UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ________________ to ______________
Commission File Number 0-26710
CORE LABORATORIES N.V.
(Exact name of registrant as specified in its charter)
THE NETHERLANDS NOT APPLICABLE
(State of other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
HERENGRACHT 424
1017 BZ AMSTERDAM
THE NETHERLANDS NOT APPLICABLE
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (31-20) 420-3191
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
The number of common shares of the Registrant, par value NLG .03 per share,
outstanding at May 6, 1997 was 10,596,138.
<PAGE>
CORE LABORATORIES N.V.
FORM 10-Q FOR THE QUARTER ENDED MARCH 31, 1997
INDEX
PAGE
Part I -- Financial Information
Item 1 -- Financial Statements
Consolidated Balance Sheets at March 31, 1997
and December 31, 1996.......................................... 1
Consolidated Income Statements for the Three Months Ended
March 31, 1997 and 1996........................................ 2
Consolidated Statements of Cash Flows for the Three Months Ended
March 31, 1997 and 1996........................................ 3
Notes to Consolidated Financial Statements ........................ 4
Item 2-- Management's Discussion and Analysis of Financial Condition
and Results of Operations ......................................... 7
Part II -- Other Information
Item 1-- Legal Proceedings.............................................. 11
Item 2--Changes in Securities........................................... 11
Item 3-- Defaults Upon Senior Securities................................ 11
Item 4-- Submission of Matters to a Vote of Security Holders............ 11
Item 5--Other Information............................................... 11
Item 6-- Exhibits and Reports on Form 8-K ............................. 12
Signature .................................................................. 13
i
<PAGE>
CORE LABORATORIES N.V.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS OF DOLLARS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1997 1996
---------- ---------
<S> <C> <C>
ASSETS (UNAUDITED) (AUDITED)
CURRENT ASSETS:
Cash and cash equivalents................................................... $ 1,884 $ 2,935
Accounts receivable, net.................................................... 32,724 27,993
Inventories ................................................................ 10,739 9,472
Prepaid expenses and other ................................................ 1,486 1,223
Deferred tax assets ....................................................... 1,017 927
---------- ---------
Total current assets ....................................................... 47,850 42,550
---------- ---------
PROPERTY, PLANT AND EQUIPMENT.................................................... 42,746 35,814
Less-- accumulated depreciation............................................. (9,732) (8,109)
---------- ----------
33,014 27,705
INTANGIBLES AND GOODWILL, net ................................................... 19,262 8,417
NON-CURRENT DEFERRED TAX ASSET .................................................. 245 245
LONG-TERM INVESTMENT ............................................................ 250 250
OTHER LONG-TERM ASSETS........................................................... 2,266 524
---------- ----------
Total assets .......................................................... $ 102,887 $ 79,691
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Current maturities of long-term debt ....................................... $ 4,346 $ 4,430
Accounts payable............................................................ 7,620 5,909
Accrued payroll and related costs .......................................... 3,511 3,141
Accrued income taxes payable ............................................... 1,240 1,008
Deferred tax liability...................................................... 604 604
Other accrued expenses .................................................... 3,967 2,253
---------- ---------
Total current liabilities................................................... 21,288 17,345
---------- ----------
LONG-TERM DEBT .................................................................. 28,873 11,594
NON-CURRENT DEFERRED TAX LIABILITY .............................................. 1,970 1,970
OTHER LONG-TERM LIABILITIES .................................................... 1,181 1,159
MINORITY INTEREST................................................................ 245 212
COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' EQUITY:
Preference shares, NLG .03 par value; 3,000,000 shares
authorized, no shares issued or outstanding............................. -- --
Common shares, NLG .03 par value; 30,000,000 shares authorized,
10,595,638 and 10,592,638 issued and outstanding
at March 31, 1997 and December 31, 1996, respectively................... 186 186
Additional paid-in capital.................................................. 35,535 35,500
Retained earnings........................................................... 13,609 11,725
---------- ----------
Total shareholders' equity.............................................. 49,330 47,411
---------- ----------
Total liabilities and shareholders' equity......................... $ 102,887 $ 79,691
========== ===========
</TABLE>
The accompanying notes are an integral part of
these consolidated financial statements.
1
<PAGE>
CORE LABORATORIES N.V.
CONSOLIDATED INCOME STATEMENTS
(IN THOUSANDS OF DOLLARS, EXCEPT SHARE AND PER SHARE DATA)
THREE MONTHS ENDED
MARCH 31,
---------------------------
1997 1996
----------- ------------
(UNAUDITED) (UNAUDITED)
SERVICES ....................................... $ 22,223 $ 18,600
SALES .......................................... 4,638 6,879
----------- ------------
26,861 25,479
OPERATING EXPENSES:
Costs of services ......................... 17,477 15,051
Costs of sales ............................ 3,870 5,676
General and administrative expenses ....... 1,024 930
Depreciation and amortization ............. 1,462 1,137
Other (income) expense, net ............... 49 (68)
----------- ------------
23,882 22,726
INCOME BEFORE INTEREST EXPENSE AND
INCOME TAX EXPENSE ........................ 2,979 2,753
INTEREST EXPENSE ............................... 287 405
----------- ------------
INCOME BEFORE INCOME TAX EXPENSE ............... 2,692 2,348
INCOME TAX EXPENSE ............................. 808 766
----------- ------------
NET INCOME ..................................... 1,884 1,582
=========== ============
NET INCOME PER SHARE ........................... $ .18 $ .15
=========== ============
WEIGHTED AVERAGE SHARES OUTSTANDING ............ 10,760,684 10,632,737
=========== ============
The accompanying notes are an integral part of these
consolidated financial statements.
2
<PAGE>
CORE LABORATORIES N.V.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
----------------------------
1997 1996
-------- -------
(UNAUDITED) (UNAUDITED)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income ........................................................................... $ 1,884 $ 1,582
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization .................................................... 1,462 1,137
Adjustment for change in fiscal year of pooled company ........................... -- 77
Gain on sale of fixed assets ..................................................... (5) --
Changes in assets and liabilities:
Decrease (increase) in accounts receivable ....................................... 97 (1,097)
Decrease (increase) in inventories ............................................... (171) 1,017
Increase in prepaid expenses and other ........................................... (263) (133)
Decrease in accounts payable ..................................................... (2,013) (2,733)
Increase (decrease) in accrued payroll ........................................... 283 (642)
Increase in accrued income taxes payable ......................................... 235 347
Increase (decrease) in other accrued expenses .................................... (469) 867
Other ............................................................................ (8) (119)
-------- -------
Net cash provided by operating activities ................................... 1,032 303
-------- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures ................................................................. (2,699) (775)
Proceeds from sale of fixed assets ................................................... 69 --
Acquisition of Scott Pickford plc, net of cash ....................................... (15,017) --
Acquisition of Gulf States Analytical, Inc. .......................................... -- (4,310)
-------- -------
Net cash used in investing activities ............................................ (17,647) (5,085)
-------- -------
CASH FLOWS FROM FINANCING ACTIVITIES:
Payments on long-term debt ........................................................... (2,018) (6,565)
Borrowings under long-term debt ...................................................... 17,637 9,900
Decrease in short-term debt .......................................................... -- (190)
Exercise of stock options ............................................................ 35 --
Other ................................................................................ -- (17)
-------- -------
Net cash provided by financing activities ........................................ 15,564 3,128
-------- -------
NET CHANGE IN CASH ........................................................................ (1,051) (1,654)
CASH, beginning of period ................................................................. 2,935 4,940
-------- -------
CASH, end of period ....................................................................... $ 1,884 $ 3,286
======== =======
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
3
<PAGE>
CORE LABORATORIES N.V.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES
The accompanying unaudited consolidated financial statements include the
accounts of Core Laboratories N.V. and its subsidiaries (the "Company"), and
have been prepared in accordance with United States generally accepted
accounting principles for interim financial information and with the
instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do
not include all of the information and footnotes required by generally accepted
accounting principles for complete financial statements. In the opinion of
management, all adjustments considered necessary for a fair presentation have
been included. Operating results for the three month period ended March 31, 1997
are not necessarily indicative of the results that may be expected for the year
ending December 31, 1997. Balance sheet information as of December 31, 1996, has
been taken from the 1996 annual audited financial statements. For further
information, reference is made to the consolidated financial statements and
footnotes thereto included in the Company's Form 10-K filed with the Securities
and Exchange Commission on March 27, 1997.
On December 31, 1996, Core Laboratories N.V. completed the acquisition of
ProTechnics Company ("ProTechnics"). The acquisition was accounted for as a
pooling of interests; accordingly, the accompanying consolidated financial
statements have been restated to include the results of ProTechnics for all
periods presented.
Net income per share is calculated by dividing net income by the weighted
average number of common shares and common share equivalents outstanding during
the periods presented. Fully diluted income per share is equal to primary income
per share in all periods presented.
In February, 1997, the Financial Accounting Standards Board issued SFAS No.
128 "Earnings Per Share", revising the methodology to be used in computing
earnings per share ("EPS") requiring that the computations required for primary
and fully diluted EPS are replaced with "basic" and "diluted" EPS. The Company
will adopt SFAS No. 128 effective December 31, 1997 and will restate EPS for all
periods presented. The Company anticipates that the amount reported for basic
EPS for the three month period ending March 31, 1997 will be unchanged.
2. ACQUISITIONS
SCOTT PICKFORD ACQUISITION
On March 1, 1997, the Company acquired the control of a majority of the
outstanding shares of Scott Pickford plc. The Company is in the process of
acquiring the remaining shares and expects that the total consideration paid for
Scott Pickford plc will total approximately $15,100,000. Scott Pickford
4
<PAGE>
plc and its subsidiaries ("Scott Pickford") provide petroleum reservoir
management, geoscience services, and engineering products to its customers.
Scott Pickford reported revenues of $13,223,000, $13,319,000 and $7,545,000 for
its fiscal years ended March 31, 1996, 1995, and 1994, respectively. The
acquisition was financed through borrowings, accounted for using the purchase
method of accounting and resulted in approximately $11,000,000 of goodwill which
is being amortized over a forty year period. Scott Pickford's results of
operations will be included with those of the Company beginning March 1, 1997.
Management has completed and recorded in the accompanying financial
statements a preliminary purchase price allocation for the Scott Pickford
acquisition. However, as additional information concerning the value of the
assets acquired and liabilities assumed becomes known additional adjustments
will be made to the purchase price allocation related to the Scott Pickford
acquisition included in the accompanying financial statements.
SUBSEQUENT EVENT
SAYBOLT INTERNATIONAL B.V. ACQUISITION
On May 12, 1997 the Company consummated the acquisition of Saybolt
International B.V. for $67 million in cash and the assumption of approximately
$5 million of net debt. Saybolt International B.V. and its subsidiaries
("Saybolt") provide analytical and field services to characterize and test crude
oil and petroleum products to the oil industry. Saybolt operates in over 40
countries and has approximately 1,650 employees. Saybolt reported revenues of
$105,358,000, $97,803,000 and $90,258,000 in 1996, 1995, and 1994, respectively.
The transaction was accounted for under the purchase method and financed using
additional bank borrowings.
3. INVENTORIES
Inventories are primarily items held for sales or services provided to
customers. Inventories are stated at the lower of average cost (includes direct
material, labor and overhead) or estimated realizable value. A summary of
inventories is as follows (in thousands):
MARCH 31, DECEMBER 31,
1997 1996
------- ------
(UNAUDITED) (AUDITED)
Parts and materials ......................... $ 4,024 $4,011
Work in process ............................. 6,715 5,461
------- ------
Total .............................. $10,739 $9,472
======= ======
5
<PAGE>
4. LONG-TERM DEBT
Long-term debt at March 31, 1997 and December 31, 1996 is summarized in the
following table (in thousands):
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1997 1996
----------- -----------
(UNAUDITED) (AUDITED)
<S> <C> <C>
Amended Unsecured Credit Agreement with a bank group:
$14,000 term loan facility.............................................. $ 8,750 $ 9,375
$10,000 revolving credit facility....................................... 2,500 --
$20,000 acquisition credit facility..................................... 5,100 5,440
Consideration payable for Scott Pickford plc 15,150 --
$980 term loan.............................................................. 874 --
$1,250 revolving credit facility............................................ -- 400
$850 term loan facility..................................................... -- 722
Other notes payable......................................................... 845 87
----------- -----------
Total debt ........................................................ 33,219 16,024
Less-- current maturities............................................... 4,346 4,430
----------- -----------
Total long-term debt........................................... $ 28,873 $ 11,594
=========== ===========
</TABLE>
In February 1997, the Company entered into an amended credit agreement
with a bank group. The amended agreement increased the revolving credit facility
limit from $7.5 million to $10.0 million and increased the acquisition credit
facility from $15.0 million to $20.0 million. The revolving credit facility is
payable on September 30, 2001. Quarterly principal installments of $625,000 on
the term loan facility are required with a maturity of September 30, 2000. The
acquisition credit facility requires payments of principal in equal installments
with a final maturity of September 30, 2003. The borrowings under the amended
credit agreement generally bear interest from LIBOR plus 0.75% up to a maximum
rate of LIBOR plus 1.50%, depending on satisfaction of certain financial
covenants.
Scott Pickford also has a 10 year term loan of $980,000. Interest is
calculated at 1.5% above the base rate, as defined in the loan agreement.
Principal is payable in monthly installments of $41,000 maturing February 2004.
The $1.3 million revolving credit facility and the $850,000 term loan
entered into by ProTechnics were paid in full on January 31, 1997 and canceled.
On May 12, 1997 the Company replaced the amended credit agreement with new
financing obtained in connection with the Saybolt acquisition.
6
<PAGE>
CORE LABORATORIES N.V.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
The Company is one of the leading providers of petroleum reservoir
description and field management services. The Company's services include
reservoir rock and fluids laboratory analyses; field services to evaluate the
effectiveness of well completions, stimulations and enhanced oil recovery
projects; and geological and geophysical engineering. In addition, the Company
manufactures and sells petroleum reservoir rock and fluid analysis
instrumentation and other integrated systems. As of March 31, Core Laboratories
operated 61 facilities in 16 countries and had approximately 1,360 employees.
Certain matters discussed herein may contain forward-looking statements
that are subject to risks and uncertainties. Such risks and uncertainties
include, but are not limited to, the following: the continued expansion of
Technology Services is dependent upon the Company's ability to continue to
develop new and useful technology; the improvement of margins is subject to the
risk that anticipated synergies of existing and recently acquired businesses and
future acquisitions will not be realized; the Company's dependence on one
industry segment, oil and gas; the risks and uncertainties attendant to adverse
economic and financial market conditions, including stock prices, interest rates
and credit availability; and competition in the Company's markets. Should one or
more of these risks or uncertainties materialize and should any of the
underlying assumptions prove incorrect, actual results of current and future
operations may vary materially from those anticipated.
RECENT DEVELOPMENTS
SCOTT PICKFORD ACQUISITION
On March 1, 1997, the Company acquired the control of a majority of the
outstanding shares of Scott Pickford plc. The Company is in the process of
acquiring the remaining shares and expects that the total consideration paid for
Scott Pickford plc will total approximately $15,100,000. Scott Pickford plc and
its subsidiaries ("Scott Pickford") provide petroleum reservoir management,
geoscience services, and engineering products to its customers. Scott Pickford
reported revenues of $13,223,000, $13,319,000 and $7,545,000 for its fiscal
years ended March 31, 1996, 1995, and 1994, respectively. The acquisition was
financed through borrowings, accounted for using the purchase method of
accounting and resulted in approximately $11,000,000 of goodwill which is being
amortized over a forty year period. Scott Pickford's results of operations will
be included with those of the Company beginning March 1, 1997.
Management has completed and recorded in the accompanying financial
statements a preliminary purchase price allocation for the Scott Pickford
acquisition. However, as additional information concerning the value of the
assets acquired and liabilities assumed becomes known additional
7
<PAGE>
adjustments will be made to the purchase price allocation related to the Scott
Pickford acquisition included in the accompanying financial statements.
SAYBOLT INTERNATIONAL B.V. ACQUISITION
On May 12, 1997 the Company consummated the acquisition of Saybolt
International B.V. for $67 million in cash and the assumption of approximately
$5 million of net debt. Saybolt International B.V. and its subsidiaries
("Saybolt") provide analytical and field services to characterize and test crude
oil and petroleum products to the oil industry. Saybolt operates in over 40
countries and has approximately 1,650 employees. Saybolt reported revenues of
$105,358,000, $97,803,000 and $90,258,000 in 1996, 1995, and 1994, respectively.
The transaction was accounted for under the purchase method and financed using
additional bank borrowings.
RESULTS OF OPERATIONS
The following table sets forth certain percentage relationships based on
the Company's income statements for the periods indicated:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
------------------------------------------
PERCENTAGE OF
TOTAL REVENUE
------------------------- % INCREASE
1997 1996 (DECREASE)
------- ------- ----------
<S> <C> <C> <C>
Services ....................................................... 82.7 73.0 19.5
Sales ......................................................... 17.3 27.0 (32.6)
------ -------
100.0 100.0 5.4
Operating expenses:
Cost of services .......................................... 65.1 59.1 16.1
Cost of sales ............................................ 14.4 22.3 (31.8)
General and administrative expenses 3.8 3.7 10.1
Depreciation and amortization.............................. 5.4 4.5 28.6
Other income, net.......................................... .2 (.4) *
------ -------
88.9 89.2 5.1
Income before interest expense and income tax expense 11.1 10.8 8.2
Interest expense................................................ 1.1 1.6 29.1
------ -------
Income before income tax expense................................ 10.0 9.2 14.7
Income tax expense.............................................. 3.0 3.0 5.5
------ -------
Net income...................................................... 7.0 6.2 19.1
====== =======
</TABLE>
* Percentage not meaningful.
Service revenue for three months ended March 31, 1997 increased 19.5% to
$22.2 million compared to the corresponding period of 1996. The increase in
service revenue primarily resulted from increased sales from ZeroWash(R)tracer
and SpectraScan(R)well completion technologies, in addition to the increase in
reservoir description and management services provided by Scott Pickford.
8
<PAGE>
Sales revenue for the three month period ended March 31, 1997 decreased
32.6% or $2.2 million over the same period of the prior year. The decrease
reflected lower revenues from process analyzer systems recognized in the current
period.
Cost of services as a percentage of services revenue for the quarter ended
March 31, 1997 was 79% compared to 81% a year ago. The improvement was primarily
related to improved operating efficiencies.
Cost of sales as a percentage of sales revenue for three months ended March
31, 1997 was unchanged at 83% as compared to the corresponding period in 1996.
General and administrative expenses for the quarter ended March 31, 1997
increased $0.1 million as compared to the corresponding period in 1996. The
increase was primarily due to increased personnel costs due to the Company's
growth. The Company's ongoing program to maintain tight controls over expenses
has resulted in maintaining general and administrative expenses as a percentage
of sales under 4%.
Depreciation and amortization expense for the three month period ended
March 31, 1997 increased 28.6% as compared to a year ago, primarily due to
capital expenditures for new equipment and the acquisition of Scott Pickford.
Interest expense for the quarter ended March 31, 1997 decreased $0.1
million as compared to 1996. The decrease was primarily due to the principal
repayments of outstanding debt during the prior twelve months.
The Company's effective income tax rate was approximately 30.0% for the
three months ended March 31, 1997 as compared to 32.0% for three months ended
March 31, 1996.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary capital requirements are for working capital,
capital expenditures and acquisitions. For the three month period ended March
31, 1997 the Company had operating cash flow of $1.0 million as compared to $0.3
million for the corresponding period in 1996. Management believes the Company's
internal and external sources of cash will provide the necessary funds with
which to meet its expected obligations.
In February 1997, the Company entered into an amended credit agreement
with a bank group. The amended agreement increased the revolving credit facility
limit from $7.5 million to $10.0 million and increased the acquisition credit
facility from $15.0 million to $20.0 million. The revolving credit facility is
payable on September 30, 2001. Quarterly principal installments of $625,000 on
the term loan facility are required with a maturity of September 30, 2000. The
acquisition credit facility requires payments of principal in equal installments
with a final maturity of September 30, 2003. The borrowings under the amended
credit agreement generally bear interest from LIBOR plus 0.75% up to a maximum
rate of LIBOR plus 1.50%, depending on satisfaction of certain financial
covenants.
9
<PAGE>
Scott Pickford also has a 10 year term loan of $980,000. Interest is
calculated at 1.5% above the base rate, as defined in the loan agreement.
Principal is payable in monthly installments of $41,000 maturing February 2004.
The $1.3 million revolving credit facility and the $850,000 term loan
entered into by ProTechnics were paid in full on January 31, 1997 and canceled.
On May 12, 1997 the Company replaced the amended credit agreement with new
financing obtained in connection with the Saybolt acquisition.
10
<PAGE>
CORE LABORATORIES N.V.
PART II -- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
The Company may from time to time be subject to legal proceedings and
claims which arise in the ordinary course of its business. Management believes
that the outcome of these legal actions will not have a material adverse effect
upon the consolidated financial position or future results of operations of the
Company.
ITEM 2. CHANGES IN SECURITIES.
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
None.
ITEM 5. OTHER INFORMATION.
On May 12, 1997, the Company consummated the acquisition of Saybolt
International B.V. for $67 million in cash and the asumption of approximately $5
million of net debt. Saybolt International B.V., and its subsidiaries
("Saybolt") provide analytical and field services to characterize and test crude
oil and petroleum products to the oil industry. Saybolt operates in over 40
countries and has approximately 1,650 employees. Saybolt reported revenues of
$105,358,000, $97,803,000 and $90,258,000 in 1996, 1995 and 1994, respectively.
The transaction was accounted for under the purchase method and financed using
additional borrowings. Accordingly, due to the acquisition exceeding 20% of the
Company's assets at December 31, 1996, as required in Rule 3-05 of Regulation
S-X, the Company will file within 60 days certain required financial statements,
proforma information and exhibits.
11
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits.
INCORPORATED BY
REFERENCE FROM THE
EXHIBIT NO. EXHIBIT TITLE FOLLOWING DOCUMENTS
10.1 Amended and Restated Credit Agreement among Core Filed Herewith
Laboratories, Inc. and NationsBank of Texas, N.A,
dated as of February 7, 1997
27.1 Financial Data Schedule Filed Herewith
(b) Reports on Form 8-K.
None
12
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant, Core Laboratories N.V., has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
CORE LABORATORIES N.V.
by: Core Laboratories International B.V.
Dated: May 15, 1997 By:/S/ RICHARD L. BERGMARK
Richard L. Bergmark
Chief Financial Officer and Treasurer
(Principal Financial Officer and
Chief Accounting Officer)
13
AMENDED AND RESTATED CREDIT AGREEMENT
Among
CORE LABORATORIES, INC.
as Borrower,
THE FINANCIAL INSTITUTIONS
NAMED IN THIS CREDIT AGREEMENT
as Banks,
and
NATIONSBANK OF TEXAS, N.A.,
as Agent for the Banks
$10,000,000 Revolving Loan Facility
$14,000,000 Term Loan Facility
$20,000,000 Acquisition Loan Facility
February 7, 1997
<PAGE>
PAGE
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS...........................1
1.1 Certain Defined Terms......................................1
1.2 Computation of Time Periods...............................18
1.3 Accounting Terms; Preparation of Financials...............18
1.4 Types and Classes.........................................19
1.5 Interpretation............................................19
ARTICLE 2. CREDIT FACILITIES.........................................19
2.1 Revolving Loan Facility...................................19
2.2 Term Loan Facility........................................22
2.3 Acquisition Loan Facility.................................23
2.4 Letter of Credit Facility.................................27
2.5 Fees......................................................30
2.6 Interest..................................................31
2.7 Breakage Costs............................................34
2.8 Increased Costs...........................................34
2.9 Illegality................................................35
2.10 Market Failure............................................36
2.11 Payment Procedures and Computations.......................36
2.12 Taxes.....................................................38
ARTICLE 3. CONDITIONS PRECEDENT......................................39
3.1 Conditions Precedent to Effectiveness.....................39
3.2 Conditions Precedent to Each Extension of Credit..........39
ARTICLE 4. REPRESENTATIONS AND WARRANTIES............................40
4.1 Organization..............................................40
4.2 Authorization.............................................41
4.3 Enforceability............................................41
4.4 Absence of Conflicts and Approvals........................41
4.5 Investment Companies......................................41
4.6 Public Utilities..........................................41
4.7 Financial Condition.......................................41
-i-
<PAGE>
PAGE
4.8 Condition of Assets.......................................42
4.9 Litigation................................................42
4.10 Subsidiaries..............................................43
4.11 Laws and Regulations......................................43
4.12 Environmental Compliance..................................43
4.13 ERISA.....................................................43
4.14 Taxes.....................................................43
4.15 True and Complete Disclosure..............................44
ARTICLE 5. COVENANTS.................................................44
5.1 Organization..............................................44
5.2 Reporting.................................................44
5.3 Inspection................................................46
5.4 Use of Proceeds...........................................46
5.5 Financial Covenants.......................................46
5.6 Debt......................................................48
5.7 Liens.....................................................48
5.8 Derivatives...............................................48
5.9 Corporate Transactions....................................48
5.10 Distributions.............................................49
5.11 Transactions with Affiliates..............................50
5.12 Insurance.................................................50
5.13 Investments; Acquisitions.................................50
5.14 Lines of Business; Distribution...........................51
5.15 Compliance with Laws......................................51
5.16 Environmental Compliance..................................51
5.17 ERISA Compliance..........................................52
5.18 Payment of Certain Claims.................................52
5.19 Subsidiaries..............................................52
ARTICLE 6. DEFAULT AND REMEDIES......................................53
6.1 Events of Default.........................................53
6.2 Termination of Commitments................................54
6.3 Acceleration of Credit Obligations........................54
6.4 Cash Collateralization of Letters of Credit...............55
6.5 Default Interest..........................................55
6.6 Right of Setoff...........................................55
6.7 Actions Under Credit Documents............................55
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<PAGE>
PAGE
6.8 Remedies Cumulative.......................................55
6.9 Application of Payments...................................56
ARTICLE 7. THE AGENT AND THE ISSUING BANK............................56
7.1 Authorization and Action..................................56
7.2 Reliance, Etc.............................................57
7.3 Affiliates................................................57
7.4 Bank Credit Decision......................................58
7.5 Expenses..................................................58
7.6 Indemnification...........................................58
7.7 Successor Agent and Issuing Bank..........................59
ARTICLE 8. MISCELLANEOUS.............................................59
8.1 Expenses..................................................59
8.2 Indemnification...........................................60
8.3 Modifications, Waivers, and Consents......................60
8.4 Survival of Agreements....................................60
8.5 Assignment and Participation..............................61
8.6 Notice....................................................63
8.7 Choice of Law.............................................63
8.8 Forum Selection...........................................63
8.9 Service of Process........................................64
8.10 Waiver of Jury Trial......................................64
8.11 Confidentiality...........................................64
8.12 Amendment and Restatement.................................64
8.13 Counterparts..............................................65
8.14 No Further Agreements.....................................66
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<PAGE>
PAGE
EXHIBITS
Exhibit A - Form of Compliance Certificate
Exhibit B - Form of Borrowing Request
Exhibit C - Form of Continuation/Conversion Request
Exhibit D-1 - Form of Revolving Loan Note
Exhibit D-2 - Form of Acquisition Loan Note
Exhibit D-3 - Form of Term Loan Note
Exhibit E - Form of Assignment and Acceptance
Exhibit F - Closing Documents List
SCHEDULES
Schedule I - Administrative Information
Schedule II - Disclosures
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<PAGE>
CREDIT AGREEMENT
This Amended and Restated Credit Agreement dated as of February 7, 1997,
is among Core Laboratories, Inc., a Delaware corporation, as Borrower, the
financial institutions named herein, as Banks, and NationsBank of Texas, N.A.,
as Agent for the Banks.
The parties hereto agree as follows:
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS.
1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings (unless otherwise indicated, such meanings to
be equally applicable to both the singular and plural forms of the terms
defined):
"ACQUISITION" means the direct or indirect purchase or acquisition,
whether in one or more related transactions, of any Person or group of Persons
or any related group of assets, liabilities, or securities of any Person or
group of Persons.
"ACQUISITION LOAN" means, with respect to any Acquisition Loan Borrowing,
the aggregate outstanding principal amount of such Acquisition Loan Borrowing.
"ACQUISITION LOAN ADVANCE" means the outstanding principal from a Bank
which represents such Bank's ratable share of an Acquisition Loan Borrowing.
"ACQUISITION LOAN BORROWING" means (a) any Guidance Loan Borrowing under
the Prior Version of this Agreement that remains outstanding upon the
effectiveness of this Agreement and (b) any aggregate amount of principal
advanced on the same day and pursuant to the same Borrowing Request under the
revolving acquisition facility created in Section 2.3.
"ACQUISITION LOAN COMMITMENT" means, for any Bank, the amount set forth
below such Bank's name on the signature pages hereof as its Acquisition Loan
Commitment, or if such Bank has entered into any Assignment and Acceptance, as
set forth for such Bank as its Acquisition Loan Commitment in the Register
maintained by the Agent pursuant to Section 8.5(c), as such amount may be
terminated under Section 6.2.
"ACQUISITION LOAN COMMITMENT TERMINATION DATE" means September 30, 1998.
"ACQUISITION LOAN MATURITY DATE" means, with respect to each Acquisition
Loan Borrowing, the final maturity of such Borrowing as set forth in the
Acquisition Loan Notes
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executed in connection with such Acquisition Loan Borrowing, but in no event
later than September 30, 2003.
"ACQUISITION LOAN NOTES" means (a) the $3,400,000 Guidance Loan Note dated
as of January 12, 1996, made by the Borrower and payable to the order of
NationsBank and the $3,400,000 Guidance Loan Note dated as of January 12, 1996,
made by the Borrower and payable to the order of Bank of America Texas, N.A.,
which Guidance Loan Notes were issued under the Prior Version of this Agreement
and remain in effect under this version of this Agreement (but are redefined and
treated as Acquisition Loan Notes hereunder) and (b) any other promissory note
of the Borrower payable to the order of a Bank, in substantially the form as the
attached EXHIBIT D-2, evidencing the indebtedness of the Borrower to such Bank
resulting from the Acquisition Loan Advance made by such Bank to the Borrower in
connection with any Acquisition Loan Borrowing.
"ADJUSTED PRIME RATE" means, for any day, the fluctuating per annum
interest rate equal to the greater of (a) the Prime Rate in effect on such day
and (b) the Federal Funds Rate in effect on such day plus 0.50%.
"ADVANCE" means any Revolving Loan Advance, Acquisition Loan Advance, or
Term Loan Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person or any Subsidiary of such Person. The
term "control" (including the terms "controlled by" or "under common control
with") means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through
ownership, by contract, or otherwise.
"AGENT" means NationsBank in its capacity as an agent pursuant to Article
7 and any successor agent pursuant to Section 7.7.
"AGREEMENT" means this Amended and Restated Credit Agreement.
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<PAGE>
"APPLICABLE INTEREST MARGIN" means, for any LIBOR Tranche or Prime Rate
Tranche and as of any date of its determination, an amount equal to the
percentage amount set forth in the table below opposite the applicable ratio of
(a) the consolidated Funded Debt of the Parent as of the end of the fiscal
quarter then most recently ended (as adjusted to reflect the effects of any
Acquisitions as set forth below) to (b) the consolidated EBITDA of the Parent
for the preceding four fiscal quarters then most recently ended (as adjusted to
reflect the effects of any Acquisitions as set forth below).
<TABLE>
<CAPTION>
FUNDED DEBT TO APPLICABLE INTEREST MARGIN APPLICABLE INTEREST MARGIN
EBITDA LIBOR TRANCHES PRIME TRANCHES
<S> <C> <C>
(less than or equal to) 1.00 0.75% 0.00%
(greater than) 1.00 but (less than or equal to) 1.25 1.00% 0.00%
(greater than) 1.25 but (less than or equal to) 1.75 1.25% 0.00%
(greater than) 1.75 1.50% 0.00%
</TABLE>
The Agent shall determine the Applicable Interest Margin on a quarterly basis
based upon the most recent financial statements dated as of the end of a fiscal
quarter delivered to the Agent pursuant to Section 5.2(b) (subject to revisions
in subsequent periods based upon the audited financial statements delivered
pursuant to Section 5.2(a), and further subject to adjustments for the effect of
Acquisitions in accordance with Section 5.5(b)(iii)). Any adjustments to the
Applicable Interest Margin shall become effective three Business Days following
the date of delivery of such financial statements to the Agent; provided,
however, that if such financial statements are not delivered when required
hereunder, the Applicable Interest Margin shall increase to the maximum
percentage amount set forth in the table above from the date when such financial
statements were required to be delivered to the Agent hereunder until received
by the Agent.
In addition to the foregoing determinations, in the event there shall occur any
Acquisition since the date the Applicable Interest Margin was last determined as
set forth above, the Agent shall following the Acquisition make an interim
redetermination of the Applicable Interest Margin reflecting the effect of the
Acquisition. Any such adjustment to the Applicable Interest Margin shall become
effective on the effective date of the Acquisition.
Upon any change in the Applicable Interest Margin, the Agent shall promptly
notify the Borrower and the Banks of the new Applicable Interest Margin.
"APPLICABLE LENDING OFFICE" means, with respect to each Bank and for any
particular type of transaction, the office of such Bank set forth in SCHEDULE I
to this Agreement (or in the applicable Assignment and Acceptance by which such
Bank joined this Agreement) as its applicable lending office for such type of
transaction or such other office of such Bank as such Bank may from time to time
specify in writing to the Borrower and the Agent for such particular type of
transaction.
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<PAGE>
"APPLICABLE PAYMENT OFFICE" means, with respect to the Agent and for any
particular type of transaction, the office of the Agent set forth in SCHEDULE I
to this Agreement as its applicable payment office for such type of transaction
or such other office of the Agent as the Agent may from time to time specify to
the Borrower for such particular type of transaction.
"BANKS" means the lenders listed on the signature pages of this Agreement
and each Eligible Assignee that shall become a party to this Agreement pursuant
to Section 8.5(b).
"BORROWER" means Core Laboratories, Inc., a Delaware corporation.
"BORROWER ACCOUNT" means the principal operating account of Borrower with
the Agent or any other account of Borrower with the Agent which is designated as
Borrower's "Borrower Account" in writing by the Borrower.
"BORROWING" means any Revolving Loan Borrowing, Acquisition Loan
Borrowing, or the Term Loan.
"BORROWING REQUEST" means a Borrowing Request in substantially the form of
EXHIBIT B executed by a Responsible Officer of the Borrower and delivered to the
Agent.
"BUSINESS DAY" means any Monday through Friday during which commercial
banks are open for business in Houston, Texas, Dallas, Texas, and, if the
applicable Business Day relates to any LIBOR Tranche, on which dealings are
carried on in the London interbank market.
"CAPITAL LEASES" means, for any Person, any lease of any property by such
Person which would, in accordance with generally accepted accounting principles,
be required to be classified and accounted for as a capital lease on the balance
sheet of such Person.
"CHANGE OF CONTROL" means:
(a) with respect to the Parent, if the current shareholders of the
Parent cease to have (i) beneficial ownership of 51% or more of the issued
and outstanding Voting Securities of the Parent or (ii) the power to
elect, appoint, or cause the election or appointment of at least a
majority of the members of the board of directors of the Parent; and
(b) with respect to the Borrower, if the Parent or Affiliates of the
Parent cease to have (i) beneficial ownership of 100% of the issued and
outstanding Voting Securities of the Borrower or (ii) the power to elect,
appoint, or cause the election or appointment of all of the board of
directors of the Borrower.
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<PAGE>
"CLASS" means has the meaning specified in Section 1.4.
"CODE" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
"COMMITMENTS" means the Revolving Loan Commitments, the Acquisition Loan
Commitments, and the Term Loan Commitments.
"COMMONLY CONTROLLED ENTITY" means, with respect to any Person, any other
Person which is under common control with such Person within the meaning of
Section 414 of the Code.
"COMPLIANCE CERTIFICATE" means a compliance certificate executed by a
Responsible Officer of the Borrower in substantially the form of EXHIBIT A.
"CONTINUATION/CONVERSION REQUEST" means a Continuation/Conversion Request
in substantially the form of EXHIBIT C executed by a Responsible Officer of the
Borrower and delivered to the Agent.
"CREDIT DOCUMENTS" means this Agreement, the Notes, the Letter of Credit
Documents, the Guaranties, and each other agreement, instrument, or document
executed at any time in connection with this Agreement.
"CREDIT OBLIGATIONS" means all principal, interest, fees, reimbursements,
indemnifications, and other amounts now or hereafter owed by the Borrower to the
Agent and/or the Banks under this Agreement, the Notes, the Letter of Credit
Documents, and the other Credit Documents and any increases, extensions, and
rearrangements of those obligations under any amendments, supplements, and other
modifications of the documents and agreements creating those obligations.
"CREDIT PARTIES" means the Borrower and the Guarantors.
"DEBT" means, with respect to any Person and as of any date of its
determination, without duplication (a) indebtedness of such Person for borrowed
money, (b) obligations of such Person evidenced by notes, bonds, debentures, or
other similar instruments, (c) obligations of such Person as lessee under
Capital Leases, (d) obligations of such Person to pay the deferred purchase
price of property or services, (e) obligations of such Person under or relating
to letters of credit, guaranties, note purchase agreements, investment
agreements, and other obligations of such Person which support the repayment of
the types of indebtedness and obligations of others referred to in parts (a)
through (d) of this definition, and (f) nonrecourse indebtedness or obligations
of others of the kinds referred to in parts (a) through (e) of this definition
secured by any Lien on or in respect of any property of such
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<PAGE>
Person. For the purposes of determining the amount of any Debt, the amount of
any Debt described in clause (e) of the definition of Debt shall be valued at
the full amount of the contingent liability thereunder and the amount of any
Debt described in clause (f) shall be valued at the lesser of the amount of the
Debt secured or the value of the property securing such Debt.
"DEFAULT" means (a) an Event of Default or (b) any event or condition
which with notice or lapse of time or both would, unless cured or waived, become
an Event of Default.
"DEFAULT RATE" means, with respect to any amount due hereunder, a per
annum interest rate equal to (a) if such amount is either outstanding principal
accruing interest based upon a rate established elsewhere in this Agreement or
accrued but unpaid interest thereon, the sum of (i) the interest rate
established elsewhere in this Agreement from time to time for such principal
amount, including any applicable margin, plus (ii) 3.00% per annum or (b) in all
other cases, the Adjusted Prime Rate in effect from time to time plus the
Applicable Interest Margin in effect from time to time plus 3.00% per annum.
"DERIVATIVES" means any swap, hedge, cap, collar, or similar arrangement
providing for the exchange of risks related to price changes in any commodity,
including money.
"DOLLARS OR $" means lawful money of the United States of America.
"EBITDA" means, with respect to any Person and for any period of its
determination, the consolidated net income of such Person for such period, plus
the consolidated interest expense, taxes, and depreciation and amortization of
such Person for such period.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ELIGIBLE ASSIGNEE" means, with respect to any assignment hereunder at the
time of such assignment, any commercial bank organized under the laws of the
United States or any of the countries parties to the Organization for Economic
Cooperation and Development or any political subdivision of any thereof which
has primary capital (or its equivalent) of not less than $500,000,000, is
approved by the Agent, and, so long as no Event of Default exists, is approved
by the Borrower.
"ENVIRONMENTAL LAW" means all federal, state, and local laws, rules,
regulations, ordinances, orders, decisions, agreements, and other requirements
now or hereafter in effect relating to the pollution, destruction, loss, or
injury of the environment, the presence of any contaminant in the environment,
the protection, cleanup, remediation, or restoration of the environment, the
creation, handling, transportation, use, or disposal of any waste product in the
environment, exposure of persons to any contaminant, waste, or hazardous
substance in the environment, and the health and safety of employees in relation
to their environment.
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<PAGE>
"EVENT OF DEFAULT" has the meaning specified in Section 6.1.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating per annum
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for any such day on
such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System or any of its successors.
"FINANCIAL STATEMENTS" means the audited financial statements of the
Parent referred to in Section 4.7(a).
"FUNDED DEBT" means, with respect to any Person and as of any date of its
determination, without duplication (a) indebtedness of such Person for borrowed
money, (b) obligations of such Person evidenced by notes, bonds, debentures, or
other similar instruments, (c) obligations of such Person as lessee under
Capital Leases, and (d) obligations of such Person to pay the deferred purchase
price of property or services, other than Debt in the form of accounts payable
to trade creditors and current operating liabilities incurred in the ordinary
course of business.
"GUARANTIES" means (a) the Guaranty dated as of February 7, 1997, made by
the Parent in favor of the Agent for the benefit of the Agent and the ratable
benefit of the Banks, guaranteeing payment of the Credit Obligations, (b) the
Guaranty dated as of February 7, 1997, made by ProTechnics in favor of the Agent
for the benefit of the Agent and the ratable benefit of the Banks, guaranteeing
payment of the Credit Obligations, and (c) any other present or future
guaranties of any Credit Obligations, including any executed and delivered
pursuant to Section 5.19.
"GUARANTORS" means (a) the Parent, (b) ProTechnics, and (c) any other
Person that executes a Guaranty.
"HAZARDOUS MATERIALS" means any substance or material identified as a
hazardous substance pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended and as now or hereafter in
effect; any substance or material regulated as a hazardous waste pursuant to the
Resource Conservation and Recovery Act of 1976, as amended and as now or
hereafter in effect; and any substance or material designated as a hazardous
substance or hazardous waste pursuant to any Environmental Law.
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<PAGE>
"HIGHEST LAWFUL RATE" means the maximum lawful interest rate, if any, that
at any time or from time to time may be contracted for, charged, or received
under the laws applicable to the relevant Bank which are presently in effect or,
to the extent allowed by law, under such applicable laws which may hereafter be
in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow. The maximum lawful rate under this Agreement shall be
the weekly indicated rate ceiling under Article 5069-1.04 of the Texas Revised
Civil Statutes, unless any other lawful rate ceiling exceeds the rate ceiling so
determined, and then the higher rate ceiling shall apply.
"INTANGIBLE ASSETS" means, with respect to any Person and as of any date
of its determination, the goodwill, patents, trade names, trade marks,
copyrights, franchises, experimental expense, organization expense, unamortized
debt discount and expense, deferred assets (other than prepaid insurance and
prepaid taxes), the excess of cost of shares acquired over book value of related
assets, and such other assets of such Person as are properly classified as
"intangible assets" in accordance with generally accepted accounting principles.
"INTEREST PERIOD" means, with respect to each LIBOR Tranche, the period
commencing on the date of such LIBOR Tranche and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one, two, three, or six months, in each
case as the Borrower may select in the applicable Borrowing Request or
Continuation/Conversion Request (unless there shall exist any Default or Event
of Default, in which case the Borrower may only select one month Interest
Periods); provided, however, that:
(a) whenever the last day of any Interest Period would otherwise occur on
a day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day; provided that if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day;
(b) any Interest Period which begins on the last Business Day of the
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) shall end on the last
Business Day of the calendar month in which it would have ended if there were a
numerically corresponding day in such calendar month; and
(c) the Borrower may not select an Interest Period for any LIBOR Tranche
under any Loan which ends after any date when outstanding principal amounts of
such Loan must be repaid unless, after giving effect to such selection, the
aggregate outstanding principal amount of Prime Rate Tranches under such Loan
and LIBOR Tranches under such Loan having Interest Periods which end on or
before such repayment date shall be at least equal
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<PAGE>
to or greater than the principal amount of such Loan due and payable on or
before such date (and therefore in no event shall any Interest Period for any
LIBOR Tranche extend beyond the applicable Maturity Date).
"INTERIM FINANCIAL STATEMENTS" means the quarter end financial statements
of the Parent referred to in Section 4.7(b).
"ISSUING BANK" means NationsBank and any successor issuing bank pursuant
to Section 7.7.
"LETTER OF CREDIT" means (a) any commercial or standby letter of credit
issued by the Issuing Bank for the account of a Borrower pursuant to the terms
of this Agreement or (b) any MeesPierson Letter of Credit.
"LETTER OF CREDIT APPLICATION" means the Issuing Bank's standard form
letter of credit application for either a commercial or standby letter of
credit, as the case may be, which has been executed by a Borrower and accepted
by the Issuing Bank in connection with the issuance of a Letter of Credit, or
(b) with respect to MeesPierson Letters of Credit only, the letter of credit
application for standby letter of credit and all amendments thereto executed by
the Borrower and accepted by MeesPierson N.V. in connection with the issuance of
each MeesPierson Letter of Credit.
"LETTER OF CREDIT APPLICATION AMENDMENT" means the Issuing Bank's standard
form application to amend a letter of credit for either a commercial or standby
letter of credit, as the case may be, which has been executed by a Borrower and
accepted by the Issuing Bank in connection with the increase or extension of a
Letter of Credit.
"LETTER OF CREDIT COLLATERAL ACCOUNT" means a special cash collateral
account pledged to the Agent containing cash deposited pursuant to Section 6.4
to be maintained with the Agent in accordance with Section 2.4(g).
"LETTER OF CREDIT DOCUMENTS" means all Letters of Credit, Letter of Credit
Applications, Letter of Credit Application Amendments, and agreements,
documents, and instruments entered into in connection with or relating thereto.
"LETTER OF CREDIT EXPOSURE" means, as of any date of its determination,
the aggregate outstanding undrawn amount of Letters of Credit plus the aggregate
of the reimbursement obligations of the Borrower under the Letter of Credit
Applications and this Agreement.
"LETTER OF CREDIT SUBLIMIT" means $4,000,000.
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"LIBOR" means, for any LIBOR Tranche for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "LIBOR" shall mean, for any LIBOR Tranche for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if more than
one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates.
"LIBOR TRANCHE" shall mean any Tranche which bears interest based upon the
LIBOR, as determined in accordance with Section 2.6
"LIEN" means any mortgage, lien, pledge, charge, deed of trust, security
interest, encumbrance, or other type of preferential arrangement to secure or
provide for the payment of any obligation of any Person, whether arising by
contract, operation of law, or otherwise (including any title retention for such
purposes under any conditional sale agreement, any Capital Lease, or any other
title transfer or retention agreement).
"LOAN" means the Revolving Loan, the Term Loan, or any Acquisition Loan.
"MAJORITY BANKS" means, at any time, Banks holding at least 66-2/3% of the
then aggregate unpaid principal amount of the Notes held by the Banks and the
Letter of Credit Exposure of the Banks at such time; provided that if no such
principal amount or Letter of Credit Exposure is then outstanding, "Majority
Banks" shall mean Banks having at least 66- 2/3% of the aggregate amount of the
Commitments at such time.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, operations, or financial condition of the Parent and the Parent's
Subsidiaries, taken as a whole, since the date of the Financial Statements or
Interim Financial Statements or since the date of this Agreement, including any
change which results or could potentially result in any liability of any
Restricted Entity of $1,000,000 or greater.
"MATURITY DATE" means the Revolving Loan Maturity Date, Acquisition Loan
Maturity Date, or Term Loan Maturity Date, as applicable.
"MEESPIERSON LETTERS OF CREDIT" means the existing letters of credit
described in Exhibit A to letter participation agreement dated October 2, 1995,
between MeesPierson N.V., as seller, and the Issuing Bank, as purchaser.
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"MINIMUM BORROWING AMOUNT" means, with respect to any Revolving Loan
Borrowing, $500,000, with respect to the Term Loan, the amount of the Term Loan,
and with respect to any Acquisition Loan Borrowing, $2,000,000.
"MINIMUM BORROWING MULTIPLE" means $100,000.
"MINIMUM TRANCHE AMOUNT" means, with respect to any Tranche, $500,000.
"MINIMUM TRANCHE MULTIPLE" means $100,000.
"NATIONSBANK" means NationsBank of Texas, N.A., in its individual
capacity.
"NET WORTH" means, with respect to any Person and as of any date of its
determination, the excess of (a) the assets of such Person over (b) the sum of
the liabilities of such Person plus the minority interests in such Person held
by others.
"NOTE" means any Revolving Loan Note, Acquisition Loan Note, or Term Loan
Note.
"PARENT" means Core Laboratories N.V., a Netherlands limited liability
company.
"PBGC" means Pension Benefit Guaranty Corporation or its successor.
"PERMITTED DEBT" means all of the following Debt:
(a) the Credit Obligations;
(b) Debt existing on the date of this Agreement and listed in
SCHEDULE II and any extensions, refinancings, and rearrangements thereof
that do not increase the principal amount thereof or the interest rate
thereof at the time of such extension, refinancing, or rearrangement;
(c) Debt incurred after the date of this Agreement in an aggregate
outstanding amount not to exceed $7,500,000 in the form of (i) Capital
Leases and purchase money indebtedness and (ii) Debt incurred outside of
the United States by the Parent or Subsidiaries of the Parent organized
under a jurisdiction outside of the United States holding substantially
all material assets outside of the United States;
(d) Debt in the form of accounts payable to trade creditors and
current operating liabilities incurred in the ordinary course of business;
(e) Debt in the form of loans or advances made by any Restricted
Entity to any other Restricted Entity provided that with respect to any
such indebtedness of the
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Borrower or any of its Subsidiaries to the Parent or any of its
Subsidiaries (other than the Borrower and its Subsidiaries) such Debt is
subordinated to the payment of the Credit Obligations in a manner
satisfactory to the Agent and all payments made thereon are made in
compliance with Section 5.6(b); and
(f) any other Debt that is expressly approved in writing by the
Majority Banks prior to the incurrence thereof.
"PERMITTED DERIVATIVES" means any Derivative used by any Restricted Entity
in such Person's respective business operations in aggregate notional quantities
not to exceed the reasonably anticipated consumption of such Person of the
underlying commodity for the relevant period, but no Derivatives which are
speculative in nature.
"PERMITTED INVESTMENTS" means all of the following investments:
(a) investments made by any Person in (i) the Borrower, (ii)
Subsidiaries of the Borrower organized under a jurisdiction of the United
States holding substantially all material assets in the United States, and
(iii) Subsidiaries of the Borrower organized solely for the purpose of
acting as qualified foreign sales corporations under the United States
federal income tax code in an aggregate outstanding amount not to exceed
$3,000,000 provided that all such investment is in the form of accrued but
unpaid obligations owed to such Subsidiaries for sales commissions and
that all such investment does not exceed $10,000 for at least one day
during any 24 month period;
(b) (i) investments made by any Person (other than the Borrower or
Subsidiaries of the Borrower organized under a jurisdiction of the United
States holding substantially all material assets in the United States) in
the Parent or Subsidiaries of the Parent organized under a jurisdiction
outside of the United States holding substantially all material assets
outside of the United States and (ii) investments made by the Borrower or
any Subsidiary of the Borrower organized under a jurisdiction of the
United States holding substantially all material assets in the United
States in the Parent or Subsidiaries of the Parent organized under a
jurisdiction outside of the United States holding substantially all
material assets outside of the United States in an aggregate outstanding
amount not to exceed (A) $5,000,000 for investments in the form of unpaid
amounts owed for goods and services sold by such domestic entities to such
foreign entities in the ordinary course of business, (B) the lesser of
$14,700,000 or the amount actually invested by the Parent and its
Subsidiaries for the initial purchase of the equity securities of Scott
Pickford, and (C) $4,000,000 for all other types of investments made by
such domestic entities to such foreign entities;
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(c) investments in the form of loans, guaranties, open accounts, and
other extensions of trade credit in the ordinary course of business;
(d) investments in commercial paper and bankers' acceptances
maturing in twelve months or less from the date of issuance and which, at
the time of acquisition is accorded the highest rating by Standard & Poors
Corporation or Moody's Investors Services, Inc;
(e) investments in direct obligations of the United States, or
investments in any Person which investments are guaranteed by the full
faith and credit of the United States, in either case maturing in twelve
months or less from the date of acquisition thereof and repurchase
agreements having a term of less than one year and fully collateralized by
such obligations which are entered into with banks or trust companies
described in clause (g) below or brokerage companies having net worth in
excess of $500,000,000;
(f) investments in direct obligations of any country party to the
Organization for Economic Cooperation and Development ("Permitted Foreign
Countries") (or central banks thereof) in any case maturing in twelve
months or less from the date of acquisition thereof and repurchase
agreements having a term of less than one year relating to and fully
collateralized by such obligations, which repurchase agreements are
entered into with banks or trust companies described in clauses (g) or (h)
below or brokerage companies having a net worth in excess of $500,000,000;
(g) investments in time deposits or certificates of deposit maturing
within one year from the date such investment is made, issued by a bank or
trust company organized under the laws of the United States or any state
thereof having capital, surplus, and undivided profits aggregating at
least $500,000,000 or a foreign branch thereof and whose long-term
certificates of deposit are, at the time of acquisition thereof, rated A
by Standard & Poor's Corporation or A-2 by Moody's Investors Services,
Inc.;
(h) investments in time deposits or certificates of deposit maturing
within one year from the date such investment is made, issued by a bank or
trust company organized under the laws of any Permitted Foreign Country or
any political subdivision thereof, having capital, surplus, and undivided
profits aggregating at least $500,000,000 and whose holding company's
long-term debt is, at the time of acquisition thereto, rated A by Standard
& Poor's Ratings Group or A-2 by Moody's Investors Services, Inc.;
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(i) investments in money market funds which invest solely in the
types of investments described in paragraphs (d) through (h) above;
(j) investments constituting the payment for or settlement of a
claim owed to the Parent or any Subsidiary of the Parent received by the
Parent or such Subsidiary of the Parent pursuant to a bankruptcy,
reorganization, arrangement, or insolvency proceeding, or other
proceedings for relief under any bankruptcy or similar law or laws for the
relief of debtors; and
(k) investments other than the investments described above in an
aggregate outstanding amount not to exceed $5,000,000.
In valuing any investments for the purpose of applying the limitations set forth
in this Agreement, such investments shall be taken at the original cost thereof
(but without reduction for any subsequent appreciation or depreciation thereof)
less any amount actually repaid or recovered on account of capital or principal
(but without reduction for any offsetting investments made by the investee in
the investor). For purposes of this Agreement, at any time when a corporation
becomes a Subsidiary of the Parent, all investments of such corporation at such
time shall be deemed to have been made by such corporation at such time.
"PERMITTED LIENS" means all of the following Liens:
(a) Liens securing the Credit Obligations;
(b) existing Liens securing specific Debt permitted under clause (b)
of the definition of Permitted Debt and listed in SCHEDULE II, provided
that each such Lien secures only the Debt listed in such Schedule as being
secured by such Lien and each such Lien encumbers only the property
described in such Schedule as being encumbered by such Lien;
(c) (i)Liens securing purchase money debt or Capital Leases
permitted under clause (c)(i) of the definition of Permitted Debt,
provided that each such Lien secures only the purchase money debt or
Capital Lease incurred in connection with the acquisition of the assets
purchased or leased in connection with the incurrence of such purchase
money debt or Capital Lease and each such Lien encumbers only the assets
purchased or leased in connection with the incurrence of such purchase
money debt and (ii) Liens securing Debt permitted under clause (c)(ii) of
the definition of Permitted Debt provided that (A) such Liens secure only
Debt assumed in connection with an Acquisition and encumber only the
property encumbered by such Liens prior to such Acquisition (and such
Liens were not created in contemplation of such
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Acquisition) and (B) such Liens and the notations, filings, and recordings
reflecting such Liens are released within 90 days following the
Acquisition;
(e) Liens arising in the ordinary course of business which are not
incurred in connection with the borrowing of money or the obtaining of
advances or credit and which do not materially detract from the value of
any Restricted Entity's assets or materially interfere with any Restricted
Entity's business, including (i) Liens for taxes, assessments, or other
governmental charges or levies; (ii) Liens in connection with worker's
compensation, unemployment insurance, or other social security, old age
pension, or public liability obligations; (iii) Liens in the form of legal
or equitable encumbrances deemed to exist by reason of negative pledge
covenants and other covenants or undertakings of like nature; (iv) Liens
in the form of vendors', carriers', warehousemen's, repairmen's,
mechanics', workmen's, materialmen's, construction, or other like Liens
arising by operation of law in the ordinary course of business or incident
to the construction or improvement of any property; and (v) Liens in the
form of zoning restrictions, easements, licenses, and other restrictions
on the use of real property or minor irregularities in title thereto which
do not materially impair the use of such property in the operation of the
business of the applicable Restricted Entity or the value of such
property; and
(f) any other Liens approved in writing by the Majority Banks prior
to the creation thereof.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, or other entity, or a government or any political subdivision or agency
thereof, or any trustee, receiver, custodian, or similar official.
"PLAN" means any (a) employee medical benefit plan under Section 3(1) of
ERISA, (b) employee pension benefit plan under Section 3(2) of ERISA, (c)
multiemployer plan under Section 4001(a)(3) of ERISA, and (d) employee account
benefit plan under Section 3(2) of ERISA.
"PRIME RATE" means a fluctuating per annum interest rate in effect from
time to time equal to the rate of interest publicly announced by the Agent as
its prime rate, whether or not the Borrower has notice thereof.
"PRIOR VERSION OF THIS AGREEMENT" means the Credit Agreement dated as of
September 30, 1995, among the Borrower, the Agent, and the Banks named therein.
"PRIME RATE TRANCHE" shall mean any Tranche which bears interest based
upon the Adjusted Prime Rate, as determined in accordance with Section 2.6
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"PROHIBITED TRANSACTION" means any transaction set forth in Section 406 of
ERISA or Section 4975 of the Code.
"PROTECHNICS" means ProTechnics Company, a Nevada corporation.
"RATABLE SHARE" OR "PRO RATA SHARE" means, with respect to any Bank and as
of any date of its determination, either (a) the ratio of such Bank's Commitment
at such time to the aggregate Commitments at such time or (b) if the Commitments
have been terminated, the ratio of such Bank's aggregate outstanding Advances
and share of the Letter of Credit Exposure at such time to the aggregate
outstanding Advances and Letter of Credit Exposure at such time.
"RELATED PARTIES" means, with respect to any Person, such Person's
stockholders, directors, officers, employees, agents, Affiliates, successors,
and assigns, and their respective stockholders, directors, officers, employees,
and agents, and, with respect to any Person that is an individual, such Person's
family relations and heirs.
"REPORTABLE EVENT" means any of the events set forth in Section 4043 of
ERISA.
"RESPONSIBLE OFFICER" means, with respect to any Person, such Person's
Chief Executive Officer, President, Chief Financial Officer, Vice Presidents,
Secretary, and Treasurer.
"RESTRICTED ENTITIES" means the Parent and each Subsidiary of the Parent,
including the Borrower.
"REVOLVING LOAN" means the aggregate outstanding principal amount of the
Revolving Loan Borrowings.
"REVOLVING LOAN ADVANCE" means the outstanding principal from a Bank which
represents such Bank's ratable share of a Revolving Loan Borrowing.
"REVOLVING LOAN BORROWING" means (a) any Revolving Loan Borrowing under
the Prior Version of this Agreement that remains outstanding upon the
effectiveness of this Agreement and (b) any aggregate amount of principal
advanced on the same day and pursuant to the same Borrowing Request under the
revolving loan facility described in Section 2.1.
"REVOLVING LOAN COMMITMENT" means, for any Bank, the amount set forth
below such Bank's name on the signature pages hereof as its Revolving Loan
Commitment, or if such Bank has entered into any Assignment and Acceptance, as
set forth for such Bank as
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its Revolving Loan Commitment in the Register maintained by the Agent pursuant
to Section 8.5(c), as such amount may be terminated Section 6.2.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means September 30, 1998.
"REVOLVING LOAN MATURITY DATE" means September 30, 2001.
"REVOLVING LOAN NOTE" means a promissory note of the Borrower payable to
the order of a Bank, in substantially the form as the attached EXHIBIT D-1,
evidencing the indebtedness of the Borrower to such Bank resulting from
Revolving Loan Advances made by such Bank to the Borrower.
"SCOTT PICKFORD" means Scott Pickford plc, a limited liability company
organized under the laws of England.
"SUBSIDIARY" means, with respect to any Person, any other Person, a
majority of whose outstanding Voting Securities (other than directors'
qualifying shares) shall at any time be owned by such Person or one or more
Subsidiaries of such person.
"TANGIBLE ASSETS" means, with respect to any Person and as of any date of
its determination, the assets of such Person less the Intangible Assets of such
Person.
"TANGIBLE NET WORTH" means, with respect to any Person and as of any date
of its determination, the Net Worth of such Person less the Intangible Assets of
such Person.
"TERM LOAN" means the aggregate outstanding principal amount advanced to
the Borrower as the Term Loan under the Prior Version of this Agreement that
remains outstanding upon the effectiveness of this Agreement under the term loan
facility described in Section 2.2.
"TERM LOAN ADVANCE" means any outstanding advance of principal from a Bank
which represents such Bank's ratable share of the Term Loan.
"TERM LOAN COMMITMENT" means, for any Bank, the amount set forth below
such Bank's name on the signature pages hereof as its Term Loan Commitment, or
if such Bank has entered into any Assignment and Acceptance, as set forth for
such Bank as its Term Loan Commitment in the Register maintained by the Agent
pursuant to Section 8.5(c). The Term Loan was advanced under the Prior Version
of this Agreement and the Term Loan Commitment has expired.
"TERM LOAN MATURITY DATE" means September 30, 2000.
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"TERM LOAN NOTE" means (a) the $7,000,000 Term Loan Note dated as of
November 1, 1995, made by the Borrower and payable to the order of NationsBank
and the $7,000,000 Term Loan Note dated as of November 1, 1995, made by the
Borrower and payable to the order of Bank of America Texas, N.A., which Term
Loan Notes were issued under the Prior Version of this Agreement and remain in
effect under this version of this Agreement and (b) any other promissory note of
the Borrower payable to the order of a Bank, in substantially the form as the
attached EXHIBIT D-3, evidencing the indebtedness of the Borrower to such Bank
resulting from Term Loan Advances made by such Bank to the Borrower.
"TRANCHE" means any tranche of principal outstanding under the same Loan
accruing interest on the same basis whether created in connection with new
advances of principal under such Loan pursuant to Section 2.6(a)(i) or by the
continuation or conversion of existing tranches of principal under such Loan
pursuant to Section 2.6(a)(ii) and shall include any Prime Rate Tranche or LIBOR
Tranche.
"TYPE" has the meaning set forth in Section 1.4.
"VOTING SECURITIES" means (a) with respect to any corporation, any capital
stock of the corporation having general voting power under ordinary
circumstances to elect directors of such corporation (irrespective of whether at
the time stock of any other class or classes shall have or might have special
voting power or rights by reason of the happening of any contingency), and (b)
with respect to any partnership, any partnership interest or other ownership
interest having general voting power to elect the general partner or other
management of the partnership or other Person.
1.2 COMPUTATION OF TIME PERIODS. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each means "to but
excluding."
1.3 ACCOUNTING TERMS; PREPARATION OF FINANCIALS.
(a) All accounting terms, definitions, ratios, and other tests
described herein shall be construed in accordance with United States generally
accepted accounting principles applied on a consistent basis with those applied
in the preparation of the Financial Statements, except as expressly set forth in
this Agreement.
(b) The Parent, the Borrower, and their Subsidiaries shall prepare
their financial statements in accordance with United States generally accepted
accounting principles applied on a consistent basis with those applied in the
preparation of the Financial Statements, unless otherwise approved in writing by
the Agent.
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(c) All conversions of other currencies to U.S. Dollars shall be
done in accordance with United States generally accepted accounting principles
at the time of determination.
1.4 TYPES AND CLASSES. The "Type" of a Tranche refers to the determination
whether such tranche is a LIBOR Tranche or a Prime Rate Tranche. The "Class" of
a Borrowing or related Advance refers to the determination whether such
Borrowing or related Advance is a Revolving Loan Borrowing or Revolving Loan
Advance, an Acquisition Loan Borrowing or Acquisition Loan Advance, or the Term
Loan or a Term Loan Advance, respectively.
1.5 INTERPRETATION. Article, Section, Schedule, and Exhibit references are
to this Agreement, unless otherwise specified. All references to instruments,
documents, contracts, and agreements are references to such instruments,
documents, contracts, and agreements as the same may be amended, supplemented,
and otherwise modified from time to time, unless otherwise specified. The word
"including" shall mean "including but not limited to." The word "or" shall mean
"and/or" wherever necessary to prevent interpretation of any provision against
the Agent or the Banks. Whenever the Borrower has an obligation under this
Agreement and the Credit Documents the expense of complying with that obligation
shall be an expense of the Borrower unless otherwise specified. Whenever any
determination is to be made by the Agent or any Bank, such determination shall
be in such Person's sole discretion unless otherwise specified in this
Agreement. If any provision in this Agreement and the Credit Documents is held
to be illegal, invalid, not binding, or unenforceable, such provision shall be
fully severable and this Agreement and the Credit Documents shall be construed
and enforced as if such illegal, invalid, not binding, or unenforceable
provision had never comprised a part of this Agreement and the Credit Documents,
and the remaining provisions shall remain in full force and effect. This
Agreement and the Credit Documents have been reviewed and negotiated by
sophisticated parties with access to legal counsel and shall not be construed
against the drafter. In the event of a conflict between this Agreement and the
Credit Documents, this Agreement shall control.
ARTICLE 2. CREDIT FACILITIES.
2.1 REVOLVING LOAN FACILITY.
(a) COMMITMENT. Each Bank severally agrees, on the terms and
conditions set forth in this Agreement and for the purposes set forth in Section
5.4, to advance such Bank's ratable share of the Revolving Loan made to the
Borrower by making Revolving Loan Advances to the Borrower as such Bank's
ratable share of Revolving Loan Borrowings requested by the Borrower from time
to time on any Business Day during the period from the date of this Agreement
until the Revolving Loan Commitment Termination Date, provided that the
aggregate outstanding principal amount of Revolving Loan Advances
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made by such Bank plus such Bank's ratable share of the Letter of Credit
Exposure shall not exceed such Bank's Revolving Loan Commitment. Revolving Loan
Borrowings must be made in an amount equal to or greater than the Minimum
Borrowing Amount and be made in multiples of the Minimum Borrowing Multiple.
Within the limits expressed in this Agreement, the Borrower may from time to
time borrow, prepay, and reborrow Revolving Loan Borrowings. The indebtedness of
the Borrower to the Banks resulting from the Revolving Loan Advances made by the
Banks shall be evidenced by Revolving Loan Notes made by the Borrower.
(b) METHOD OF ADVANCING
(i) Each Revolving Loan Borrowing shall be made pursuant to a
Borrowing Request given by the Borrower to the Agent in writing or by telecopy
not later than the time required pursuant to Section 2.6(a)(i) to select the
interest rate basis for the Revolving Loan Borrowing. Each Borrowing Request
shall be fully completed and shall specify the information required therein, and
shall be irrevocable and binding on the Borrower unless such Borrowing Request
is rejected by the Agent as incomplete or improper. If the Borrowing Request is
accepted by the Agent, the Agent shall promptly forward notice of the Revolving
Loan Borrowing to the Banks. Each Bank shall, before 2:00 p.m. (local time at
the Applicable Payment Office) on the date of the requested Revolving Loan
Borrowing, make available from its Applicable Lending Office to the Agent at the
Agent's Applicable Lending Office, in immediately available funds, such Bank's
ratable share of such Revolving Loan Borrowing. Subject to the satisfaction of
all applicable conditions precedent, after receipt by the Agent of such funds,
the Agent shall before close of business on the date requested for such
Revolving Loan Borrowing make such Revolving Loan Borrowing available to the
Borrower in immediately available funds at the Borrower Account.
(ii) Unless the Agent shall have received notice from a Bank
before the date of any Revolving Loan Borrowing that such Bank shall not make
available to the Agent such Bank's ratable share of such Revolving Loan
Borrowing, the Agent may assume that such Bank has made its ratable share of
such Revolving Loan Borrowing available to the Agent on the date of such
Revolving Loan Borrowing in accordance with paragraph (i) above and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Bank shall not have
so made its ratable share of such Revolving Loan Borrowing available to the
Agent, such Bank agrees that it shall pay interest on such amount for each day
from the date such amount is made available to the Borrower by the Agent until
the date such amount is paid to the Agent by such Bank at the Federal Funds Rate
in effect from time to time, provided that with respect to such Bank if such
amount is not paid by such Bank by the end of the second day after the Agent
makes such amount available to the Borrower, the interest rates specified above
shall be increased by a per annum amount equal to 2.00% on the third
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day and shall remain at such increased rate thereafter. Interest on such amount
shall be due and payable by such Bank upon demand by the Agent. If such Bank
shall pay to the Agent such amount and interest as provided above, such amount
so paid shall constitute such Bank's Revolving Loan Advance as part of such
Revolving Loan Borrowing for all purposes of this Agreement even though not made
on the same day as the other Advances comprising such Revolving Loan Borrowing.
In the event that such Bank has not repaid such amount by the end of the fifth
day after such amount was made available to the Borrower, the Borrower agrees to
repay to the Agent on demand such amount, together with interest on such amount
for each day from the date such amount was made available to the Borrower until
the date such amount is repaid to the Agent at the interest rate charged to the
Borrower for such Revolving Loan Borrowing under the terms of this Agreement.
(iii) The failure of any Bank to make available its ratable
share of any Revolving Loan Borrowing shall not relieve any other Bank of its
obligation, if any, to make available its ratable share of such Revolving Loan
Borrowing. No Bank shall be responsible for the failure of any other Bank to
honor such other Bank's obligations hereunder, including any failure to make
available any funds as part of any Revolving Loan Borrowing.
(c) PREPAYMENT.
(i) The Borrower may prepay the outstanding principal amount
of Revolving Loan made to the Borrower pursuant to written notice given by the
Borrower to the Agent in writing or by telecopy not later than (A) 2:00 p.m.
(Dallas, Texas time) on the third Business Day before the date of the proposed
prepayment, in the case of the prepayment of any portion of the Revolving Loan
which is comprised of LIBOR Tranches, or (B) 12:00 noon (Dallas, Texas time) on
the same Business Day of the proposed prepayment, in the case of the prepayment
of any portion of the Revolving Loan comprised solely of Prime Rate Tranches.
Each such notice shall specify the principal amount and the Tranches of the
Revolving Loan which shall be prepaid, the date of the prepayment, and shall be
irrevocable and binding on the Borrower. Prepayments of the Revolving Loan shall
be made in integral multiples of the Minimum Borrowing Multiple. If the
prepayment would cause the aggregate outstanding principal amount of any LIBOR
Tranche comprising the Revolving Loan or the aggregate outstanding principal
amount of all Prime Rate Tranches comprising the Revolving Loan, to be less than
the Minimum Tranche Amount, the prepayment must be in the entire outstanding
principal amount of such LIBOR Tranche under the Revolving Loan or the entire
outstanding principal amount of all such Prime Rate Tranches under the Revolving
Loan, as the case may be. Upon receipt of any notice of prepayment, the Agent
shall give prompt notice of the intended prepayment to the Banks. For each such
notice given by the Borrower, the Borrower shall prepay the Revolving Loan in
the specified amount on the specified date as set forth in such notice. The
Borrower shall have no right to prepay any principal amount of the Revolving
Loan except as provided in this Section 2.1(c)(i).
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(ii) Each prepayment of principal of any LIBOR Tranche under
the Revolving Loan pursuant to this Section 2.1(c) shall be accompanied by
payment of all accrued but unpaid interest on the principal amount prepaid and
any amounts required to be paid pursuant to Section 2.7 as a result of such
prepayment.
(iii) Following the Revolving Loan Commitment Termination
Date, all prepayments of the Revolving Loan shall be applied to the required
payments of principal in the inverse order of maturity.
(d) REPAYMENT. The Borrower shall pay to the Agent for the ratable
benefit of the Banks the outstanding principal amount of the Revolving Loan
which is outstanding on the Revolving Loan Commitment Termination Date in equal
quarterly installments of 1/12th of the outstanding principal amount of the
Revolving Loan. The first such equal quarterly installment shall be due and
payable on the last day of the first calendar quarter ending after the Revolving
Loan Commitment Termination Date, with subsequent equal quarterly installments
due and payable on the last day of each calendar quarter thereafter until the
Revolving Loan Maturity Date, when the aggregate outstanding principal amount of
the Revolving Loan shall become due and payable. With respect to the equal
quarterly installments, and subject to Section 2.7, the Borrower may select
which Tranches under the Revolving Loan to repay in making the equal quarterly
installments, so long as the amount of each equal quarterly installment is equal
to the required amount.
2.2 TERM LOAN FACILITY.
(a) COMMITMENT. The Term Loan has been advanced to the Borrower
under the Prior Version of this Agreement. The Term Loan is not revolving,
therefore, the Borrower may not reborrow amounts prepaid under the Term Loan.
The indebtedness of the Borrower to the Banks resulting from the Term Loan
Advances made by the Banks shall be evidenced by Term Loan Notes made by the
Borrower.
(b) [Reserved].
(c) PREPAYMENT.
(i) The Borrower may prepay the outstanding principal amount
of the Term Loan pursuant to written notice given by the Borrower to the Agent
in writing or by telecopy not later than (A) 2:00 p.m. (Dallas, Texas time) on
the third Business Day before the date of the proposed prepayment, in the case
of the prepayment of any portion of the Term Loan which is comprised of LIBOR
Tranches, or (B) 12:00 noon (Dallas, Texas time) on the same Business Day of the
proposed prepayment, in the case of the prepayment of any portion of the Term
Loan which is comprised solely of Prime Rate Tranches. Each such notice shall
specify the principal amount and the Tranches of the Term Loan which shall be
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prepaid, and the date of the prepayment, and shall be irrevocable and binding on
the Borrower. Prepayments of the Term Loan shall be made in integral multiples
of the Minimum Borrowing Multiple. If the prepayment would cause the aggregate
outstanding principal amount of any LIBOR Tranche under the Term Loan or the
aggregate outstanding principal amount of all Prime Rate Tranches under the Term
Loan to be less than the Minimum Borrowing Amount, the prepayment must be in the
entire outstanding principal amount of such LIBOR Tranche under the Term Loan or
the entire outstanding principal amount of all Prime Rate Tranches under the
Term Loan, as the case may be. Upon receipt of any notice of prepayment, the
Agent shall give prompt notice of the intended prepayment to the Banks. For each
such notice given by the Borrower, the Borrower shall prepay the Term Loan in
the specified amount on the specified date as set forth in such notice. The
Borrower shall have no right to prepay any principal amount of the Term Loan
except as provided in this Section 2.2(c)(i).
(ii) Each prepayment of principal on any LIBOR Tranche under
the Term Loan pursuant to this Section 2.2(c) shall be accompanied by payment of
all accrued but unpaid interest on the principal amount prepaid and any amounts
required to be paid pursuant to Section 2.7 as a result of such prepayment.
(iii) All prepayments of the Term Loan shall be applied to the
required payments of principal in the inverse order of maturity.
(d) REPAYMENT. The Borrower shall pay to the Agent for the ratable
benefit of the Banks the outstanding principal amount of the Term Loan in equal
quarterly installments of $625,000 due and payable on the last day of each
calendar quarter until the Term Loan Maturity Date, when the aggregate
outstanding principal amount of the Term Loan shall become due and payable. With
respect to the equal quarterly installments, and subject to Section 2.7, the
Borrower may select which Tranches under the Term Loan to repay in making the
equal quarterly installments, so long as the amount of each equal quarterly
installment is equal to the required amount.
2.3 ACQUISITION LOAN FACILITY.
(a) COMMITMENT. Each Bank severally agrees, on the terms and
conditions set forth in this Agreement and for the purposes set forth in Section
5.4, to advance such Bank's ratable share of the Acquisition Loan requested by
the Borrower by making Acquisition Loan Advances to the Borrower as such Bank's
ratable share of any Acquisition Loan Borrowing requested by the Borrower from
time to time on any Business Day during the period from the date of this
Agreement until the Acquisition Loan Commitment Termination Date provided that
the aggregate outstanding principal amount of Acquisition Loan Advances made by
such Bank shall not exceed such Bank's Acquisition Loan Commitment. Acquisition
Loan Borrowings must be made in an amount equal to or
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greater than the Minimum Borrowing Amount and be made in multiples of the
Minimum Borrowing Multiple. Within the limits expressed in this Agreement, the
Borrower may from time to time borrow, prepay, and reborrow Acquisition Loan
Borrowings. The indebtedness of the Borrower to the Banks resulting from the
Acquisition Loan Advances made by the Banks pursuant to each Acquisition Loan
Borrowing shall be evidenced by the Acquisition Loan Notes made by the Borrower
in connection with such Acquisition Loan Borrowing.
(b) METHOD OF ADVANCING
(i) In all circumstances where the Borrower desires an
Acquisition Loan Borrowing, the Borrower shall provide the Agent and the Banks
with information regarding the circumstances related to the proposed Acquisition
Loan Borrowing and execute appropriate Acquisition Loan Notes meeting the
requirements set forth in the form therefor attached hereto made payable to each
of the Banks in connection with such proposed Acquisition Loan Borrowing. If
appropriate Acquisition Loan Notes have been executed and delivered by the
Borrower, the Acquisition Loan Borrowing shall be made pursuant to an
Acquisition Loan Borrowing Request given by the Borrower to the Agent in writing
or by telecopy not later than the time required pursuant to Section 2.6(a)(i) to
select the interest rate basis for the Acquisition Loan Borrowing. Each
Acquisition Loan Borrowing Request shall be fully completed and shall specify
the information required therein, and shall be irrevocable and binding on the
Borrower unless such Acquisition Loan Borrowing Request is rejected by the Agent
as incomplete or improper. If the Acquisition Loan Borrowing Request is accepted
by the Agent, the Agent shall promptly forward notice of the requested
Acquisition Loan Borrowing to the Banks. Each Bank shall, before 2:00 p.m.
(local time at the Applicable Payment Office) on the date of the requested
Acquisition Loan Borrowing, make available from its Applicable Lending Office to
the Agent at the Agent's Applicable Lending Office, in immediately available
funds, such Bank's ratable share of such Acquisition Loan Borrowing. Subject to
the satisfaction of all applicable conditions precedent, after receipt by the
Agent of such funds, the Agent shall before close of business on the date
requested for such Acquisition Loan Borrowing make such Acquisition Loan
Borrowing available to the Borrower in immediately available funds at the
Borrower Account.
(ii) Unless the Agent shall have received notice from a Bank
before the date of any Acquisition Loan Borrowing that such Bank shall not make
available to the Agent such Bank's ratable share of such Acquisition Loan
Borrowing, the Agent may assume that such Bank has made its ratable share of
such Acquisition Loan Borrowing available to the Agent on the date of such
Acquisition Loan Borrowing in accordance with paragraph (i) above and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Bank shall not have
so made its ratable share of such Acquisition Loan Borrowing available to the
Agent, such Bank agrees that it shall pay interest on such amount for each day
from the date
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such amount is made available to the Borrower by the Agent until the date such
amount is paid to the Agent by such Bank at the Federal Funds Rate in effect
from time to time, provided that with respect to such Bank if such amount is not
paid by such Bank by the end of the second day after the Agent makes such amount
available to the Borrower, the interest rates specified above shall be increased
by a per annum amount equal to 2.00% on the third day and shall remain at such
increased rate thereafter. Interest on such amount shall be due and payable by
such Bank upon demand by the Agent. If such Bank shall pay to the Agent such
amount and interest as provided above, such amount so paid shall constitute such
Bank's Acquisition Loan Advance as part of such Acquisition Loan Borrowing for
all purposes of this Agreement even though not made on the same day as the other
Advances under such Acquisition Loan Borrowing. In the event that such Bank has
not repaid such amount by the end of the fifth day after such amount was made
available to the Borrower, the Borrower agrees to repay to the Agent on demand
such amount, together with interest on such amount for each day from the date
such amount was made available to the Borrower until the date such amount is
repaid to the Agent at the interest rate charged to the Borrower for such
Acquisition Loan Borrowing under the terms of this Agreement.
(iii) The failure of any Bank to make available its ratable
share of any Acquisition Loan Borrowing shall not relieve any other Bank of its
obligation, if any, to make available its ratable share of such Acquisition Loan
Borrowing. No Bank shall be responsible for the failure of any other Bank to
honor such other Bank's obligations hereunder, including any failure to make
available any funds as part of any Acquisition Loan Borrowing.
(c) PREPAYMENT.
(i) The Borrower may prepay the outstanding principal amount
of any Acquisition Loan made to the Borrower pursuant to written notice given by
the Borrower to the Agent in writing or by telecopy not later than (A) 2:00 p.m.
(Dallas, Texas time) on the third Business Day before the date of the proposed
prepayment, in the case of the prepayment of any portion of the Acquisition Loan
which is comprised of LIBOR Tranches, or (B) 12:00 noon (Dallas, Texas time) on
the same Business Day of the proposed prepayment, in the case of the prepayment
of any portion of the Acquisition Loan which is comprised solely of Prime Rate
Tranches. Each such notice shall specify the Acquisition Loan Borrowing being
prepaid, the principal amount of the prepayment, the Tranches of the Acquisition
Loan Borrowing which shall be prepaid, and the date of the prepayment, and shall
be irrevocable and binding on the Borrower. Prepayments of the Acquisition Loan
shall be made in integral multiples of the Minimum Borrowing Multiple. If the
prepayment would cause the aggregate outstanding principal amount of any LIBOR
Tranche under the Acquisition Loan or the aggregate outstanding principal amount
of all Prime Rate Tranches under the Acquisition Loan to be less than the
Minimum Borrowing Amount, the prepayment must be in the entire outstanding
principal amount of such LIBOR Tranche
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under the Acquisition Loan or the entire outstanding principal amount of all
Prime Rate Tranches under the Acquisition Loan, as the case may be. Upon receipt
of any notice of prepayment, the Agent shall give prompt notice of the intended
prepayment to the Banks. For each such notice given by the Borrower, the
Borrower shall prepay the Acquisition Loan in the specified amount on the
specified date as set forth in such notice. The Borrower shall have no right to
prepay any principal amount of the Acquisition Loan except as provided in this
Section 2.3(c)(ii).
(ii) Each prepayment of principal on any LIBOR Tranche under
the Acquisition Loan pursuant to this Section 2.3(c) shall be accompanied by
payment of all accrued but unpaid interest on the principal amount prepaid and
any amounts required to be paid pursuant to Section 2.7 as a result of such
prepayment.
(d) REPAYMENT. The Borrower shall pay to the Agent for the ratable
benefit of the Banks the aggregate outstanding principal amount of each
Acquisition Loan Borrowing as specified in the Acquisition Loan Notes executed
in connection with such Acquisition Loan Borrowing. Such Acquisition Loan Notes
shall specify that the outstanding principal amount thereof shall amortize in
equal quarterly installments of 1/20th of the original principal amount thereof,
with the first such equal quarterly installment due and payable on the last day
of the first calendar quarter after the initial funding under such Acquisition
Loan Notes and subsequent equal quarterly installments due and payable on the
last day of each calendar quarter thereafter until the aggregate outstanding
principal amount of the Acquisition Loan Borrowing has been repaid in full. If
the aggregate outstanding principal amount of the Acquisition Loan Borrowing
would not be repaid in full on or before latest date permitted in the definition
of Acquisition Loan Maturity Date, then the Acquisition Loan Notes shall specify
that the aggregate outstanding principal amount of the Acquisition Loan
Borrowing shall be due and payable on that date. With respect to the equal
quarterly installments, and subject to Section 2.7, the Borrower may select
which Tranches under the Acquisition Loan Borrowing to repay in making the equal
quarterly installments, so long as the amount of each equal quarterly
installment is equal to the required amount.
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2.4 LETTER OF CREDIT FACILITY.
(a) COMMITMENT FOR LETTERS OF CREDIT. The Issuing Bank shall, on the
terms and conditions set forth in this Agreement and for the purposes set forth
in Section 5.4, issue, increase, and extend Letters of Credit at the request of
the Borrower from time to time on any Business Day during the period from the
date of this Agreement until the Revolving Loan Commitment Termination Date
provided that (i) the Letter of Credit Exposure shall not exceed the Letter of
Credit Sublimit and (ii) the aggregate outstanding principal amount of Revolving
Loan Borrowings plus the Letter of Credit Exposure shall not exceed the
aggregate amount of the Revolving Loan Commitments. No Letter of Credit may have
an expiration date later than 27 months after its issuance date, and each Letter
of Credit which is self-extending beyond its expiration date must be cancelable
upon at least 30 days notice given by the Issuing Bank to the beneficiary of
such Letter of Credit. No Letter of Credit may have an expiration date later
than 27 months after the Revolving Loan Commitment Termination Date unless
approved by the Issuing Bank, the Agent, and the Banks. Each Letter of Credit
must be in form and substance acceptable to the Issuing Bank. The indebtedness
of the Borrower to the Issuing Bank resulting from Letters of Credit requested
by the Borrower shall be evidenced by the Letter of Credit Applications made by
the Borrower.
(b) REQUESTING LETTERS OF CREDIT. Each Letter of Credit shall be
issued, increased, or extended pursuant to a Letter of Credit Application or
Letter of Credit Application Amendment, as applicable, given by the Borrower to
the Issuing Bank in writing or by telecopy promptly confirmed in writing, such
Letter of Credit Application or Letter of Credit Application Amendment being
given not later than 2:00 p.m. (Dallas, Texas, time) on the second Business Day
before the date of the proposed issuance, increase, or extension of the Letter
of Credit. Each Letter of Credit Application or Letter of Credit Application
Amendment shall be fully completed and shall specify the information required
therein (including the proposed form of the Letter of Credit or change thereto),
and shall be irrevocable and binding on the Borrower unless such Letter of
Credit Application or Letter of Credit Application Amendment is rejected by the
Issuing Bank as incomplete or improper. If the Issuing Bank accepts the Letter
of Credit Application or Letter of Credit Application Amendment, the Issuing
Bank shall give prompt notice thereof to the Agent, and the Agent shall promptly
inform the Banks of the proposed Letter of Credit or change thereto. Subject to
the satisfaction of all applicable conditions precedent, the Issuing Bank shall
before close of business on the date requested by the Borrower for the issuance,
increase, or extension of such Letter of Credit issue, increase, or extend such
Letter of Credit to the specified beneficiary. Upon the date of the issuance,
increase, or extension of a Letter of Credit, the Issuing Bank shall be deemed
to have sold to each other Bank and each other Bank shall be deemed to have
purchased from the Issuing Bank a ratable participation in the related Letter of
Credit. The Issuing Bank shall notify the Agent of each Letter of Credit issued,
increased,
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or extended and the date and amount of each Bank's participation in such Letter
of Credit, and the Agent shall in turn notify the Banks.
(c) [Reserved].
(d) REIMBURSEMENTS FOR LETTERS OF CREDIT. With respect to any Letter
of Credit and in accordance with the related Letter of Credit Application, the
Borrower agrees to pay to the Issuing Bank on demand of the Issuing Bank any
amount due to the Issuing Bank under such Letter of Credit Application (provided
that fees due with respect to such Letter of Credit shall be payable as
specified in Section 2.5(d)). If the Borrower does not pay upon demand of the
Issuing Bank any amount due to the Issuing Bank under any Letter of Credit
Application, in addition to any rights the Issuing Bank may have under such
Letter of Credit Application, the Issuing Bank may upon written notice to the
Agent request the satisfaction of such obligation by the making of a Revolving
Loan Borrowing. Upon such request, the Borrower shall be deemed to have
requested the making of a Revolving Loan Borrowing in the amount of such
obligation and the transfer of the proceeds thereof to the Issuing Bank. The
Issuing Bank may select whether such Revolving Loan Borrowing shall be comprised
of a Prime Rate Tranche or a LIBOR Tranche. The Agent shall promptly forward
notice of such Revolving Loan Borrowing to the Borrower and the Banks, and each
Bank shall, in accordance with the procedures of Section 2.1(b), other than
limitations on the size of Revolving Loan Borrowings, and notwithstanding the
failure of any conditions precedent, make available such Bank's ratable share of
such Revolving Loan Borrowing to the Agent, and the Agent shall promptly deliver
the proceeds thereof to the Issuing Bank for application to such Bank's share of
the obligations under such Letter of Credit. The Borrower hereby unconditionally
and irrevocably authorizes, empowers, and directs the Issuing Bank to make such
requests for Revolving Loan Borrowings on behalf of the Borrower, and the Banks
to make Revolving Loan Advances to the Agent for the benefit of the Issuing Bank
in satisfaction of such obligations. The Agent and each Bank may record and
otherwise treat the making of such Revolving Loan Borrowings as the making of a
Revolving Loan Borrowing to the Borrower under this Agreement as if requested by
the Borrower. Nothing herein is intended to release the Borrower's obligations
under any Letter of Credit Application, but only to provide an additional method
of payment therefor. The making of any Borrowing under this Section 2.4(d) shall
not constitute a cure or waiver of any Default or Event of Default caused by the
Borrower's failure to comply with the provisions of this Agreement or any Letter
of Credit Application.
(e) OBLIGATIONS UNCONDITIONAL. The obligations of the Borrower and
each Bank under this Agreement and the Letter of Credit Applications to
reimburse the Issuing Bank for draws under Letters of Credit and to make other
payments due in respect of Letters of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and the Letter of Credit Applications under all circumstances,
including: (i) any lack of validity or enforceability of any Letter of Credit
Document; (ii) any
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amendment, waiver, or consent to departure from any Letter of Credit Document;
(iii) the existence of any claim, set-off, defense, or other right which the
Borrower or any Bank may have at any time against any beneficiary or transferee
of any Letter of Credit (or any Persons for whom any such beneficiary or any
such transferee may be acting), the Issuing Bank, or any other person or entity,
whether in connection with the transactions contemplated in this Agreement or
any unrelated transaction; (iv) any statement or any other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid, or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect; or (v) payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or certificate which does not comply with the
terms of such Letter of Credit; provided, however, that nothing contained in
this paragraph (e) shall be deemed to constitute a waiver of any remedies of the
Borrower or any Bank in connection with the Letters of Credit or the Borrower's
or such Bank's rights under paragraph (f) below.
(f) LIABILITY OF ISSUING BANK. The Issuing Bank shall not be liable
or responsible for: (i) the use which may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (ii)
the validity, sufficiency, or genuineness of documents related to Letters of
Credit, or of any endorsement thereon, even if such documents should prove to be
in any or all respects invalid, insufficient, fraudulent, or forged; (iii)
payment by the Issuing Bank against presentation of documents which do not
strictly comply with the terms of a Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the relevant Letter of
Credit; or (iv) any other circumstances whatsoever in making or failing to make
payment under any Letter of Credit (INCLUDING THE ISSUING BANK'S OWN
NEGLIGENCE); except that the Issuing Bank shall be liable to the Borrower or any
Bank to the extent of any direct, as opposed to consequential, damages suffered
by the Borrower or such Bank which the Borrower or such Bank proves were caused
by (A) the Issuing Bank's gross negligence or willful misconduct in determining
whether documents presented under a Letter of Credit comply with the terms of
such Letter of Credit or (B) the Issuing Bank's willful failure to make or delay
in making lawful payment under any Letter of Credit after the presentation to it
of documentation strictly complying with the terms and conditions of such Letter
of Credit or the Issuing Bank's payment of greater than the maximum amount
permitted under any Letter of Credit.
(g) LETTER OF CREDIT COLLATERAL ACCOUNT.
(i) If the Borrower is required to deposit funds in the Letter
of Credit Collateral Account pursuant to Section 6.4, then the Borrower and the
Agent shall establish the Letter of Credit Collateral Account and the Borrower
shall execute any documents and agreements, including the Agent's standard form
assignment of deposit accounts, that the Agent requests in connection therewith
to establish the Letter of Credit Collateral Account and grant the Agent a first
priority security interest in such account and
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the funds therein. The Borrower hereby pledges to the Agent and grants the Agent
a security interest in the Letter of Credit Collateral Account, whenever
established, all funds held in the Letter of Credit Collateral Account from time
to time, and all proceeds thereof as security for the payment of the
Obligations.
(ii) During the existence of any Event of Default, the Agent
may (A) hold any funds in the Letter of Credit Collateral Account as cash
collateral for the Credit Obligations or (B) may apply any funds held in the
Letter of Credit Collateral Account to any Credit Obligations in any order
determined by the Agent, regardless of any Letter of Credit Exposure which may
remain outstanding. Upon cure of all Events of Default, the Agent shall release
to the Borrower at the Borrower's written request any funds held in the Letter
of Credit Collateral Account. The Agent may in its sole discretion at any time
release to the Borrower any funds held in the Letter of Credit Collateral
Account allocable to the Letters of Credit of the Borrower.
(iii) Funds held in the Letter of Credit Collateral Account
shall be invested in money market funds of the Agent or in another investment if
mutually agreed upon by the Borrower with funds held in the Letter of Credit
Collateral Account and the Agent, but the Agent shall have no other obligation
to make any other investment of the funds therein. The Agent shall exercise
reasonable care in the custody and preservation of any funds held in the Letter
of Credit Collateral Account and shall be deemed to have exercised such care if
such funds are accorded treatment substantially equivalent to that which the
Agent accords its own property, it being understood that the Agent shall not
have any responsibility for taking any necessary steps to preserve rights
against any parties with respect to any such funds.
2.5 FEES.
(a) AGENT ADMINISTRATION FEE. The Borrower shall pay to the Agent
for the benefit of the Agent an administrative fee of $10,000 due and payable
upon September 30 of each year during which this Agreement is in effect. This
administrative fee shall be earned upon receipt and is nonrefundable.
(b) UNUSED COMMITMENT FEES.
(i) The Borrower shall pay to the Agent for the ratable
benefit of the Banks an unused commitment fee equal to .375% per annum on the
average daily amount by which (A) the aggregate amount of the Revolving Loan
Commitments exceeds (B) the aggregate outstanding principal amount of the
Revolving Loan Borrowings plus the Letter of Credit Exposure. This unused
commitment fee shall be due and payable in arrears on the last day of each
calendar quarter and the Revolving Loan Commitment Termination Date.
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(ii) The Borrower shall pay to the Agent for the ratable
benefit of the Banks an unused commitment fee equal to .375% per annum on the
average daily amount by which (A) the aggregate amount of the Acquisition Loan
Commitments exceeds (B) the aggregate outstanding principal amount of the
Acquisition Loan Borrowings. This unused commitment fee shall be due and payable
in arrears on the last day of each calendar quarter and the Acquisition Loan
Commitment Termination Date.
(c) FACILITY FEES.
(i) The Borrower shall pay to the Agent for the ratable
benefit of the Banks a facility fee equal to $15,000 with respect to the
Revolving Loan facility. Such facility fee shall be due and payable upon
execution of this version of this Agreement.
(ii) The Borrower shall pay to the Agent for the ratable
benefit of the Banks a facility fee equal to $37,500 with respect to the
Acquisition Loan facility. The Banks have already received $25,000 of this
facility fee. The remainder of $12,500 shall be due and payable upon execution
of this version of this Agreement.
(d) FEES FOR LETTERS OF CREDIT. For each Letter of Credit issued by
the Issuing Bank (i) the Borrower shall pay to the Agent for the benefit of the
Issuing Bank a letter of credit fee equal to $200 and (ii) the Borrower shall
pay to the Agent for the ratable benefit of the Banks a letter of credit fee
equal to .75% per annum on the face amount of such Letter of Credit for the
stated term of such Letter of Credit, less $200, but in no event less than
$0.00. The Borrower shall pay such letter of credit fees for such Letter of
Credit, including any increased amount due in respect of any increase or
extension of such Letter of Credit quarterly in arrears on the last day of each
calendar quarter and the Revolving Loan Commitment Termination Date.
2.6 INTEREST.
(a) ELECTION OF INTEREST RATE BASIS. The Borrower may select the
interest rate basis for the outstanding principal amount of each Loan in
accordance with the terms of this Section 2.6(a):
(i) Under the Borrowing Request provided to the Agent in
connection with the making of each Borrowing under any Loan, the Borrower shall
select the amount and the Type of the Tranches, and for each LIBOR Tranche
selected, any permitted Interest Period for each such LIBOR Tranche, which will
comprise such Borrowing, provided that (A) at no time shall there be more than
three separate LIBOR Tranches outstanding under the Revolving Credit Loan or the
Term Loan or more than two separate LIBOR Tranches outstanding under any
Acquisition Loan and (B) each Tranche must be in a principal amount equal to or
greater than the Minimum Tranche Amount and
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be made in multiples of the Minimum Tranche Multiple. Such interest rate
elections must be provided to the Agent in writing or by telecopy not later than
2:00 p.m. (Dallas, Texas, time) on the third Business Day before the date of any
proposed Borrowing comprised of a LIBOR Tranche or 12:00 noon (Dallas, Texas,
time) on the same day of any proposed Borrowing comprised solely of a Prime Rate
Tranche. In the case of any Borrowing comprised of a LIBOR Tranche, upon
determination by the Agent, the Agent shall promptly notify the Borrower and the
Banks of the applicable interest rate to such Tranche.
(ii) With respect to any Tranche under any Loan, the Borrower
may continue or convert any portion of any LIBOR Tranche or Prime Rate Tranche
to form new LIBOR Tranches or Prime Rate Tranches under the same Loan in
accordance with this paragraph. Each such continuation or conversion shall be
deemed to create a new Tranche for all purposes of this Agreement. Each such
continuation or conversion shall be made pursuant to a Continuation/Conversion
Request given by the Borrower to the Agent in writing or by telecopy not later
than 2:00 p.m. (Dallas, Texas, time) on the third Business Day before the date
of the proposed continuation or conversion. Each Continuation/Conversion Request
shall be fully completed and shall specify the information required therein, and
shall be irrevocable and binding on the Borrower. If the Continuation/Conversion
Request is accepted by the Agent, the Agent shall promptly forward notice of the
continuation or conversion to the Banks. In the case of any continuation or
conversion into LIBOR Tranches, upon determination by the Agent, the Agent shall
notify the Borrower and the Banks of the applicable interest rate. Continuations
and conversions of Tranches shall be made in integral multiples of the Minimum
Tranche Multiple. No continuation or conversion shall be permitted if such
continuation or conversion would cause the aggregate outstanding principal
amount of any LIBOR Tranche which would remain outstanding or the aggregate
outstanding principal amount of all Prime Rate Tranches which would remain
outstanding to be less than the Minimum Tranche Amount. At no time shall there
be more than three separate LIBOR Tranches outstanding under the Revolving
Credit Loan or the Term Loan or more than two separate LIBOR Tranches
outstanding under any Acquisition Loan. Any conversion of an existing LIBOR
Tranche is subject to Section 2.7. Subject to the satisfaction of all applicable
conditions precedent, the Agent and the Banks shall before close of business on
the date requested by the Borrower for the continuation or conversion, make such
continuation or conversion.
(iii) At the end of the Interest Period for any LIBOR Tranche
if the Borrower has not continued or converted such LIBOR Tranche into new
Tranches as provided for in paragraph (ii) above, the Borrower shall be deemed
to have continued such LIBOR Tranche as a new LIBOR Tranche under the same Loan
with an Interest Period of one month. Each Prime Rate Tranche shall continue as
a Prime Rate Tranche under the same Loan unless the Borrower converts such Prime
Rate Tranche as provided for in paragraph (ii) above.
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(b) LIBOR TRANCHES. Each LIBOR Tranche shall bear interest during
its Interest Period at a per annum interest rate equal to the sum of the LIBOR
for such Tranche plus the Applicable Interest Margin in effect from time to
time. The Borrower shall pay to the Agent for the ratable benefit of the Banks
all accrued but unpaid interest on each LIBOR Tranche on the last day of the
applicable Interest Period for such LIBOR Tranche (and with respect to LIBOR
Tranches with Interest Periods of greater than three months, on the date which
is three months after the first date of the Interest Period for such LIBOR
Tranche), on any date when any portion of any LIBOR Tranche is prepaid in full
(but only to the extent of the portion of any such LIBOR Tranche is prepaid),
and on the applicable Maturity Date for each such LIBOR Tranche.
(c) PRIME RATE TRANCHES. Each Prime Rate Tranche shall bear interest
at a per annum interest rate equal to the Adjusted Prime Rate in effect from
time to time plus the Applicable Interest Margin in effect from time to time.
The Borrower shall pay to the Agent for the ratable benefit of the Banks all
accrued but unpaid interest on outstanding Prime Rate Tranches on the last day
of each calendar quarter, on any date all Prime Rate Tranches are prepaid in
full, and on the applicable Maturity Date for each such Prime Rate Tranche.
(d) USURY.
(i) If, with respect to any Bank and the Borrower, the
effective rate of interest contracted for by such Bank with the Borrower under
the Credit Documents, including the stated rates of interest and fees contracted
for hereunder and any other amounts contracted for under the Credit Documents
which are deemed to be interest, at any time exceeds the Highest Lawful Rate,
then the outstanding principal amount of the loans made by such Bank to the
Borrower hereunder shall bear interest at a rate which would make the effective
rate of interest on the loans made by such Bank to the Borrower under the Credit
Documents equal the Highest Lawful Rate until the difference between the amounts
which would have been due by the Borrower to such Bank at the stated rates and
the amounts which were due by the Borrower to such Bank at the Highest Lawful
Rate (the "Lost Interest") has been recaptured by such Bank. If, when the loans
made hereunder are repaid in full, the Lost Interest has not been fully
recaptured by such Bank pursuant to the preceding paragraph, then, to the extent
permitted by law, the interest rates charged by such Bank to the Borrower under
Sections 2.6 and 6.5 hereunder shall be retroactively increased such that the
effective rate of interest on the loans made by such Bank to the Borrower under
the Credit Documents was at the Highest Lawful Rate since the effectiveness of
this Agreement to the extent necessary to recapture the Lost Interest not
recaptured pursuant to the preceding sentence and, to the extent allowed by law,
the Borrower shall pay to such Bank the amount of the Lost Interest remaining to
be recaptured by such Bank.
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(ii) In calculating all sums paid or agreed to be paid to any
Bank by the Borrower for the use, forbearance, or detention of money under the
Credit Documents, such amounts shall, to the extent permitted by applicable law,
be amortized, prorated, allocated, and spread in equal parts throughout the term
of the Credit Documents.
(iii) NOTWITHSTANDING THE FOREGOING OR ANY OTHER TERM IN THIS
AGREEMENT AND THE CREDIT DOCUMENTS TO THE CONTRARY, it is the intention of each
Bank and the Borrower to conform strictly to any applicable usury laws.
Accordingly, if any Bank contracts for, charges, or receives any consideration
from the Borrower which constitutes interest in excess of the Highest Lawful
Rate, then any such excess shall be canceled automatically and, if previously
paid, shall at such Bank's option be applied to the outstanding amount of the
loans made hereunder by such Bank to the Borrower or be refunded to the
Borrower.
2.7 BREAKAGE COSTS. If (i) any payment of principal on or any conversion
of any LIBOR Tranche is made on any date other than the last day of the Interest
Period for such LIBOR Tranche, whether as a result of any voluntary or mandatory
prepayment, any acceleration of maturity, or any other cause, (ii) any payment
of principal on any LIBOR Tranche is not made when due, or (iii) any LIBOR
Tranche is not borrowed, converted, or prepaid in accordance with the respective
notice thereof provided by the Borrower to the Agent, whether as a result of any
failure to meet any applicable conditions precedent for borrowing, conversion,
or prepayment, the permitted cancellation of any request for borrowing,
conversion, or prepayment, the failure of the Borrower to provide the respective
notice of borrowing, conversion, or prepayment, or any other cause not specified
above which is created by the Borrower, then the Borrower shall pay to each Bank
upon demand any amounts required to compensate such Bank for any losses, costs,
or expenses, including lost profits and administrative expenses, which are
reasonably allocable to such action, including losses, costs, and expenses
related to the liquidation or redeployment of funds acquired or designated by
such Bank to fund or maintain such Bank's ratable share of such LIBOR Tranche or
related to the reacquisition or redesignation of funds by such Bank to fund or
maintain such Bank's ratable share of such LIBOR Tranche following any
liquidation or redeployment of such funds caused by such action. A certificate
as to the amount of such loss, cost, or expense detailing the calculation
thereof and certifying that such Bank customarily charges such amounts to its
other customers in similar circumstances submitted by such Bank to the Borrower
shall be conclusive and binding for all purposes, absent manifest error.
2.8 INCREASED COSTS.
(a) COST OF FUNDS. If due to either (i) any introduction of, change
in, or change in the interpretation of any law or regulation after the date of
this Agreement or (ii) compliance with any guideline or request from any central
bank or other governmental
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authority having appropriate jurisdiction (whether or not having the force of
law) given after the date of this Agreement, there shall be any increase in the
costs of any Bank allocable to (x) committing to make any Advance or obtaining
funds for the making, funding, or maintaining of such Bank's ratable share of
any LIBOR Tranche in the relevant interbank market or (y) committing to make
Letters of Credit or issuing, funding, or maintaining Letters of Credit
(including any increase in any applicable reserve requirement specified by the
Federal Reserve Board, including those for emergency, marginal, supplemental, or
other reserves), then the Borrower shall pay to such Bank upon demand any
amounts required to compensate such Bank for such increased costs, such amounts
being due and payable upon demand by such Bank. A certificate as to the cause
and amount of such increased cost detailing the calculation of such cost and
certifying that such Bank customarily charges such amounts to its other
customers in similar circumstances submitted by such Bank to the Borrower shall
be conclusive and binding for all purposes, absent manifest error. No Bank may
make any claim for compensation under this Section 2.8(a) for increased costs
incurred before 60 days prior to the delivery of any such certificate.
(b) CAPITAL ADEQUACY. If, due to either (i) any introduction of,
change in, or change in the interpretation of any law or regulation after the
date of this Agreement or (ii) compliance with any guideline or request from any
central bank or other governmental authority having appropriate jurisdiction
(whether or not having the force of law) given after the date of this Agreement,
there shall be any increase in the capital requirements of any Bank or its
parent or holding company allocable to (x) committing to make Advances or
making, funding, or maintaining Advances or (y) committing to make Letters of
Credit or issuing, funding, or maintaining Letters of Credit, as such capital
requirements are allocated by such Bank, then the Borrower shall pay to such
Bank upon demand any amounts required to compensate such Bank or its parent or
holding company for such increase in costs (including an amount equal to any
reduction in the rate of return on assets or equity of such Bank or its parent
or holding company), such amounts being due and payable upon demand by such
Bank. A certificate as to the cause and amounts detailing the calculation of
such amounts and certifying that such Bank customarily charges such amounts to
its other customers in similar circumstances submitted by such Bank to the
Borrower shall be conclusive and binding for all purposes, absent manifest
error. No Bank may make any claim for compensation under this Section 2.8(b) for
increased costs incurred before 60 days prior to the delivery of any such
certificate.
2.9 ILLEGALITY. Notwithstanding any other provision in this Agreement, if
it becomes unlawful for any Bank to obtain deposits or other funds for making or
funding such Bank's ratable share of any LIBOR Tranche in the relevant interbank
market, such Bank shall so notify the Borrower and the Agent and such Bank's
commitment to create LIBOR Tranches shall be suspended until such condition has
passed, all LIBOR Tranches applicable to such Bank shall be converted to Prime
Rate Tranches as of the end of each applicable
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Interest Period or earlier if necessary, and all subsequent requests for LIBOR
Tranches shall be deemed to be requests for Prime Rate Tranches with respect to
such Bank.
2.10 MARKET FAILURE. Notwithstanding any other provision in this
Agreement, if the Agent determines that: (a) quotations of interest rates for
the relevant deposits referred to in the definition of "LIBOR" are not being
provided in the relevant amounts, or maturities for purposes of determining the
rate of interest referred to in the definition of "LIBOR" or (b) the relevant
rates of interest referred to in the definition of "LIBOR" which are used as the
basis to determine the rate of interest for LIBOR Tranches are not likely to
adequately cover the cost to any Bank of making or maintaining such Bank's
ratable share of any LIBOR Tranche, then if the Agent so notifies the Borrower,
(i) the commitment of the Banks to make any Borrowing comprised of LIBOR
Tranches shall be suspended until such condition has passed and all LIBOR
Tranches shall be converted to Prime Rate Tranches as of the end of each
applicable Interest Period and (ii) the Borrower may repay all Loan Obligations
and terminate this Agreement (other than provisions which by their terms survive
such repayment and termination).
2.11 PAYMENT PROCEDURES AND COMPUTATIONS.
(a) PAYMENT PROCEDURES. Time is of the essence in this Agreement and
the Credit Documents. All payment hereunder shall be made in Dollars. The
Borrower shall make each payment under this Agreement and under the Notes not
later than 12:00 noon (local time at the Applicable Payment Office) on the day
when due to the Agent at the Agent's Applicable Lending Office in immediately
available funds. All payments by the Borrower hereunder shall be made without
any offset, abatement, withholding, or reduction. Upon receipt of payment from
the Borrower of any principal, interest, or fees due to the Banks, the Agent
shall promptly after receipt thereof distribute to the Banks their ratable share
of such payments for the account of their respective Applicable Lending Offices.
Upon receipt of other amounts due solely to the Agent, the Issuing Bank, or a
specific Bank, the Agent shall distribute such amounts to the appropriate party
to be applied in accordance with the terms of this Agreement.
(b) AGENT RELIANCE. Unless the Agent shall have received written
notice from the Borrower prior to any date on which any payment is due to the
Banks that the Borrower shall not make such payment in full, the Agent may
assume that the Borrower has made such payment in full to the Agent on such date
and the Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such date an amount equal to the amount then due such Bank. If and
to the extent the Borrower shall not have so made such payment in full to the
Agent, each Bank shall repay to the Agent forthwith on demand such amount
distributed to such Bank, together with interest thereon from the date such
amount is distributed to such Bank until the date such Bank repays such amount
to the Agent, at an interest rate equal to, the Federal Funds Rate in effect
from time to time, provided that with
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respect to such Bank, if such amount is not repaid by such Bank by the end of
the second day after the date of the Agent's demand, the interest rates
specified above shall be increased by a per annum amount equal to 2.00% on the
third day after the date of the Agent's demand and shall remain at such
increased rate thereafter.
(c) SHARING OF PAYMENTS. Each Bank agrees that if it should receive
any payment (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) in respect of any obligation of the Borrower to pay principal,
interest, fees, or any other obligation incurred under the Credit Documents in a
proportion greater than the total amount of such principal, interest, fees, or
other obligation then owed and due by the Borrower to such Bank bears to the
total amount of principal, interest, fees, or other obligation then owed and due
by the Borrower to all of the Banks immediately prior to such receipt, then such
Bank receiving such excess payment shall purchase for cash without recourse from
the other Banks an interest in the obligations of the Borrower to such Banks in
such amount as shall result in a proportional participation by all of the Banks
in the aggregate unpaid amount of principal, interest, fees, or any such other
obligation, as the case may be, owed by the Borrower to all of the Banks;
provided that if all or any portion of such excess payment is thereafter
recovered from such Bank, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
(d) AUTHORITY TO CHARGE ACCOUNTS. The Agent, if and to the extent
payment owed to the Agent or any Bank is not made when due, may charge from time
to time against any account of the Borrower with the Agent any amount so due.
The Agent agrees promptly to notify the Borrower after any such charge and
application made by the Agent provided that the failure to give such notice
shall not affect the validity of such charge and application.
(e) INTEREST AND FEES. Unless expressly provided for in this
Agreement, (i) all computations of interest based on the Prime Rate shall be
made on the basis of a 365/366 day year, as the case may be, (ii) all
computations of interest based on the Federal Funds Rate shall be made on the
basis of a 360 day year, (iii) all computations of interest based upon the LIBOR
shall be made on the basis of a 360 day year, and (iv) all computations of fees
shall be made on the basis of a 360 day year, in each case for the actual number
of days (including the first day, but excluding the last day) occurring in the
period for which such interest or fees are payable. Each determination by the
Agent of an interest rate or fee shall be conclusive and binding for all
purposes, absent manifest error.
(f) PAYMENT DATES. Whenever any payment shall be stated to be due
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation
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of payment of interest or fees, as the case may be. If the time for payment for
an amount payable is not specified in this Agreement or in any other Credit
Document, the payment shall be due and payable on demand by the Agent or the
applicable Bank.
2.12 TAXES.
(a) NO DEDUCTION FOR CERTAIN TAXES. Any and all payments by the
Borrower shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges, or withholdings,
and all liabilities with respect thereto, other than taxes imposed on the income
and franchise taxes imposed on the Agent, any Bank, or the Applicable Lending
Office thereof by any jurisdiction in which any such entity is a citizen or
resident or any political subdivision of such jurisdiction (all such nonexcluded
taxes, levies, imposts, deductions, charges, withholdings, and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable to the Agent, any Bank,
or the Applicable Lending Office thereof, (i) the sum payable shall be increased
as may be necessary so that, after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.12), such
Person receives an amount equal to the sum it would have received had no such
deductions been made; (ii) the Borrower shall make such deductions; and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law. However, to the
extent that such Person later receives any refunds of the amount of the taxes
withheld by the Borrower, through direct payment to such Person or by tax
credits on other taxes owed by such Person which the Borrower is not obligated
to pay, the amount of such refund so received shall be refunded to the Borrower.
(b) OTHER TAXES. The Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges, or
similar levies which arise from any payment made or from the execution,
delivery, or registration of, or otherwise with respect to, this Agreement or
the other Credit Documents (other than those which become due as a result of any
Bank joining this Agreement as a result of any Assignment and Acceptance, which
shall be paid by the Bank which becomes a Bank hereunder as a result of such
Assignment and Acceptance).
(c) FOREIGN BANK WITHHOLDING EXEMPTION. Each Bank and Issuing Bank
that is not incorporated under the laws of the United States of America or a
state thereof agrees that it shall deliver to the Borrower and the Agent (i) two
duly completed copies of United States Internal Revenue Service Form 1001 or
4224 or successor applicable form, as the case may be, certifying in each case
that such Bank is entitled to receive payments under this Agreement and the
Notes payable to it, without deduction or withholding of any United States
federal income taxes, (ii) if applicable, an Internal Revenue Service Form W-8
or W-9 or successor applicable form, as the case may be, to establish an
exemption from United
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States backup withholding tax, and (iii) any other governmental forms which are
necessary or required under an applicable tax treaty or otherwise by law to
reduce or eliminate any withholding tax, which have been reasonably requested by
the Borrower. Each Bank which delivers to the Borrower and the Agent a Form 1001
or 4224 and Form W-8 or W-9 pursuant to the next preceding sentence further
undertakes to deliver to the Borrower and the Agent two further copies of the
said letter and Form 1001 or 4224 and Form W-8 or W-9, or successor applicable
forms, or other manner of certification, as the case may be, on or before the
date that any such letter or form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent letter and form
previously delivered by it to the Borrower and the Agent, and such extensions or
renewals thereof as may reasonably be requested by the Borrower and the Agent
certifying in the case of a Form 1001 or 4224 that such Bank is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes. If an event (including without limitation
any change in treaty, law or regulation) has occurred prior to the date on which
any delivery required by the preceding sentence would otherwise be required
which renders all such forms inapplicable or which would prevent any Bank from
duly completing and delivering any such letter or form with respect to it and
such Bank advises the Borrower and the Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax, and in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax, such Bank shall not be required to deliver such
letter or forms. The Borrower shall withhold tax at the rate and in the manner
required by the laws of the United States with respect to payments made to a
Bank failing to provide the requisite Internal Revenue Service forms in a timely
manner. Each Bank which fails to provide to the Borrower in a timely manner such
forms shall reimburse the Borrower upon demand for any penalties paid by the
Borrower as a result of any failure of the Borrower to withhold the required
amounts that are caused by such Bank's failure to provide the required forms in
a timely manner.
ARTICLE 3. CONDITIONS PRECEDENT.
3.1 CONDITIONS PRECEDENT TO EFFECTIVENESS. The effectiveness of this
Agreement and the obligation of each Bank to make the initial extension of
credit under this Agreement, including the making of any Advances and the
issuance of any Letters of Credit, shall be subject to the condition precedent
that the Borrower shall have executed and delivered or shall have caused to be
executed and delivered to the Agent the documents and other items listed on
EXHIBIT F, together with any other documents requested by the Agent to document
the agreements and intent of the Credit Documents, each in form and with
substance satisfactory to the Agent.
3.2 CONDITIONS PRECEDENT TO EACH EXTENSION OF CREDIT. The obligation of
each Bank to make any extension of credit under this Agreement, including the
making of any
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Advances and the issuance, increase, or extension of any Letters of Credit,
shall be subject to the further conditions precedent that on the date of such
extension of credit:
(a) REPRESENTATIONS AND WARRANTIES. As of the date of the making of
any extension of credit hereunder, the representations and warranties contained
in each Credit Document shall be true and correct in all material respects as of
such date (and the Borrower's request for the making of any extension of credit
hereunder shall be deemed to be a restatement, representation, and additional
warranty of the representations and warranties contained in each Credit Document
as of such date);
(b) DEFAULT. As of the date of the making of any extension of credit
hereunder, there shall exist no Default or Event of Default, and the making of
the extension of credit would not cause or be reasonably expected to cause a
Default or Event of Default;
(c) MATERIAL ADVERSE CHANGE. There shall not have occurred any
Material Adverse Change; and
(d) ADDITIONAL ACQUISITION FACILITY ITEMS. With respect to the
extension of any Acquisition Loan Borrowing, the Borrower shall have executed
and delivered appropriate Acquisition Loan Notes to the Banks and, if the
Acquisition requires the consent of the Agent or any Banks, such consent has
been provided and any conditions that are part of such consent have been
satisfied as required by the Agent and the Banks.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
to the Agent and each Bank, and with each request for any extension of credit
hereunder, including the making of any Advances and the issuance, increase, or
extension of any Letters of Credit, again represents and warrants to the Agent
and each Bank, as follows:
4.1 ORGANIZATION. As of the date of this Agreement, the Borrower and each
Credit Party (a) is duly organized, validly existing, and in good standing under
the laws of such Person's respective jurisdiction of organization and (b) is
duly licensed, qualified to do business, and in good standing in each
jurisdiction in which such Person owns property or conducts operations and which
requires such licensing or qualification and where failure to be so licensed,
qualified, or in good standing could reasonably be expected to cause a Material
Adverse Change. As of the date of this Agreement, each other Restricted Entity
(a) is duly organized and validly existing under the laws of such Person's
respective jurisdiction of organization and (b) is duly licensed, qualified to
do business, and in good standing in each jurisdiction in which such Person is
organized, owns property, or conducts operations to the extent that any failure
to be so licensed, qualified, or in good standing could reasonably be expected
to cause a Material Adverse Change.
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4.2 AUTHORIZATION. The execution, delivery, and performance by each Credit
Party of the Credit Documents to which such Credit Party is a party and the
consummation of the transactions contemplated thereby (a) do not contravene the
organizational documents of such Credit Party, (b) have been duly authorized by
all necessary corporate action of each Credit Party, and (c) are within each
Credit Party's corporate powers.
4.3 ENFORCEABILITY. Each Credit Document to which any Credit Party is a
party has been duly executed and delivered by each Credit Party which is a party
to such Credit Document and constitutes the legal, valid, and binding obligation
of each such Credit Party, enforceable against each such Credit Party in
accordance with such Credit Document's terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws at the time
in effect affecting the rights of creditors generally and subject to the
availability of equitable remedies.
4.4 ABSENCE OF CONFLICTS AND APPROVALS. The execution, delivery, and
performance by each Credit Party of the Credit Documents to which such Credit
Party is a party and the consummation of the transactions contemplated thereby,
(a) do not result in any violation or breach of any provisions of, or constitute
a default under, any note, indenture, credit agreement, security agreement,
credit support agreement, or other similar agreement to which such Credit Party
is a party or any other material contract or agreement to which such Credit
Party is a party, (b) do not violate any law or regulation binding on or
affecting such Credit Party, (c) do not require any authorization, approval, or
other action by, or any notice to or filing with, any governmental authority,
and (d) do not result in or require the creation or imposition of any Lien
prohibited by this Agreement.
4.5 INVESTMENT COMPANIES. No Restricted Entity or Affiliate thereof is an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
4.6 PUBLIC UTILITIES. No Restricted Entity or Affiliate thereof is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended. No Restricted Entity or Affiliate thereof is a regulated public
utility.
4.7 FINANCIAL CONDITION.
(a) The Borrower has delivered to the Agent the annual audited
consolidated financial statements of the Parent dated as of December 31, 1995,
including therein the balance sheet of the Parent as of such date and the
statements of income, stockholders' equity, and cash flows for the Parent for
the fiscal year ending on such date. These financial statements are accurate and
complete in all material respects and present
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fairly the financial condition of the Parent and as of such date in accordance
with generally accepted accounting principles.
(b) The Borrower has delivered to the Agent the consolidated
financial statements of the Parent, dated as of September 30, 1996, including
therein the balance sheet of the Parent, as of such date and the statements of
operations, changes in stockholder's equity, and cash flows for the Parent, for
the fiscal quarter ending on such date. Each of these financial statements are
accurate and complete in all material respects and present fairly the financial
condition of Parent, as of such date in accordance with generally accepted
accounting principles.
(c) As of the respective dates of the Financial Statements and the
Interim Financial Statements, there were no material contingent obligations,
liabilities for taxes, unusual forward or long-term commitments, or unrealized
or anticipated losses of the Parent or any of the Parent's Subsidiaries, except
as disclosed in the Financial Statements or the Interim Financial Statements,
and adequate reserves for such items have been made in accordance with generally
accepted accounting principles. No Material Adverse Change has occurred. No
Default exists.
4.8 CONDITION OF ASSETS. Each Restricted Entity has good and indefeasible
title to all of its owned property and valid leasehold rights in all of its
leased property, as reflected in the financial statements most recently provided
to the Agent free and clear of all Liens except Permitted Liens. Each Restricted
Entity possesses all permits, licenses, patents, patent rights or licenses,
trademarks, trademark rights, trade names rights, and copyrights which are
useful in the conduct of its business and which the failure to possess could
reasonably be expected to cause a Material Adverse Change. The material
properties used or to be used in the continuing operations of each Restricted
Entity are in good repair, working order, and condition, normal wear and tear
excepted. The properties of each Restricted Entity have not been adversely
affected as a result of any fire, explosion, earthquake, flood, drought,
windstorm, accident, strike or other labor disturbance, embargo, requisition or
taking of property or cancellation of contracts, permits, or concessions by a
governmental authority, riot, activities of armed forces, or acts of God or of
any public enemy in any manner which could reasonably be expected to cause a
Material Adverse Change.
4.9 LITIGATION. There are no actions, suits, or proceedings pending or, to
the knowledge of any Restricted Entity, threatened against any Restricted Entity
at law, in equity, or in admiralty, or by or before any governmental department,
commission, board, bureau, agency, or instrumentality, domestic or foreign, or
any arbitrator which could reasonably be expected to cause a Material Adverse
Change.
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4.10 SUBSIDIARIES. As of the date of this Agreement, the Parent and the
Borrower have no Subsidiaries except as disclosed in SCHEDULE II. The Parent and
the Borrower have no Subsidiaries which have not been disclosed in writing to
the Agent.
4.11 LAWS AND REGULATIONS. Each Restricted Entity has been and is in
compliance with all federal, state, and local laws and regulations which are
applicable to the operations and property of such Person and which the failure
to comply with could reasonably be expected to cause a Material Adverse Change,
except where such Person is contesting the validity or application of any such
laws or regulations in good faith by appropriate legal proceedings for which
adequate reserves have been established and reported in accordance with
generally accepted accounting principles.
4.12 ENVIRONMENTAL COMPLIANCE. Each Restricted Entity has been and is in
compliance with all Environmental Laws and has obtained and is in compliance
with all related permits necessary for the ownership and operation of any such
Person's properties which the failure to be in compliance with could reasonably
be expected to cause a Material Adverse Change. Each Restricted Entity has never
received notice of and has never been investigated for any violation or alleged
violation of any Environmental Law in connection with any such Person's
presently or previously owned properties which threaten action or suggest
liabilities which could reasonably be expected to cause a Material Adverse
Change. Each Restricted Entity does not and has not created, handled,
transported, used, or disposed of any Hazardous Materials on or about any such
Person's properties (nor has any such Person's properties been used for those
purposes), except in compliance with all Environmental Laws and related permits;
has never been responsible for the release of any Hazardous Materials into the
environment in connection with any such Person's operations and have not
contaminated any properties with Hazardous Materials; and does not and has not
owned any properties contaminated by any Hazardous Materials, in each case in
any manner which could reasonably be expected to cause a Material Adverse
Change.
4.13 ERISA. To the extent applicable, each Restricted Entity and each of
their respective Commonly Controlled Entities are in compliance in all material
respects with all provisions of ERISA. To the extent applicable, no Restricted
Entity nor any of their respective Commonly Controlled Entities participates in
or during the past five years has participated in any employee pension benefit
plan covered by Title IV of ERISA or any multiemployer plan under Section
4001(a)(3) of ERISA. With respect to the Plans of the Restricted Entities,
neither a Reportable Event nor a Prohibited Transaction has occurred and exists.
4.14 TAXES. Each Restricted Entity has filed all United States federal,
state, and local income tax returns and all other domestic and foreign tax
returns which are required to be filed by such Person and has paid, or provided
for the payment before the same became delinquent of, all taxes due pursuant to
such returns or pursuant to any assessment received
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by the such Person (except for good faith delays in filing tax returns and
making tax payments in jurisdictions outside of the United States for which
adequate reserves have been made and reported in accordance with general
accepted accounting principals and which could not reasonably be expected to
cause a Material Adverse Change). The charges, accruals, and reserves on the
books of the Restricted Entities in respect of taxes are adequate in accordance
with generally accepted accounting principles.
4.15 TRUE AND COMPLETE DISCLOSURE. All factual information furnished by or
on behalf of any Credit Party in writing to the Agent or any Bank in connection
with the Credit Documents and the transactions contemplated thereby is true and
accurate in all material respects on the date as of which such information was
dated or certified and does not contain any untrue statement of material fact or
omit to state any material fact necessary to make the statements contained
therein not misleading. All projections, estimates, and pro forma financial
information furnished by any Credit Party were prepared on the basis of
assumptions, data, information, tests, or conditions believed to be reasonable
at the time such projections, estimates, and pro forma financial information
were furnished.
ARTICLE 5. COVENANTS. Until the Agent and the Banks receive irrevocable payment
of the Credit Obligations and have terminated this Agreement and each other
Credit Document, the Borrower shall comply with and cause compliance with the
following covenants:
5.1 ORGANIZATION. The Borrower shall and shall cause each Credit Party to
(a) maintain itself as an entity duly organized, validly existing, and in good
standing under the laws of each such Person's respective jurisdiction of
organization and (b) duly licensed, qualified to do business, and in good
standing in each jurisdiction in which such Person owns property or conducts
operations and which requires such licensing or qualification and where failure
to be so licensed, qualified, or in good standing could reasonably be expected
to cause a Material Adverse Change. The Borrower shall cause each other
Restricted Entity to (a) maintain itself as an entity duly organized and validly
existing under the laws of each such Person's respective jurisdiction of
organization and (b) duly licensed, qualified to do business, and in good
standing in each jurisdiction in which such Person is organized, owns property,
or conducts operations and which requires such licensing or qualification and
where failure to be so licensed, qualified, or in good standing could reasonably
be expected to cause a Material Adverse Change.
5.2 REPORTING. The Borrower shall furnish to the Agent all of the
following:
(a) ANNUAL FINANCIAL REPORTS. As soon as available and in any event
not later than 120 days after the end of each fiscal year of the Parent, (i) a
copy of the annual audit report for such fiscal year for the Parent, including
therein the consolidated balance sheets of the Parent as of the end of such
fiscal year and the consolidated statements of
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income, stockholders' equity, and cash flows for the Parent for such fiscal
year, setting forth the consolidated financial position and results of the
Parent for such fiscal year and certified, without any qualification or limit of
the scope of the examination of matters relevant to the financial statements, by
a nationally recognized certified public accounting firm; (ii) the consolidating
schedules used to prepare the financial statements described in clause (i)
above; and (iii) a completed Compliance Certificate duly certified by a
Responsible Officer of the Borrower and the Parent;
(b) QUARTERLY FINANCIAL REPORTS. As soon as available and in any
event not later than 60 days after the end of each fiscal quarter, (i) a copy of
the internally prepared consolidated financial statements of the Parent for such
fiscal quarter and for the fiscal year to date period ending on the last day of
such fiscal quarter, including therein the consolidated balance sheets of the
Parent as of the end of such fiscal quarter and the consolidated statements of
income, and cash flows for such fiscal quarter and for such fiscal year to date
period, setting forth the consolidated financial position and results of the
Parent for such fiscal quarter and fiscal year to date period, all in reasonable
detail and duly certified by a Responsible Officer of the Borrower and the
Parent as having been prepared in accordance with generally accepted accounting
principles, including those applicable to interim financial reports which permit
normal year end adjustments and do not require complete financial notes; (ii)
the consolidating schedules used to prepare the financial statements described
in clause (i) above; and (iii) a completed Compliance Certificate duly certified
by a Responsible Officer of the Borrower and the Parent;
(c) SEC FILINGS. As soon as available and in any event not later
than thirty days after the filing or delivery thereof, copies of all financial
statements, reports, and proxy statements which any Restricted Entity shall have
sent to its stockholders generally (other than to the Borrower or other
Subsidiaries) and copies of all regular and periodic reports, if any, which any
Restricted Entity shall have filed with the Securities and Exchange Commission
or Netherlands equivalent;
(d) DEFAULTS. Promptly, but in any event within five Business Days
after the discovery thereof, a notice of any facts known to any Restricted
Entity which constitute a Default, together with a statement of a Responsible
Officer of the Borrower setting forth the details of such facts and the actions
which the Borrower has taken and proposes to take with respect thereto;
(e) LITIGATION. Promptly after the commencement thereof, notice of
all actions, suits, and proceedings before any court or governmental department,
commission, board, bureau, agency, or instrumentality, domestic or foreign,
affecting any Restricted Entity which, if determined adversely, could reasonably
be expected to cause a Material Adverse Change;
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(f) MATERIAL CHANGES. Prompt written notice of any condition or
event of which any Restricted Entity has knowledge, which condition or event has
resulted or could reasonably be expected to cause a Material Adverse Change; and
(g) OTHER INFORMATION. Such other information respecting the
business operations or property of any Restricted Entity, financial or
otherwise, as the Agent or the Majority Banks may from time to time reasonably
request.
5.3 INSPECTION. The Borrower shall cause each Restricted Entity to permit
the Agent and the Banks to visit and inspect any of the properties of such
Restricted Entity, to examine all of such Person's books of account, records,
reports, and other papers, to make copies and extracts therefrom, and to discuss
their respective affairs, finances, and accounts with their respective officers,
employees, and independent public accountants all at such reasonable times and
as often as may be reasonably requested provided that the Borrower is given at
least one Business Day advance notice thereof and reasonable opportunity to be
present when independent public accountants or other third parties are
contacted.
5.4 USE OF PROCEEDS. The proceeds of the Revolving Loan Borrowings shall
be used by the Borrower only for general corporate and working capital purposes.
The proceeds of the Term Loan shall be used by the Borrower only to refinance
existing indebtedness of the Borrower. The proceeds of the Acquisition Loan
Borrowings shall be used by the Borrower only for financing Acquisitions. The
Borrower shall not, directly or indirectly, use any part of such proceeds for
any purpose which violates, or is inconsistent with, Regulations G, T, U, or X
of the Board of Governors of the Federal Reserve System.
5.5 FINANCIAL COVENANTS.
(a) FUNDED DEBT TO EBITDA RATIOS.
(i) As of the last day of each fiscal quarter of the Parent,
the Borrower shall not permit the ratio of (A) the consolidated Funded
Debt of the Parent as of end of the fiscal quarter (as adjusted to reflect
the effects of any Acquisitions in accordance with paragraph (iii) below)
to (B) the consolidated EBITDA of the Parent for the preceding four fiscal
quarters then ended (as adjusted to reflect the effects of any
Acquisitions in accordance with paragraph (iii) below), to be greater than
2.75 to 1.00.
(ii) As of the last day of each fiscal quarter of the Parent,
the Borrower shall not permit the ratio of (A) the consolidated Funded
Debt of the Borrower as of end of the fiscal quarter then ended (as
adjusted to reflect the effects of any Acquisitions in accordance with
paragraph (iii) below) to (B) the consolidated EBITDA of the Borrower for
the preceding four fiscal quarters then ended (as
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adjusted to reflect the effects of any Acquisitions in accordance with
paragraph (iii) below), to be greater than 4.00 to 1.00.
(iii) In connection with, but in no event more than five
Business Days after the occurrence of, any Acquisition, the Borrower shall
provide to the Agent and the Banks (A) the historical financial statements
of the acquired assets (or, if not available, proforma historical
financial statements approved by the Majority Banks) for each of the
preceding four fiscal quarters of the Parent, (B) proforma schedules
prepared by the Borrower using methodology approved by the Majority Banks
(including approval of any adjustments for nonrecurring items or add-back
items) reflecting the combination of the EBITDA of the acquired assets to
the EBITDA of the Parent and the Borrower and the combination of the
Funded Debt associated with the acquired assets to the Funded Debt of the
Parent and the Borrower for use in the calculation of the financial ratios
in paragraphs (i) and (ii) above and in the definition of "Applicable
Interest Margin", and (C) a certificate from a Responsible Officer of the
Borrower stating that such information is accurate, complete, and prepared
in good faith based upon reasonable assumptions. Upon receipt of such
information, the Agent shall recalculate compliance with the covenants set
forth in paragraphs (i) and (ii) above, and the Borrower must remain in
compliance with the terms of such covenants.
(b) FIXED CHARGE COVERAGE RATIOS.
(i) As of the last day of each fiscal quarter, the Borrower
shall not permit the ratio of (A) the consolidated net income of the
Parent for the preceding four fiscal quarters then ended plus the
consolidated interest expense, lease expense, and tax expense of the
Parent for such period to (B) the consolidated interest expense and lease
expense of the Parent for the preceding four fiscal quarters then ended,
to be less than 1.50 to 1.00.
(ii) As of the last day of each fiscal quarter, the Borrower
shall not permit the ratio of (A) the consolidated EBITDA of the Borrower
for the preceding four fiscal quarters then ended, less the consolidated
cash taxes paid and cash dividends paid by the Borrower for such period to
(B) the consolidated interest expense of the Borrower for the preceding
four fiscal quarters then ended plus the consolidated required principal
payments on long-term Debt for the Borrower during such period, to be less
than 1.00 to 1.00.
(c) TANGIBLE NET WORTH. The Borrower shall not permit the
consolidated Tangible Net Worth of the Parent to be less than (i) for the
Parent's fiscal year ending December 31, 1995, $26,316,000, and (ii) during any
of the Parent's fiscal years thereafter, an amount equal to the sum of the
amount that was required to be maintained during the
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previous fiscal year of the Parent plus 75% of consolidated net income of the
Parent for such previous fiscal year (excluding consolidated net income for such
previous fiscal year if not a positive number).
5.6 DEBT.
(a) The Borrower shall not permit any Restricted Entity to create,
assume, incur, suffer to exist, or in any manner become liable, directly,
indirectly, or contingently in respect of, any Debt other than Permitted Debt.
(b) The Borrower shall not permit the Borrower or any of its
Subsidiaries to make any payments, whether for principal, interest, or other
amounts, on Debt owed by the Borrower or any of its Subsidiaries to the Parent
or any of its Subsidiaries (other than the Borrower and its Subsidiaries) except
that the Borrower may make principal and interest payments on indebtedness owed
by the Borrower to the Parent, provided that the aggregate amount of such
principal and interest payments does not exceed 25% of the Borrower's
consolidated net income since December 31, 1994, less any dividends made by the
Borrower to the Parent during such period under Section 5.10(b).
5.7 LIENS. The Borrower shall not permit any Restricted Entity to create,
assume, incur, or suffer to exist any Lien on any of its real or personal
property whether now owned or hereafter acquired, or assign any right to receive
its income, except for Permitted Liens.
5.8 DERIVATIVES. The Borrower shall not permit any Restricted Entity to
enter into or assume any obligations with respect to any Derivatives except for
Permitted Derivatives.
5.9 CORPORATE TRANSACTIONS. The Borrower shall not permit any Restricted
Entity to (1) merge or consolidate with or be a party to a merger or
consolidation with any other Person or (2) assign, sell, lease, dispose of, or
otherwise transfer any of such Restricted Entity's assets outside of the
ordinary course of business, provided, however, that:
(a) any Person may be merged or consolidated with the Borrower or
any Subsidiary of the Borrower organized under a jurisdiction of the
United States provided that the Borrower or such Subsidiary of the
Borrower shall be the continuing or surviving corporation (or such Person
becomes a Subsidiary of the Borrower in the transaction), the Agent is
provided with advanced written notice thereof, and after giving effect
thereto no Default or Event of Default would exist or reasonably be
expected to be caused thereby;
(b) the Borrower or any Subsidiary of the Borrower organized under a
jurisdiction of the United States may sell, lease, assign, transfer, or
otherwise dispose of any or all of its assets (i) to the Borrower or any
Subsidiary of the Borrower
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organized under a jurisdiction of the United States provided that after
giving effect thereto no Default or Event of Default would exist or
reasonably be expected to be caused thereby or (ii) to any Person other
than the Borrower or any Subsidiary of the Borrower organized under a
jurisdiction of the United States if the aggregate value of the assets so
transferred to such Persons other than the Borrower or such Subsidiaries
during any fiscal year of the Parent does not exceed $5,000,000 and fair
value is received for the transfer;
(c) any Person (other than the Borrower or any Subsidiary of the
Borrower organized in a jurisdiction of the United States) may be merged
or consolidated with the Parent or any Subsidiary of the Parent organized
under a jurisdiction outside of the United States provided that the Parent
or such Subsidiary of the Parent shall be the continuing or surviving
corporation (or such Person becomes a Subsidiary of the Parent in the
transaction), the Agent is provided with advanced written notice thereof,
and after giving effect thereto no Default or Event of Default would exist
or reasonably be expected to be caused thereby; and
(d) the Parent or any Subsidiary of the Parent organized under a
jurisdiction outside of the United States may sell, lease, assign,
transfer, or otherwise dispose of any or all of its assets (i) to the
Parent or any Subsidiary of the Parent provided that after giving effect
thereto no Default or Event of Default would exist or reasonably be
expected to be caused thereby or (ii) to any Person other than the Parent
or any Subsidiary of the Parent if the aggregate value of the assets so
transferred to such Persons other than the Parent or such Subsidiaries
during any fiscal year of the Parent does not exceed $5,000,000 and fair
value is received for the transfer.
5.10 DISTRIBUTIONS.
(a) Except as permitted in paragraphs (b), (c), and (d) below, the
Borrower shall not and shall not permit the Parent to (i) declare or pay any
dividends; (ii) purchase, redeem, retire, or otherwise acquire for value any of
such Person's capital stock now or hereafter outstanding; or make any
distribution of assets to such Person's stockholders as such, whether in cash,
assets, or in obligations of such Person; (iii) allocate or otherwise set apart
any sum for the payment of any dividend or distribution on, or for the purchase,
redemption, or retirement of, any shares of such Person's capital stock; or (iv)
make any other distribution by reduction of capital or otherwise in respect of
any shares of such Person's capital stock.
(b) The Borrower may pay cash dividends to the Parent, provided that
the aggregate amount of such cash dividends does not exceed 25% of the
Borrower's consolidated net income since December 31, 1994, less any payments of
principal and interest made by the Borrower to the Parent during such period
under Section 5.6(b).
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(c) The Parent may pay cash dividends to its shareholders, provided
that the aggregate amount of such cash dividends does not exceed 25% of the
Parent's consolidated net income since December 31, 1994.
(d) The Parent may purchase, redeem, retire, or otherwise acquire
for value any of the Parent's capital stock now or hereafter outstanding as
required to comply with the Parent's stock options plans and pension plans
provided that the aggregate amount paid by the Parent for such purposes does not
exceed $1,000,000 during any fiscal year of the Parent.
5.11 TRANSACTIONS WITH AFFILIATES. The Borrower shall not permit any
Restricted Entity to enter into any transaction directly or indirectly with or
for the benefit of an Affiliate except transactions with an Affiliate for the
leasing of property, the rendering or receipt of services, or the purchase or
sale of inventory or other assets in the ordinary course of business if the
monetary or business consideration arising from such a transaction would be
substantially as advantageous to such Person as the monetary or business
consideration which such Person would obtain in a comparable arm's length
transaction.
5.12 INSURANCE. The Borrower shall cause each Restricted Entity to
maintain insurance with responsible and reputable insurance companies or
associations reasonably acceptable to the Agent in such amounts and covering
such risks as are usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which such Persons
operate. Without limiting the foregoing, the Borrower shall not and shall not
permit any other Restricted Entity to terminate any type of insurance coverage
now in force without establishing contingency plans or self insurance plans
reasonably acceptable to the Agent. The Borrower shall deliver to the Agent
certificates evidencing such policies or copies of such policies at the Agent's
request following a reasonable period to obtain such certificates taking into
account the jurisdiction where the insurance is maintained.
5.13 INVESTMENTS; ACQUISITIONS.
(a) The Borrower shall not permit any Restricted Entity to make or
hold any direct or indirect investment in any Person, including capital
contributions to the Person, investments in the debt or equity securities of the
Person, and loans, guaranties, trade credit, or other extensions of credit to
the Person, except for Permitted Investments.
(b) Without the prior written consent of the Agent and the Majority
Banks, the Borrower shall not permit any Restricted Entity to make any direct or
indirect Acquisition, for cash or other consideration, including payments of
stock and assumption of Debt, if (i) the aggregate cash and other consideration,
including assumed indebtedness and stock of the Restricted Entities, given for
any such acquisition exceeds an amount equal to
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15% of the consolidated Net Worth of the Parent as of the end of the most
recently ended fiscal quarter or (ii) the aggregate cash and other
consideration, including assumed indebtedness and stock of the Restricted
Entities, given for all such acquisitions by the Restricted Entities during any
fiscal year of the Parent exceeds an amount equal to 30% of the consolidated Net
Worth of the Parent as of the end of the most recently ended fiscal quarter. The
Agent and the Banks hereby consent for the purposes of this paragraph (b), on
the terms and conditions previously disclosed to the Banks, to the Acquisition
of ProTechnics. The Agent and the Banks hereby consent for the purposes of this
paragraph (b), on the terms and conditions set forth in the commitment letter
dated February 7, 1997, to the Acquisition of Scott Pickford.
5.14 LINES OF BUSINESS; DISTRIBUTION. The Borrower shall not permit the
Restricted Entities to change the character of their business as conducted on
the date of this Agreement, or engage in any type of business not reasonably
related to such business as presently and normally conducted.
5.15 COMPLIANCE WITH LAWS. The Borrower shall cause each Restricted Entity
to comply with all federal, state, and local laws and regulations which are
applicable to the operations and property of such Persons and which the failure
to comply with could reasonably be expected to cause a Material Adverse Change;
provided, however, that this Section 5.15 shall not prevent any such Person from
contesting the validity or application of any such laws or regulations in good
faith by appropriate legal proceedings for which adequate reserves have been
established and reported in accordance with generally accepted accounting
principles.
5.16 ENVIRONMENTAL COMPLIANCE. The Borrower shall cause each Restricted
Entity to comply with all Environmental Laws and obtain and comply with all
related permits necessary for the ownership and operation of any such Person's
properties which the failure to comply with could reasonably be expected to
cause a Material Adverse Change. The Borrower shall cause each Restricted Entity
to promptly disclose to the Agent any notice to or investigation of such Persons
for any violation or alleged violation of any Environmental Law in connection
with any such Person's presently or previously owned properties which represent
liabilities which could reasonably be expected to cause a Material Adverse
Change. The Borrower shall not permit any Restricted Entity to create, handle,
transport, use, or dispose of any Hazardous Materials on or about any such
Person's properties except in compliance with all Environmental Laws and related
permits; release any Hazardous Materials into the environment in connection with
any such Person's operations or contaminate any properties with Hazardous
Materials; or own properties contaminated by any Hazardous Materials, in each
case if such action could reasonably be expected to cause a Material Adverse
Change.
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5.17 ERISA COMPLIANCE. The Borrower shall cause each Restricted Entity to
which ERISA applies to comply in all material respects with all applicable
provisions of ERISA, prevent the occurrence of any Reportable Event or
Prohibited Transaction with respect to, or the termination of, any of their
respective Plans, and not create or participate in any employee pension benefit
plan covered by Title IV of ERISA or any multiemployer plan under Section
4001(a)(3) of ERISA.
5.18 PAYMENT OF CERTAIN CLAIMS. The Borrower shall cause each Restricted
Entity to pay and discharge, before the same shall become delinquent, (a) all
taxes, assessments, levies, and like charges imposed upon any such Person or
upon any such Person's income, profits, or property by authorities having
competent jurisdiction prior to the date on which penalties attach thereto
(except for good faith delays in making tax payments in jurisdictions outside of
the United States for which adequate reserves have been made and reported in
accordance with general accepted accounting principals and which could not
reasonably be expected to cause a Material Adverse Change), (b) all lawful
claims which are secured by or which, if unpaid, would by law become secured by
a Lien upon any such Person's property, unless such claim is being contested in
good faith by appropriate proceedings for which adequate reserves have been
established and reported in accordance with generally accepted accounting
principles, and (c) all trade payables and current operating liabilities, unless
the same are less than 90 days past due or are being contested in good faith by
appropriate proceedings for which adequate reserves have been established and
reported in accordance with generally accepted accounting principles.
5.19 SUBSIDIARIES. If upon the formation or Acquisition of any new
Subsidiary of the Parent that is organized under a jurisdiction of the United
States such Subsidiary would have had on a historical proforma basis
consolidated assets in excess of 10% of the consolidated assets of the Borrower
as of the most recent fiscal quarter then ended or consolidated EBITDA in excess
of 10% of the consolidated EBITDA of the Borrower for the most recent fiscal
quarter then ended (with such proforma historical financial information being
determined in accordance with Section 5.5(a)(iii)), or if any existing
Subsidiary of the Parent that is organized under a jurisdiction of the United
States ever has consolidated assets in excess of 10% of the consolidated assets
of the Borrower as of the most recent fiscal quarter then ended or consolidated
EBITDA in excess of 10% of the consolidated EBITDA of the Borrower for the most
recent fiscal quarter then ended, then the Borrower shall cause such Subsidiary
to promptly execute and deliver to the Agent a Guaranty in substantially the
form of the Guaranties previously executed in connection with this Agreement,
with such modifications thereto as the Agent may reasonably request. In
connection therewith, the Borrower shall provide corporate documentation and
opinion letters reasonably satisfactory to the Agent reflecting the corporate
status of such new Subsidiary and the enforceability of such agreements. Nothing
in this Section is intended to require the release of any Guaranties already in
effect.
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ARTICLE 6. DEFAULT AND REMEDIES.
6.1 EVENTS OF DEFAULT. Each of the following shall be an "Event of
Default" for the purposes of this Agreement and for each of the Credit
Documents:
(a) PAYMENT FAILURE. The Borrower (i) fails to pay when due any
principal amounts due under this Agreement or any other Credit Document or (ii)
fails to pay when due any interest, fees, reimbursements, indemnifications, or
other amounts due under this Agreement or any other Credit Document and such
failure has not been cured within five Business Days after receipt of written
notice thereof from the Agent;
(b) FALSE REPRESENTATION. Any written representation or warranty
made by any Credit Party or any Responsible Officer thereof in this Agreement or
in any other Credit Document proves to have been false or erroneous at the time
it was made or deemed made;
(c) BREACH OF COVENANT. (i) Any breach by the Borrower of any of the
covenants contained in Sections 5.1, 5.2, 5.3, 5.4, 5.5(b), 5.6, 5.7, 5.8, 5.9,
5.10, or 5.13 or (ii) any breach by the Borrower of any other covenants
contained in this Agreement or any other Credit Document and such breach is not
cured within 30 days following the earlier of knowledge of such breach by the
Borrower or the receipt of written notice thereof from the Agent;
(d) GUARANTIES. (i) Any Guaranty shall at any time and for any
reason cease to be in full force and effect or shall be contested by any
Guarantor, or any Guarantor shall deny it has any further liability or
obligation under the Guaranty executed by such Guarantor, (ii) any breach by any
Guarantor of any of the covenants contained in Sections 1.1 or 1.2 of the
Guaranty executed by such Guarantor, or (iii) or any breach by any Guarantor of
any other covenants contained in the Guaranty executed by such Guarantor or any
other Credit Document and such breach is not cured within 30 days following the
earlier of knowledge of such breach by such Guarantor or the receipt of written
notice thereof from the Agent;
(e) MATERIAL DEBT DEFAULT. (i) Any principal, interest, fees, or
other amounts due on any Debt of any Restricted Entity is not paid when due,
whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise, and such failure is not cured within the applicable grace period, if
any, and the aggregate amount of all Debt of such Persons so in default exceeds
$250,000; (ii) any other event shall occur or condition shall exist under any
agreement or instrument relating to any Debt of any such Person the effect of
which is to accelerate or to permit the acceleration of the maturity of any such
Debt, whether or not any such Debt is actually accelerated, and such event or
condition shall not be cured within the applicable grace period, if any, and the
aggregate amount of all
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Debt of such Persons so in default exceeds $250,000; or (iii) any Debt of any
such Person shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled prepayment) prior to the stated maturity
thereof, and the aggregate amount of all Debt of such Persons so accelerated
exceeds $250,000;
(f) MATERIAL AGREEMENT DEFAULT. There shall occur any breach by any
Restricted Entity or any contract or agreement which breach could reasonably be
expected to cause a Material Adverse Change and such breach is not cured within
the applicable grace period, if any;
(g) BANKRUPTCY AND INSOLVENCY. (i) there shall have been filed
against any Restricted Entity or any such Person's properties, without such
Person's consent, any petition seeking any arrangement, receivership,
reorganization, liquidation, or similar relief under bankruptcy or other laws
for the relief of debtors and such petition remains in effect for 60 or more
days, whether or not consecutive, or any court shall approve any such petition
or (ii) any such Person consents to or files any petition of the type described
in clause (i) above seeking relief from creditors, makes any assignment for the
benefit of creditors or other arrangement with creditors, or admits in writing
such Person's inability to pay such Persons's debts as they become due (the
occurrence of any event under clause (i) or (ii) above being a "Bankruptcy Event
of Default");
(h) ADVERSE JUDGMENT. The aggregate outstanding amount of judgments
against the Restricted Parties not discharged or stayed pending appeal or other
court action within 30 days following entry is greater than $250,000; or
(i) OWNERSHIP. The occurrence of any Change of Control of the Parent
or the Borrower after the date of this Agreement.
6.2 TERMINATION OF COMMITMENTS. Upon the occurrence of any Bankruptcy
Event of Default, all of the commitments of the Agent and the Banks hereunder
shall terminate. During the existence of any Event of Default other than a
Bankruptcy Event of Default, the Agent shall at the request of the Majority
Banks declare by written notice to the Borrower all of the commitments of the
Agent and the Banks hereunder terminated, whereupon the same shall immediately
terminate.
6.3 ACCELERATION OF CREDIT OBLIGATIONS. Upon the occurrence of any
Bankruptcy Event of Default, the aggregate outstanding principal amount of all
loans made hereunder, all accrued interest thereon, and all other Credit
Obligations shall immediately and automatically become due and payable. During
the existence of any Event of Default other than a Bankruptcy Event of Default,
the Agent shall at the request of the Majority Banks declare by written notice
to the Borrower the aggregate outstanding principal amount of all loans made
hereunder, all accrued interest thereon, and all other Credit Obligations to be
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immediately due and payable. In connection with the foregoing, except for the
notice provided for above, the Borrower waives notice of intent to demand,
demand, presentment for payment, notice of nonpayment, protest, notice of
protest, grace, notice of dishonor, notice of intent to accelerate, notice of
acceleration, and all other notices.
6.4 CASH COLLATERALIZATION OF LETTERS OF CREDIT. Upon the occurrence of
any Bankruptcy Event of Default, the Borrower shall pay to the Agent an amount
equal to the Letter of Credit Exposure allocable to the Letters of Credit
requested by the Borrower to be held in the Letter of Credit Collateral Account
for disposition in accordance with Section 2.4(g). During the existence of any
Event of Default other than a Bankruptcy Event of Default, the Agent shall at
the request of the Majority Banks require by written notice to the Borrower that
the Borrower pay to the Agent an amount equal to the Letter of Credit Exposure
allocable to the Letters of Credit requested by the Borrower to be held in the
Letter of Credit Collateral Account for disposition in accordance with Section
2.4(g).
6.5 DEFAULT INTEREST. If any Event of Default exists, the Agent shall at
the request of the Majority Banks declare by written notice to the Borrower that
the Credit Obligations specified in such notice shall bear interest beginning on
the date specified in such notice until paid in full at the applicable Default
Rate for such Credit Obligations, and the Borrower shall pay such interest to
the Agent for the benefit of the Agent and the Banks, as applicable, upon
demand.
6.6 RIGHT OF SETOFF. During the existence of an Event of Default, the
Agent and each Bank is hereby authorized at any time, to the fullest extent
permitted by law, to set off and apply any indebtedness owed by the Agent or
such Bank to the Borrower against any and all of the obligations of the Borrower
under this Agreement and the Credit Documents, irrespective of whether or not
the Agent or such Bank shall have made any demand under this Agreement or the
Credit Documents and although such obligations may be contingent and unmatured.
The Agent and each Bank, as the case may be, agrees promptly to notify the
Borrower after any such setoff and application made by such party provided that
the failure to give such notice shall not affect the validity of such setoff and
application.
6.7 ACTIONS UNDER CREDIT DOCUMENTS. Following an Event of Default, the
Agent shall at the request of the Majority Banks take any and all actions
permitted under the other Credit Documents, including the Guaranties.
6.8 REMEDIES CUMULATIVE. No right, power, or remedy conferred to the Agent
or the Banks in this Agreement and the Credit Documents, or now or hereafter
existing at law, in equity, by statute, or otherwise, shall be exclusive, and
each such right, power, or remedy shall to the full extent permitted by law be
cumulative and in addition to every other such right, power, or remedy. No
course of dealing and no delay in exercising any right, power, or remedy
conferred to the Agent or the Banks in this Agreement and the Credit
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Documents, or now or hereafter existing at law, in equity, by statute, or
otherwise, shall operate as a waiver of or otherwise prejudice any such right,
power, or remedy.
6.9 APPLICATION OF PAYMENTS.
(a) Prior to the existence of any Bankruptcy Event of Default or any
Event of Default existing during the maturity of the Credit Obligations or the
acceleration of the Credit Obligations, all payments made hereunder shall be
applied to the Credit Obligations as directed by the Borrower, subject to the
rules regarding the application of payments to certain Credit Obligations
provided for hereunder and in the Credit Documents. If no direction is provided
by the Borrower, then applications shall be made as directed by the Agent.
(b) During the existence of any Bankruptcy Event of Default or any
Event of Default existing during the maturity of the Credit Obligations or the
acceleration of the Credit Obligations, all payments and collections shall be
applied to the Credit Obligations in the following order:
First, to the payment of the costs, expenses, reimbursements (other than
reimbursement obligations with respect to draws under Letters of Credit),
and indemnifications of the Agent that are due and payable under the
Credit Documents;
Then, ratably to the payment of all accrued but unpaid interest and fees
due and payable under the Credit Documents;
Then, ratably to the payment of all outstanding principal amounts due and
payable under the Credit Documents and all reimbursement obligations for
draws under Letters of Credit due and payable under the Credit Documents;
Then, ratably to the payment of any other amounts due and owing with
respect to the Credit Obligations; and
Finally, any surplus held by the Agent and remaining after payment in full
of all the Credit Obligations and reserve for Credit Obligations not yet
due and payable shall be promptly paid over to the Borrower or to whomever
may be lawfully entitled to receive such surplus. All applications shall
be distributed in accordance with Section 2.11(a).
ARTICLE 7. THE AGENT AND THE ISSUING BANK
7.1 AUTHORIZATION AND ACTION. Each Bank hereby appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under this
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Agreement as are delegated to the Agent by the terms hereof and of the other
Credit Documents, together with such powers as are reasonably incidental
thereto. Statements under the Credit Documents that the Agent may take certain
actions, without further qualification, means that the Agent may take such
actions with or without the consent of the Majority Banks. The Agent shall not,
however, release the Guaranties without the prior written consent of the Banks.
As to any matters not expressly provided for by this Agreement or any other
Credit Document (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the written
instructions of the Majority Banks, and such instructions shall be binding upon
all Banks and all holders of Notes; provided, however, that the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement, any other Credit Document, or applicable
law.
7.2 RELIANCE, ETC. Neither the Agent, the Issuing Bank, nor any of their
respective Related Parties (for the purposes of this Section 7.2, collectively,
the "Indemnified Parties") shall be liable for any action taken or omitted to be
taken by any Indemnified Party under or in connection with this Agreement or the
other Credit Documents, INCLUDING ANY INDEMNIFIED PARTY'S OWN NEGLIGENCE, except
for any Indemnified Party's gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent and the Issuing Bank:
(a) may treat the payee of any Note as the holder thereof until the Agent
receives written notice of the assignment or transfer thereof signed by such
payee and in form satisfactory to the Agent; (b) may consult with legal counsel
(including counsel for the Borrower), independent public accountants, and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants, or experts; (c) makes no warranty or representation to any Bank and
shall not be responsible to any Bank for any statements, warranties, or
representations made in or in connection with this Agreement or the other Credit
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants, or conditions of this
Agreement or any other Credit Document on the part of the Credit Parties or to
inspect the property (including the books and records) of the Credit Parties;
(e) shall not be responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency, or value of this Agreement
or any other Credit Document; and (f) shall incur no liability under or in
respect of this Agreement or any other Credit Document by acting upon any
notice, consent, certificate, or other instrument or writing (which may be by
telecopier or telex) reasonably believed by it to be genuine and signed or sent
by the proper party or parties.
7.3 AFFILIATES. With respect to its Commitments, the Advances made by it,
its interests in the Letters of Credit, and the Notes issued to it, the Agent
and the Issuing Bank shall have the same rights and powers under this Agreement
as any other Bank and may
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exercise the same as though it were not the Agent. The term "Bank" or "Banks"
shall, unless otherwise expressly indicated, include the Agent and the Issuing
Bank in their individual capacity. The Agent, the Issuing Bank, and their
respective Affiliates may accept deposits from, lend money to, act as trustee
under indentures of, and generally engage in any kind of business with, any
Credit Party, and any Person who may do business with or own securities of any
Credit Party, all as if the Agent were not an agent hereunder and the Issuing
Bank were not the issuer of Letters of Credit hereunder and without any duty to
account therefor to the Banks.
7.4 BANK CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and based on
the Financial Statements and the Interim Financial Statements and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges
that it shall, independently and without reliance upon the Agent or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under this Agreement.
7.5 EXPENSES. To the extent not paid by the Borrower, each Bank severally
agrees to pay to the Agent and the Issuing Bank on demand such Bank's ratable
share of the following: (a) all reasonable out-of-pocket costs and expenses of
the Agent and the Issuing Bank in connection with the preparation, execution,
delivery, administration, modification, and amendment of this Agreement and the
other Credit Documents, including the reasonable fees and expenses of outside
counsel for the Agent and the Issuing Bank with respect to advising the Agent
and the Issuing Bank as to their respective rights and responsibilities under
this Agreement and the Credit Documents, and (b) all out-of-pocket costs and
expenses of the Agent and the Issuing Bank in connection with the preservation
or enforcement of the rights of the Agent, the Issuing Bank, and the Banks under
this Agreement and the other Credit Documents, whether through negotiations,
legal proceedings, or otherwise, including fees and expenses of counsel for the
Agent and the Issuing Bank. The provisions of this paragraph shall survive the
repayment and termination of the credit provided for under this Agreement and
any purported termination of this Agreement which does not expressly refer to
this paragraph.
7.6 INDEMNIFICATION. To the extent not reimbursed by the Borrower, each
Bank severally agrees to protect, defend, indemnify, and hold harmless the
Agent, the Issuing Bank, and each of their respective Related Parties (for the
purposes of this Section 7.6, collectively, the "Indemnified Parties"), from and
against all demands, claims, actions, suits, damages, judgments, fines,
penalties, liabilities, and out-of-pocket costs and expenses, including
reasonable costs of attorneys and related costs of experts such as accountants
(collectively, the "Indemnified Liabilities"), actually incurred by any
Indemnified Party which are related to any litigation or proceeding relating to
this Agreement, the Credit
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Documents, or the transactions contemplated thereunder, INCLUDING ANY
INDEMNIFIED LIABILITIES CAUSED BY ANY INDEMNIFIED PARTY'S OWN NEGLIGENCE, but
not Indemnified Liabilities which are a result of any Indemnified Party's gross
negligence or willful misconduct. The provisions of this paragraph shall survive
the repayment and termination of the credit provided for under this Agreement
and any purported termination of this Agreement which does not expressly refer
to this paragraph.
7.7 SUCCESSOR AGENT AND ISSUING BANK. The Agent or the Issuing Bank may
resign at any time by giving written notice thereof to the Banks and the
Borrower and may be removed at any time with or without cause by the Majority
Banks upon receipt of written notice from the Majority Banks to such effect.
Upon receipt of notice of any such resignation or removal, the Majority Banks
shall have the right to appoint a successor Agent or Issuing Bank with the
consent of the Borrower, which consent shall not be unreasonably withheld. If no
successor Agent or Issuing Bank shall have been so appointed by the Majority
Banks with the consent of the Borrower, and shall have accepted such
appointment, within 30 days after the retiring Agent's or Issuing Bank's giving
of notice of resignation or the Majority Banks' removal of the retiring Agent or
Issuing Bank, then the retiring Agent or Issuing Bank may, on behalf of the
Banks and the Borrower, appoint a successor Agent or Issuing Bank, which shall
be, in the case of a successor agent, a commercial bank organized under the laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000 and, in the case of the Issuing
Bank, a Bank. Upon the acceptance of any appointment as Agent or Issuing Bank by
a successor Agent or Issuing Bank, such successor Agent or Issuing Bank shall
thereupon succeed to and become vested with all the rights, powers, privileges,
and duties of the retiring Agent or Issuing Bank, and the retiring Agent or
Issuing Bank shall be discharged from any duties and obligations under this
Agreement and the other Credit Documents after such acceptance, except that the
retiring Issuing Bank shall remain the Issuing Bank with respect to any Letters
of Credit outstanding on the effective date of its resignation or removal and
the provisions affecting the Issuing Bank with respect to such Letters of Credit
shall inure to the benefit of the retiring Issuing Bank until the termination of
all such Letters of Credit. After any Agent's or Issuing Bank's resignation or
removal hereunder as Agent or Issuing Bank, the provisions of this Article 7
shall inure to such Person's benefit as to any actions taken or omitted to be
taken by such Person while such Person was Agent or Issuing Bank under this
Agreement and the other Credit Documents.
ARTICLE 8. MISCELLANEOUS.
8.1 EXPENSES. The Borrower shall pay on demand of the applicable party
specified herein (a) all reasonable out-of-pocket costs and expenses of the
Agent and the Issuing Bank in connection with the preparation, execution,
delivery, administration, modification, and amendment of this Agreement and the
other Credit Documents, including
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the reasonable fees and expenses of outside counsel for the Agent and the
Issuing Bank, and (b) all out-of-pocket costs and expenses of the Agent, the
Issuing Bank, and each Bank in connection with the preservation or enforcement
of their respective rights under this Agreement and the other Credit Documents,
whether through negotiations, legal proceedings, or otherwise, including fees
and expenses of counsel for the Agent, the Issuing Bank, and each Bank. The
provisions of this paragraph shall survive the repayment and termination of the
credit provided for under this Agreement and any purported termination of this
Agreement which does not expressly refer to this paragraph.
8.2 INDEMNIFICATION. The Borrower agrees to protect, defend, indemnify,
and hold harmless the Agent, the Issuing Bank, each Bank, and each of their
respective Related Parties (for the purposes of this Section 8.2, collectively,
the "Indemnified Parties"), from and against all demands, claims, actions,
suits, damages, judgments, fines, penalties, liabilities, and out-of-pocket
costs and expenses, including reasonable costs of attorneys and related costs of
experts such as accountants (collectively, the "Indemnified Liabilities"),
actually incurred by any Indemnified Party which are related to any litigation
or proceeding relating to this Agreement, the Credit Documents, or the
transactions contemplated thereunder, INCLUDING ANY INDEMNIFIED LIABILITIES
CAUSED BY ANY INDEMNIFIED PARTY'S OWN NEGLIGENCE, but not Indemnified
Liabilities which are a result of any Indemnified Party's gross negligence or
willful misconduct. The provisions of this paragraph shall survive the repayment
and termination of the credit provided for under this Agreement and any
purported termination of this Agreement which does not expressly refer to this
paragraph.
8.3 MODIFICATIONS, WAIVERS, AND CONSENTS. No modification or waiver of any
provision of this Agreement or the Notes, nor any consent required under this
Agreement or the Notes, shall be effective unless the same shall be in writing
and signed by the Agent and Majority Banks and the Borrower, and then such
modification, waiver, or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no modification, waiver, or consent shall, unless in writing and signed by all
the Banks, do any of the following: (a) waive any of the conditions specified in
Section 3.1 or 3.2, (b) increase the Commitments of the Banks, (c) forgive any
principal, interest, or fees payable under the Credit Documents, or postpone the
payment thereof, or (d) change the percentage of Banks required to take any
action under this Agreement or the Notes, including any amendment of the
definition of "Majority Banks" or this Section 8.3. No modification, waiver, or
consent shall, unless in writing and signed by the Agent or the Issuing Bank
affect the rights or obligations of the Agent or the Issuing Bank, as the case
may be, under the Credit Documents.
8.4 SURVIVAL OF AGREEMENTS. All representations, warranties, and covenants
of the Borrower in this Agreement and the Credit Documents shall survive the
execution of this Agreement and the Credit Documents and any other document or
agreement.
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8.5 ASSIGNMENT AND PARTICIPATION. This Agreement and the Credit Documents
shall bind and inure to the benefit of the Borrower and their respective
successors and assigns and the Agent and the Banks and their respective
successors and assigns. The Borrower may not assign its rights or delegate its
duties under this Agreement or any Credit Document.
(a) ASSIGNMENTS. Any Bank may assign to one or more financial
institutions or other entities all or any portion of its rights and obligations
under this Agreement and the Notes (including its Commitment, Advances, and
interest in the Letters of Credit); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all of such
Bank's rights and obligations under this Agreement and assignments thereof shall
be made in 5% increments, (ii) after giving effect to such assignment each Bank
shall retain at least 20% of the Commitments, (iii) each such assignment shall
be to an Eligible Assignee, (iv) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with the Notes subject to such
assignment, and (v) each Eligible Assignee (other than the Eligible Assignee of
the Agent) shall pay to the Agent a $2,500 administrative fee. Upon such
execution, delivery, acceptance, and recording, from and after the effective
date specified in each Assignment and Acceptance (which effective date shall be
at least three Business Days after the execution thereof): (A) the assignee
thereunder shall be a party hereto for all purposes and, to the extent that
rights and obligations hereunder have been assigned to the assignee pursuant to
such Assignment and Acceptance, have the rights and obligations of a Bank
hereunder and (B) the assignor Bank thereunder shall, to the extent that rights
and obligations hereunder have been assigned by the assignor Bank pursuant to
such Assignment and Acceptance, relinquish the assignor Bank's rights and be
released from the assignor Bank's obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of
such assignor Bank's rights and obligations under this Agreement, such assignor
Bank shall cease to be a party hereto).
(b) TERM OF ASSIGNMENTS. By executing and delivering an Assignment
and Acceptance, the assignor Bank thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, the assignor Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties, or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency, or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) the assignor Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Credit Party or the performance or observance by any Credit Party of any
of their obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the Financial Statements and the
Interim Financial Statements and such other documents and
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information as such assignee has deemed appropriate to make such assignee's own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee shall, independently and without reliance upon the Agent, such
Bank, or any other Bank and based on such documents and information as such
assignee shall deem appropriate at the time, continue to make such assignee's
own credit decisions in taking or not taking action under this Agreement; (v)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it shall perform as a
Bank under the Credit Documents.
(c) THE REGISTER. The Agent shall maintain a copy of each Assignment
and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Banks and the Commitments of each
Bank from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent, the Issuing Bank, and the Banks may treat each Person whose
name is recorded in the Register as a Bank as a Bank hereunder for all purposes
of this Agreement. The Register shall be available for inspection by the
Borrower, the Issuing Bank, or any Bank at any reasonable time and from time to
time upon reasonable prior notice.
(d) PROCEDURES. Upon its receipt of an Assignment and Acceptance
executed by a Bank and an Eligible Assignee, together with the Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed in the appropriate form, (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register, and (iii) give
prompt notice thereof to the Borrower. Within five Business Days after its
receipt of such notice, the Borrower shall execute and deliver to the Agent in
exchange for the surrendered Notes new Notes to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if such Bank has retained any Commitment
hereunder, new Notes to the order of such Bank in an amount equal to the
Commitment retained by it hereunder. Such new Notes shall be dated the effective
date of such Assignment and Acceptance and shall be in the appropriate form.
(e) PARTICIPATIONS. Each Bank may sell participations to one or more
banks or other entities in or to all or a portion of its rights and obligations
under this Agreement and the Notes (including its Commitment, Advances, and
interest in the Letters of Credit); provided, however, that (i) such Bank's
obligations under this Agreement (including its Commitments to the Borrower
hereunder) shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Bank shall remain the holder of its Notes for all purposes of this
Agreement, (iv) the Borrower, the Agent, the Issuing Bank, and the other Banks
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and
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obligations under this Agreement, (v) such Bank shall not require the
participant's consent to any matter under this Agreement, except for changes in
the matters covered by Sections 8.3(b) and (c), and (vi) the Borrower is
provided with advance written notice of the participation and consents to the
same, such consent not to be unreasonably withheld. The Borrower hereby agrees
that participants shall have the same rights as a Bank under Sections 2.7, 2.8,
2.9, 2.10, 2.12, 6.6, and 8.2 to the extent of their respective participations.
8.6 NOTICE. All notices and other communications under this Agreement and
the Notes shall be in writing and mailed by certified mail (return receipt
requested), telecopied, telexed, hand delivered, or delivered by a nationally
recognized overnight courier, to the address for the appropriate party specified
in SCHEDULE I or at such other address as shall be designated by such party in a
written notice to the other parties. Mailed notices shall be effective when
received. Telecopied or telexed notices shall be effective when transmission is
completed or confirmed by telex answerback. Delivered notices shall be effective
when delivered by messenger or courier. Notwithstanding the foregoing, notices
and communications to the Agent pursuant to Article 2 or 7 shall not be
effective until received by the Agent.
8.7 CHOICE OF LAW. This Agreement and the Notes have been prepared, are
being executed and delivered, and are intended to be performed in the State of
Texas, and the substantive laws of the State of Texas and the applicable federal
laws of the United States shall govern the validity, construction, enforcement,
and interpretation of this Agreement and the Notes; provided however, Chapter 15
of the Texas Credit Code does not apply to this Agreement or the Notes. Each
Letter of Credit shall be governed by the Uniform Customs and Practice for
Documentary Credits, International Chamber of Commerce Publication No.
500 (1993 version).
8.8 FORUM SELECTION. THE BORROWER IRREVOCABLY CONSENTS TO THE JURISDICTION
OF THE COURTS OF THE STATE OF TEXAS AND OF ANY FEDERAL COURT LOCATED IN SUCH
STATE IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THE CREDIT DOCUMENTS OR ANY TRANSACTIONS RELATED THERETO. THE BORROWER AGREES
AND SHALL NOT CONTEST THAT PROPER FORUM AND VENUE FOR ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THE CREDIT DOCUMENTS OR ANY TRANSACTIONS RELATING
THERETO ARE IN THE COURTS OF THE STATE OF TEXAS IN HARRIS COUNTY, TEXAS, AND THE
FEDERAL COURTS LOCATED IN HARRIS COUNTY, TEXAS. THE BORROWER
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IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
FOREGOING BASED UPON CLAIMS THAT THE FOREGOING COURTS ARE AN INCONVENIENT FORUM.
8.9 SERVICE OF PROCESS. IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THE CREDIT DOCUMENTS OR ANY TRANSACTIONS RELATING THERETO, THE
BORROWER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS OR
NOTICE AND AGREES THAT SERVICE BY FIRST CLASS MAIL, RETURN RECEIPT REQUESTED, TO
THE BORROWER AT ITS ADDRESS FOR NOTICES HEREUNDER, OR ANY OTHER FORM OF SERVICE
PROVIDED FOR IN THE TEXAS CIVIL PRACTICE LAW AND RULES THEN IN EFFECT SHALL
CONSTITUTE GOOD AND SUFFICIENT SERVICE UPON THE BORROWER.
8.10 WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE CREDIT
DOCUMENTS OR ANY TRANSACTIONS RELATING THERETO.
8.11 CONFIDENTIALITY. The Agent and each Bank acknowledges that they shall
receive information regarding the Credit Parties' business operations and
financial condition which is not available to the public. The Agent and each
Bank agrees to maintain the confidentiality of such nonpublic information except
in the ordinary course of business with their respective auditors, accountants,
and legal advisors, and as required by law. The Agent and each Bank may share
such information with potential participants and assigns of its interests under
the Credit Documents if such transferees agree to maintain the confidentiality
of such information in writing, a copy of which is provided to the Borrower.
8.12 AMENDMENT AND RESTATEMENT. This Agreement represents the complete
amendment and restatement of the Prior Version of this Agreement, and while this
Agreement continues the Prior Version of this Agreement, the terms of the prior
version are replaced in their entirety with this Agreement. The indebtedness
under the prior version of this Agreement continues under this Agreement and the
execution of this Agreement does not indicate a payment, satisfaction, novation,
or discharge thereof. To that end, all Revolving Loan Borrowings under the Prior
Version of this Agreement are continued as Revolving Loan Borrowings under this
Agreement, all Term Loan Borrowings under the Prior Version of this Agreement
are continued as Term Loan Borrowings under this
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Agreement, and all Guidance Loan Borrowings under the Prior Version of this
Agreement are continued as Acquisition Loan Borrowings under this Agreement. All
support for the indebtedness under the Prior Version of this Agreement continues
to support the indebtedness hereunder.
8.13 COUNTERPARTS. This Agreement may be executed in multiple counterparts
which together shall constitute one and the same instrument.
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8.14 NO FURTHER AGREEMENTS. THIS WRITTEN AGREEMENT AND THE CREDIT
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED as of the date first above written.
BORROWER:
CORE LABORATORIES, INC.
By:________________________
Richard L. Bergmark
Chief Financial Officer
AGENT:
NATIONSBANK OF TEXAS, N.A., as Agent
By:_________________________
William B. Borus
Vice President
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BANKS:
NATIONSBANK OF TEXAS, N.A.
By:_________________________
William B. Borus
Vice President
Commitments:
Revolving Loan Commitment: $5,000,000
Term Loan Commitment: $7,000,000
Acquisition Loan Commitment: $10,000,000
BANK OF AMERICA TEXAS, N.A.
By:_________________________
Victor N. Tekell
Vice President
Commitments:
Revolving Loan Commitment: $5,000,000
Term Loan Commitment: $7,000,000
Acquisition Loan Commitment: $10,000,000
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EXHIBIT A
FORM OF COMPLIANCE CERTIFICATE
[Date]
NationsBank of Texas, N.A., as Agent
for the Banks parties to the
Credit Agreement referred to below
700 Louisiana, 7th Floor
Houston, Texas 77002
Attention: Mr. William B. Borus
Ladies and Gentlemen:
I refer to the Amended and Restated Credit Agreement dated as of February 7,
1997 (as modified, the "Credit Agreement"), among Core Laboratories, Inc. (the
"Company"), certain financial institutions parties thereto, and NationsBank of
Texas, N.A., as Agent, the defined terms of which are used herein unless
otherwise defined herein.
I hereby certify that I have no knowledge of any Defaults by the Borrower in the
observance of any of the provisions in the Credit Agreement which existed as of
[ ] or which exist as of the date of this letter.
I also certify that the accompanying consolidated financial statements present
fairly, in all material respects, the consolidated financial condition of the
Company as of [ ], and the related results of operations for the
[ ] then ended, in conformity with generally accepted
accounting principles.
The following sets forth the information and computations to demonstrate
compliance with the requirements of the applicable Sections of the Credit
Agreement as of [ ]:
<PAGE>
NationsBank of Texas, N.A., as Agent
[Date]
Page 2
A. SECTION 5.5(A) FUNDED DEBT TO EBITDA RATIOS
For the Parent:
1. consolidated Funded Debt (as adjusted
to reflect effects of Acquisitions
during preceding four fiscal quarters) $_________
2. consolidated net income
for preceding four quarters $_________
3. consolidated interest expense
for preceding four quarters $_________
4. consolidated taxes
for preceding four quarters $_________
5. consolidated depreciation and
amortization for preceding
four quarters $_________
6. EBITDA = A.2 + A.3 + A.4 + A.5 (as
adjusted to reflect effects of Acquisitions
during preceding four fiscal quarters) $_________
7. Majority Bank approved adjustments for
nonrecurring items or add-back items $_________
8. ratio (A.1 +/- A.7) / (A.6 +/- A.7) ____ to 1.00
9. maximum permitted 2.75 to 1.00
For the Borrower:
10. consolidated Funded Debt (as adjusted
to reflect effects of Acquisitions
during preceding four fiscal quarters) $_________
11. consolidated net income
for preceding four quarters $_________
12. consolidated interest expense
for preceding four quarters $_________
13. consolidated taxes
for preceding four quarters $_________
14. consolidated depreciation and
amortization for preceding
four quarters $_________
15. EBITDA = A.11 + A.12 + A.13 + A.14 (as
adjusted to reflect effects of Acquisitions
during preceding four fiscal quarters) $_________
<PAGE>
NationsBank of Texas, N.A., as Agent
[Date]
Page 3
16. Majority Bank approved adjustments for
nonrecurring items or add-back items $_________
17. ratio (A.10 +/- A.16) / (A.15 +/- A.16) ____ to 1.00
18. maximum permitted 4.00 to 1.00
B. SECTION 5.5(B) FIXED CHARGE COVERAGE RATIOS
For the Parent:
1. consolidated net income
for preceding four quarters $_________
2. consolidated interest expense
for preceding four quarters $_________
3. consolidated lease expense
for preceding four quarters $_________
4. consolidated taxes for
preceding four quarters $_________
5. ratio (B.1 + B.2 + B.3 + B.4)
/ (B.2 + B.3) ____ to 1.00
6. minimum required 1.50 to 1.00
For the Borrower:
7. consolidated net income
for preceding four quarters $_________
8. consolidated interest expense
for preceding four quarters $_________
9. consolidated taxes for
preceding four quarters $_________
10. consolidated depreciation and
amortization for preceding
four quarters $_________
11. cash taxes paid during
preceding four quarters $_________
12. cash dividends paid during
preceding four quarters $_________
13. consolidated required principal
payments on long-term Debt
during preceding four quarters $_________
14. ratio ([B.7 + B.8 + B.9 + B.10] -
[B.11 + B.12]) / (B.8 + B.13) ____ to 1.00
15. minimum required 1.00 to 1.00
<PAGE>
NationsBank of Texas, N.A., as Agent
[Date]
Page 4
C. SECTION 5.5(C) TANGIBLE NET WORTH
1. minimum Tangible Net Worth required
during previous fiscal year $26,316,000
2. 75% of consolidated net income for
previous fiscal year $_________
3. minimum Tangible Net Worth required
for fiscal year = C.1 + C.2 $_________
4. Tangible Net Worth = $_________
D. SECTION 5.6(B) PAYMENTS AND SECTION 5.10 DISTRIBUTIONS
1. 25% of Borrower's consolidated
net income since December 31, 1994 $_________
2. Dividends paid by Borrower to
Parent since December 31, 1994 $_________
3. Principal and interest payments
made by Borrower to Parent
since December 31, 1994 $_________
4. Excess of D.1 over (D.2 + D.3) must be positive
E. SECTION 5.13(A) INVESTMENTS
1. Outstanding Permitted Investments
under clause (a)(iii) of Permitted
Investments $_________
2. Outstanding Permitted Investments
under clause (b)(ii)(A) of Permitted
Investments $_________
3. Outstanding Permitted Investments
under clause (b)(ii)(B) of Permitted
Investments $_________
4. Outstanding Permitted Investments
under clause (b)(ii)(C) of Permitted
Investments $_________
5. Outstanding Permitted Investments
under clause (b)(ii)(D) of Permitted
Investments $_________
<PAGE>
NationsBank of Texas, N.A., as Agent
[Date]
Page 5
6. Outstanding Debt owed by the
Borrower and its Subsidiaries to the
Parent and its Subsidiaries (other than
the Borrower and its Subsidiaries) $_________
Very truly yours,
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF
BORROWING REQUEST
[Date]
NationsBank of Texas, N.A.,
as Agent
Attn: Ms. Jennifer Textus
700 Louisiana, 7th Floor
Houston, Texas 77002
Telephone: 713-247-6906
Telecopy: 713-247-7175
Ladies and Gentlemen:
The undersigned, Core Laboratories, Inc., a Delaware corporation ("Company"),
refers to the Amended and Restated Credit Agreement dated as of February 7, 1997
(as modified, the "Credit Agreement," the defined terms of which are used in
this Borrowing Request unless otherwise defined in this Borrowing Request) among
the Company, the financial institutions parties thereto ("Banks"), and
NationsBank of Texas, N.A., as agent for the Banks ("Agent"), and hereby gives
you irrevocable notice pursuant to [Section 2.1(b)(i)] [Section 2.2(b)(i)]
[Section 2.3(b)(i)]1 of the Credit Agreement that the undersigned hereby
requests a Borrowing (the "Proposed Borrowing") on the terms set forth below:
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1 For Revolving Loan Borrowings, Section 2.1(b)(i); for the Term Loan,
Section 2.2(b)(i); for Acquisition Loan Borrowings, Section 2.3(b)(i).
<PAGE>
NationsBank of Texas, N.A.
[Date]
Page 2
Class of Borrowing2 :
Date of Borrowing3 :
Amount of Borrowing4 :
Tranche #1
Type:5
Amount:6
Interest Period:7
[Tranche #2
Type:
Amount:
Interest Period:]
The undersigned hereby certifies that the following statements are true on the
date hereof, and will be true on the date of the Proposed Borrowing:
(a) the representations and warranties contained in the Credit Agreement
are correct in all material respects, before and after giving effect to the
Proposed Borrowing and the application of the proceeds therefrom, as though made
on the date of the Proposed Borrowing; and
- --------
2 Borrowings may be Revolving Loan Borrowings, the Term Loan, or
Acquisition Loan Borrowings.
3 The Date of Borrowing for the Proposed Borrowing must be a Business Day.
The Borrower must give three Business Days' advance notice for Borrowings
comprised of LIBOR Tranches or same day notice is sufficient for Borrowings
comprised of Prime Rate Tranches.
4 The aggregate amount of the Proposed Borrowing must be in a principal
amount equal to or greater than the Minimum Borrowing Amount of $500,000 and in
multiples of the Minimum Borrowing Multiple of $100,000.
5 Tranches may be Prime Rate Tranches and LIBOR Tranches.
6 The aggregate amount of each Tranche must be in principal amount equal
to or greater than the Minimum Tranche Amount of $500,000 and in multiples of
the Minimum Tranche Multiple of $100,000.
7 The Interest Period applies only to LIBOR Tranches and may be one, two,
three, or six months. Insert "N/A" for Prime Rate Tranches.
<PAGE>
NationsBank of Texas, N.A.
[Date]
Page 3
(b) no Default has occurred and remains uncured, nor would result from the
Proposed Borrowing or from the application of the proceeds therefrom.
Very truly yours,
CORE LABORATORIES, INC.
By:
Name:
Title:
STEPRG\60877\005989
HOUSTON\493128.3
5/5/97--1:40 pm
<PAGE>
NationsBank of Texas, N.A.
[Date]
Page 1
EXHIBIT C
FORM OF
CONVERSION REQUEST
[Date]
NationsBank of Texas, N.A.,
as Agent
Attn: Ms. Jennifer Textus
700 Louisiana, 7th Floor
Houston, Texas 77002
Telephone: 713-247-6906
Telecopy: 713-247-7175
Ladies and Gentlemen:
The undersigned, Core Laboratories, Inc., a Delaware corporation ("Company"),
refers to the Amended and Restated Credit Agreement dated as of February 7, 1997
(as modified, the "Credit Agreement," the defined terms of which are used in
this Conversion Request unless otherwise defined in this Conversion Request),
among the Company, the financial institutions parties thereto ("Banks"), and
NationsBank of Texas, N.A., as agent for the Banks ("Agent"), and hereby gives
you irrevocable notice pursuant to Section 2.6(a) of the Credit Agreement that
the undersigned hereby requests a [conversion][continuation] of [outstanding
Tranches][an outstanding Tranche] into a new Tranche (the "Proposed Tranche") on
the terms set forth below:
<PAGE>
NationsBank of Texas, N.A.
[Date]
Page 2
OUTSTANDING TRANCHE #1
Class of Borrowing1 :
Date of Tranche :
Type of Tranche2 :
Aggregate Amount3
for Conversion :
Interest Period :
[OUTSTANDING TRANCHE #2
Class of Borrowing :
Date of Tranche :
Type of Tranche :
Aggregate Amount
for Conversion :
Interest Period :]
PROPOSED TRANCHE
Date of Conversion
or Continuation4 :
Type of Tranche :
Aggregate Amount5 :
Interest Period6 :
- --------
1 Borrowings may be Revolving Loan Borrowings, the Term Loan, or
Acquisition Loan Borrowings.
2 Tranches may be Prime Rate Tranches or LIBOR Tranches.
3 The Aggregate Amount for Conversion with respect to any Tranche must be
in multiples of the Minimum Tranche Multiple of $100,000.
4 The Date of the proposed continuation or conversion must be a Business
Day. The Borrower must give three Business Days' advance notice for conversions
into or continuations of LIBOR Tranches.
5 The Aggregate Amount of the Proposed Tranche must be in a principal
amount equal to or greater than the Minimum Tranche Amount of $500,000 and in
multiples of the Minimum Tranche Multiple of $100,000. No continuation or
conversion may be made if such continuation or conversion would cause the
aggregate outstanding principal amount of any LIBOR Tranche or of all Prime Rate
Tranches to be less than the Minimum Tranche Amount of $500,000.
6 The Interest Period applies only to LIBOR Tranches and may be one, two,
three, or six months. Insert "N/A" for Prime Rate Tranches.
<PAGE>
NationsBank of Texas, N.A.
[Date]
Page 3
The undersigned hereby certifies that the following statements are true on the
date hereof, and will be true on the date of the proposed
continuation/conversion:
(a) the representations and warranties contained in the Credit Agreement
are correct in all material respects, before and after giving effect to the
proposed continuation/conversion and the application of the proceeds therefrom,
as though made on the date of the proposed continuation/conversion; and
(b) no Default has occurred and remains uncured, nor would result from the
proposed continuation/conversion.
Very truly yours,
CORE LABORATORIES, INC.
By:________________________
Richard L. Bergmark
Chief Financial Officer
STEPRG\60877\005989
HOUSTON\493207.3
5/5/97--1:41 pm
<PAGE>
EXHIBIT D-1
FORM OF
REVOLVING LOAN NOTE
([PAYEE])
$[ ] Houston, Texas [date]
----------------
For value received, the undersigned Core Laboratories, Inc., a Delaware
corporation ("Borrower"), hereby promises to pay to the order of [Payee]
("Bank"), the principal amount of [ ] and [ ]/100 Dollars ($[ ]) or, if less,
the aggregate outstanding principal amount of each Revolving Loan Advance (as
defined in the Credit Agreement referred to below) made by the Bank to the
Borrower, together with accrued but unpaid interest on the principal amount of
each such Revolving Loan Advance from the date of such Revolving Loan Advance
until such principal amount is paid in full, at such interest rates, and at such
times, as are specified in the Credit Agreement.
This Note is one of the Revolving Loan Notes referred to in, and is
entitled to the benefits of, and is subject to the terms of, the Amended and
Restated Credit Agreement dated as of February 7, 1997 (as the same may be
modified from time to time, the "Credit Agreement"), among the Borrower, the
financial institutions parties thereto ("Banks"), and NationsBank of Texas,
N.A., as agent for the Banks ("Agent"). Capitalized terms used herein but not
defined herein shall have the meanings specified by the Credit Agreement. The
Credit Agreement, among other things, (a) provides for the making of Revolving
Loan Advances by the Bank to the Borrower from time to time in an aggregate
outstanding amount not to exceed the Dollar amount of this Note, the
indebtedness of the Borrower resulting from each such Revolving Loan Advance
being evidenced by this Note, and (b) contains provisions for acceleration of
the maturity of this Note upon the happening of certain events stated in the
Credit Agreement and for prepayments of principal prior to the maturity of this
Note upon the terms and conditions specified in the Credit Agreement.
Both principal and interest are payable to the Agent at the times, in the
locations, and in the manner specified in the Credit Agreement. The Bank shall
record all Revolving Loan Advances and payments of principal made under this
Note, but no failure of the Bank to make such recordings shall affect the
Borrower's repayment obligations under this Note.
-1-
<PAGE>
It is contemplated that because of prepayments there may be times when no
indebtedness is owed under this Note. Notwithstanding such prepayments, this
Note shall remain valid and shall be in force as to Revolving Loan Advances made
pursuant to the Credit Agreement after such prepayments.
It is the intention of the Bank and the Borrower to conform strictly to
any applicable usury laws. Accordingly, the terms of the Credit Agreement
relating to the prevention of usury will be strictly followed.
EXECUTED as of the date first above written.
CORE LABORATORIES, INC.
By:
Name:
Title:
-2-
<PAGE>
EXHIBIT D-2
FORM OF
ACQUISITION LOAN NOTE
([PAYEE])
$[ ] Houston, Texas [date]
----------------
For value received, the undersigned Core Laboratories, Inc., a Delaware
corporation ("Borrower"), hereby promises to pay to the order of [Payee]
("Bank"), the principal amount of [ ] and [ ]/100 Dollars ($[ ]) or, if less,
the aggregate outstanding principal amount of the Acquisition Loan Advance (as
defined in the Credit Agreement referred to below) made by the Bank to the
Borrower in connection with the Acquisition Loan Borrowing (as defined in the
Credit Agreement referred to below) made by the Banks to the Borrower on [date
of Acquisition Loan Borrowing], together with accrued but unpaid interest on the
principal amount of such Acquisition Loan Advance from the date of such
Acquisition Loan Advance until such principal amount is paid in full, at such
interest rates and at such times as are specified in the Credit Agreement or
this Note.
The Borrower shall pay to the Agent for the benefit of the Bank the
outstanding principal amount of the Acquisition Loan Advance evidenced by this
Note as follows:
[Describe principal repayment schedule in terms of the amount of the
Acquisition Loan Advance made by the individual Bank in accordance with Section
2.3(d) of the Credit Agreement.]
This Note is one of the Acquisition Loan Notes referred to in, and is
entitled to the benefits of, and is subject to the terms of, the Amended and
Restated Credit Agreement dated as of February 7, 1997 (as the same may be
modified from time to time, the "Credit Agreement"), among the Borrower, the
financial institutions parties thereto ("Banks"), and NationsBank of Texas,
N.A., as agent for the Banks ("Agent"). Capitalized terms used herein but not
defined herein shall have the meanings specified by the Credit Agreement. The
Credit Agreement, among other things, (a) provides for the making of an
Acquisition Loan Advance by the Bank to the Borrower in connection with each
Acquisition Loan Borrowing made in accordance with the terms of the Credit
Agreement, the indebtedness of
-1-
<PAGE>
the Borrower resulting from one such Acquisition Loan Advance being evidenced by
this Note, and (b) contains provisions for acceleration of the maturity of this
Note upon the happening of certain events stated in the Credit Agreement and for
prepayments of principal prior to the maturity of this Note upon the terms and
conditions specified in the Credit Agreement.
Both principal and interest are payable to the Agent at the times, in the
locations, and in the manner specified in the Credit Agreement. The Bank shall
record all Acquisition Loan Advances and payments of principal made under this
Note, but no failure of the Bank to make such recordings shall affect the
Borrower's repayment obligations under this Note.
It is the intention of the Bank and the Borrower to conform strictly to
any applicable usury laws. Accordingly, the terms of the Credit Agreement
relating to the prevention of usury will be strictly followed.
EXECUTED as of the date first above written.
CORE LABORATORIES, INC.
By:
Name:
Title:
-2-
<PAGE>
EXHIBIT D-3
FORM OF
TERM LOAN NOTE
([PAYEE])
$[ ] Houston, Texas [date]
----------------
For value received, the undersigned Core Laboratories, Inc., a Delaware
corporation ("Borrower"), hereby promises to pay to the order of [Payee]
("Bank"), the principal amount of [ ] and [ ]/100 Dollars ($[ ]) or, if less,
the aggregate outstanding principal amount of the Term Loan Advance (as defined
in the Credit Agreement referred to below) made by the Bank to the Borrower,
together with accrued but unpaid interest on the principal amount of such Term
Loan Advance from the date of such Term Loan Advance until such principal amount
is paid in full, at such interest rates, and at such times, as are specified in
the Credit Agreement.
This Note is one of the Term Loan Notes referred to in, and is entitled to
the benefits of, and is subject to the terms of, the Amended and Restated Credit
Agreement dated as of February 7, 1997 (as the same may be modified from time to
time, the "Credit Agreement"), among the Borrower, the financial institutions
parties thereto ("Banks"), and NationsBank of Texas, N.A., as agent for the
Banks ("Agent"). Capitalized terms used herein but not defined herein shall have
the meanings specified by the Credit Agreement. The Credit Agreement, among
other things, (a) provides for the making of a Term Loan Advance by the Bank to
the Borrower in an aggregate outstanding amount not to exceed the Dollar amount
of this Note, the indebtedness of the Borrower resulting from such Term Loan
Advance being evidenced by this Note, and (b) contains provisions for
acceleration of the maturity of this Note upon the happening of certain events
stated in the Credit Agreement and for prepayments of principal prior to the
maturity of this Note upon the terms and conditions specified in the Credit
Agreement.
Both principal and interest are payable to the Agent at the times, in the
locations, and in the manner specified in the Credit Agreement. The Bank shall
record all Term Loan Advances and payments of principal made under this Note,
but no failure of the Bank to make such recordings shall affect the Borrower's
repayment obligations under this Note.
-1-
<PAGE>
It is the intention of the Bank and the Borrower to conform strictly to
any applicable usury laws. Accordingly, the terms of the Credit Agreement
relating to the prevention of usury will be strictly followed.
EXECUTED as of the date first above written.
CORE LABORATORIES, INC.
By:
Name:
Title:
-2-
<PAGE>
EXHIBIT E
FORM OF
ASSIGNMENT AND ACCEPTANCE
[date]
Reference is made to the Amended and Restated Credit Agreement dated as of
February 7, 1997 (as modified, the "Credit Agreement"), among Core Laboratories,
Inc., a Delaware corporation, the financial institutions parties thereto
("Banks"), and NationsBank of Texas, N.A., as agent for the Banks ("Agent").
Capitalized terms used herein but not defined herein shall have the meanings
specified by the Credit Agreement.
Pursuant to the terms of the Credit Agreement, [ ] ("Assignor"), wishes to
assign and delegate to [ ] ("Assignee"), [ ]%1 of its rights and obligations
under the Credit Agreement.
Therefore, Assignor, Assignee, and the Agent agree as follows:
1. The Assignor hereby sells and assigns and delegates to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor, without
recourse to the Assignor and without representation or warranty except for the
representations and warranties specifically set forth in clauses (i), (ii), and
(iii) of Section 2 of this Assignment and Acceptance, a [ ]% interest in and to
all of the Assignor's rights and obligations under the Credit Agreement and the
other Credit Documents as of the Effective Date (as defined below), including
such percentage interest in the Assignor's Commitments, the Advances owing to
the Assignor, the Assignor's ratable share of the Letters of Credit, and the
Notes held by the Assignor.
2. The Assignor (i) represents and warrants that, prior to executing this
Assignment and Acceptance, (A) its Revolving Loan Commitment is $[ ], the
aggregate outstanding principal amount of Revolving Loan Advances owed by the
Borrower to the Assignor is $[ ], and its ratable share of the Letter of Credit
Exposure is $[ ], (B) its Term Loan Commitment is $[
], the aggregate outstanding principal amount of the Term Loan Advance
owing to the Assignor is $[ ], and (C) its Acquisition Loan Commitment is $[ ],
the aggregate outstanding principal amount of the Acquisition Loan Advances
owing to the Assignor is $[
]; (ii) represents and warrants that it is the legal and beneficial owner of
the interest being assigned by it hereunder and that such interest is free and
clear of any adverse claim; (iii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties, or
representations made in or in connection with the Credit Agreement or any other
Credit Document or the execution, legality, validity, enforceability,
genuineness, sufficiency, or value of the Credit
- --------
1 Specify percentage to 4 decimal points.
<PAGE>
Agreement or any other Credit Document or any other instrument or document
furnished pursuant thereto; (iv) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrower or any
Guarantor or the performance or observance by the Borrower or any Guarantor of
any of its obligations under the Credit Agreement or any other Credit Document
or any other instrument or document furnished pursuant thereto; and (v) attaches
the Notes referred to in Section 1 above and requests that the Agent exchange
such Notes for the following Notes: [ ].
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.7 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor, or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement or any other Credit Document; (iii) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and any other Credit Document as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; (iv) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Agreement or any other Credit
Document are required to be performed by it as a Bank; (v) specifies as its
Domestic Lending Office (and address for notices) and Eurodollar Lending Office
the offices set forth beneath its name on the signature pages hereof; (vi)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying as to the Assignee's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Credit Agreement and the Notes or such other
documents as are necessary to indicate that all such payments are subject to
such rates at a rate reduced by an applicable tax treaty2, and (vii) represents
that it is an Eligible Assignee.
4. The effective date for this Assignment and Acceptance shall be [ ]
("Effective Date")3, and following the execution of this Assignment and
Acceptance, the Agent will record it in the Register.
5. Upon such recording, and as of the Effective Date, (i) the Assignee
shall be a party to the Credit Agreement for all purposes, and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Bank thereunder and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights (other than rights against the
Borrower pursuant to Section 8.1 and 8.2 of the Credit Agreement, which shall
survive this agreement) and be released from its obligations (other than
obligations to the Agent pursuant to Section 7.5 and 7.6 of the Credit
Agreement, which shall survive this agreement) under the Credit Agreement.
- --------
2 If the Assignee is organized under the laws of a jurisdiction outside the
United States.
3 See Section 8.5. Such date shall be at least three Business Days after
the execution of this Assignment and Acceptance.
<PAGE>
6. Upon such recording, from and after the Effective Date, the Agent shall
make all payments under the Credit Agreement and the Notes in respect of the
interest assigned hereby (including all payments of principal, interest, and
fees) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed and
enforced in accordance with, the laws of the State of Texas.
The parties hereto have caused this Assignment and Acceptance to be duly
executed as of the date first above written.
[ASSIGNOR]
By:
Name:
Title:
Address:
Attention:
Telecopy No:
[ASSIGNEE]
By:
Name:
Title:
Domestic Lending Office:
Address:
Attention:
Telecopy No:
<PAGE>
Eurodollar Lending Office:
Address:
Attention:
Telecopy No:
NATIONSBANK OF TEXAS, N.A.,
as Agent
By:
Name:
Title:
CONSENTED TO
this _____ day of _________________, ____.
CORE LABORATORIES, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT F
CLOSING DOCUMENTS
Credit Facility Provided by
NATIONSBANK OF TEXAS, N.A., as Agent,
for
CORE LABORATORIES, INC.
February 7, 1997
Agent = NationsBank of Texas, N.A.
Banks = The holders of the Notes listed below
Borrower = Core Laboratories, Inc, a Delaware corporation
Parent = Core Laboratories N.V., a Netherlands limited
liability company
ProTechnics = ProTechnics Company, a Nevada corporation
B&P = Bracewell & Patterson, L.L.P.
Responsible
PARTY CREDIT DOCUMENTS
1. B&P Amended and Restated Credit Agreement dated as of February
7, 1997, among the Borrower, the Banks, and the Agent
providing a $10,000,000 revolving line of credit, a
$14,000,000 term loan facility, and a $20,000,000 revolving
acquisition facility.
B&P Exhibit A - Form of Compliance Certificate
B&P Exhibit B - Form of Borrowing Request
B&P Exhibit C - Form of Continuation/ Conversion
Request
-1-
<PAGE>
B&P Exhibit D-1 - Form of Revolving Loan Note
B&P Exhibit D-2 - Form of Acquisition Loan Note
B&P Exhibit D-3 - Form of Term Loan Note
B&P Exhibit E - Form of Assignment and Acceptance
B&P Exhibit F - Closing Documents List
B&P Schedule I - Administration Information
Borrower Schedule II - Disclosures
2. B&P $5,000,000 Revolving Loan Note dated as of February 7, 1997, made
by the Borrower and payable to the order of NationsBank of Texas,
N.A.
3. B&P $5,000,000 Revolving Loan Note dated as of February 7, 1997, made
by the Borrower and payable to the order of Bank of America Texas,
N.A.
4. Banks $7,000,000 Term Loan Note dated as of November 1, 1995, made
by the Borrower and payable to the order of NationsBank of Texas,
N.A.
5. Banks $7,000,000 Term Loan Note dated as of November 1, 1995, made
by the Borrower and payable to the order of Bank of America Texas,
N.A.
6. Banks $3,400,000 Guidance Loan Note dated as of January 12, 1996,
made by the Borrower and payable to the order of NationsBank of
Texas, N.A.
7. Banks $3,400,000 Guidance Loan Note dated as of January 12, 1996,
made by the Borrower and payable to the order of Bank of America
Texas, N.A.
8. B&P Guaranty dated as of February 7, 1997, made by the Parent in
favor of the Agent guaranteeing the Borrower's obligations under
the Amended and Restated Credit Agreement for the benefit of the
Agent and the ratable benefit of the Banks.
9. B&P Guaranty dated as of February 7, 1997, made by ProTechnics in
favor of the Agent guaranteeing the Borrower's obligations under
the
-2-
<PAGE>
Amended and Restated Credit Agreement for the benefit of the Agent
and the ratable benefit of the Banks.
10. Borrower Opinion of General Counsel for the Borrower in favor of
the Agent and the Banks regarding the authorization and
enforceability of the Amended and Restated Credit Agreement, the
Notes, and the Guaranty and certain other matters.
11. Borrower Opinion of Foreign Counsel for the Parent in favor of the
Agent and the Banks regarding the authorization and enforceability
of the Guaranty and certain other matters.
12. Borrower Certificate of Secretary for the Borrower certifying the
existence, good standing, organizational documents, bylaws,
resolutions, and authorized officers for that person.
Borrower Exhibit A - Certificate of Incorporation
Borrower Exhibit B- Bylaws
Borrower Exhibit C - Resolutions
13. Borrower Certificate of Secretary for the Parent certifying the
existence, good standing, organizational documents, resolutions,
and authorized officers for that person.
Borrower Exhibit A - Organizational Documents
Borrower Exhibit B - Resolutions
-3-
<PAGE>
14. Borrower Certificate of Secretary for ProTechnics certifying the
existence, good standing and qualification, organizational
documents, bylaws, resolutions, and authorized officers for that
person.
Borrower Exhibit A - Certificates of Good Standing and Qualification
Borrower Exhibit B - Certificate of Incorporation
Borrower Exhibit C - Bylaws
Borrower Exhibit D - Resolutions
-4-
<PAGE>
SCHEDULE I
Administrative Information
BORROWER:
Core Laboratories, Inc.
5295 Hollister Road
Houston, Texas 77040
Attn: Richard L. Bergmark,
Chief Financial Officer
telephone: 713-329-7403
telecopier: 713-939-8295
AGENT:
NationsBank of Texas, N.A., as Agent
700 Louisiana, 7th Floor
Houston, Texas 77002
Attn: William B. Borus,
Senior Vice President
telephone: 713-247-7756
telecopier: 713-247-7175
BANKS:
NationsBank of Texas, N.A.
700 Louisiana, 7th Floor
Houston, Texas 77002
Attn: William B. Borus,
Senior Vice President
telephone: 713-247-7756
telecopier: 713-247-7175
Bank of America Texas, N.A.
333 Clay Street
Suite 3600
Houston, Texas 77002
Attn: Victor N. Tekell
Vice President
telephone: 713-652-3612
telecopier: 713-652-3619
<PAGE>
SCHEDULE II
DISCLOSURE SCHEDULE
1. PERMITTED DEBT - None.
2. PERMITTED LEINS - None.
3. SUBSIDIARIES OF BORROWER -
(a) Core Export Sales, Inc.
(b) Pastech, Inc.
(c) ProTechnics Company
4. SUBSIDIARIES OF PARENT (OTHER THAN THOSE ABOVE) -
(a) China Corelab Ltd.
(b) Core Laboratories Australia Pty Ltd
(c) Core Laboratories Canada Ltd
(d) Core Laboratories, Inc.
(e) Core Laboratories International B.V.
(f) Core Laboratories (Malaysia) Sdn. Bhd.
(g) Core Laboratories (Netherlands) B.V.
(h) Core Laboratories (Singapore) Pte Ltd
(i) Core Laboratories (U.K.) Limited
(j) Core Laboratories Venezuela S.A.
(k) Core Laboratories Sales N.V.
(l) Newcore (Nigeria) Limited
(m) P.T. Corelab Indonesia
(n) Core Laboratories (Argentina) S.A.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 1,884
<SECURITIES> 0
<RECEIVABLES> 33,657
<ALLOWANCES> 933
<INVENTORY> 10,739
<CURRENT-ASSETS> 47,850
<PP&E> 42,746
<DEPRECIATION> 9,732
<TOTAL-ASSETS> 102,887
<CURRENT-LIABILITIES> 21,288
<BONDS> 0
0
0
<COMMON> 186
<OTHER-SE> 49,144
<TOTAL-LIABILITY-AND-EQUITY> 102,887
<SALES> 26,861
<TOTAL-REVENUES> 26,861
<CGS> 21,347
<TOTAL-COSTS> 23,882
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 287
<INCOME-PRETAX> 2,692
<INCOME-TAX> 808
<INCOME-CONTINUING> 1,884
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,884
<EPS-PRIMARY> .18
<EPS-DILUTED> .18
</TABLE>
