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EXHIBIT 10.13
THIRD AMENDMENT TO RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO RESTATED CREDIT AGREEMENT (hereinafter referred
to as the "Third Amendment") executed as of the 28th day of May, 1998, 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."), NEWPARK DRILLING FLUIDS,
INC., a Texas corporation ("Newpark Drilling"), 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"), CHEMICAL TECHNOLOGIES, INC., a Texas corporation
("Chemical"), NEWPARK ENVIRONMENTAL SERVICES, INC., a Delaware corporation
("Newpark Services"), NEWPARK TEXAS DRILLING FLUIDS, L.P., a Texas limited
partnership ("Texas Drilling"), NES PERMIAN BASIN, L.P., A Texas limited
partnership ("NES"), XXXXXXX CONSTRUCTION COMPANY, INC., a Texas Corporation
("Xxxxxxx") and NEWPARK ENVIRONMENTAL SERVICES MISSISSIPPI, L.P., a Mississippi
limited partnership ("Mississippi") (SOLOCO, L.L.C., Newpark Shipholding,
Mallard, SOLOCO Texas, Batson, N.I.D., Newpark Texas, Holdings, Environmental
L.L.C., Environmental L.P., Newpark Drilling, Supreme, Excalibar, Excalibar
Minerals, Chemical, Newpark Services, Texas Drilling, NES, Xxxxxxx and
Mississippi 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 Third Amendment) or
which may from time to time become a party hereto 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
WHEREAS, as of June 30, 1997 the Borrower, the Guarantors, the Agent,
the Co-Agent and the Banks entered into a Restated Credit Agreement to
consolidate all outstanding loan facilities into one facility in a maximum
amount of $90,000,000 (the Restated Credit Agreement is hereinafter referred to
as the "Credit Agreement"); and
WHEREAS, as of November 7, 1997, the Borrower, the Guarantors, the
Agent, the Co-Agent and the Banks entered into a First Amendment to Restated
Credit Agreement (the "First Amendment"); and
WHEREAS, as of December 10, 1997, the Borrower, the Guarantors, the
Agent, the Co-Agent and the Banks entered into a Second Amendment to Restated
Credit Agreement (the "Second Amendment"); and
WHEREAS, the Borrower has requested that the Banks make certain
additional amendments to the Credit Agreement and the Agent, the Co-Agent and
the Banks are willing to make such additional amendments.
NOW, THEREFORE, the parties hereto agree as follows:
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. Unless otherwise defined herein, all defined terms used herein shall
have the same meaning ascribed to such terms in the Credit Agreement.
. Section 1 of the Credit Agreement is hereby amended by the addition
of the following new definitions thereto:
"Reimbursement Agreement" means that certain Reimbursement
Agreement dated as of May 1, 1998, by and among Borrower, The Loma
Company, L.L.C. and Bank One.
"Loma Letter of Credit" means that certain Irrevocable Letter
of Credit dated May 28, 1998 from Bank One to Bank One Trust Company,
N.A., as Trustee, issued at the request of and for the account of
Borrower in the stated amount of $15,187,500.00.
. Section 2 of the Credit Agreement is hereby amended in the
following respects:
(a) by replacing the phrase "Five Million Dollars ($5,000,000.00)"
with the phrase "Twenty Million Dollars ($20,000,000.00)" everywhere it
appears in such Section; and
(b) by adding the following sentence to the end of Section 2(d):
"In addition to the above stated amounts, Borrower agrees to
pay Agent for the benefit of the Banks an additional commission of
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 amount of the Loma Letter of Credit.
. Subsection (vii) of Section 12(h) of the Credit Agreement is hereby
deleted in its entirety and the following inserted in lieu thereof:
(vii) indebtedness evidenced by the Reimbursement Agreement;
or
. This Third Amendment shall be effective as of the date first above
written, but only upon satisfaction of the conditions precedent set forth in
Paragraph 6 hereto.
. The obligations of Banks under this Third Amendment shall be subject
to the satisfaction of the following conditions precedent:
() Execution and Delivery. The Borrower shall have executed and
delivered this Third Amendment and other required documents, all in form and
substance satisfactory to the Banks;
() Guarantors' Execution and Delivery. The Guarantors shall have
executed and delivered this Third Amendment and other required documents,
all in form and substance satisfactory to the Banks;
() Corporate Resolutions. Banks shall have received appropriate
certified corporate resolutions of each of the Borrower and each of the
Guarantors;
() Good Standing and Existence. The Banks shall have received evidence
of existence and good standing for Borrower and each of the Guarantors;
() Reimbursement Agreement. The transactions described in the
Reimbursement Agreement shall have closed and been funded.
() Representations and Warranties. The representations and warranties
of Borrower under the Credit 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);
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() No Event of Default. No Event of Default shall have occurred and be
continuing nor shall any event have occurred or failed to occur which, with
the passage of time or service of notice, or both, would constitute an Event
of Default;
() Other Documents. Each Bank shall have received such other
instruments and documents incidental and appropriate to the transaction
provided for herein as such Bank or its counsel may reasonably request, and
all such documents shall be in form and substance satisfactory to such Bank;
and
() Legal Matters Satisfactory. All legal matters incident to the
consummation of the transactions contemplated hereby shall be satisfactory
to special counsel for Bank retained at the expense of Borrower.
. Except to the extent its provisions are specifically amended,
modified or superseded by this Third Amendment, the representations, warranties
and affirmative and negative covenants of the Borrower contained in the Credit
Agreement are incorporated herein by reference for all purposes as if copied
herein in full. The Borrower hereby restates and reaffirms each and every term
and provision of the Credit Agreement, as amended, including, without
limitation, all representations, warranties and affirmative and negative
covenants. Except to the extent its provisions are specifically amended,
modified or superseded by this Third Amendment, the Credit Agreement, as
amended, and all terms and provisions thereof shall remain in full force and
effect, and the same in all respects are confirmed and approved by the Borrower
and the Banks.
. Pursuant to the Second Amendment and that certain Continuing Guaranty
dated December 10, 1997 (the "Newpark Mississippi Guaranty"), Newpark
Environmental Services Mississippi, L.P., a Mississippi limited partnership
("Newpark Mississippi") became a Guarantor under the Credit Agreement. The
Newpark Mississippi Guaranty incorrectly referred to Newpark Mississippi as
"Newpark Environmental Services of Mississippi, L.P." The parties hereto agree
that any reference to "Newpark Environmental Services of Mississippi, L.P." in
the Newpark Mississippi Guaranty or any other Loan Document shall be a reference
to "Newpark Environmental Services Mississippi, L.P."
9. The parties hereto agree that the Loma Letter of Credit is a "Letter
of Credit" issued under the Credit Agreement.
10. This Third Amendment 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.
IN WITNESS WHEREOF, the parties have caused this Third Amendment to
Restated Credit Agreement to be duly executed as of the date first above
written.
BORROWER:
NEWPARK RESOURCES, INC.
a Delaware corporation
By:
-------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
GUARANTORS:
CHEMICAL TECHNOLOGIES, INC.,
EXCALIBAR MINERALS, INC., NEWPARK
ENVIRONMENTAL SERVICES, INC.,
MALLARD & MALLARD OF LA., INC.,
NEWPARK HOLDINGS, INC., NEWPARK DRILLING
FLUIDS, INC., SUPREME CONTRACTORS, INC.,
AND XXXXXXX CONSTRUCTION COMPANY, INC.
By:
-------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
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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:
-------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
XXXXXX-MILL, L.P., NEWPARK TEXAS DRILLING,
FLUIDS L.P., NEWPARK ENVIRONMENTAL
SERVICES OF TEXAS, L.P., NEWPARK
SHIPHOLDING TEXAS, L.P., N.I.D., 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:
-------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
BANKS:
BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION,
a national banking association
By:
-------------------------------------
Xxxx X. Xxxxxx, Vice President
DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
-------------------------------------
Name:
-----------------------------------
Title:
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By:
-------------------------------------
Name:
-----------------------------------
Title:
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HIBERNIA NATIONAL BANK
By:
-------------------------------------
Name:
-----------------------------------
Title:
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AGENT:
BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION,
a national banking association
By:
-------------------------------------
Xxxx X. Xxxxxx, Vice President
CO-AGENT:
DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
-------------------------------------
Name:
-----------------------------------
Title:
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By:
-------------------------------------
Name:
-----------------------------------
Title:
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FOURTH AMENDMENT TO RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO RESTATED CREDIT AGREEMENT (hereinafter
referred to as the "Fourth Amendment") executed as of the 30th day of September,
1998, 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."), NEWPARK DRILLING FLUIDS, INC., a Texas corporation
("Newpark Drilling"), 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"), CHEMICAL TECHNOLOGIES, INC., a Texas corporation
("Chemical"), NEWPARK ENVIRONMENTAL SERVICES, INC., a Delaware corporation
("Newpark Services"), NEWPARK TEXAS DRILLING FLUIDS, L.P., a Texas limited
partnership ("Texas Drilling"), NES PERMIAN BASIN, L.P., A Texas limited
partnership ("NES"), XXXXXXX CONSTRUCTION COMPANY, INC., a Texas Corporation
("Xxxxxxx"), NEWPARK ENVIRONMENTAL SERVICES MISSISSIPPI, L.P., a Mississippi
limited partnership ("Mississippi"), NDF MEXICO, INC., a Texas corporation
("Mexico") (SOLOCO, L.L.C., Newpark Shipholding, Mallard, SOLOCO Texas, Batson,
N.I.D., Newpark Texas, Holdings, Environmental L.L.C., Environmental L.P.,
Newpark Drilling, Supreme, Excalibar, Excalibar Minerals, Chemical, Newpark
Services, Texas Drilling, NES, Xxxxxxx, Mississippi and Mexico 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 Fourth Amendment) or which may from
time to time become a party hereto 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
WHEREAS, as of June 30, 1997 the Borrower, the Guarantors, the Agent,
the Co-Agent and the Banks entered into a Restated Credit Agreement to
consolidate all outstanding loan facilities into one facility in a maximum
amount of $90,000,000 (the Restated Credit Agreement is hereinafter referred to
as the "Credit Agreement"); and
WHEREAS, as of November 7, 1997, the Borrower, the Guarantors, the
Agent, the Co-Agent and the Banks entered into a First Amendment to Restated
Credit Agreement (the "First Amendment"); and
WHEREAS, as of December 10, 1997, the Borrower, the Guarantors, the
Agent, the Co- Agent and the Banks entered into a Second Amendment to Restated
Credit Agreement (the "Second Amendment"); and
WHEREAS, as of May 28, 1998, the Borrower, the Guarantors, the Agent,
the Co-Agent and the Banks entered into a Third Amendment to Restated Credit
Agreement (the "Third Amendment"); and
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WHEREAS, the Borrower has requested that the Banks make certain
additional amendments to the Credit Agreement and the Agent, the Co-Agent and
the Banks are willing to make such additional amendments.
NOW, THEREFORE, the parties hereto agree as follows:
. Unless otherwise defined herein, all defined terms used herein shall
have the same meaning ascribed to such terms in the Credit Agreement.
. Section 1 of the Credit Agreement is hereby amended in the following
respects:
() By deleting the definition of "Maturity Date" and substituting the
following in lieu thereof :
"Maturity Date" shall mean June 30, 2001";
() By deleting the definition of "Revolving Commitment" and
substituting the following in lieu thereof:
"Revolving Commitment" shall mean (A) for all Banks,
$100,000,000 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."
() By deleting the definition of "Interest Payment Date" and
substituting the following in lieu thereof:
"Interest Payment Date" shall mean (i) with respect
to Eurodollar Loan, the last day of each Interest Period or
(ii) with respect to Base Rate Loans, the last day of each
calendar month, or (iii) with respect to Euro-Canadian Loans,
the earlier of (A) the last day of each Interest Period or (B)
the last day of each calendar month.
() By deleting the definition of "Interest Period" and substituting the
following in lieu thereof:
"Interest Period" shall mean any Base Rate Interest
Period, Eurodollar Interest Period or Euro-Canadian Interest
Period.
() By deleting the definition of "Tranches" and substituting the
following in lieu thereof:
"Tranches" shall mean Eurodollar Loans, Euro-Canadian
Loans or Base Rate Loans.
() By the addition of the following new definitions:
"Asset Write-Down" shall mean the write-down by
Borrower of the value of its wooden mat inventory and other
assets and a contract settlement, such write-down not to
exceed $70,000,000 after tax without the consent of the Banks.
"Euro-Canadian Business Day" shall mean a business
day in which dealings in Canadian dollars are carried on in
Canada.
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"Euro-Canadian Interest Period" shall mean with
respect to any Euro-Canadian Loan (i) initially, the period
commencing on the date such Euro-Canadian Loan is made and
ending one (1), two (2) or three (3) months thereafter as
selected by Borrower pursuant to Section 4(a)(iii), and (ii)
thereafter, each period commencing on the day following the
last day of the next preceding Interest Period applicable to
such Euro-Canadian Loan and ending one (1), two (2) or three
(3) months thereafter, as selected by Borrower pursuant to
Section 4(a)(iii); provided, however, that (a) if any
Euro-Canadian Interest Period would otherwise expire on a day
which is not a Euro-Canadian Business Day, such Interest
Period shall expire on the next succeeding Euro-Canadian
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 Euro-Canadian Business Day, (b) if any Euro-Canadian
Interest Period begins on the last Euro-Canadian 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 Euro-Canadian Business Day of a calendar month, and (c)
any Euro-Canadian Interest Period which would otherwise expire
after the Maturity Date shall end on such Maturity Date.
"Euro-Canadian Loans" shall mean any loan during any
period which is funded in Canadian Dollars and bears interest
at the Euro-Canadian Rate, or which would bear interest at
such rate if the Maximum Rate ceiling was not in effect at a
particular time.
"Euro-Canadian Margin" shall mean, with respect to
each Euro-Canadian 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
(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 Euro-Canadian 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.
"Euro-Canadian Rate" shall mean the market rate of
interest per annum (rounded upward, if necessary to the
nearest 1/6 of 1%) for Canadian Dollar deposits offered
outside of Canada, as such rates are reported by Reuters New
Service two (2) Euro-Canadian Business Days prior to the first
date of each Euro-Canadian Interest Period. Provided,
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however, that if such rate is not available from Reuters News
Service then such market interest rate shall be otherwise
independently obtained by Agent from an alternate,
substantially similar independent source available to Agent or
shall be calculated by Agent by substantially similar
methodology as that theretofore used to determine such market
rate in Reuters News Service.
. Section 2 of the Credit Agreement is hereby amended in the following
respects:
() By deleting Subsection 2(b) thereof in its entirety and substituting
the following in lieu thereof:
"(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 or (iii) three
(3) Euro-Canadian Business Days prior to any proposed
Borrowing Date in the case of Euro-Canadian 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, at least two (2) Eurodollar Business Days'
notice of each Advance prior to funding in the case of a
Eurodollar Loan or at least two (2) Euro-Canadian Business
Days' notice of each Advance prior to the funding in the case
of a Euro-Canadian Loan, each Bank shall (i) in the case of
Base Rate Loans or Eurodollar Loans, 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 or (ii) in the case of
Euro-Canadian Loans provide Agent at Toronto Dominion Bank,
Swift Code XXXXXXXX, Bank One International Corp., Acct. No.
0000-00-0000000, Reference Newpark Resources, Inc. no 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.
() By the addition of a new Subsection 2(g) thereto as follows:
"(g) Euro-Canadian Loans. On the terms and conditions
hereinafter set forth, the Banks agree to make Advances to
Borrower in the form of Euro-Canadian Loans from time to time
during the period beginning on the Fourth Amendment Effective
Date and ending on the Maturity Date in such amounts as the
Borrower may request up to an amount not to exceed, in the
aggregate principal amount outstanding at any time, the sum of
$10,000,000 in U.S. Dollars. All Advances on Euro-Canadian
Loans shall be made by the Banks in Canadian dollars and all
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repayments of such Advances shall be made in Canadian dollars.
Each Advance as a Euro-Canadian Loan shall be in an amount
equivalent to at least $500,000 U.S. Dollars or whole
multiples of $100,000 U.S. Dollars in excess thereof. All such
Advances made as Euro-Canadian Loans shall be Advances on the
Revolving Commitment. The amount and the date of each such
Advance shall be designated by Borrower in a Notice of
Borrowing delivered to Agent not later than 11:00 a.m.,
Lafayette, Louisiana time, three (3) Euro-Canadian Business
Days prior to any proposed Borrowing Date. The Banks shall not
be obligated to make Advances as Euro-Canadian Loans if the
amount thereof when added to the amount of all other
outstanding Euro-Canadian Loans exceeds $10,000,000 or when
the amount thereof when added to the Total Outstandings would
exceed the Revolving Commitment."
. Section 3 of the Credit Agreement is hereby amended in the following
respects:
() By deleting the reference to "$90,000,000" in Subsection 3(a) and
substituting in lieu thereof the sum of "$100,000,000".
() By the addition of a new Subsection 3(j) thereto as follows:
"(j) All Payments of Euro-Canadian Loans. All
payments or prepayments of Euro-Canadian Loans by Borrower
shall be made in Canadian Dollars to Agent's account at Royal
Bank of Canada."
. Section 4 of the Credit Agreement is hereby amended bu adding a new
Subsection 4(a)(iii) thereto as follows:
"(iii) Euro-Canadian Loans. Borrower agrees to pay interest
calculated utilizing a 360 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 Euro-Canadian 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
Euro-Canadian Rate plus the Euro-Canadian 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 Euro-Canadian 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)
Euro-Canadian Business Days' written notice prior to the making by the
Banks of any Euro-Canadian 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 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
a one (1) month period.
. Section 5 of the Credit Agreement is hereby deleted in its entirety
and the following inserted in lieu thereof:
"(5) Special Provisions Relating to Loans.
(a) Unavailability of Funds or Inadequacy of Pricing.
In the event that, in connection with any proposed Loan, any
Bank (i) shall have determined that U.S. Dollar deposits of
the relevant amount and for the relevant Eurodollar Interest
Period for Loans are not available to such Bank in the London
interbank market; or (ii) in good faith determines that the
Eurodollar Interest Rate or the Euro-Canadian Interest Rate
will not adequately reflect the cost to such Bank of
maintaining or funding the Eurodollar Loans or the
Euro-Canadian Loans (as the case may be) for
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such Interest Period, the obligations of the Banks to make the
Eurodollar Loans or the Euro-Canadian 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 or Euro-Canadian Loans, as the case may be,
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 or Euro-Canadian Loans on the
last day of the then current Interest Period for such
Eurodollar Loan or Euro-Canadian 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
Euro-Canadian 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 or Euro-Canadian 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 Euro-Canadian
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 or
Euro-Canadian 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.
(c) Taxes. Both principal and interest on the Notes
evidencing the Eurodollar Loans or Euro-Canadian 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 Euro-Canadian
Loans or on any payment on the Notes evidencing the Eurodollar
Loans or Euro-Canadian 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 or Euro-Canadian 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 or
Euro-Canadian 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 or Euro-Canadian 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
12
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 or Euro-Canadian Loans hereunder,
then the Banks shall promptly notify Borrower in writing and
Borrower shall either repay the outstanding Eurodollar Loan or
Euro-Canadian 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 or Euro-Canadian 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 or Euro-Canadian
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 or Euro-Canadian 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 purpose of determining the rate of
interest to be paid under such Eurodollar Loan or
Euro-Canadian 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 or
Euro-Canadian 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 or Euro-Canadian 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 or Euro-Canadian 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 or Euro-Canadian 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 or Euro-Canadian Loan on any day other than
the last day of the Interest Period applicable to such
Eurodollar Loan or Euro-Canadian Loan, as the case may be, 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
13
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.
. Section 6 of the Credit Agreement is hereby amended by adding a new
sentence to the end thereof as follows:
"To further secure the obligation of the Borrower and the
Guarantors hereunder, (i) Borrower shall pledge to the Bank sixty-six
percent (66%) of the issued and outstanding voting stock of Newpark
Canada, Inc. and International Mat Ltd., such pledges to be made
pursuant to documentation in form and substance satisfactory to Agent
and shall represent first and prior Liens on such stock."
. Section 11 of the Credit Agreement is hereby amended to add the new
Subsections 11(v) and 11(w) thereto as follows:
"(v) Subsidiaries. Borrower shall cause each of its
Subsidiaries, whether they be a Guarantor or otherwise, to comply in
all respects with the covenants contained in Sections 11 and 12 of this
Agreement to the same extent as the Borrower and each Guarantor are
required to so comply."
"(w) Maintain Book Registration. Borrower shall maintain the
book registration of the shares of International Mat, Ltd. in the
appropriate records in the Cayman Islands."
. Section 12 of the Credit Agreement is hereby amended in the following
respects:
() By the deletion of Subsection 12(e) and substituting the following
in lieu thereof:
"(e) Tangible Net Worth. Borrower will not allow the
Consolidated Tangible Net Worth to be less than $135,000,000 plus
seventy-five percent (75%) of Borrower's Consolidated Net Income, if
positive, for each fiscal quarter ending after September 30, 1998,
tested at the end of each fiscal quarter."
() Subsection 12(g) is hereby amended to delete the reference therein
to "$10,000,000" and substitute in lieu thereof the sum of "$20,000,000".
() Subsection 12(n)(iii) is hereby amended to delete the references
therein to "$10,000,000" and substitute in lieu thereof in each instance the
sum of "$20,000,000".
. Section 14 of the Credit Agreement is hereby amended by the addition
of a new Subsection 14(p) as follows:
"(p) Advances and Repayments of Euro-Canadian Loans. Upon
receipt of notice from the Agent of an Advance to be made to Borrower
as a Euro-Canadian Loan and subject to the other provisions of this
Agreement, each Bank severally agrees to fund its Pro Rata Part of each
such Euro-Canadian Loan Advance in Canadian Dollars by wire transfer to
Agent's account at Royal Bank of Canada, [address and wiring
information].
. In connection with the execution of this Fourth Amendment, Borrower
shall execute and deliver to the Banks new Notes representing each Bank's Pro
Rata Part of the increased Revolving Commitment. At the Fourth Amendment
Effective Date there shall be outstanding three (3) Notes in an aggregate face
amount of $100,000,000, one payable to Bank One in the face amount of
$39,440,000, one payable to Deutsche in the face amount of $35,560,000 and one
payable to Hibernia in the face amount of $25,000,000.
. This Fourth Amendment shall be effective as of the date first above
written, but only upon satisfaction of the conditions precedent set forth in
Paragraph 6 hereto (the "Fourth Amendment Effective Date").
14
. The obligations of Banks under this Fourth Amendment shall be subject
to the satisfaction of the following conditions precedent:
() Execution and Delivery. The Borrower shall have executed and
delivered this Fourth Amendment, the Pledge Agreements covering the stock of
Newpark Canada, Inc. and International Mat Ltd., and other required
documents, all in form and substance satisfactory to the Banks;
() Guarantors' Execution and Delivery. The Guarantors shall have
executed and delivered this Fourth Amendment and other required documents,
all in form and substance satisfactory to the Banks;
() Corporate Resolutions. Banks shall have received appropriate
certified corporate resolutions of each of the Borrower and each of the
Guarantors;
() Good Standing and Existence. The Banks shall have received evidence
of existence and good standing for Borrower and each of the Guarantors;
() Representations and Warranties. The representations and warranties
of Borrower under the Credit 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);
() No Event of Default. No Event of Default shall have occurred and be
continuing nor shall any event have occurred or failed to occur which, with
the passage of time or service of notice, or both, would constitute an Event
of Default;
() Other Documents. Each Bank shall have received such other
instruments and documents incidental and appropriate to the transaction
provided for herein as such Bank or its counsel may reasonably request, and
all such documents shall be in form and substance satisfactory to such Bank;
and
() Legal Matters Satisfactory. All legal matters incident to the
consummation of the transactions contemplated hereby shall be satisfactory
to special counsel for Bank retained at the expense of Borrower.
. Except to the extent its provisions are specifically amended,
modified or superseded by this Fourth Amendment, the representations, warranties
and affirmative and negative covenants of the Borrower contained in the Credit
Agreement are incorporated herein by reference for all purposes as if copied
herein in full. The Borrower hereby restates and reaffirms each and every term
and provision of the Credit Agreement, as amended, including, without
limitation, all representations, warranties and affirmative and negative
covenants. Except to the extent its provisions are specifically amended,
modified or superseded by this Fourth Amendment, the Credit Agreement, as
amended, and all terms and provisions thereof shall remain in full force and
effect, and the same in all respects are confirmed and approved by the Borrower
and the Banks.
. The parties hereto agree that the Loma Letter of Credit is a "Letter
of Credit" issued under the Credit Agreement.
. This Fourth Amendment 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.
. The Borrower and each of the Guarantors hereby represent to the Banks
that all indebtedness either owed or available to be borrowed under the Credit
Agreement, as the same is amended from time to time, is "Senior Debt" under the
Indenture between Borrower, the Guarantors and State Street Bank and Trust
Company dated December 17, 1997 (the "Indenture") and that the increase in
availability provided for in this Fourth Amendment is not prohibited in any
respect pursuant to the provisions of Section 1008 of the Indenture.
15
. Each of the Guarantors hereby consents to the execution of this
Fourth Amendment by the Borrower and reaffirms its guaranty of all of the
obligations of the Borrower to the Bank. Each such Guarantor further
acknowledges and consents to the increase in the obligations owed the Banks
pursuant to the terms of this Fourth Amendment. Borrower and Guarantor
acknowledge and agree that the renewal, extension and amendment of the Credit
Agreement shall not be considered a novation of account or new contract but that
all existing rights, titles, powers, Liens, security interests and estates in
favor of the Banks constitute valid and existing obligations and Liens and
security interests as against the Collateral in favor of the Banks. Borrower and
each Guarantor confirm and agree that (a) neither the execution of this Fourth
Amendment or any other Loan Document nor the consummation of the transactions
described herein and therein shall in any way effect, impair or limit the
covenants, liabilities, obligations and duties of the Borrower and each
Guarantor under the Loan Documents and (b) the obligations evidenced and secured
by the Loan Documents continue in full force and effect. Each Guarantor hereby
further confirms that it unconditionally guarantees to the extent set forth in
its respect Guaranty the due and punctual payment and performance of any and all
amounts and obligations owed by the Banks under the Credit Agreement or the
other Loan Documents.
IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to
Restated Credit Agreement to be duly executed as of the date first above
written.
BORROWER:
NEWPARK RESOURCES, INC.
a Delaware corporation
By:
-------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
GUARANTORS:
CHEMICAL TECHNOLOGIES, INC.,
EXCALIBAR MINERALS, INC., NEWPARK
ENVIRONMENTAL SERVICES, INC.,
MALLARD & MALLARD OF LA., INC.,
NEWPARK HOLDINGS, INC., NEWPARK DRILLING
FLUIDS, INC., SUPREME CONTRACTORS, INC.,
AND XXXXXXX CONSTRUCTION COMPANY, INC.
By:
-------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
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:
-------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
00
XXXXXX-XXXX, X.X., XXXXXXX XXXXX DRILLING,
FLUIDS L.P., NEWPARK ENVIRONMENTAL
SERVICES OF TEXAS, L.P., NEWPARK
SHIPHOLDING TEXAS, L.P., N.I.D., 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:
-------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
NDF MEXICO, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BANKS:
BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION,
a national banking association
By:
-------------------------------------
Xxxx X. Xxxxxx, Vice President
DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
HIBERNIA NATIONAL BANK
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
AGENT:
BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION,
a national banking association
By:
-------------------------------------
Xxxx X. Xxxxxx, Vice President
17
CO-AGENT:
DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
18
FIFTH AMENDMENT TO RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO RESTATED CREDIT AGREEMENT (hereinafter referred
to as the "Fifth Amendment") executed as of the 1st day of February, 1999, 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."), NEWPARK DRILLING FLUIDS,
INC., a Texas corporation ("Newpark Drilling"), 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"), CHEMICAL TECHNOLOGIES, INC., a Texas corporation
("Chemical"), NEWPARK ENVIRONMENTAL SERVICES, INC., a Delaware corporation
("Newpark Services"), NEWPARK TEXAS DRILLING FLUIDS, L.P., a Texas limited
partnership ("Texas Drilling"), NES PERMIAN BASIN, L.P., A Texas limited
partnership ("NES"), XXXXXXX CONSTRUCTION COMPANY, INC., a Texas Corporation
("Xxxxxxx"), NEWPARK ENVIRONMENTAL SERVICES MISSISSIPPI, L.P., a Mississippi
limited partnership ("Mississippi"), NDF MEXICO, INC., a Texas corporation
("Mexico") (SOLOCO, L.L.C., Newpark Shipholding, Mallard, SOLOCO Texas, Batson,
N.I.D., Newpark Texas, Holdings, Environmental L.L.C., Environmental L.P.,
Newpark Drilling, Supreme, Excalibar, Excalibar Minerals, Chemical, Newpark
Services, Texas Drilling, NES, Xxxxxxx, Mississippi and Mexico 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 Fifth Amendment) or which may from time
to time become a party hereto 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
WHEREAS, as of June 30, 1997 the Borrower, the Guarantors, the Agent,
the Co-Agent and the Banks entered into a Restated Credit Agreement to
consolidate all outstanding loan facilities into one facility in a maximum
amount of $90,000,000 (the Restated Credit Agreement is hereinafter referred to
as the "Credit Agreement"); and
WHEREAS, as of November 7, 1997, the Borrower, the Guarantors, the
Agent, the Co-Agent and the Banks entered into a First Amendment to Restated
Credit Agreement (the "First Amendment"); and
WHEREAS, as of December 10, 1997, the Borrower, the Guarantors, the
Agent, the Co- Agent and the Banks entered into a Second Amendment to Restated
Credit Agreement (the "Second Amendment"); and
WHEREAS, as of May 28, 1998, the Borrower, the Guarantors, the Agent,
the Co-Agent and the Banks entered into a Third Amendment to Restated Credit
Agreement (the "Third Amendment"); and
19
WHEREAS, as of September 29, 1998, the Borrower, the Guarantors, the
Agent, the Co-Agent and the Banks entered into a Fourth Amendment to Restated
Credit Agreement (the "Fourth Amendment"); and
WHEREAS, the Borrower has requested that the Banks make certain
additional amendments to the Credit Agreement and the Agent, the Co-Agent and
the Banks are willing to make such additional amendments.
NOW, THEREFORE, the parties hereto agree as follows:
. Unless otherwise defined herein, all defined terms used
herein shall have the same meaning ascribed to such terms in the Credit
Agreement.
. Section 1 of the Credit Agreement is hereby amended in the
following respects:
() By deleting the definition of "Reimbursment Agreement"
therefrom and inserting the following in lieu thereof :
"Reimbursement Agreement" means that certain
Reimbursement Agreement dated as of May 1, 1998 by and among
Borrower, The Loma Company, L.L.C. and Bank One, as the same
is amended and supplemented from time to time including, but
not limited to, that certain First Amendment and Supplement to
Reimbursement Agreement between said parties dated as of
February 1,1999."
() By deleting the definition of "Loma Letter of Credit" and
substituting the following in lieu thereof:
"Loma Letter of Credit" means that certain
Irrevocable Letter of Credit dated May 28, 1998 from Bank to
Bank One Trust Company, N.A., as Trustee, issued at the
request of and for the account of Borrower in the stated
amount of $15,187,500.00, as the same may be amended, restated
or increased from time to time, including, but not limited to,
that certain Amendment to Irrevocable Letter of Credit dated
as of February 1, 1999 between said parties which increases
the stated amount of the Loma Letter of Credit to
$16,959,375.00."
. This Fifth Amendment shall be effective as of the date first
above written, but only upon satisfaction of the conditions precedent set forth
in Paragraph 4 hereto (the "Fifth Amendment Effective Date").
. The obligations of Banks under this Fifth Amendment shall be
subject to the satisfaction of the following conditions precedent:
() Execution and Delivery. The Borrower shall have executed
and delivered this Fifth Amendment and other required documents, all in
form and substance satisfactory to the Banks;
() Guarantors' Execution and Delivery. The Guarantors shall
have executed and delivered this Fifth Amendment and other required
documents, all in form and substance satisfactory to the Banks;
() Corporate Resolutions. Banks shall have received
appropriate certified corporate resolutions of each of the Borrower and
each of the Guarantors;
() Good Standing and Existence. The Banks shall have received
evidence of existence and good standing for Borrower and each of the
Guarantors;
() Representations and Warranties. The representations and
warranties of Borrower under the Credit 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);
20
() No Event of Default. No Event of Default shall have
occurred and be continuing nor shall any event have occurred or failed
to occur which, with the passage of time or service of notice, or both,
would constitute an Event of Default;
() Other Documents. Each Bank shall have received such other
instruments and documents incidental and appropriate to the transaction
provided for herein as such Bank or its counsel may reasonably request,
and all such documents shall be in form and substance satisfactory to
such Bank; and
() Legal Matters Satisfactory. All legal matters incident to
the consummation of the transactions contemplated hereby shall be
satisfactory to special counsel for Bank retained at the expense of
Borrower.
. Except to the extent its provisions are specifically
amended, modified or superseded by this Fifth Amendment, the representations,
warranties and affirmative and negative covenants of the Borrower contained in
the Credit Agreement are incorporated herein by reference for all purposes as if
copied herein in full. The Borrower hereby restates and reaffirms each and every
term and provision of the Credit Agreement, as amended, including, without
limitation, all representations, warranties and affirmative and negative
covenants. Except to the extent its provisions are specifically amended,
modified or superseded by this Fifth Amendment, the Credit Agreement, as
amended, and all terms and provisions thereof shall remain in full force and
effect, and the same in all respects are confirmed and approved by the Borrower
and the Banks.
. This Fifth Amendment 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.
. Each of the Guarantors hereby consents to the execution of
this Fifth Amendment by the Borrower and reaffirms its guaranty of all of the
obligations of the Borrower to the Bank. Each such Guarantor further
acknowledges and consents to the increase in the obligations owed the Banks
pursuant to the terms of this Fifth Amendment. Borrower and Guarantor
acknowledge and agree that the renewal, extension and amendment of the Credit
Agreement shall not be considered a novation of account or new contract but that
all existing rights, titles, powers, Liens, security interests and estates in
favor of the Banks constitute valid and existing obligations and Liens and
security interests as against the Collateral in favor of the Banks. Borrower and
each Guarantor confirm and agree that (a) neither the execution of this Fifth
Amendment or any other Loan Document nor the consummation of the transactions
described herein and therein shall in any way effect, impair or limit the
covenants, liabilities, obligations and duties of the Borrower and each
Guarantor under the Loan Documents and (b) the obligations evidenced and secured
by the Loan Documents continue in full force and effect. Each Guarantor hereby
further confirms that it unconditionally guarantees to the extent set forth in
its respect Guaranty the due and punctual payment and performance of any and all
amounts and obligations owed by the Banks under the Credit Agreement or the
other Loan Documents.
IN WITNESS WHEREOF, the parties have caused this Fifth Amendment to
Restated Credit Agreement to be duly executed as of the date first above
written.
BORROWER:
NEWPARK RESOURCES, INC.
a Delaware corporation
By:
------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
21
GUARANTORS:
CHEMICAL TECHNOLOGIES, INC.,
EXCALIBAR MINERALS, INC., NEWPARK
ENVIRONMENTAL SERVICES, INC.,
MALLARD & MALLARD OF LA., INC.,
NEWPARK HOLDINGS, INC., NEWPARK DRILLING
FLUIDS, INC., SUPREME CONTRACTORS, INC.,
AND XXXXXXX CONSTRUCTION
COMPANY, INC.
By:
------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
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:
------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
XXXXXX-MILL, L.P., NEWPARK TEXAS DRILLING,
FLUIDS L.P., NEWPARK ENVIRONMENTAL
SERVICES OF TEXAS, L.P., NEWPARK
SHIPHOLDING TEXAS, L.P., N.I.D., 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:
------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
NDF MEXICO, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BANKS:
BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION,
a national banking association
By:
-------------------------------------
Xxxx X. Xxxxxx, Vice President
22
DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
HIBERNIA NATIONAL BANK
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
AGENT:
BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION,
a national banking association
By:
-------------------------------------
Xxxx X. Xxxxxx, Vice President
CO-AGENT:
DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
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Name:
-----------------------------------
Title:
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By:
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Name:
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Title:
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23
SIXTH AMENDMENT TO RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO RESTATED CREDIT AGREEMENT (hereinafter referred
to as the "Sixth Amendment") executed as of the 26th day of March, 1999, 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."), NEWPARK DRILLING FLUIDS,
INC., a Texas corporation ("Newpark Drilling"), 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"), CHEMICAL TECHNOLOGIES, INC., a Texas corporation
("Chemical"), NEWPARK ENVIRONMENTAL SERVICES, INC., a Delaware corporation
("Newpark Services"), NEWPARK TEXAS DRILLING FLUIDS, L.P., a Texas limited
partnership ("Texas Drilling"), NES PERMIAN BASIN, L.P., A Texas limited
partnership ("NES"), XXXXXXX CONSTRUCTION COMPANY, INC., a Texas Corporation
("Xxxxxxx"), NEWPARK ENVIRONMENTAL SERVICES MISSISSIPPI, L.P., a Mississippi
limited partnership ("Mississippi"), NDF MEXICO, INC., a Texas corporation
("Mexico") (SOLOCO, L.L.C., Newpark Shipholding, Mallard, SOLOCO Texas, Batson,
N.I.D., Newpark Texas, Holdings, Environmental L.L.C., Environmental L.P.,
Newpark Drilling, Supreme, Excalibar, Excalibar Minerals, Chemical, Newpark
Services, Texas Drilling, NES, Xxxxxxx, Mississippi and Mexico 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 Sixth Amendment) or which may from time
to time become a party hereto 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
24
WHEREAS, as of June 30, 1997 the Borrower, the Guarantors, the Agent,
the Co-Agent and the Banks entered into a Restated Credit Agreement to
consolidate all outstanding loan facilities into one facility in a maximum
amount of $90,000,000 (the Restated Credit Agreement is hereinafter referred to
as the "Credit Agreement"); and
WHEREAS, as of November 7, 1997, the Borrower, the Guarantors, the
Agent, the Co-Agent and the Banks entered into a First Amendment to Restated
Credit Agreement (the "First Amendment"); and
WHEREAS, as of December 10, 1997, the Borrower, the Guarantors, the
Agent, the Co-Agent and the Banks entered into a Second Amendment to Restated
Credit Agreement (the "Second Amendment"); and
WHEREAS, as of May 28, 1998, the Borrower, the Guarantors, the Agent,
the Co-Agent and the Banks entered into a Third Amendment to Restated Credit
Agreement (the "Third Amendment"); and
WHEREAS, as of September 29, 1998, the Borrower, the Guarantors, the
Agent, the Co-Agent and the Banks entered into a Fourth Amendment to Restated
Credit Agreement (the "Fourth Amendment"); and
WHEREAS, as of February 1, 1999, the Borrower, the Guarantors, the
Agent, the Co-Agent and the Banks entered into a Fifth Amendment to Restated
Credit Agreement (the "Fifth Amendment"); and
WHEREAS, the Borrower has requested that the Banks make certain
additional amendments to the Credit Agreement and the Agent, the Co-Agent and
the Banks are willing to make such additional amendments.
NOW, THEREFORE, the parties hereto agree as follows:
1. Unless otherwise defined herein, all defined terms used herein shall
have the same meaning ascribed to such terms in the Credit Agreement.
2. Section 1 of the Credit Agreement is hereby amended in the following
respects:
(a) By deleting the definition of "Eurodollar Margin"
therefrom and inserting the following in lieu thereof :
"Eurodollar Margin"shall mean, with respect to each
Eurodollar Loan:
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25
(i) two and three-quarters percent (2.75%)
per annum whenever the Borrower's ratio of
Consolidated Funded Debt to Consolidated EBITDA is
equal to or greater than 2.50 to 1.0; or
(ii) two and one-quarter percent (2.25%) per
annum whenever Borrower's ratio of Consolidated
Funded Debt to Consolidated EBITDA is equal to or
greater than 2.25 to 1.0 but less than 2.50 to 1.0;
or
(iii) two percent (2%) per annum whenever
Borrower's ratio of Consolidated Funded Debt to
Consolidated EBITDA is equal to or greater than 1.75
to 1.0 but less than 2.25 to 1.0; or
(iv) 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 1.75 to 1.0;
or
(v) one and one-quarter percent (1.25%) per
annum whenever Borrower's ratio of Consolidated
Funded Debt to Consolidated EBITDA is equal to or
less than 1.25 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 new Tranche
and each rollover Tranche."
(b) By deleting the definition of "Euro-Canadian Margin" and
substituting the following in lieu thereof:
Euro-Canadian Margin" shall mean, with respect to
each Euro-Canadian Loan:
(i) two and three-quarters percent (2.75%)
per annum whenever the Borrower's ratio of
Consolidated Funded Debt to Consolidated EBITDA is
equal to or greater than 2.50 to 1.0; or
(ii) two and one-quarter percent (2.25%) per
annum whenever Borrower's ratio of Consolidated
Funded Debt to Consolidated EBITDA is equal to or
greater than 2.25 to 1.0 but less than 2.50 to 1.0;
or
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26
(iii) two percent (2%) per annum whenever
Borrower's ratio of Consolidated Funded Debt to
Consolidated EBITDA is equal to or greater than 1.75
to 1.0 but less than 2.25 to 1.0; or
(iv) 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 1.75 to 1.0;
or
(v) one and one-quarter percent (1.25%) per
annum whenever Borrower's ratio of Consolidated
Funded Debt to Consolidated EBITDA is equal to or
less than 1.25 to 1.0.
The Euro-Canadian 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 new
Tranche and each rollover Tranche."
(c) By deleting the definition of "Unused Fee Rate" therefrom
and substituting the following in lieu thereof:
"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 2.25 to 1.0;
(ii) three-eighths percent (.375%) per annum whenever
Borrower's ratio of Consolidated Funded Debt to Consolidated
EBITDA is equal to or greater than 1.75 to 1.0 but less than
2.25 to 1.0;
(iii) five-sixteenths percent (.3125%) 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 1.75 to 1.0;
(iv) one-quarter of one percent (.25%) per annum
whenever Borrower's ratio of Consolidated Funded Debt to
Consolidated EBITDA is less than 1.25 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."
(d) By deleting the definition of "Asset Write-Down" that was
added by the Fourth Amendment.
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27
3. Section 2 of the Credit Agreement is hereby amended by deleting
Subsection (d) thereof in its entirety and inserting the following in lieu
thereof:
"(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 Credit exceeds Twenty Million Dollars ($20,000,000.00) or
(C) the amount thereof when added to the Total Outstandings would
exceed the Revolving Commitment. 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 face amount of each such Letter of Credit times the then
effective Eurodollar Margin minus one-eighth of one percent (.125%) per
annum. Borrower further agrees to pay Agent (i) an additional fee equal
to one-eighth of one percent (.125%) per annum 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. For all new Letters of Credit issued after the Sixth
Amendment Effective Date, such commissions shall be paid quarterly in
advance with the first such fee being payable prior to the issuance of
each Letter of Credit and thereafter at the end of each three (3) month
period while such Letter of Credit is outstanding. For all Letters of
Credit issued and outstanding as of the Sixth Amendment Effective Date,
such new commission rate shall not apply until the next anniversary
date of such Letter of Credit."
4. Section 12 of the Credit Agreement is hereby amended in the
following respects:
(a) By deleting Subsection 12(d) therefrom in its entirety and
substituting the following in lieu thereof:
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28
"(d) Maximum Total Debt Ratios. Borrower will not
allow the ratio of (i) total Debt (including Capital Lease
Obligations) less Subordinated Indebtedness, to (ii) Total
Capitalization (including Subordinated Indebtedness), to ever
exceed 36% as of the end of any fiscal quarter."
(b) By deleting Subsection 12(e) therefrom in its entirety and
substituting the following in lieu thereof:
"(e) Tangible Net Worth. Borrower will not allow its
Consolidated Tangible Net Worth to be less, as of the end of
any fiscal quarter, than $118,958,000 plus (i) seventy-five
percent (75%) of Borrower's Consolidated Net Income, if
positive, for each fiscal quarter ending after December 31,
1998 and (ii) net proceeds received by Borrower from the
issuance and sale of any its preferred stock."
(c) By deleting Subsection 12(q) therefrom in its entirety and
substituting the following in lieu thereof:
"(q) Maximum Consolidated Funded Debt. Borrower will
not allow its ratio of Consolidated Funded Debt to
Consolidated EBITDA as of the end of any fiscal quarter for
the previous twelve (12) months ending on such date to ever
exceed (i) 3.50 to 1.0 as of the end of any fiscal quarter to
and including the fiscal quarter ended September 30, 1999, and
(ii) thereafter, 2.75 to 1.0 beginning with the fiscal quarter
ending December 31, 1999."
5. The Banks hereby agree to waive any Defaults or Events of Default
that have occurred as a result of the Borrower's failure to comply with the
provisions of Sections 12(d), (e), (f) and (q) of the Credit Agreement as of the
fiscal quarter ended December 31, 1998. The waivers contained herein are waivers
specific to the provisions noted and are not waivers of any other provisions of
the Credit Agreement for any period.
6. This Sixth Amendment shall be effective as of the date first above
written, but only upon satisfaction of the conditions precedent set forth in
Paragraph 7 hereto (the "Sixth Amendment Effective Date").
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29
7. The obligations of Banks under this Sixth Amendment shall be subject
to the satisfaction of the following conditions precedent:
(a) Execution and Delivery. The Borrower shall have executed
and delivered this Sixth Amendment and other required documents, all in
form and substance satisfactory to the Banks;
(b) Guarantors' Execution and Delivery. The Guarantors shall
have executed and delivered this Sixth Amendment and other required
documents, all in form and substance satisfactory to the Banks;
(c) Corporate Resolutions. Banks shall have received
appropriate certified corporate resolutions of each of the Borrower and
each of the Guarantors;
(d) Representations and Warranties. The representations and
warranties of Borrower under the Credit 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);
(e) No Event of Default. No Event of Default shall have
occurred and be continuing nor shall any event have occurred or failed
to occur which, with the passage of time or service of notice, or both,
would constitute an Event of Default;
(f) Other Documents. Each Bank shall have received such other
instruments and documents incidental and appropriate to the transaction
provided for herein as such Bank or its counsel may reasonably request,
and all such documents shall be in form and substance satisfactory to
such Bank; and
(g) Legal Matters Satisfactory. All legal matters incident to
the consummation of the transactions contemplated hereby shall be
satisfactory to special counsel for Bank retained at the expense of
Borrower.
8. Except to the extent its provisions are specifically amended,
modified or superseded by this Sixth Amendment, the representations, warranties
and affirmative and negative covenants of the Borrower contained in the Credit
Agreement are incorporated herein by reference for all purposes as if copied
herein in full. The Borrower hereby restates and reaffirms each and every term
and provision of the Credit Agreement, as amended, including, without
limitation, all representations, warranties and affirmative and negative
covenants. Except to the extent its provisions are specifically amended,
modified or superseded by this Sixth Amendment, the Credit Agreement, as
amended, and all terms and provisions thereof shall remain in full force and
effect, and the same in all respects are confirmed and approved by the Borrower
and the Banks.
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9. This Sixth Amendment 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.
10. Each of the Guarantors hereby consents to the execution of this
Sixth Amendment by the Borrower and reaffirms its guaranty of all of the
obligations of the Borrower to the Bank. Each such Guarantor further
acknowledges and consents to the increase in the obligations owed the Banks
pursuant to the terms of this Sixth Amendment. Borrower and Guarantor
acknowledge and agree that the renewal, extension and amendment of the Credit
Agreement shall not be considered a novation of account or new contract but that
all existing rights, titles, powers, Liens, security interests and estates in
favor of the Banks constitute valid and existing obligations and Liens and
security interests as against the Collateral in favor of the Banks. Borrower and
each Guarantor confirm and agree that (a) neither the execution of this Sixth
Amendment or any other Loan Document nor the consummation of the transactions
described herein and therein shall in any way effect, impair or limit the
covenants, liabilities, obligations and duties of the Borrower and each
Guarantor under the Loan Documents and (b) the obligations evidenced and secured
by the Loan Documents continue in full force and effect. Each Guarantor hereby
further confirms that it unconditionally guarantees to the extent set forth in
its respect Guaranty the due and punctual payment and performance of any and all
amounts and obligations owed by the Banks under the Credit Agreement or the
other Loan Documents.
IN WITNESS WHEREOF, the parties have caused this Sixth Amendment to
Restated Credit Agreement to be duly executed as of the date first above
written.
BORROWER:
NEWPARK RESOURCES, INC.
a Delaware corporation
By:
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Xxxx X. Xxxxxxxx, Xx., Treasurer
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GUARANTORS:
CHEMICAL TECHNOLOGIES, INC.,
EXCALIBAR MINERALS, INC., NEWPARK
ENVIRONMENTAL SERVICES, INC.,
MALLARD & MALLARD OF LA., INC.,
NEWPARK HOLDINGS, INC., NEWPARK
DRILLING FLUIDS, INC., SUPREME
CONTRACTORS, INC., AND XXXXXXX
CONSTRUCTION COMPANY, INC.
By:
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Xxxx X. Xxxxxxxx, Xx., Treasurer
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 TEXAS DRILLING,
FLUIDS L.P., NEWPARK ENVIRONMENTAL
SERVICES OF TEXAS, L.P., NEWPARK
SHIPHOLDING TEXAS, L.P., N.I.D., 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., Xxxxxxxxx
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00
XXX XXXXXX, INC.
By:
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Name:
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Title:
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BANKS:
BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION,
a national banking association
By:
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Xxxx X. Xxxxxx, Vice President
DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
HIBERNIA NATIONAL BANK
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
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33
AGENT:
BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION,
a national banking association
By:
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Xxxx X. Xxxxxx, Vice President
CO-AGENT:
DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
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Name:
-----------------------------------------
Title:
----------------------------------------
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
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