such date (without giving effect to any right to receive, or obligation to
make, any contribution hereunder), or to the extent that a Maximum Liability has
not been determined for any Subsidiary Guarantors, the aggregate amount of all
monies received by such Subsidiary Guarantors from the Borrower after the date
hereof (whether by loan, capital infusion or by other means). Nothing in this
Section 9 (c) shall affect any Subsidiary Guarantor's several liability for the
entire amount of the Guaranteed Obligations (up to such Subsidiary Guarantor's
Maximum Liability). Each of the Subsidiary Guarantors covenants and agrees that
its right to receive any contribution under this Guaranty from a Non-Paying
Subsidiary Guarantor shall be subordinate and junior in right of payment to all
the Guaranteed Obligations. The provisions of this Section 9(c) are for the
benefit of both the Administrative Agent and the Subsidiary Guarantors and may
be enforced by any one, or more, or all of them in accordance with the terms
hereof.
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SECTION 10. Application of Payments. All payments received by the
Administrative Agent hereunder shall be applied by the Agent to payment of the
Guaranteed Obligations in the following order unless a court of competent
jurisdiction shall otherwise direct:
(a) FIRST, to payment of all costs and expenses of the
Administrative Agent incurred in connection with the collection and
enforcement of the Guaranteed Obligations or of any security interest
granted to the Administrative Agent in connection with any collateral
securing the Guaranteed Obligations;
(b) SECOND, to payment of that portion of the Guaranteed
Obligations constituting accrued and unpaid interest and fees, pro rata
among the Secured Parties in accordance with the amount of such accrued
and unpaid interest and fees owing to each of them;
(c) THIRD, to payment of the principal of the Guaranteed
Obligations and the net early termination payments and any other Rate
Management Obligations then due and unpaid from the Borrower to any of
the Secured Parties, pro rata among the Secured Parties in accordance
with the amount of such principal and such net early termination
payments and other Rate Management Obligations then due and unpaid
owing to each of them; and
(d) FOURTH, to payment of any Guaranteed Obligations (other
than those listed above) pro rata among those parties to whom such
Guaranteed Obligations are due in accordance with the amounts owing to
each of them.
SECTION 11. Notices. All notices, requests and other communications to
any party hereunder shall be given or made by telecopier or other writing and
telecopied, or mailed or delivered to the intended recipient at its address or
telecopier number set forth on the signature pages hereof or such other address
or telecopy number as such party may hereafter specify for such purpose by
notice to the Administrative Agent in accordance with the provisions of Article
XIII of the Credit Agreement. Except as otherwise provided in this Guaranty, all
such communications shall be deemed to have been duly given when transmitted by
telecopier, or personally delivered or, in the case of a mailed notice sent by
certified mail return-receipt requested, on the date set forth on the receipt
(provided, that any refusal to accept any such notice shall be deemed to be
notice thereof as of the time of any such refusal), in each case given or
addressed as aforesaid.
SECTION 12. No Waivers. No failure or delay by the Administrative Agent
or any Lenders in exercising any right, power or privilege 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, power or privilege. The rights and remedies provided in this Guaranty,
the Credit Agreement, any Note, any Rate Management Transaction and the other
Loan Documents shall be cumulative and not exclusive of any rights or remedies
provided by law.
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SECTION 13. No Duty to Advise. Each of the Subsidiary Guarantors
assumes all responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks that each of the Subsidiary Guarantors
assumes and incurs under this Guaranty, and agrees that neither the
Administrative Agent nor any Secured Party has any duty to advise any of the
Subsidiary Guarantors of information known to it regarding those circumstances
or risks.
SECTION 14. Successors and Assigns. This Guaranty is for the benefit of
the Administrative Agent and the Secured Parties. This Guaranty shall be binding
upon each of the Subsidiary Guarantors and their respective successors and
permitted assigns.
SECTION 15. Changes in Writing. Neither this Guaranty nor any provision
hereof may be changed, waived, discharged or terminated orally, but only in
writing signed by each of the Subsidiary Guarantors and the Administrative Agent
with the consent of the Required Lenders.
SECTION 16. Costs of Enforcement. Each of the Subsidiary Guarantors
agrees to pay all costs and expenses including, without limitation, all court
costs and attorneys' fees and expenses paid or incurred by the Administrative
Agent or any Secured Party in endeavoring to collect all or any part of the
Guaranteed Obligations from, or in prosecuting any action against, the Borrower,
the Subsidiary Guarantors or any other guarantor of all or any part of the
Guaranteed Obligations.
SECTION 17. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF LOUISIANA. EACH OF THE SUBSIDIARY GUARANTORS HEREBY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF LOUISIANA AND OF ANY LOUISIANA STATE COURT SITTING IN NEW
ORLEANS, LOUISIANA AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS GUARANTY (INCLUDING, WITHOUT LIMITATION, ANY OF THE OTHER LOAN
DOCUMENTS) OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE SUBSIDIARY
GUARANTORS IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE SUBSIDIARY GUARANTORS, AND THE ADMINISTRATIVE AGENT AND THE SECURED
PARTIES ACCEPTING THIS GUARANTY, HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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SECTION 18. Taxes. etc. All payments required to be made by any of the
Subsidiary Guarantors hereunder shall be made without setoff or counterclaim and
free and clear of and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any government or any political or taxing authority thereof
(but excluding Excluded Taxes), provided, however, that if any of the Subsidiary
Guarantors is required by law to make such deduction or withholding, such
Subsidiary Guarantor shall forthwith (i) pay to the Administrative Agent or the
Secured Parties, as applicable, such additional amount as results in the net
amount received by the Administrative Agent or the Secured Parties, as
applicable, equaling the full amount which would have been received by the
Administrative Agent or the Secured Parties, as applicable, had no such
deduction or withholding been made, (ii) pay the full amount deducted to the
relevant authority in accordance with applicable law, and (iii) furnish to the
Administrative Agent or the Secured Parties, as applicable, certified copies of
official receipts evidencing payment of such withholding taxes within 30 days
after such payment is made.
SECTION 19. Setoff. Without limiting the rights of the Administrative
Agent or the Secured Parties under applicable law, if all or any part of the
Guaranteed Obligations is then due, whether pursuant to the occurrence of a
Default or otherwise, then the Guarantor authorizes the Administrative Agent and
the Secured Parties, to apply any sums standing to the credit of the Guarantor
with the Administrative Agent or any Secured Party or any Lending Installation
of the Administrative Agent or any Secured Party toward the payment of the
Guaranteed Obligations.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this
Guaranty to be duly executed by its authorized officer as of the day and year
first above written.
EXCALIBAR MINERALS INC.,
MALLARD & MALLARD OF LA., INC.,
NEWPARK HOLDINGS, INC.,
SUPREME CONTRACTORS, L.L.C.,
NEWPARK DRILLING FLUIDS, LLC,
NEWPARK ENVIRONMENTAL SERVICES, L.L.C.,
NEWPARK ENVIRONMENTAL MANAGEMENT COMPANY,
L.L.C.,
NEWPARK TEXAS, L.L.C.,
EXCALIBAR MINERALS OF LA., L.L.C., and
SOLOCO, L.L.C.
By:
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Xxxx X. Xxxxxxxx, Xx., Treasurer
XXXXXX MILL, L.P.,
NEWPARK ENVIRONMENTAL SERVICES OF
TEXAS, L.P.,
NEWPARK SHIPHOLDING TEXAS, L.P.,
NID, L.P.,
SOLOCO TEXAS, L.P.,
NES PERMIAN BASIN, L.P. and
NEWPARK ENVIRONMENTAL SERVICES
MISSISSIPPI, L.P.
By: Newpark Holdings, Inc., the general
partner of each
By:
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Xxxx X. Xxxxxxxx, Xx., Treasurer
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