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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (Date of earliest event reported): DECEMBER 10, 1996
ENERGY VENTURES, INC.
(Exact name of registrant as specified in charter)
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DELAWARE 0-7265 04-2515019
(State of Incorporation) (Commission File No.) (I.R.S. Employer Identification No.)
5 POST OAK PARK, SUITE 1760,
HOUSTON, TEXAS 77027-3415
(Address of Principal Executive Offices) (Zip Code)
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REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (713) 297-8400
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Exhibit Index Appears on Page 6
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On December 10, 1996, Energy Ventures, Inc., a Delaware corporation
(the "Company"), completed the acquisition (the "Arrow Acquisition") of the
operating assets of Arrow Completion Systems, Inc., a Texas corporation
("Arrow"), from Weatherford Enterra, Inc., a Delaware corporation, pursuant to
a Stock Purchase Agreement dated as of October 18, 1996 (the "Arrow
Agreement"). Under the terms of the Arrow Agreement, the Company paid
consideration of approximately $21.3 million cash and assumed certain
liabilities of Arrow. The cash consideration paid in the Arrow Acquisition was
funded with a portion of the proceeds from the Company's recent sale of its
Mallard Bay drilling rig division to Parker Drilling Company. The principle
followed in fixing the purchase price for Arrow under the Arrow Agreement was
based on negotiations between the parties.
Arrow is a manufacturer and distributor of downhole packers and oil
recovery and completion service tools. The Company currently intends to
integrate the operations of Arrow with those of its oil tools division and to
offer Arrow's product line and services in conjunction with the Company's own
line of oilfield equipment, tools and services.
A copy of the press release announcing the closing of the Arrow
Agreement is filed as Exhibit 99.1 and is hereby incorporated herein by
reference.
ITEM 5. OTHER EVENTS.
On December 5, 1996, the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") with GulfMark Acquisition Co., a Delaware
corporation and wholly owned subsidiary of the Company, GulfMark International,
Inc., a Delaware corporation ("GulfMark"), and New GulfMark International,
Inc., a Delaware corporation and wholly owned subsidiary of GulfMark ("New
GulfMark"), providing for the acquisition by the Company of GulfMark pursuant
to a tax free merger (the "Merger") in which approximately 2.2 million shares
of the Company's common stock, $1.00 par value (the "Common Stock"), will be
issued to the stockholders of GulfMark.
Prior to the Merger, GulfMark will contribute its marine
transportation services business to New GulfMark and will then spin-off to its
stockholders the stock of New GulfMark. Following the spin-off, the remaining
assets of GulfMark will consist of approximately 2.2 million shares of the
Company's Common Stock, GulfMark's erosion control business and certain
corporate and miscellaneous assets. It is anticipated that GulfMark will have
no material debt as of the consummation of the Merger. The acquisition of
GulfMark is expected to increase the Company's stockholder base while allowing
it to acquire a profitable low cost business with potential synergies with the
Company's businesses at an attractive price.
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The Merger is subject to various conditions, including the receipt of
all required regulatory approvals and the expiration or termination of all
waiting periods (and extensions thereof) under the Hart-Scott-Rodino Act.
Although there can be no assurance that the Merger will close, the Company
currently anticipates that the acquisition will be consummated shortly after
the receipt of such regulatory approvals and the approval of the Merger by the
stockholders of the Company and GulfMark.
A copy of the press release announcing the signing of the Merger
Agreement is filed as Exhibit 99.2 and is hereby incorporated herein by
reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of Business Acquired.
The Company is currently in the process of obtaining financial
statements with respect to Arrow. The financial statements of Arrow required,
if any, for this item are not currently available and will be filed, if
required, by the Company by an amendment to this report as soon as practical,
but not later than 60 days after this report must be filed.
(b) Pro Forma Financial Information.
The Arrow Acquisition will be accounted for as a purchase and will
require an allocation of the purchase price among the acquired assets. As of
the date of this report, such allocation has not been completed and it would be
impracticable for the Company to provide the pro forma financial information
required, if any, pursuant to Article 11 of Regulation S-X with respect to the
Arrow Acquisition. Such pro forma financial information will be filed, if
required, by the Company by an amendment to this report as soon as practical,
but not later than 60 days after this report must be filed.
(c) Exhibits.
2.1 - Asset Purchase Agreement dated as of October 18, 1996, by
and among Energy Ventures, Inc., Arrow Completion Systems,
Inc. and Weatherford Enterra, Inc.
2.2 - Agreement and Plan of Merger dated as of December 5, 1996,
among Energy Ventures, Inc., GulfMark Acquisition Co.,
GulfMark International, Inc. and New GulfMark
International, Inc.
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2.3 - Agreement and Plan of Distribution dated as of December 5,
1996, by and among GulfMark International, Inc., New
GulfMark International, Inc. and Energy Ventures, Inc.
4.1 - Amended and Restated Credit Agreement among Energy
Ventures, Inc., the Subsidiary Guarantors defined therein,
the Lenders defined therein and The Chase Manhattan Bank
dated as of December 6, 1996, including the form of Note.
99.1 - Press Release of the Company dated December 11, 1996,
announcing the closing of the Arrow Agreement.
99.2 - Press Release of the Company dated December 5, 1996,
announcing the signing of the Merger Agreement.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ENERGY VENTURES, INC.
Dated: December 23, 1996 /s/ FRANCES R. POWELL
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Frances R. Powell
Vice President, Accounting
and Controller
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INDEX TO EXHIBITS
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Number Exhibit
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2.1 Asset Purchase Agreement dated as of October 18, 1996, by and among Energy
Ventures, Inc., Arrow Completion Systems, Inc. and Weatherford Enterra,
Inc.
2.2 Agreement and Plan of Merger dated as of December 5, 1996, among Energy
Ventures, Inc., GulfMark Acquisition Co., GulfMark International, Inc. and
New GulfMark International, Inc.
2.3 Agreement and Plan of Distribution dated as of December 5, 1996, by and
among GulfMark International, Inc., New GulfMark International, Inc. and
Energy Ventures, Inc.
4.1 Amended and Restated Credit Agreement among Energy Ventures, Inc., the
Subsidiary Guarantors defined therein, the Lenders defined therein and The
Chase Manhattan Bank dated as of December 6, 1996, including the form of
Note.
99.1 Press Release of the Company dated December 11, 1996, announcing the
closing of the Arrow Agreement.
99.2 Press Release of the Company dated December 5, 1996, announcing the signing
of the Merger Agreement.
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EXHIBIT 2.1
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ASSET PURCHASE AGREEMENT
BY AND AMONG
WEATHERFORD ENTERRA, INC.,
ARROW COMPLETION SYSTEMS, INC.
AND
ENERGY VENTURES, INC.
OCTOBER 18, 1996
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TABLE OF CONTENTS
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ARTICLE 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PURCHASE AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Transferred Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Purchase Price for the Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.4 Purchase Price Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.5 Liabilities Not Assumed by the Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.6 Prorations of Expenses and Certain Property Taxes . . . . . . . . . . . . . . . . . . . . 4
1.7 Transfer Taxes; Recording Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.8 Allocation of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SELLER AND WEATHERFORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.1 Corporate Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.2 Validity of Agreement and Conflict with Other Instruments . . . . . . . . . . . . . . . . 6
2.3 Approvals, Licenses and Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.4 Title to and Condition of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.5 Contracts and Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.6 No Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.7 No Adverse Changes or Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.8 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.9 Condition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.10 Warranties and Product Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.11 Employee Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.12 Finder's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
REPRESENTATIONS AND WARRANTIES OF THE BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.1 Corporate Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.2 Approvals and Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.3 Finder's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.1 Delivery of Corporate Documents; Proprietary Data; Record Retention; Financial
Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.2 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.3 Nondisclosure of Proprietary Information . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.4 Covenant Not to Compete With the Business . . . . . . . . . . . . . . . . . . . . . . . . 16
4.5 Employee Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.6 Use of Corporate Names . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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ARTICLE 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
BUYER'S CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.1 Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . . . . . . . . 19
5.2 Good Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.3 Instruments of Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.4 Licenses, Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.5 No Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.6 Consents of Third Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.7 Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.8 Hart-Scott-Rodino . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.9 Disclosure Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SELLER'S CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.1 Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . . . . . . . . 21
6.2 Receipt of the Transferred Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.3 Licenses, Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.4 No Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.5 Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.6 Hart-Scott-Rodino . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.1 Events of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.2 Liability Upon Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.3 Notice of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.1 Indemnification by the Seller and Weatherford . . . . . . . . . . . . . . . . . . . . . . 22
8.2 Indemnification by the Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.3 Special Environmental Remediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.4 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.5 Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.6 Failure to Pay Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.7 Adjustment of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
NATURE OF STATEMENTS AND SURVIVAL OF COVENANTS,
REPRESENTATIONS,WARRANTIES AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
DEFINITIONS OF CERTAIN TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.1 Conduct of the Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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11.2 Governmental Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
11.3 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
11.4 Public Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
11.5 Other Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
11.6 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
11.7 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
11.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
11.9 Bulk Transfer Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.10 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.11 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.13 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.14 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.15 No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.16 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.17 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.18 Negotiated Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
into this 18th day of October, 1996, by and among Weatherford Enterra, Inc., a
Delaware corporation ("Weatherford"), Arrow Completion Systems, Inc., a Texas
corporation (the "Seller"), and Energy Ventures, Inc., a Delaware corporation
(the "Buyer").
W I T N E S S E T H :
WHEREAS, the Seller desires to transfer to the Buyer the Business (as
hereinafter defined) and the properties, assets and liabilities related to the
Business, and the Buyer desires to acquire such Business, properties and assets
and assume such liabilities, all upon the terms and subject to the conditions
set forth herein; and
WHEREAS, the parties hereto desire to set forth certain
representations, warranties and agreements, all as more fully set forth below;
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 Transferred Assets.
(a) Subject to the terms and conditions of this Agreement
and in consideration of the obligations of the Buyer as provided herein, and
except as otherwise provided in Section 1.2 hereof, at the Closing the Seller
shall sell, assign, transfer, grant, bargain, deliver and convey, and
Weatherford shall cause to be sold, assigned, transferred, granted, bargained,
delivered and conveyed, to the Buyer, free and clear of all Liens, the Seller's
and the Affiliated Companies' entire right, title and interest in, to and under
the Business, as a going concern, and all assets owned or used by the Seller or
any of the Affiliated Companies in connection with or arising out of the
Business of every type and description, tangible and intangible, wherever
located and whether or not reflected on the books and records of the Seller
(all of such assets, properties, rights and business being hereinafter
sometimes collectively referred to as the "Transferred Assets"), including, but
not limited to,
(i) the Equipment, including the Equipment set
forth in Section 1.1(a)(i) of the Disclosure
Schedule;
(ii) all Inventories, including the Inventories
set forth in Section 1.1(a)(ii) of the
Disclosure Schedule;
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(iii) all accounts and notes receivable relating to
the Business (the "Accounts Receivable"),
including the Accounts Receivable set forth
in Section 1.1(a)(iii) of the Disclosure
Schedule;
(iv) all Real Property, including the Real
Property set forth in Section 1.1(a)(iv) of
the Disclosure Schedule;
(v) the Leasehold Interests, including the
Leasehold Interests set forth in Section
1.1(a)(v) of the Disclosure Schedule;
(vi) all Proprietary Information, including the
Proprietary Information set forth in Section
1.1(a)(vi) of the Disclosure Schedule;
(vii) subject to Section 1.1(b) hereof, the benefit
of all unfilled or outstanding purchase
orders, sales contracts, other commitments,
contracts and engagements to which the Seller
is entitled on the Closing Date and which
relate to the Business (the "Entitlements");
(viii) all prepaid expenses and deposits made by the
Seller relating to the Business;
(ix) all shares of capital stock of Arrow Oil
Tools (Canada) Ltd. owned by the Seller; and
(x) any goodwill associated with the Business.
(b) The Seller shall use its best efforts to obtain such
consents of third parties as are necessary for the assignment of the
Transferred Assets. To the extent that any of the Transferred Assets are not
assignable by the terms thereof or consents to the assignment thereof cannot be
obtained as provided herein, the Transferred Assets shall be held by the Seller
in trust for the Buyer and shall be performed by the Buyer in the name of the
Seller and all benefits and obligations derived thereunder shall be for the
account of the Buyer; provided, however, that where entitlement of the Buyer to
such Transferred Assets hereunder is not recognized by any third party, the
Seller shall, at the request of the Buyer, enforce in a reasonable manner, at
the cost of and for the account of the Buyer, any and all rights of the Seller
against such third party.
(c) The Seller shall also notify each Person that may
have possession of the Transferred Assets at the Closing Date, whether by
consignment or otherwise, of the transfer of such Transferred Assets to the
Buyer.
1.2 Excluded Assets. Anything in Section 1.1(a) to the contrary
notwithstanding, there shall be excluded from the assets, properties, rights
and business
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to be transferred to the Buyer hereunder those assets of the Seller listed or
described in Section 1.2 of the Disclosure Schedule (collectively, the
"Excluded Assets").
1.3 Purchase Price for the Assets.
(a) In consideration of the transfer to the Buyer of the
Transferred Assets, the Buyer shall (i) pay to the Seller an amount in cash
equal to the Cash Purchase Price and (ii) assume (A) the payment obligations of
the Seller with respect to all Trade Payables, Accrued Liabilities and Notes
Payable as of the Closing Date and (B) the obligations of the Seller under the
express written terms of the Entitlements to the extent and only to the extent
such obligations are not Pre-Closing Obligations (collectively, the "Assumed
Liabilities"). The Cash Purchase Price and the Assumed Liabilities are herein
collectively referred to as the "Purchase Price".
(b) On the Closing Date, the Buyer shall pay to the
Seller by wire transfer of same day funds of $21,307,000 (the "Closing
Payment"). The Closing Payment shall be based on the balance sheet of the
Seller, at September 30, 1996, a copy of which has been provided to the Buyer
(the "Pre-Closing Balance Sheet"). The Buyer shall be entitled to review the
accounting records used to prepare the Pre-Closing Balance Sheet and confirm
the existence of the assets and liabilities reflected thereon prior to the
Closing.
1.4 Purchase Price Adjustment.
(a) Within 60 calendar days after the Closing Date, the
Buyer shall prepare and deliver to the Seller a statement reflecting the Cash
Purchase Price and the calculation thereof (the "Final Statement"). The Buyer
shall provide the Seller with access to copies of all work papers and other
relevant documents to verify the entries contained in the Final Statement. The
Seller shall have a period of 15 calendar days after delivery to it of the
Final Statement to review it and make any objections the Seller may have in
writing to the Buyer. If written objections to the Final Statement are
delivered to the Buyer within such 15 day period, then the Buyer and the Seller
shall attempt to resolve the matter or matters in dispute. If no written
objections are made within the time period provided above, the Buyer shall pay
to the Seller in same day funds the aggregate amount, if any, by which the Cash
Purchase Price exceeds the Closing Payment and the Seller shall pay to the
Buyer in same day funds the aggregate amount, if any, by which the Closing
Payment exceeds the Cash Purchase Price, in each case within five calendar days
after the end of such 15 day period.
(b) If disputes with respect to the Final Statement
cannot be resolved by the Buyer and the Seller within 15 calendar days after
the delivery of the objections to the Final Statement, then the specific
matters in dispute shall be submitted to Arthur Andersen LLP or such other
independent accounting firm as may be approved by the Buyer and the Seller,
which firm shall render its opinion as to such matters. Based on such opinion,
such independent accounting firm will then send to the Buyer and the Seller its
determination on the specific matters in dispute, which determination shall be
final and binding on the parties hereto. Within five calendar days after
delivery of such opinion to the Buyer and the Seller, the Buyer shall pay to
the Seller
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the aggregate amount, if any, by which the Cash Purchase Price exceeds the
Closing Payment and the Seller shall pay to the Buyer the aggregate amount, if
any, by which the Closing Payment exceeds the Cash Purchase Price. The fees
and other costs charged by such independent accounting firm shall be borne by
the Buyer and the Seller equally.
1.5 Liabilities Not Assumed by the Buyer. Except for the Assumed
Liabilities, the Seller shall pay and discharge in due course all of its
liabilities, debts and obligations relating to the Transferred Assets or the
Business, whether known or unknown, now existing or hereafter arising,
contingent or liquidated, including, without limitation, any Tax liabilities of
the Seller pertaining to the Transferred Assets or the Business for periods
prior to the Closing Date, any Debt Obligations and the liabilities and
obligations set forth in clauses (a) through (d) below (collectively, the
"Retained Liabilities"), and the Buyer shall not assume, or in any way be
liable or responsible for, any of such Retained Liabilities. Without limiting
the generality of the foregoing, the Retained Liabilities shall include the
following:
(a) any liability or obligation of the Seller arising out
of or in connection with the negotiation and preparation of this Agreement and
the consummation and performance of the transactions contemplated hereby,
whether or not such transactions are consummated;
(b) any liability or obligation for any and all Taxes of,
or pertaining or attributable to, (i) the Seller for any period that ends on or
before the Closing Date, or (ii) the Business and/or the Transferred Assets for
any period or portion thereof that ends on or before the Closing Date
(including, but in no way limited to, any and all Taxes described in clauses
(i) and (ii) of this Section 1.5(b) for which liability is or may be sought to
be imposed on the Buyer under any successor liability, transferee liability or
similar provision of any applicable federal, foreign, state or local law;
(c) any liability (other than with respect to the Assumed
Liabilities) to which any of the parties may become subject as a result of the
fact that the transactions contemplated by this Agreement are being effected
without compliance with the bulk sales provisions of the Uniform Commercial
Code as in effect in any state or any similar statute as enacted in any
jurisdiction; and
(d) all other liabilities and obligations of any Person
arising prior to the Closing or related to the conduct or operation of the
Transferred Assets or the Business on or prior to the Closing Date, including,
but not limited to, the Pre-Closing Obligations and the specific liabilities,
obligations or litigation listed in Sections 2.4(f), 2.6, 2.8 or 2.11 of the
Disclosure Schedule.
1.6 Prorations of Expenses and Certain Property Taxes.
(a) The Seller warrants that the Transferred Assets are
not, and on the Closing Date will not be, subject to or liable for any special
assessments or similar types of impositions. Any general property Tax assessed
against or pertaining to the Transferred Assets for the taxable period that
includes the Closing Date shall be
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prorated between the Buyer and the Seller as of the Closing Date. In the event
the amount of any such general property Tax cannot be ascertained as of the
Closing Date, proration shall be made on the basis of the preceding year, the
Buyer shall receive a credit against the Cash Purchase Price on the Closing
Date for the Seller's pro rata portion of such general property Taxes, and to
the extent that such proration may be inaccurate the Seller and the Buyer agree
to make such payment to the other after the tax statements have been received
as is necessary to allocate such general property Tax properly between the
Seller and the Buyer as of the Closing Date.
(b) Except as otherwise provided in this Agreement, the
Seller and the Buyer agree that amounts payable with respect to utility charges
and other items of expense attributable to the conduct of the Business shall be
prorated as of the Closing Date to the extent the charges and expenses cannot
be identified as to the party that received the benefits to which such charges
and expenses relate. To the extent such amounts are estimated on the Closing
Date and such prorations are inaccurate, the Seller and the Buyer agree to make
such payment to the other after such amounts are correctly computed as is
necessary to allocate such charges properly between the Seller and the Buyer as
of the Closing Date.
1.7 Transfer Taxes; Recording Fees.
(a) The Buyer and the Seller acknowledge and agree that
the Purchase Price includes and is inclusive of any and all sales, use,
transfer or other similar Taxes imposed as a result of the consummation of the
transactions contemplated by this Agreement and the Seller hereby agrees to
indemnify the Buyer against, and agrees to protect, save and hold the Buyer
harmless from, any loss, liability, obligation or claim (whether or not
ultimately successful) for sales, use, transfer or other similar Taxes (and any
interest, penalties, additions to tax and fines thereon or related thereto)
imposed as a result of the consummation of the transactions contemplated by
this Agreement.
(b) The Buyer shall pay any and all recording, filing or
other fees relating to the conveyance or transfer of the Transferred Assets
from the Seller to the Buyer.
(c) The Buyer shall deliver to the Seller on the Closing
Date a certificate certifying that the Inventories are being purchased for
resale to the extent stated therein.
1.8 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Transferred Assets by the Buyer and the Seller within 60
days following the Closing Date subject to the following:
(a) such allocation of the Purchase Price will be
reflected in Form 8594 that will be filed by the Buyer and the Seller in
accordance with Section 1060 of the Code, with such adjustments as may be
necessary pursuant to Section 1.4; and
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(b) The Buyer and the Seller agree to treat and report in
filings under the Code (and, if necessary, to cause each of their respective
Affiliates to so treat and report) the transactions contemplated by this
Agreement in a manner consistent with one another.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SELLER AND WEATHERFORD
Except as otherwise set forth in the correspondingly numbered section
of the Disclosure Schedule delivered by the Seller to the Buyer, the Seller and
Weatherford, jointly and severally, represent and warrant to the Buyer and
covenant and agree as follows:
2.1 Corporate Matters.
(a) The Seller and Weatherford are corporations duly
incorporated, validly existing and in good standing under the laws of their
respective states of incorporation. The Seller is duly authorized, qualified
and licensed, and has all requisite power and authority under all applicable
laws, ordinances and orders of public authorities, to own, operate and lease
its properties and assets and to carry on its business in the places and in the
manner currently conducted, except where the failure to be so qualified would
not have a Material Adverse Effect. The Seller is qualified to transact
business as a foreign corporation and is in good standing in the jurisdictions,
if any, specified in Section 2.1(a) of the Disclosure Schedule. Each of the
Seller and Weatherford has all requisite corporate power and authority to enter
into this Agreement and to perform its obligations under this Agreement.
(b) True, correct and complete copies of the Articles of
Incorporation of the Seller and the Bylaws of the Seller have been provided by
the Seller to the Buyer, and such Articles of Incorporation and Bylaws are in
full force and effect.
(c) Set forth in Section 2.1(c) of the Disclosure
Schedule is a list of assumed names under which the Seller operates the
Business.
2.2 Validity of Agreement and Conflict with Other Instruments.
(a) This Agreement, and all transactions contemplated
hereby, have been duly authorized and approved by all necessary corporate
action on the part of the Seller and Weatherford. No further corporate action
is necessary on the part of the Seller or Weatherford to execute and deliver
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Seller and Weatherford
and is a legal, valid and binding obligation of the Seller and Weatherford,
enforceable against the Seller and Weatherford in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time
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in effect that affect creditors' rights generally and by legal and equitable
limitations on the availability of specific remedies.
(b) The execution, delivery and performance of this
Agreement and the other agreements and documents to be delivered by the Seller
and Weatherford to the Buyer, the consummation of the transactions contemplated
hereby or thereby, and the compliance with the provisions hereof or thereof, by
the Seller and Weatherford will not, with or without the passage of time or the
giving of notice or both:
(i) conflict with, constitute a breach, violation
or termination of any provision of, or give rise to any right
of termination, cancellation or acceleration, or loss of any
right or benefit or both, under, any of the Contracts and
Other Agreements relating to the Business,
(ii) conflict with or violate the Certificate or
Articles of Incorporation or Bylaws of the Seller or
Weatherford,
(iii) result in an acceleration or increase of any
amounts due with respect to the Trade Payables, Accrued
Liabilities or Notes Payable,
(iv) result in the creation or imposition of any
Lien on any of the Transferred Assets, or
(v) violate any law, statute, ordinance,
regulation, judgment, writ, injunction, rule, decree, order
or any other restriction of any kind or character applicable
to the Seller or Weatherford or any of their respective
properties or assets,
other than violations, defaults or conflicts that would not materially and
adversely affect the ability of the Seller or Weatherford to consummate the
transactions provided for in this Agreement.
2.3 Approvals, Licenses and Authorizations.
(a) No order, license, consent, waiver, authorization or
approval of, or exemption by, or the giving of notice to, or the registration
with, or the taking of any other action in respect of, any Person not a party
to this Agreement, including any Governmental Entity, and no filing, recording,
publication or registration in any public office or any other place is now, or
under existing law in the future will be, necessary on behalf of the Seller to
authorize its execution, delivery and performance of this Agreement or any
other agreement contemplated hereby to be executed and delivered by the Seller
and the consummation of the transactions contemplated hereby or thereby
(including, but not limited to, assignment of the Transferred Assets), or to
effect the legality, validity, binding effect or enforceability thereof.
(b) All material licenses, permits, concessions,
warrants, franchises and other governmental authorizations and approvals of all
Governmental Entities required or necessary for the Seller to carry on its
business in the places and in the manner
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currently conducted have been duly obtained, are in full force and effect and
are set forth truly, correctly and completely in Section 2.3(b) of the
Disclosure Schedule. No material violations are in existence or have been
recorded with respect to such licenses, permits or other authorizations and no
proceeding is pending or, to the best knowledge of the Seller, threatened with
respect to the revocation or limitation of any of such licenses, permits or
other authorizations. The Seller has complied with all laws, rules,
regulations and orders applicable to the Business, and all rules, regulations
and orders respecting the provision of services by the Seller, except for
violations that would not have a Material Adverse Effect.
2.4 Title to and Condition of Properties.
(a) The Seller owns, and has good and indefeasible title
to, each parcel of Real Property, free and clear of any Liens, other than
Permitted Liens and Liens and imperfections of title that, singly or in the
aggregate, would not have a Material Adverse Effect. No parcel of Real
Property is subject to any decree of any Governmental Authority nor is being
condemned, expropriated or otherwise taken by any public authority with or
without payment of compensation therefor, nor, to the knowledge of the Seller,
has any such condemnation, expropriation or taking been proposed.
(b) The Seller is the lessee or has succeeded to the
rights of the lessee under all of the Leasehold Interests and owns the
Leasehold Interests free and clear of all Liens, except for Permitted Liens.
The Seller either owns the improvements and fixtures located on each Leasehold
Interest or validly occupies and uses such improvements and fixtures in
accordance with the terms of the Leasehold Interest, in each case free and
clear of Liens, except for Permitted Liens. A true and complete copy or
description of the lease governing each Leasehold Interest, as amended to date
and including any letter agreements relating thereto, has been furnished by the
Seller to the Buyer.
(c) All Equipment (excluding Equipment that did not have
a cost basis of $500 or more at their respective dates of acquisition by the
Seller) is set forth in Section 1.1(a)(i) of the Disclosure Schedule. The
Seller has good and marketable title to all Equipment free and clear of all
Liens. All of the Equipment is in the Seller's possession and control.
(d) All Inventories at September 30, 1996 are set forth
in Section 1.1(a)(ii) of the Disclosure Schedule. The Seller has good and
marketable title to all Inventories free and clear of all Liens.
(e) The Accounts Receivable are owned by the Seller free
and clear of all Liens.
(f) The Seller owns or possesses licenses or other rights
to use all rights to all Proprietary Rights necessary for the conduct of the
Business as currently conducted. On the Closing Date, the Seller and
Weatherford will transfer or cause to be transferred all Proprietary Rights
necessary for the conduct of the Business as
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currently conducted. Set forth in Section 2.4(f) of the Disclosure Schedule is
a complete and accurate list of all patents, trademarks and licenses the Seller
owns or possesses or otherwise has rights to use and all patents, trademarks
and licenses pertaining to the Business that the Seller owns or possesses or
otherwise has rights to use. No licenses, sublicenses, covenants or agreements
have been granted or entered into by the Seller in respect of the items listed
in Section 2.4(f) of the Disclosure Schedule except as noted thereon. The
Seller has not received any notice of infringement, misappropriation or
conflict from any other Person with respect to such Proprietary Rights and the
conduct of the Business has not infringed, misappropriated or otherwise
conflicted with any Proprietary Rights of any such Person. The Seller has not
given indemnification for patent, trademark, service mark or copyright
infringements except to licensees or customers in the ordinary course of
business. All of the Proprietary Rights that are owned by the Seller are owned
free and clear of all Liens and all such Proprietary Rights will be transferred
to the Buyer free and clear of all Liens. All Proprietary Rights that are
licensed by the Seller from third parties are licensed pursuant to valid and
existing license agreements and such interests are not subject to any Liens
other than those under the applicable license agreements. The consummation of
the transactions contemplated by this Agreement will not result in the loss of
any Proprietary Rights and will not conflict with, constitute a breach,
violation or termination of, any agreement or understanding, whether written or
otherwise, relating to any Proprietary Rights necessary for the conduct of the
Business as currently conducted.
2.5 Contracts and Commitments.
(a) None of the Transferred Assets is subject to, and,
except for the Retained Liabilities, the Seller is not a party to or bound by:
(i) any agreement, contract or commitment
requiring the expenditure or series of related expenditures
of funds in excess of $25,000 (other than purchase orders in
the ordinary course of business for goods necessary for the
Seller to complete then existing contracts or purchase
orders);
(ii) any agreement, contract or commitment
requiring the payment for goods or services whether or not
such goods or services are actually provided or the provision
of goods or services at a price less than the Seller's cost
of producing such goods or providing such services;
(iii) any loan or advance to, or investment in, any
Person or any agreement, contract, commitment or
understanding relating to the making of any such loan,
advance or investment;
(iv) any Debt Obligations (other than the notes
described in Section 2.5(a)(iv) of the Disclosure Schedule);
(v) any management service, employment,
consulting or other similar type contract or agreement;
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(vi) any agreement, contract or commitment that
would limit the freedom of the Buyer or any Affiliate thereof
following the Closing Date to engage in any line of business,
to own, operate, sell, transfer, pledge or otherwise dispose
of or encumber any of the Transferred Assets or to compete
with any Person or to engage in any business or activity in
any geographic area;
(vii) any agreement, lease, contract or commitment
or series of related agreements, leases, contracts or
commitments not entered into in the ordinary course of
business or, except for agreements to purchase or sell goods
and services entered into in the ordinary course of business
of the Seller, not cancelable within 30 calendar days by the
Seller without penalty to the Seller;
(viii) any agreement or contract obligating the
Seller or that would obligate or require any subsequent owner
of the Business or any of the Transferred Assets to provide
for indemnification or contribution with respect to any
matter;
(ix) any sales, distributorship or similar
agreement relating to the products sold or services provided
by the Seller;
(x) any license, royalty or similar agreement; or
(xi) any other agreement, contract or commitment
that might reasonably be expected to have a Material Adverse
Effect.
(b) The Seller is not in breach of any provision of, or
in default (or has knowledge of any event or circumstance that with notice, or
lapse of time or both, would constitute an event of default) under the terms of
any of the Contracts and Other Agreements that constitute a part of the
Transferred Assets, except for breaches or defaults that would not have a
Material Adverse Effect. All of the Contracts and Other Agreements that
constitute a part of the Transferred Assets are in full force and effect. The
Seller is not aware of any pending or threatened disputes with respect to any
of the Contracts and Other Agreements.
(c) Except as set forth in Section 2.3(a) or Section
2.5(a) of the Disclosure Schedule, the enforceability of the Contracts and
Other Agreements that constitute a part of the Transferred Assets will not be
affected in any manner by the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
2.6 No Litigation. There is no action, suit, claim,
investigation or legal, administrative, arbitration or other proceeding, or
governmental investigation or examination, or any change in any zoning or
building ordinance pending or, to the Seller's knowledge, threatened against or
affecting the Seller, the Business or any of the Transferred Assets, at law or
in equity, before or by any Governmental Entity and no basis exists for any
such action, suit, claim, investigation or proceeding.
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2.7 No Adverse Changes or Events. Since September 30, 1996, the
Business has been consistently operated only in the ordinary course, and there
has not been:
(a) any adverse change in the financial condition,
assets, liabilities (contingent or otherwise), results of operations or
business of the Seller except for such changes that in the aggregate have not
had a Material Adverse Effect, or any occurrence, circumstance or combination
thereof that might reasonably be expected to have a Material Adverse Effect
before or after the Closing;
(b) any damage, destruction or loss, whether or not
covered by insurance, materially adversely affecting the Transferred Assets or
the Business;
(c) any increase in the compensation or rate of
compensation or commissions or bonuses payable or to become payable by the
Seller to any employee of the Seller subsequently hired by the Buyer that is
not consistent with past practice, any payment or accrual of, or commitment
with respect to, any bonus plan or severance arrangement that is not consistent
with past practice or any change or modification to any severance arrangement;
(d) any sale, assignment, transfer or other disposition
or lapse of any Proprietary Rights or disclosure to any Person (other than
employees of the Seller in the scope of their employment) of any Proprietary
Rights material to the Business;
(e) any cancellation or compromise of any material
claims, or any waiver of any other material rights relating to the Business, or
any sale, transfer or other disposition of any properties or assets, real,
personal or mixed, tangible or intangible, material to the Business (other than
sales of Inventory in the ordinary course of business); or
(f) any change in the Seller's method of accounting for
financial, Tax or other purposes.
2.8 Environmental Matters.
(a) Neither the Seller nor, to the knowledge of the
Seller, any prior owner or operator of the Business or the Transferred Assets
has caused or allowed the generation, use, treatment, storage or disposal of
Hazardous Materials at any site or facility owned, leased or operated by the
Seller or used in the Business except in accordance with all applicable
Environmental Laws or except to the extent the same would not have a Material
Adverse Effect.
(b) The Seller does not own or lease any real property,
improvements or related assets that form a part of the Transferred Assets or
the Business and that have been subject to the release of any Hazardous
Materials except to the extent that the same would not have a Material Adverse
Effect.
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<PAGE> 16
(c) The Seller has secured all Environmental Permits
necessary to the conduct of the Business and the Seller is in compliance with
such permits, except to the extent any such noncompliance does not impose
liability on the Buyer or its Affiliates.
(d) The Seller has not received any notice, nor is it
aware, of any proposal to amend, revoke or replace any Environmental Permit, or
requiring the issuance of any additional Environmental Permit, necessary to
conduct the Business.
(e) The Seller has not received inquiry or notice nor
does the Seller have any reason to suspect or believe that it will receive
inquiry or notice of any actual or potential proceedings, claims, lawsuits or
losses related to or arising under any Environmental Law and related to the
Business or the Transferred Assets.
(f) The Seller is not currently operating or required to
be operating the Business under any compliance order, schedule, decree or
agreement, any consent decree, order or agreement, or corrective action decree,
order or agreement issued or entered into under any Environmental Law.
(g) Each of the Seller, the Transferred Assets and the
Business is in compliance with all applicable limitations, restrictions,
conditions, standards, prohibitions, requirements and obligations established
under Environmental Laws except to the extent any such noncompliance would not
have a Material Adverse Effect.
2.9 Condition of Assets. Except as expressly provided herein,
the Inventory, property and Equipment included in the Transferred Assets are
being sold, transferred and conveyed on an "AS IS, WHERE IS" condition, and the
Seller makes NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THEIR
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AS TO THEIR CONDITION.
2.10 Warranties and Product Liability. Except for (i) warranties
implied by law and (ii) warranties disclosed in Section 2.10 of the Disclosure
Schedule, the Seller has not given or made any warranties in connection with
the sale or rental of goods or services on or prior to the Closing Date,
including, without limitation, warranties covering the customer's consequential
damages. The Seller is not aware of any state of facts or the occurrence of
any event forming the basis of any present claim against the Seller with
respect to warranties relating to products manufactured, sold or distributed by
the Seller or services performed by or on behalf of the Seller on or prior to
the Closing Date except any claim that would not individually or in the
aggregate exceed $50,000.
2.11 Employee Matters.
(a) There are no collective bargaining or other labor
union agreements to which the Seller is a party or by which it is bound. To
the knowledge of the Seller, the Seller has not encountered any labor union
organizing activity or had any actual or threatened employee strikes, work
stoppages, slowdowns or walkouts.
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(b) The Seller does not contribute to or have an
obligation to contribute to, and has not at any time within six years prior to
the Closing Date contributed to or had an obligation to contribute to, a
multi-employer plan within the meaning of Section 3(37) of ERISA.
(c) With respect to any employee benefit plan, within the
meaning of Section 3(3) of ERISA, which is sponsored, maintained or contributed
to, or has been sponsored, maintained or contributed to within six years prior
to the Closing Date, by the Seller or any corporation, trade, business or
entity under common control with the Seller, within the meaning of Section
414(b), (c) or (m) of the Code or Section 4001 of ERISA ("Commonly Controlled
Entity"), (i) no withdrawal liability, within the meaning of Section 4201 of
ERISA, has been incurred, which withdrawal liability has not been satisfied,
(ii) no liability to the Pension Benefit Guaranty Corporation has been incurred
by the Seller or any Commonly Controlled Entity, which liability has not been
satisfied, (iii) no accumulated funding deficiency, whether waived or not
waived, within the meaning of Section 302 of ERISA or Section 412 of the Code
has been incurred and (iv) all contributions, including installments, to such
plan required by Section 302 of ERISA and Section 412 of the Code have been
timely made.
2.12 Finder's Fees. Except for fees payable to Merrill Lynch &
Co. ("Merrill Lynch") and Simmons & Company International ("Simmons"), neither
the Seller nor any Affiliate of the Seller has employed or retained any
investment banker, broker, agent, finder or other party, or incurred any
obligation for brokerage fees, finder's fees or commissions, with respect to
the sale by the Seller of any of the Transferred Assets or with respect to the
transactions contemplated by this Agreement, or otherwise dealt with anyone
purporting to act in the capacity of a finder or broker with respect thereto
whereby any party hereto may be obligated to pay such a fee or commission. The
Seller and Weatherford agree to indemnify and hold the Buyer and its Affiliates
harmless from and against any and all claims, liabilities or obligations with
respect to all fees, commissions or expenses asserted by any Person on the
basis of any act, statement, agreement or commitment alleged to have been made
by the Seller, Weatherford or any Affiliate of Weatherford with respect to any
fee, commission or expense payable to Merrill Lynch, Simmons or any other party
with respect to the sale by the Seller of any of the Transferred Assets or with
respect to the transactions contemplated by this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller as follows:
3.1 Corporate Matters. The Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware. The Buyer has all requisite corporate power and authority to
enter into this Agreement and to perform its obligations under this Agreement.
This Agreement, and all transactions contemplated hereby, have been duly
authorized and approved by all necessary
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corporate action on the part of the Buyer. No further corporate action is
necessary on the part of the Buyer to execute and deliver this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Buyer and is a legal, valid and binding
obligation of the Buyer, enforceable against it in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect that
affect creditors' rights generally and by legal and equitable limitations on
the availability of specific remedies. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby,
and the compliance with the provisions hereof, by the Buyer will not violate
any provision of, or constitute a default under, any contract or other
agreement to which the Buyer is a party or by which it is bound, or conflict
with its Certificate of Incorporation or Bylaws, other than violations,
defaults or conflicts that would not materially and adversely affect the
ability of the Buyer to consummate the transactions provided for in this
Agreement.
3.2 Approvals and Authorizations. No order, license, consent,
waiver, authorization or approval of, or exemption by, or the giving of notice
to, or the registration with, or the taking of any other action in respect of,
any Person not a party to this Agreement, including any Governmental Entity,
and no filing, recording, publication or registration in any public office or
any other place is now, or under existing law in the future will be, necessary
on behalf of the Buyer to authorize its execution, delivery and performance of
this Agreement or any other agreement contemplated hereby to be executed and
delivered by the Buyer and the consummation of the transactions contemplated
hereby or thereby (including, but not limited to, assignment of the Transferred
Assets), or to effect the legality, validity, binding effect or enforceability
thereof.
3.3 Finder's Fees. Neither the Buyer nor any Affiliate of the
Buyer has employed or retained any investment banker, broker, agent, finder or
other party, or incurred any obligation for brokerage fees, finder's fees or
commissions, with respect to the transactions contemplated by this Agreement,
or otherwise dealt with anyone purporting to act in the capacity of a finder or
broker with respect thereto whereby any party hereto may be obligated to pay
such a fee or a commission. The Buyer agrees to indemnify and hold the Seller
and its Affiliates harmless from and against any and all claims, liabilities or
obligations with respect to all fees, commissions or expenses asserted by any
Person on the basis of any act, statement, agreement or commitment alleged to
have been made by the Buyer or any Affiliate of the Buyer with respect to any
such fee, commission or expense.
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ARTICLE 4
ADDITIONAL AGREEMENTS
4.1 Delivery of Corporate Documents; Proprietary Data; Record
Retention; Financial Statements.
(a) The Seller shall deliver to the Buyer all Documents
and Other Papers relating to the Transferred Assets, the Assumed Liabilities
and the current and proposed operations of the Business, including, without
limitation, all files relating to the Accounts Receivable and the Trade
Payables, computer disks reflecting any books or records, documents or other
papers, or other information or data relating to the operation of the Business
or the Transferred Assets stored on any electronic media, including computers.
The Seller, however, shall be entitled to retain the historical books and
records relating to the Business to the extent such books and records are not
necessary for the ongoing operations of the Business by the Buyer.
(b) The Seller and Weatherford agree that neither of them
nor any of their Affiliates shall retain any copies of any blueprints,
drawings, diagrams, models or similar Proprietary Information included in the
Transferred Assets.
(c) In the event and for so long as any party is
contesting or defending against any action, suit, proceeding, hearing,
investigation, charge, complaint, claim or demand asserted by a third party
(including any Governmental Entity) in connection with (i) any transaction
contemplated by this Agreement or (ii) any fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act or transaction on or prior to the Closing Date involving
the Business or the Transferred Assets, the other party will to the extent
reasonably practicable cooperate with the contesting or defending party and its
counsel in the contest or defense, and provide such testimony and access to its
books and records as shall be necessary in connection with the contest or
defense, all at the sole cost and expense of the contesting or defending party
(except to the extent the contesting or defending party is entitled to
indemnification therefor under Article 8 hereof); provided, however, that
nothing herein requires any party to retain any books and records other than in
the ordinary course of business; provided further, any party hereto, before
destroying any historical books and records that relate in whole or in part to
the Business or the Transferred Assets, shall give such other party reasonable
notice of its intention to destroy such books and records and an opportunity to
make copies thereof at the sole expense of the party destroying such copies.
In addition, the Buyer agrees to provide Weatherford with reasonable access to
any books and records included in the Transferred Assets as may be necessary
for the preparation of any Tax returns or financial statements.
Notwithstanding the foregoing, information as to which the contesting or
defending party may reasonably assert would waive a privilege need not be
disclosed.
(d) If the Buyer is required under applicable United
States federal securities laws to include historical accounting information for
periods prior to the Closing relating to the Business in any of the Buyer's
filings with the Securities and
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Exchange Commission, then the Seller shall cooperate with and provide the Buyer
reasonable access, during regular business hours and upon reasonable advance
notice, to the Seller's accounting records relating to the Business prior to
the Closing and shall cause its outside auditors to cooperate, at the Buyer's
expense, with the Buyer in the preparation of such historical financial
statements relating to the Business prior to the Closing as may be required
under such securities laws to be included in such filings.
4.2 Further Assurances. The Seller shall execute, acknowledge
and deliver or cause to be executed, acknowledged and delivered to the Buyer
such bills of sale, assignments (including, but not limited to, assignments of
leases) and other instruments of transfer, assignment and conveyance, in form
and substance satisfactory to counsel for the Buyer, as shall be necessary to
vest in the Buyer all the right, title and interest in and to the Transferred
Assets free and clear of all Liens (including the release of all Liens of
record) and shall use its best efforts to cause to be taken such other action
as the Buyer reasonably may require to more effectively implement and carry
into effect the transactions contemplated by this Agreement.
4.3 Nondisclosure of Proprietary Information.
(a) The Seller agrees that, from and after the Closing
Date, the Seller and its Affiliates shall:
(i) hold in confidence and will not directly or
indirectly at any time reveal, report, publish, disclose or
transfer to any Person other than the Buyer any of the
Proprietary Information that is not generally known to the
public or utilize any of the Proprietary Information for any
purpose; and
(ii) not for a period of two years solicit any
Transferred Employees.
(b) The Seller acknowledges that all documents and
objects containing or reflecting any Proprietary Information, whether developed
by the Seller or by someone else for the Seller or any of its Affiliates, will
after the Closing Date become the exclusive property of the Buyer and be
delivered to the Buyer.
(c) Because of the unique nature of the Proprietary
Information, the Seller understands and agrees that the breach or anticipated
breach of the obligations under this Section 4.3 will result in immediate and
irreparable harm and injury to the Buyer and its Affiliates, for which it will
not have an adequate remedy at law, and that the Buyer and its Affiliates and
their successors and assigns shall be entitled to relief in equity to enjoin
such breach or anticipated breach and to seek any and all other legal and
equitable remedies to which they may be entitled.
4.4 Covenant Not to Compete With the Business. As an inducement
to the Buyer to acquire the Business, each of Weatherford and the Seller agree
that, except as otherwise permitted herein or Exhibit A hereto, effective as of
the Closing Date and for a period of three years thereafter, it and its
Affiliates shall not, without the consent
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of the Buyer, directly or indirectly, engage in the manufacture of packer
equipment. Weatherford and the Seller acknowledge that a remedy at law for any
breach or attempted breach of this Section 4.4 will be inadequate and further
agrees that any breach of this Section 4.4 will result in irreparable harm to
the Business and the Buyer shall, in addition to any other remedy that may be
available to it, be entitled to specific performance and injunctive and other
equitable relief in case of any such breach or attempted breach. Weatherford
and the Seller acknowledge that this covenant not to compete is being provided
as an inducement to the Buyer to acquire the Business and the Transferred
Assets and that this Section 4.4 contains reasonable limitations as to time,
geographical area and scope of activity to be restrained that do not impose a
greater restraint than is necessary to protect the goodwill or other business
interest of the Buyer. Whenever possible, each provision of this Section 4.4
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Section 4.4 shall be prohibited by
or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remaining
provisions of this Section 4.4. If any provision of this Section 4.4 shall,
for any reason, be judged by any court of competent jurisdiction to be invalid
or unenforceable, such judgment shall not affect, impair or invalidate the
remainder of this Section 4.4 but shall be confined in its operation to the
provision of this Section 4.4 directly involved in the controversy in which
such judgment shall have been rendered. In the event that the provisions of
this Section 4.4 should ever be deemed to exceed the time or geographic
limitations permitted by applicable laws, then such provision shall be reformed
to the maximum time or geographic limitations permitted by applicable law. The
foregoing provisions of this Section 4.4 shall not prevent Weatherford or any
of its Affiliates from making any acquisition (whether by way of assets, stock
or otherwise) of, or retain any interest in, or any investment in, in either
case, whether directly or indirectly, any business, entity or affiliated group
of entities that on a consolidated basis during the most recent fiscal quarter
derived 20% or less of its gross revenues from the manufacture and sale of
packer equipment so long as (i) such acquisition is pursuant to an agreement
entered into on or after one year from the Closing Date or (ii) the business or
entities that are engaged in the manufacture and sale of packer equipment is
sold within one year after the date of acquisition of such business or
entities. In addition, the foregoing provision shall not prohibit Weatherford
or any of its Affiliates from making any acquisition (whether by way of assets,
stock or otherwise) or any investment in, in either case, whether directly or
indirectly, any business, entity or affiliated group of entities that are
engaged in the business of the manufacture and sale of packer equipment as long
as the agreement to make such acquisition is entered into after two years from
the Closing Date. The foregoing provisions shall also not prohibit any Person
who may in the future acquire 50% or more of the outstanding capital stock of
Weatherford (or any successor thereto) from engaging in the manufacture of
packer equipment as long as such acquiring Person was engaged in the
manufacture of packer equipment prior to such acquisition.
4.5 Employee Matters.
(a) The Buyer agrees to offer employment to all of the
employees of the Seller or EPEG who are engaged in the Business on terms
substantially similar to those under which such employees are currently
engaged, provided that the Buyer need only
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offer the Seller's employees those benefits that are provided by the Buyer to
similarly situated employees. Any such employees that the Buyer in fact
employs immediately after the Closing Date shall hereinafter be referred to as
the "Transferred Employees." Any such employees who are not employed by the
Buyer or one of its Affiliates immediately after the Closing Date shall
hereinafter be referred to as the "Terminated Employees." In determining
eligibility for and entitlement to vacation and other normal benefits
(excluding stock-based plans and incentive programs) based on length of service
by Transferred Employees under the Buyer's normal policies, service with the
Seller or EPEG shall be considered by the Buyer and its Affiliates as service
with the Buyer and its Affiliates.
(b) The Seller shall be responsible for the severance
obligations, if any, with respect to the Terminated Employees. The Buyer
agrees that if the employment of any of the Transferred Employees with the
Buyer or its Affiliates is terminated by the Buyer within six months following
the Closing Date other than for cause, the Buyer will provide to such
terminated Transferred Employee the severance that such Transferred Employee
would have received had the Transferred Employee been entitled to receive
severance from the Seller in accordance with the severance policy (including,
as applicable, the Weatherford Enterra Special Severance Payment Plan) of the
Seller previously provided to the Buyer, without giving effect to any
provisions that eliminate the severance payment obligations as a result of a
purchaser of the Business offering the Transferred Employee employment.
(c) In determining eligibility for and the amount of
severance benefits the Transferred Employees may become entitled to upon
termination of employment with the Buyer or one of its Affiliates after the
Closing Date under the Buyer's normal severance policies, service with the
Seller or EPEG shall be considered as service with the Buyer and its
Affiliates.
(d) The parties hereto do not intend to create any
third-party beneficiary rights respecting any employee of the Seller as a
result of the provisions hereof and specifically hereby negate any such
intention.
(e) The Buyer agrees to provide to all Transferred
Employees the opportunity to participate in group health and other benefit
plans maintained by it or its Affiliates for similarly situated employees. The
Buyer agrees to use its best efforts to obtain group health coverage for the
Transferred Employees effective as of the Closing Date; provided, however, such
coverage need not cover pre-existing conditions. With respect to any
Transferred Employees with pre-existing conditions, the Buyer, at its option,
will either make coverage available to such Transferred Employees (by waiving
any waiting periods for such pre-existing conditions) or, for a period of 12
months, reimburse such Transferred Employees for the premiums paid by such
employees (who elect to retain their existing coverage) to maintain their prior
coverage with the Seller as permitted under applicable law.
(f) The Buyer shall be fully responsible for all
liabilities related to the termination by the Buyer of the employment of any of
the Transferred Employees within 90 days after the Closing Date or such other
period that would expose the Seller
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to liabilities under the WARN Act as a result of the premature termination by
the Buyer of the employment of any of the Transferred Employees.
4.6 Use of Corporate Names. All uses of the corporate names set
forth in Section 1.1(a)(vi) of the Disclosure Schedule, or any derivations
thereof, are being transferred to the Buyer hereunder as part of the
Transferred Assets. The Seller agrees that it will not take any action that
could reasonably be expected to adversely affect the Buyer's right to the such
names or cause confusion with respect to the Buyer's use of the such names.
All goodwill with respect to the use of the names will inure to the benefit of
the Buyer, and the Seller will not have any rights to sue or recover against
any person with respect to the use of such names.
ARTICLE 5
BUYER'S CONDITIONS
The obligation of the Buyer to purchase the Transferred Assets and to
assume the Assumed Liabilities as contemplated hereby is, at the option of the
Buyer, subject to the satisfaction on or before the Closing Date of the
conditions set forth below, any of which may be waived by the Buyer in writing;
provided, however, the Buyer's election to proceed with the Closing shall not
be deemed a waiver of any breach of any representation, warranty or covenant
herein, whether or not known to the Buyer or existing on the Closing Date, and
such action shall not prejudice the Buyer's right to recover damages for any
such breach.
5.1 Representations, Warranties and Covenants. The
representations and warranties of the Seller and Weatherford contained in this
Agreement shall be true, correct and complete in all respects on and as of the
Closing Date with the same force and effect as though such representations and
warranties had been made or given on and as of such date, except for such
matters due to changes in facts from the date hereof required or permitted by
this Agreement; each and all of the agreements and covenants of the Seller and
Weatherford to be performed or complied with by it on or before the Closing
Date pursuant to this Agreement shall have been performed or complied with in
all material respects; and the Seller and Weatherford shall have delivered to
the Buyer a certificate signed by duly authorized officers dated the Closing
Date regarding the matters set forth in this Section 5.1.
5.2 Good Standing. The Seller shall have delivered to the Buyer
a certificate issued by the Secretary of State of the State of Texas evidencing
the good standing of the Seller, as of a date not more than five calendar days
prior to the Closing Date. The Seller also shall have delivered to the Buyer a
certificate issued by the Texas Comptroller of Public Accounts evidencing that
all applicable state franchise Taxes have been paid in Texas.
5.3 Instruments of Transfer. The Seller shall have executed,
acknowledged and delivered to the Buyer such bills of sale, assignments
(including but not limited to assignments of the leases) and other instruments
of transfer, assignment and
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conveyance, in form and substance mutually agreeable, as shall be necessary to
vest in the Buyer all the right, title and interest in and to the Transferred
Assets.
5.4 Licenses, Consents and Approvals. The Seller and Weatherford
shall have delivered to the Buyer a copy of each of the licenses, consents,
approvals and other authorizations from Governmental Entities necessary or
appropriate for the Seller and Weatherford to consummate the transactions
contemplated by this Agreement.
5.5 No Litigation. No preliminary or permanent injunction or
other order of any Governmental Entity shall be in effect nor shall there be in
effect any statute, rule, regulation or executive order promulgated or enacted
by any Governmental Entity that, in any such case, prevents the consummation of
the transactions contemplated by this Agreement. No suit, action, claim,
proceeding or investigation before any Governmental Entity shall have been
commenced or threatened by any Person (other than the Buyer or any of its
Affiliates) seeking to prevent the sale of the Transferred Assets or the
Business or asserting that the sale of all or a portion of the Transferred
Assets or the Business would be unlawful.
5.6 Consents of Third Persons. A copy of all consents from third
Persons that are listed in Section 2.3 of the Disclosure Schedule shall have
been delivered to the Buyer.
5.7 Resolutions. The Buyer shall have received certified copies
of resolutions of the Boards of Directors of the Seller and Weatherford
approving this Agreement and the transactions contemplated hereby.
5.8 Hart-Scott-Rodino. The waiting period (and any extension
thereof) applicable to the consummation of the transactions contemplated by
this Agreement under the HSR Act shall have been expired or been terminated.
5.9 Disclosure Schedule. The Seller shall have delivered to the
Buyer a copy of the Disclosure Schedule not later than five Business Days after
the date of this Agreement.
ARTICLE 6
SELLER'S CONDITIONS
The obligation of the Seller to transfer the Transferred Assets as
contemplated hereby is, at the option of the Seller, subject to the
satisfaction on or before the Closing Date of the conditions set forth below,
any of which may be waived by the Seller in writing; provided, however, the
Seller's election to proceed with the closing of the transactions contemplated
hereby shall not be deemed a waiver of any breach of any representation,
warranty or covenant herein, whether or not known to the Seller or existing on
the Closing Date, and such action shall not prejudice the Seller's right to
recover damages for any breach.
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6.1 Representations, Warranties and Covenants. The
representations and warranties of the Buyer contained in this Agreement shall
be true, correct and complete in all respects on and as of the Closing Date
with the same force and effect as though such representations and warranties
had been made or given on and as of such date; each and all of the agreements
and covenants of the Buyer to be performed or complied with by it on or before
the Closing Date pursuant to this Agreement shall have been performed or
complied with in all material respects; and the Buyer shall have delivered to
the Seller a certificate signed by one of its duly authorized officers, dated
the Closing Date, regarding the matters set forth in this Section 6.1.
6.2 Receipt of the Transferred Assets. The Buyer shall have paid
the Closing Payment and the Buyer shall have duly executed and delivered to the
Seller an instrument acknowledging receipt of the Transferred Assets and
assumption of the Assumed Liabilities in form and substance mutually agreeable.
6.3 Licenses, Consents and Approvals. The Buyer shall have
delivered to the Seller a copy of each of the licenses, consents, approvals and
other authorizations from Governmental Entities necessary or appropriate for
the Buyer to consummate the transactions contemplated by this Agreement.
6.4 No Litigation. No preliminary or permanent injunction or
other order of any Governmental Entity shall be in effect nor shall there be in
effect any statute, rule, regulation or executive order promulgated or enacted
by any Governmental Entity that, in any such case, prevents the consummation of
the transactions contemplated by this Agreement. No suit, action, claim,
proceeding or investigation before any Governmental Entity shall have been
commenced or threatened by any Person (other than the Seller or any of its
Affiliates) seeking to prevent the sale of the Transferred Assets or the
Business or asserting that the sale of all or a portion of the Transferred
Assets or the Business would be unlawful.
6.5 Resolutions. The Seller shall have received certified copies
of resolutions of the Board of Directors of the Buyer approving this Agreement
and the transactions contemplated hereby.
6.6 Hart-Scott-Rodino. The waiting period (and any extension
thereof) applicable to the consummation of the transactions contemplated by
this Agreement under the HSR Act shall have been expired or been terminated.
ARTICLE 7
TERMINATION
7.1 Events of Termination. The obligation to close the
transactions contemplated by this Agreement may be terminated by:
(a) mutual agreement of the Buyer and the Seller;
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(b) the Buyer, if a material default shall be made by the
Seller in the observance or in the due and timely performance by the Seller of
any agreements and covenants of the Seller herein contained, or if there shall
have been a breach by the Seller of any of the warranties and representations
of the Seller herein contained, and such default or breach has not been cured
or has not been waived within 20 days of written notice thereof;
(c) the Seller, if a material default shall be made by
the Buyer in the observance or in the due and timely performance by the Buyer
of any agreements and covenants of the Buyer herein contained, or if there
shall have been a breach by the Buyer of any of the warranties and
representations of the Buyer herein contained, and such default or breach has
not been cured or has not been waived within 20 days of written notice thereof;
(d) by the Buyer, on or before the fifth Business Day
following the Buyer's receipt of the Disclosure Schedule, if the Buyer shall
have determined in its good faith reasonable judgment that the business,
operations or assets of the Seller (including environmental conditions,
contract obligations, litigation, contingent liabilities and title of property)
are materially different than that which the Buyer currently understands such
business, operations and assets to be; or
(e) the Buyer or the Seller (provided the terminating
party has not materially breached any of its agreements, covenants or
representations and warranties), if the Closing shall not have occurred on or
before December 31, 1996.
7.2 Liability Upon Termination. If the obligation to consummate
the transactions contemplated by this Agreement is terminated pursuant to any
provision of this Article 7, then this Agreement shall forthwith become void
and there shall not be any liability or obligation with respect to this
Agreement on the part of the Seller or the Buyer except and to the extent such
termination results from the willful breach by a party of any of its
representations, warranties or agreements hereunder. The termination of this
Agreement shall not relieve any party of its obligations under this Article 7.
7.3 Notice of Termination. The parties hereto may exercise their
respective rights of termination under this Article 7 only by delivering
written notice to that effect to the other party or parties, and such notice is
received on or before the Closing Date.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification by the Seller and Weatherford. Except as
otherwise limited by this Article 8 or Article 9 hereof, the Seller and
Weatherford, jointly and severally, agree to indemnify, defend and hold the
Buyer and each of its officers, directors, employees, agents, stockholders and
controlling Persons and their respective successors and assigns harmless from
and against and in respect of Damages actually
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suffered, incurred or realized by such party (collectively, "Buyer Losses"),
arising out of or resulting from or relating to:
(a) any misrepresentation, breach of warranty (other than
a misrepresentation or breach of any of the representations set forth in
Section 2.8) or breach of any covenant or agreement made or undertaken by the
Seller in this Agreement or any misrepresentation in or omission from any other
agreement, certificate, exhibit or writing delivered to the Buyer pursuant to
this Agreement, including the Disclosure Schedule;
(b) any Retained Liability;
(c) any liability resulting from the acquisition in
August 1996 by EPEG of the common stock of Watson Packer owned by stockholders
other than EPEG and matters relating thereto;
(d) any products manufactured, sold or distributed or
services provided by or on behalf of the Seller on or prior to the Closing Date
or with respect to any claims made pursuant to warranties to third Persons in
connection with products manufactured, sold or distributed or services provided
by or on behalf of the Seller on or prior to the Closing Date; or
(e) any and all Environmental Liabilities that may be
imposed upon or incurred by the Buyer or its respective officers, directors,
employees, agents, stockholders and controlling Persons or their respective
successors and assigns, arising out of or in connection with (i) the acts or
omissions of any Person prior to the Closing Date relating to the Seller, any
business currently or previously conducted by the Seller, the Transferred
Assets, the operations currently or previously conducted by the Seller or its
Affiliates on any other assets or properties currently or previously leased or
owned by the Seller or its Affiliates in connection with the Business or any
business currently or previously conducted at the properties owned or leased by
it or its Affiliates; (ii) any breach by the Seller or Weatherford of a
representation or warranty contained in Section 2.8; (iii) any and all
Environmental Conditions existing on or prior to the Closing Date on, at or
underlying the Real Property or the Leasehold Interests; or (iv) the handling,
storage, treatment or disposal of any Hazardous Materials generated by Seller
on or prior to the Closing Date (collectively, "Environmental Losses").
Notwithstanding the foregoing, neither Weatherford nor the Seller shall be
liable under clause (a) of this Section 8.1 in respect of a misrepresentation
or breach of warranty unless and until the aggregate amount of any Buyer Losses
for which the Buyer is entitled to indemnification pursuant to such clause from
all such Persons exceeds $500,000 and then only for those Buyer Losses that in
the aggregate exceed $500,000; provided, however, (i) liability under clauses
(b) through (e) of this Section 8.1 shall not be so limited, (ii) liability
under clause (a) of this Section 8.1 shall not be so limited if such Buyer
Losses arise from a breach of any of the representations set forth in Sections
2.2, 2.4 or 2.12 and (iii) except for liability under clause (a) for Buyer
Losses that arise from a breach of any of the representations set forth in
Sections 2.2, 2.4 or
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2.12, which shall not be limited, liability under clause (a) of this Section
8.1 shall not exceed the Cash Purchase Price.
8.2 Indemnification by the Buyer. Except as otherwise limited by
this Article 8 and Article 9 hereof, the Buyer agrees to indemnify, defend and
hold the Seller, Weatherford and each of its officers, directors, employees,
agents, stockholders and controlling Persons and its successors and assigns
harmless from and against and in respect of Damages actually suffered, incurred
or realized by such party (collectively, "Seller Losses"), arising out of or
resulting from:
(a) any misrepresentation, breach of warranty or breach
of any covenant or agreement made or undertaken by the Buyer in this Agreement
or any misrepresentation in or omission from any other agreement, certificate,
exhibit or writing delivered to the Seller or Weatherford pursuant to this
Agreement; or
(b) any Assumed Liability.
8.3 Special Environmental Remediation.
(a) In addition to the indemnification provided in
Section 8.1 hereof, Weatherford agrees to commence as promptly as reasonably
practicable any remediation at the Seller's Huntsville facility that the
investigation currently being conducted by the Seller demonstrates is required
by Environmental Law to achieve at least Risk Reduction Standard No. 2 under
the Texas Natural Resource Conservation Commission ("TNRCC") regulations
(subject to the provisions set forth in Section 8.3(b)), and to diligently
pursue the remediation until it is completed (the "Huntsville Remediation").
Weatherford further agrees to perform the actions described in Exhibit B and to
pay for the capital expenditures described in Exhibit B. The remediation and
capital expenditures described in Exhibit B are herein referred to as the
"Watson Remediation" and collectively with the Huntsville Remediation as the
"Remediation". The Remediation shall be effected in compliance with all
applicable federal, state and local safety and health laws and applicable
Environmental Laws. Prior to the Closing, Weatherford and the Buyer will
review the cost estimates for the "Recommended Facility Upgrades" set forth in
the Watson Packer, Inc. Environmental Site Assessment (Project # WEA 99-1011)
dated July 1996 prepared by Nickell Environmental Corporation (the "Watson
Phase II"). If Weatherford and the Buyer agree in writing that the cost
estimates represent an acceptable payment for the listed facility upgrades,
Weatherford will pay the Buyer at Closing the total estimated cost of such
facility upgrades, as set forth in the Watson Phase II, and the Buyer shall
assume responsibility for making the listed facility upgrades and will release
Weatherford, the Seller and their Affiliates from any and all responsibility
for such facility upgrades. If Weatherford and the Buyer do not so agree,
Weatherford shall be obligated to make and pay for the upgrades as provided
herein.
(b) The Buyer agrees to provide Weatherford and its
representatives with access to and cooperation with respect to the records,
employees, agents, assets and facilities to be acquired from the Seller
throughout the course of completion of the Remediation and any investigation,
clean-up, remediation or response, if any, pertaining
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to any claims for indemnification made pursuant to Section 8.1(e) hereof. The
Buyer further agrees that Weatherford shall have management and control over
the Remediation and over any proceeding, clean-up, remediation or any response
to or any negotiations or discussions with any governmental agencies or third
Persons (provided the Buyer shall have the right to participate in any such
negotiations or discussions) that could reasonably be expected to result in a
claim for an Environmental Loss pursuant to Section 8.1(e). Subject to the
provisions of this Section 8.3 and Exhibit B, Weatherford shall have the right
to select the appropriate remedy to be implemented with respect to the
Remediation and in response to any claim for remediation or clean-up and the
right to control any other action with respect to an Environmental Loss for
which indemnification is required; provided that the remedy selected is in
compliance with applicable Environmental Laws and is adequate to comply with
the regulatory requirements of the TNRCC. Further, the remedy will be adequate
to achieve closure under either Risk Reduction Standard 1 or Risk Reduction
Standard 2 for industrial facilities, as set forth in the regulations
promulgated by the TNRCC, unless the Buyer consents in writing to closure under
Risk Reduction Standard 3, which consent will not be unreasonably withheld, and
all costs of any continuing requirements imposed as a condition to the closure
shall be paid by Weatherford. Weatherford shall effect any remedy in a manner
that will not unduly disrupt the Business. Further, such remedies shall be
effected by Weatherford as promptly as reasonably practical under the
circumstances. The Buyer agrees that, at the request of the Seller, the Buyer
will deed record any property owned by the Buyer that is remediated in
compliance with Risk Reduction Standard 2 or, with the consent of the Buyer,
Risk Reduction Standard 3.
8.4 Procedure. All claims for indemnification under this Article
8 shall be asserted and resolved as follows:
(a) An Indemnitee shall promptly give the Indemnitor
notice of any matter that an Indemnitee has determined has given or could give
rise to a right of indemnification under this Agreement, stating the amount of
the Losses, if known, and method of computation thereof, all with reasonable
particularity, and stating with particularity the nature of such matter.
Failure to provide such notice shall not affect the right of the Indemnitee to
indemnification except to the extent such failure shall have resulted in
liability to the Indemnitor that could have been actually avoided had such
notice been provided within such required time period.
(b) The obligations and liabilities of an Indemnitor
under this Article 8 with respect to Losses arising from claims of any third
party that are subject to the indemnification provided for in this Article 8
("Third Party Claims") shall be governed by and contingent upon the following
additional terms and conditions: if an Indemnitee shall receive notice of any
Third Party Claim, the Indemnitee shall give the Indemnitor prompt notice of
such Third Party Claim and the Indemnitor may, at its option, assume and
control the defense of such Third Party Claim at the Indemnitor's expense and
through counsel of the Indemnitor's choice reasonably acceptable to the
Indemnitee. In the event the Indemnitor assumes the defense against any such
Third Party Claim as provided above, the Indemnitee shall have the right to
participate at its own expense in the defense of such asserted liability, shall
cooperate with the Indemnitor in such
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defense and will attempt to make available on a reasonable basis to the
Indemnitor all witnesses, pertinent records, materials and information in its
possession or under its control relating thereto as is reasonably required by
the Indemnitor. In the event the Indemnitor does not elect to conduct the
defense against any such Third Party Claim, the Indemnitor shall pay all
reasonable costs and expenses of such defense as incurred and shall cooperate
with the Indemnitee (and be entitled to participate) in such defense and
attempt to make available to it on a reasonable basis all such witnesses,
records, materials and information in its possession or under its control
relating thereto as is reasonably required by the Indemnitee. Except for the
settlement of a Third Party Claim that involves the payment of money only and
for which the Indemnitee is totally indemnified by the Indemnitor, no Third
Party Claim may be settled without the written consent of the Indemnitee.
(c) Notwithstanding the other procedural provisions of
this Section 8.4, with respect to any claims involving an environmental matter,
the following shall apply. If in the good faith judgment of the Buyer, the
Buyer believes the circumstances underlying such claim creates an obligation to
report such matter to any Governmental Entity, the Buyer will first notify the
Seller of such belief. As soon as practicable, but in no event more than 10
days after receiving the Buyer's notice, the Seller will contact such
Governmental Entities as the Buyer requests based on the Buyer's good faith
belief or shall inform the Buyer, in writing, of the basis for its belief that
no reporting is required. If the Seller does not contact such Governmental
Entities within such period, the Buyer may do so. With respect to any
Environmental Loss for which the Buyer may be entitled to indemnification, the
Seller shall have the right to perform and complete all actions required by the
Governmental Entities. The Buyer shall have the right to attend meetings and
otherwise participate in all meetings and communications with the Governmental
Entities, and the Seller will give the Buyer reasonable advance notice and an
opportunity to so participate. The Buyer may obtain information regarding the
status of any such matter directly from the applicable Governmental Entities,
but will give the Seller at least five Business Days' notice of the Buyer's
intent to meet or otherwise communicate therewith and the Seller shall have the
right to attend or participate in any meeting or communication, but the
Seller's failure to participate shall not affect the Buyer's right to proceed
with any such meeting or communication. The Seller shall be deemed to have
satisfied in full its indemnity obligations with respect to any such matter if
it fully complies with the remediation or other program prescribed or approved
by the appropriate Governmental Entity; provided, in no event shall the
foregoing be construed to relieve the Seller of any indemnity obligations
hereunder relating to the same matter to the extent additional governmental
requirements are imposed or Third Party Claims are asserted notwithstanding the
Seller's compliance with such governmental standards and in no event shall the
Buyer Indemnified Parties be precluded by the foregoing from asserting
indemnity rights for diminution in value of the property affected if the
property, after being remediated, cannot be used in the same manner as it was
used on the Closing Date. The Buyer's indemnity rights shall not be adversely
affected if any of the Buyer's non-management employees contact any
Governmental Entity without approval from any management level employee.
Moreover, all other parties (including the Buyer's lenders and insurance
carriers) may have full access and may contact any Governmental Entity at their
own discretion without affecting the indemnity rights set
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forth elsewhere in this Article 8; provided, however, in no event shall the
foregoing constitute authorization from the Seller for such third parties to
obtain documents or information from any Governmental Entity that is not public
information. Notwithstanding anything to the contrary in this subsection,
neither the Buyer nor its Affiliates shall be required to comply with the
foregoing restrictions to the extent compliance with the foregoing would
violate laws or applicable regulations, would create an immediate endangerment
to health of persons or would materially impair the operations of the property
so affected by the matter.
8.5 Payment. Payment of any amounts due pursuant to this Article
8 shall be made within ten Business Days after notice is sent by the
Indemnitee.
8.6 Failure to Pay Indemnification. If and to the extent the
Indemnitee shall make written demand upon the Indemnitor for indemnification
pursuant to this Article 8 and the Indemnitor shall refuse or fail to pay in
full within ten Business Days of such written demand the amounts demanded
pursuant hereto and in accordance herewith, then the Indemnitee may utilize any
legal or equitable remedy to collect from the Indemnitor the amount of its
Losses. Nothing contained herein is intended to limit or constrain the
Indemnitee's rights against the Indemnitor for indemnity, the remedies herein
being cumulative and in addition to all other rights and remedies of the
Indemnitee.
8.7 Adjustment of Liability. The amount which an Indemnitee
shall be entitled to receive from an Indemnitor with respect to any
indemnifiable Losses under this Article 8 shall be net of any insurance
recovery by the Indemnitee on account of such Losses from an unaffiliated
party.
8.8 EXPRESS NEGLIGENCE. THE FOREGOING INDEMNITIES SET FORTH
IN THIS ARTICLE 8 ARE INTENDED TO BE ENFORCEABLE AGAINST THE PARTIES IN
ACCORDANCE WITH THE EXPRESS TERMS AND SCOPE THEREOF NOTWITHSTANDING TEXAS'
EXPRESS NEGLIGENCE RULE OR ANY SIMILAR DIRECTIVE THAT WOULD PROHIBIT OR
OTHERWISE LIMIT INDEMNITIES BECAUSE OF THE SIMPLE OR GROSS NEGLIGENCE (WHETHER
SOLE, CONCURRENT, ACTIVE OR PASSIVE) OR OTHER FAULT OR STRICT LIABILITY OF ANY
OF THE INDEMNIFIED PARTIES.
ARTICLE 9
NATURE OF STATEMENTS AND SURVIVAL OF COVENANTS,
REPRESENTATIONS,WARRANTIES AND AGREEMENTS
All statements of fact contained in any written statement (including
financial statements), certificate, instrument or document delivered by or on
behalf of the Seller pursuant to this Agreement shall be deemed representations
and warranties of the Seller. The several representations and warranties of
the parties to this Agreement shall survive the Closing Date and shall remain
in full force and effect for a period of one year following the Closing Date
(except that the representations and warranties set
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forth in Sections 2.2, 2.4 and 2.12 shall survive the Closing Date without
limitation) (the period during which the representations and warranties shall
survive being referred to herein with respect to such representations and
warranties as the "Survival Period"), and shall be effective with respect to
any inaccuracy therein or breach thereof (and a claim for indemnification under
Article 8 hereof may be made thereon) if a written notice asserting the claim
shall have been duly given in accordance with Article 8 hereof within the
Survival Period with respect to such matter. All covenants and agreements
contained herein shall survive without limitation. Any claim for
indemnification made during the Survival Period shall be valid and the
representations and warranties relating thereto shall remain in effect for
purposes of such indemnification notwithstanding such claim may not be resolved
within the Survival Period. All representations, warranties and covenants and
agreements made by the parties shall not be affected by any investigation
heretofore or hereafter made by and on behalf of any of them and shall not be
deemed merged into any instruments or agreements delivered in connection with
this Agreement or otherwise in connection with the transactions contemplated
hereby.
ARTICLE 10
DEFINITIONS OF CERTAIN TERMS
In addition to terms defined elsewhere in this Agreement, the
following terms shall have the meanings assigned to them herein, unless the
context otherwise indicates, both for purposes of this Agreement and all
exhibits hereto and the Disclosure Schedule:
10.1 "Accounts Receivable" shall have the meaning given such term
in Section 1.1(a)(iii) hereof.
10.2 "Accrued Liabilities" shall mean the "accrued liabilities" of
the Seller to the extent accrued and reflected on the financial statements of
the Seller, excluding intercompany liabilities, Taxes and accrued Taxes.
10.3 "Affiliate" shall mean, with respect to any Person, an
individual or entity that, directly or indirectly, controls, is controlled by
or is under common control with such Person.
10.4 "Affiliated Companies" shall mean EPEG, Weatherford
Venezuela, S.A. and Enterra Petroleum Equipment Group (UK) Ltd.
10.5 "Agreement" shall mean this Asset Purchase Agreement among
the Seller, Weatherford and the Buyer, as amended from time to time by such
parties.
10.6 "Assumed Liabilities" shall have the meaning given such term
in Section 1.3(a) hereof.
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10.7 "Business" shall mean the businesses and operations of the
Seller relating to design, manufacture, distribution, sale, repair or service
of permanent and retrievable downhole packers and oil recovery and completion
service tools.
10.8 "Business Day" shall mean any day other than a Saturday,
Sunday or other day on which commercial banks in Houston, Texas are authorized
by law to close.
10.9 "Buyer" shall have the meaning specified in the preamble.
10.10 "Buyer Losses" shall have the meaning given such term in
Section 8.1 hereof.
10.11 "Cash Purchase Price" shall mean $21,307,000 plus (a) the sum
of (i) the amount, if any, by which the sum of the book value of the Inventory
before reserves, the Seller's prepaids (the rights to which are Transferred
Assets) and the net Accounts Receivable on the Closing Date exceeds
$17,286,000, and (ii) the amount, if any, by which $2,604,000 exceeds the book
value of the sum of (x) the Trade Payables (excluding intercompany payables),
(y) Accrued Liabilities (excluding intercompany liabilities, Taxes and accrued
Taxes) reflected on the Final Statement and (z) the outstanding principal
amount, if any, of the Notes Payable as of the Closing Date, and minus (b) the
sum of (i) the amount, if any, by which $17,286,000 exceeds the book value of
the Inventory before reserves, the Seller's prepaids (the rights to which are
Transferred Assets) and Accounts Receivable on the Closing Date and (ii) the
amount, if any, by which the book value of the sum of (x) the Trade Payables
(excluding intercompany payables), (y) Accrued Liabilities (excluding
intercompany liabilities, Taxes and accrued Taxes) reflected on the Final
Statement and (z) the outstanding principal amount, if any, of the Notes
Payable as of the Closing Date exceeds $2,604,000. For purposes of this
definition, the book value of the Inventory before reserves, the Seller's
prepaids, Accounts Receivable, Trade Payables (excluding intercompany
payables), Accrued Liabilities (excluding intercompany liabilities, Taxes and
accrued Taxes) and Notes Payable shall be determined under generally accepted
accounting principles as consistently applied by the Seller. Inventory shall
include the Venezuelan Inventory described in Section 1.1(a)(ii) of the
Disclosure Schedule and, notwithstanding the preceding sentence, shall be
valued at the Seller's standard cost, which at September 30, 1996, was
approximately $304,000.
10.12 "CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.
10.13 "Closing" shall mean the closing of the transactions
contemplated by this Agreement.
10.14 "Closing Date" shall have the meaning given such term in
Section 1.3 hereof.
10.15 "Closing Payment" shall have the meaning given such term in
Section 1.3(b) hereof.
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10.16 "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, or similar provisions of legislation replacing such
law from time to time.
10.17 "Commonly Controlled Entity" shall have the meaning given
such term in Section 2.11 hereof.
10.18 "Contracts and Other Agreements" shall mean all contracts,
agreements, understandings, indentures, notes, bonds, loans, instruments,
leases, mortgages, franchises, licenses, commitments or binding arrangements,
whether express or implied, oral or written, to which the Seller is a party or
bound or to which its properties or assets are subject.
10.19 "Damages" shall mean any and all liabilities, losses,
damages, demands, assessments, claims, costs and expenses (including interest,
awards, judgments, penalties, settlements, fines, costs of remediation,
diminutions in value, costs and expenses incurred in connection with
investigating and defending any claims or causes of action (including, without
limitation, attorneys' fees and expenses and all fees and expenses of
consultants and other professionals)).
10.20 "Debt Obligations" shall mean any contract, agreement,
indenture, note or other instrument relating to the borrowing of money or any
guarantee or other contingent liability in respect of any indebtedness or
obligation of any Person (other than the endorsement of negotiable instruments
for deposit or collection in the ordinary course of business).
10.21 "Disclosure Schedule" shall mean the disclosure schedule
delivered to the Buyer.
10.22 "Documents and Other Papers" shall mean and include any
document, agreement, instrument, certificate, writing, notice, consent,
affidavit, letter, telegram, telex, statement, file, computer disk, microfiche
or other document in electronic format, schedule, exhibit or any other paper or
record whatsoever.
10.23 "Entitlements" shall have the meaning given such term in
Section 1.1(a)(vii) hereof.
10.24 "Environmental Condition" means any pollution, contamination,
degradation, damage or injury caused by, related to or arising from the
generation, handling, use, treatment, storage, transportation, disposal,
discharge, release or emission of any Hazardous Materials.
10.25 "Environmental Laws" shall mean all federal, state, or
municipal laws, rules, regulations, statutes, ordinances or orders of any
Governmental Entity relating to (a) the control of any potential pollutant or
protection of the air, water or land, (b) solid, gaseous or liquid waste
generation, handling, treatment, storage, disposal or transportation and (c)
exposure to hazardous, toxic or other substances alleged to be harmful.
"Environmental Laws" shall include, but not be limited to, the Clean Air Act,
42 U.S.C. Section 7401 et seq., the Resource Conservation Recovery Act, 42
U.S.C. Section 6901 et
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seq., the Superfund Amendments and Reauthorization Act, 42 U.S.C. Section
11001, et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et
seq., the Water Pollution Control Act, 33 U.S.C. Section 1251 et seq., the
Safe Drinking Water Act, 42 U.S.C. Section 300f et seq. and CERCLA. The term
"Environmental Laws" shall also include all state, local and municipal laws,
rules, regulations, statutes, ordinances and orders dealing with the same
subject matter or promulgated by any governmental or quasi-governmental agency
thereunder or to carry out the purposes of any federal, state, local and
municipal law. "Environmental Laws" does not include the Occupational Safety
and Health Act or any other federal, state or local law, statute, ordinance,
regulation or order governing worker safety or workplace conditions.
10.26 "Environmental Liabilities" shall mean any and all Damages
(including remediation, removal, response, abatement, clean-up, investigative
and/or monitoring costs and any other related costs and expenses) incurred or
imposed (a) pursuant to any agreement, order, notice, requirement,
responsibility or directive (including directives embodied in Environmental
Laws), injunction, judgment or similar documents (including settlements)
arising out of, in connection with or under Environmental Laws, or (b) pursuant
to any claim by a Governmental Entity or other third Person or entity for
personal injury, property damage, damage to natural resources, remediation or
similar costs or expenses incurred or asserted by such entity or person
pursuant to common law or statute and arising out of or in connection with a
release, as such term is defined in Section 101(22) of CERCLA, of Hazardous
Materials.
10.27 "Environmental Losses" shall have the meaning given such term
in Section 8.1(e) hereof.
10.28 "Environmental Permit" shall mean any permit, license,
approval, registration, identification number or other authorization with
respect to the Transferred Assets or the Business under any applicable
Environmental Law.
10.29 "EPEG" shall mean Enterra Petroleum Equipment Group, Inc., a
Delaware corporation.
10.30 "Equipment" shall mean all machinery, transportation
equipment, tools, equipment, furnishings and fixtures owned, leased or subject
to a contract of purchase and sale, or lease commitment, that is used in the
Business as operated by the Seller.
10.31 "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
10.32 "Excluded Assets" shall have the meaning given such term in
Section 1.2 hereof.
10.33 "Final Statement" shall have the meaning given such term in
Section 1.4(a) hereof.
10.34 "Governmental Entity" shall mean any arbitrator, court,
administrative or regulatory agency, commission, department, board or bureau or
body or other
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government or authority or instrumentality or any entity or Person exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
10.35 "Hazardous Materials" shall mean any (a) petroleum or
petroleum products, (b) hazardous substances as defined by Section 101(14) of
CERCLA and (c) any other chemical, substance or waste that is regulated by any
Governmental Entity under any Environmental Law.
10.36 "HSR Act" shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976.
10.37 "Indemnitee" shall mean the Person or Persons indemnified, or
entitled or claiming to be entitled to be indemnified, pursuant to the
provisions of Section 8.1 or Section 8.2 hereof, as the case may be.
10.38 "Indemnitor" shall mean the Person or Persons having the
obligation to indemnify pursuant to the provisions of Section 8.1 or Section
8.2 hereof, as the case may be.
10.39 "Inventories" shall mean all inventories of finished goods,
tooling inventory, work in progress and raw materials relating to the Business,
wherever situated.
10.40 "Leasehold Interests" shall mean the interests of the Seller
as lessee in the real property listed in Section 1.1(a)(v) of the Disclosure
Schedule.
10.41 "Lien" shall mean any lien, pledge, claim, charge, security
interest or other encumbrance, option, defect or other rights of any third
Person of any nature whatsoever.
10.42 "Losses" shall mean Seller Losses or Buyer Losses, as the
case may be.
10.43 "Material Adverse Effect" shall mean a single event,
occurrence or fact that, together with all other events, occurrences and facts
that could reasonably be expected to result in a loss to the Business, would
have, or might reasonably be expected to have, a material adverse effect on the
assets, business, operations or financial condition of the Transferred Assets
or the Business, or that would constitute a criminal violation of law involving
a felony.
10.44 "Notes Payable" shall mean the obligations of Seller under
the notes described in Section 2.5(a)(iv) of the Disclosure Schedule.
10.45 "Permitted Liens" shall mean (a) Liens securing or relating
to liabilities or obligations that are to be assumed by the Buyer pursuant to
this Agreement, (b) Liens for current taxes and assessments not yet due, (c)
inchoate mechanic and materialmen Liens for construction in progress, (d)
inchoate workmen, repairmen,
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warehousemen and carriers Liens arising in the ordinary course of business or
(e) Liens created by the Buyer.
10.46 "Person" shall mean a corporation, an association, a
partnership, an organization, a business, an individual or a Governmental
Entity.
10.47 "Pre-Closing Balance Sheet" shall have the meaning given such
term in Section 1.3(b) hereof.
10.48 "Pre-Closing Obligations" shall mean all obligations of the
Seller (including indemnification and other contingent obligations) relating to
(i) acts, events or omissions by any Person or circumstances existing at or
prior to the Closing Date, (ii) goods or services provided to or for the
benefit of the Seller or any of its Affiliates prior to the Closing Date, (iii)
goods or services provided by or on behalf of the Seller or any of its
Affiliates or licensees prior to the Closing Date, (iv) any pending or
threatened litigation or claims made or threatened prior to the Closing Date,
(v) any Retained Liabilities, (vi) the conduct of the Business, the ownership
or operation of the Transferred Assets or any benefit realized by the Seller
prior to the Closing Date, (vii) contracts, agreements and other commitments
that were required to be scheduled in Section 2.5(a) of the Disclosure Schedule
but were not scheduled and (viii) Debt Obligations (other than the Notes
Payable).
10.49 "Proprietary Information" shall mean collectively (a)
Proprietary Rights and (b) any and all other information and material
proprietary to the Seller owned, possessed or used by the Seller, whether or
not such information is embodied in writing or other physical form, and which
is not generally known to the public, that (i) relates to financial information
regarding the Seller or the Business, including, without limitation, (A)
business plans and (B) sales, financing, pricing and marketing procedures or
methods of the Seller or (ii) relates to specific business matters concerning
the Seller, including, without limitation, the identity of or other information
regarding sales personnel or customers of the Seller.
10.50 "Proprietary Rights" means all patents, inventions, shop
rights, know how, trade secrets, designs, plans, manuals, computer software,
specifications, confidentiality agreements, confidential information and other
proprietary technology and similar information; all registered and unregistered
trademarks, service marks, logos, trade and corporate names (including the
names "Arrow Completion Systems, Inc.", "Watson Packer" and all derivations
thereof) and all other trademark rights; all registered and unregistered
copyrights; and all registrations for, and applications for registration of,
any of the foregoing, that are used in the conduct of the Business.
10.51 "Purchase Price" shall have the meaning given such term in
Section 1.3(a) hereof.
10.52 "Real Property" shall mean the all owned real property of the
Seller.
10.53 "Retained Liabilities" shall have the meaning given such term
in Section 1.5 hereof.
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10.54 "Seller" shall have the meaning specified in the preamble
and, unless the context otherwise requires, any predecessor Affiliate of the
Seller to the extent a portion of the Business was conducted by such Affiliate.
10.55 "Seller Losses" shall have the meaning given such term in
Section 8.2 hereof.
10.56 "Survival Period" shall have the meaning given such term in
Article 9 hereof.
10.57 "Taxes" shall mean all federal, state, local, foreign and
other taxes, charges, fees, duties, levies, imposts, customs or other
assessments, including, without limitation, all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, profit share,
license, lease, service, service use, value added, withholding, payroll,
employment, excise, estimated, severance, stamp, occupation, premium, property,
windfall profits, or other taxes, fees, assessments, customs, duties, levies,
imposts, or charges of any kind whatsoever, together with any interest,
penalties, additions to tax, fines or other additional amounts imposed thereon
or related thereto, and the term "Tax" means any one of the foregoing Taxes.
10.58 "Terminated Employees" shall have the meaning given such term
in Section 4.5(a) hereof.
10.59 "Third Party Claims" shall have the meaning given such term
in Section 8.4(b) hereof.
10.60 "Trade Payables" shall mean those obligations of the Seller
relating to the provision of goods and services to the Seller for the conduct
of the Business in the ordinary course of business of the Seller that relate to
the Transferred Assets and that are classified as Trade Payables in accordance
with generally accepted accounting principles as consistently applied by the
Seller.
10.61 "Transferred Assets" shall have the meaning given such term
in Section 1.1(a) hereof.
10.62 "Transferred Employees" shall have the meaning given such
term in Section 4.5(a) hereof.
10.63 "Watson Packer" shall mean Watson Packer, Inc., a Texas
corporation.
ARTICLE 11
MISCELLANEOUS
11.1 Conduct of the Business. The Seller covenants and agrees
with the Buyer that from and after the date hereof until the Closing, except as
expressly authorized by
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this Agreement or as expressly consented to in writing by the Buyer, the Seller
shall, and Weatherford shall cause the Seller to:
(a) operate the Business and the Transferred Assets only
in the usual, regular and ordinary manner with a view to maintaining the
goodwill that the Seller now enjoys and, to the extent consistent with such
operation, will use all reasonable efforts to preserve intact its present
business organization, keep available the services of its employees and
preserve its relationship with its customers, suppliers, jobbers, distributors
and other Persons having business relations with it;
(b) use all reasonable efforts to maintain the
Transferred Assets in a state of repair, order and condition consistent with
its usual practice in connection with the Business;
(c) maintain its books of account and records relating to
the Business in the usual, regular and ordinary manner, in accordance with the
Seller's usual accounting practices applied on a consistent basis;
(d) comply in all material respects with all statutes,
laws, orders and regulations applicable to it and to the conduct of the
Business;
(e) not sell, assign, transfer, lease or otherwise
dispose of any Equipment or any of the other Transferred Assets except for
dispositions of Inventories for value in the usual and ordinary course of
business;
(f) preserve and maintain all rights that it now enjoys
in and to the Proprietary Rights and not sell, assign, transfer, lease or
otherwise dispose of any Proprietary Rights other than to the Buyer pursuant to
the terms of this Agreement;
(g) not mortgage, pledge or otherwise create a security
interest in any of the Transferred Assets or permit there to be created or
exist any Liens thereon that would not be released upon the transfer of the
Transferred Assets to the Buyer pursuant to this Agreement;
(h) not enter into any contract, commitment or lease in
relation to the Business that is out of the ordinary course of the Business or
that is with an Affiliate of the Seller or that would bind the Buyer under a
contract or other obligation with the Seller or any of its Affiliates;
(i) not amend or modify any of the Contracts and Other
Agreements disclosed in Section 2.5 of the Disclosure Schedule;
(j) not consent to the termination of any of the
Contracts and Other Agreements disclosed in Section 2.5 of the Disclosure
Schedule or waive any of the Seller's rights with respect thereto;
(k) not permit any insurance policy naming it as a
beneficiary or a loss payee relating to the Business or the Transferred Assets
to be canceled or terminated
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or any of the coverage thereunder to lapse unless simultaneously with such
termination or cancellation replacement policies providing substantially the
same coverage are in full force and effect; and
(l) promptly notify the Buyer in writing if the Seller or
Weatherford becomes aware of any change that shall have occurred or that shall
have been threatened (or any development that shall have occurred or that shall
have been threatened involving a prospective change) in the Transferred Assets
or the Business that would reasonably be expected to have a Material Adverse
Effect whether or not occurring in the ordinary course of business.
11.2 Governmental Filings. As promptly as practicable after the
execution of this Agreement, the Buyer and Weatherford shall, in cooperation
with the other, file any reports or notifications that may be required to be
filed by it under applicable law, including filings under the HSR Act with the
Federal Trade Commission and the Antitrust Division of the Department of
Justice, and shall furnish to the other all such information in its possession
as may be necessary for the completion of the reports or notifications to be
filed by the other.
11.3 Access to Information. Prior to the Closing, the Buyer may
make such investigation of the business and properties of the Seller as the
Buyer may desire and, upon reasonable notice, the Seller shall give to the
Buyer and its counsel, accountants and other representatives reasonable access,
during normal business hours throughout the period prior to the Closing, to the
property, books, commitments, agreements, records, files and personnel of the
Seller, and the Seller shall furnish to the Buyer during that period all copies
of documents and information concerning the Seller as the Buyer may reasonably
request, subject to applicable law. The Buyer shall hold, and shall cause its
counsel, accountants and other agents and representatives to hold, all such
information and documents in confidence.
11.4 Public Announcements. Subject to applicable securities law
or stock exchange requirements, none of the Buyer, the Seller or Weatherford
shall, without the prior approval of the other parties, issue, or permit any of
their respective partners, directors, officers, employees, agents or Affiliates
to issue, any press release or other public announcement with respect to this
Agreement or the transactions contemplated hereby.
11.5 Other Action. Each of the parties shall use its reasonable
efforts to cause the fulfillment at the earliest practicable date but, in any
event, prior to the Closing Date of all of the conditions to their respective
obligations to consummate the transactions under this Agreement.
11.6 Arbitration.
(a) In the event there shall exist any dispute or
controversy with respect to this Agreement or any matter relating hereto or the
transactions contemplated hereby, the parties hereto agree to seek to resolve
such dispute or controversy by mutual agreement. If the parties hereto are
unable to resolve such
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<PAGE> 41
dispute or controversy by agreement within 60 days following notice by any
party hereto of the nature of such dispute or controversy setting forth in
reasonable detail the circumstances and basis of such dispute or controversy,
the Buyer or Weatherford may require that such dispute or controversy be
resolved by binding arbitration pursuant to the provisions of this Section
11.6. If a party elects to submit such matter to arbitration, such party shall
provide notice to the other party of its election to do so, which notice shall
name one arbitrator. Within 10 days after the receipt of such notice, the
other party shall provide written notice to the electing party naming a second
arbitrator. The two arbitrators so appointed shall name a third arbitrator, or
failing to do so, a third arbitrator shall be appointed pursuant to the
Commercial Arbitration Rules of the American Arbitration Association. Each
arbitrator selected to act hereunder shall be qualified by education and
experience to pass on the particular question in dispute and shall be
independent and not affiliated with any of the parties hereto. The arbitrators
shall resolve all disputes in controversy in accordance with the applicable
substantive law. All statutes of limitations that would otherwise be
applicable shall apply to any arbitration proceeding.
(b) The arbitrators appointed pursuant to this Section
11.6 shall promptly hear and determine (after due notice and hearing and giving
the parties reasonable opportunity to be heard) the questions submitted, and
shall render their decision within 60 days after appointment of the third
arbitrator or as soon as practical thereafter. If within such period a
decision is not rendered by the board or a majority thereof, new arbitrators
may be named and shall act hereunder at the election of either party in like
manner as if none had previously been named. The decision of the arbitrators,
or a majority thereof, made in writing, shall absent manifest error be final
and binding upon the parties hereto as to the questions submitted, and each
party shall abide by such decision.
(c) All expenses of arbitration, including reasonable
compensation to the arbitrators, shall be borne equally by the Buyer and
Weatherford, except each party shall bear the compensation and expenses of its
own counsel, witnesses and employees.
11.7 Expenses. Except as otherwise set forth herein, and
whether or not the transactions contemplated by this Agreement shall be
consummated, each party agrees to pay, without right of reimbursement from any
other party, the costs incurred by such party incident to the preparation and
execution of this Agreement and performance of its obligations hereunder,
including, without limitation, the fees and disbursements of legal counsel,
accountants and consultants employed by such party in connection with the
transactions contemplated by this Agreement.
11.8 Notices. All notices, requests, consents, directions and
other instruments and communications required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been duly given
if delivered in person, by courier, by overnight delivery service with proof of
delivery or by prepaid registered or certified United States first-class mail,
return receipt requested, addressed to the respective party at the address set
forth below, or if sent by facsimile or other similar form of communication
(with receipt confirmed) to the respective party at the facsimile number set
forth below:
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<PAGE> 42
If to the Seller or Weatherford, to:
Weatherford Enterra, Inc.
1360 Post Oak Boulevard, Suite 1000
Houston, Texas 77056
Attention: H. Suzanne Thomas
Facsimile: (713) 622-0913
Confirm: (713) 439-9422
If to the Buyer, to:
Energy Ventures, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas 77027
Attention: James G. Kiley
Facsimile: (713) 297-8488
Confirm: (713) 297-8400
Copies to:
Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010
Attention: Curtis W. Huff
Facsimile: (713) 651-5246
Confirm: (713) 651-5657
or to such other address or facsimile number and to the attention of such other
Person(s) as either party may designate by written notice. Any notice mailed
shall be deemed to have been given and received on the third Business Day
following the day of mailing.
11.9 Bulk Transfer Laws. The Seller agrees with the Buyer that
the provisions of any statute of any state or jurisdiction regulating bulk
sales or transfers do not apply to this Agreement.
11.10 Successors. This Agreement will inure to the benefit of and
be binding upon the Buyer, Weatherford and the Seller and their respective
successors and permitted assigns. Neither this Agreement nor any of the
rights, interest or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties hereto.
Notwithstanding the foregoing, the Buyer may assign its rights under this
Agreement to an Affiliate; provided, however, that any such assignment by the
Buyer shall not release the Buyer from any of its obligations or agreements
under this Agreement.
11.11 Entire Agreement. This Agreement and the exhibits hereto and
the Disclosure Schedule constitute the entire agreement and understanding
between the parties relating to the subject matter hereof and thereof and
supersedes all prior
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<PAGE> 43
representations, endorsements, premises, agreements, memoranda, communications,
negotiations, discussions, understandings and arrangements, whether oral,
written or inferred, between the parties relating to the subject matter hereof.
This Agreement may not be modified, amended, rescinded, canceled, altered or
supplemented, in whole or in part, except upon the execution and delivery of a
written instrument executed by a duly authorized representative of each of the
parties hereto.
11.12 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Texas
without giving effect to choice of law principles.
11.13 Waiver. The waiver of any breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
of the same or any other term or condition.
11.14 Severability. Any provision hereof that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.15 No Third Party Beneficiaries. Any agreement contained,
expressed or implied in this Agreement shall be only for the benefit of the
parties hereto and their respective legal representatives, successors and
assigns, and such agreements shall not inure to the benefit of the obligees of
any indebtedness of any party hereto, it being the intention of the parties
hereto that no Person shall be deemed a third party beneficiary of this
Agreement, except to the extent a third party is expressly given rights herein.
11.16 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.17 Headings. Each statement set forth in the Disclosure
Schedule with respect to a particular section herein shall be deemed made
solely with respect to such section and not with respect to any other section
hereof unless specifically set forth in the Disclosure Schedule as also being
made with respect to such other section. The headings of the Articles and
Sections of this Agreement have been inserted for convenience of reference only
and shall in no way restrict or otherwise modify any of the terms or provisions
hereof or affect in any way the meaning or interpretation of this Agreement.
11.18 Negotiated Transaction. The provisions of this Agreement
were negotiated by the parties hereto, and this Agreement shall be deemed to
have been drafted by all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
-39-
<PAGE> 44
WEATHERFORD ENTERRA, INC.
By: /s/ H. SUZANNE THOMAS
------------------------------------
Name: H. SUZANNE THOMAS
----------------------------------
Title: SENIOR VICE PRESIDENT
---------------------------------
ARROW COMPLETION SYSTEMS, INC.
By: /s/ H. SUZANNE THOMAS
------------------------------------
Name: H. SUZANNE THOMAS
----------------------------------
Title: SENIOR VICE PRESIDENT
---------------------------------
ENERGY VENTURES, INC.
By: /s/ J. G. KILEY
------------------------------------
Name: JAMES G. KILEY
----------------------------------
Title: VICE PRESIDENT
---------------------------------
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<PAGE> 45
As permitted by Item 601(b)(2) of Regulation S-K, the Company has not
filed any schedules and exhibits with this Exhibit No. 2.1. Listed below is a
brief description of the omitted exhibits and schedules. The Company agrees to
furnish supplementally a copy of any of such omitted exhibits and schedules to
the Commission upon request.
Schedules
1.1(a)(i) Equipment
1.1(a)(ii) Inventory
1.1(a)(iii) Accounts Receivable
1.1(a)(iv) Real Property
1.1(a)(v) Leasehold Interests
1.1(a)(vi) Proprietary Information
1.2 Excluded Assets
2.1(a) States in which Qualified as a Foreign Corporation
2.1(c) Assumed Names
2.2(b) Required Approvals
2.3(a) Required Approvals
2.3(b) Required Licenses
2.4(a) Title to Properties
2.4(f) Licenses, Sublicenses, Etc.
2.5(a) Contracts and Commitments
2.5(b) Contracts and Commitments
2.6 Litigation
2.8 Environmental Matters
2.10 Warranties
2.11 Employee Matters
Exhibits
A Exceptions to the Covenant Not to Compete
B Watson Remediation
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<PAGE> 1
EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
AMONG
ENERGY VENTURES, INC.,
GULFMARK ACQUISITION CO.,
GULFMARK INTERNATIONAL, INC.
AND
NEW GULFMARK INTERNATIONAL, INC.
DECEMBER 5, 1996
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 THE MERGER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 CLOSING DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 CONSUMMATION OF THE MERGER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 EFFECTS OF THE MERGER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 CERTIFICATE OF INCORPORATION; BYLAWS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 DIRECTORS AND OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.7 CONVERSION OF SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.8 EXCHANGE OF CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.9 TAKING OF NECESSARY ACTION; FURTHER ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE II REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.1 REPRESENTATIONS AND WARRANTIES OF EVI AND SUB. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(a) Organization and Compliance with Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(c) Authorization and Validity of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 7
(d) No Approvals or Notices Required; No Conflict . . . . . . . . . . . . . . . . . . . . . . . . 7
(e) Commission Filings; Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(f) Absence of Certain Charges and Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(g) Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(h) Voting Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(i) Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(j) Information Supplied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 REPRESENTATIONS AND WARRANTIES OF GULFMARK AND SPINCO. . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Organization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(c) Authorization and Validity of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 11
(d) No Approvals or Notices Required; No Conflict with Instruments to which GulfMark
is a Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(e) Commission Filings; Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . 13
(f) Conduct of Business in the Ordinary Course; Absence of Certain Changes and Events. . . . . 14
(g) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(h) Employee Benefit Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(i) Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(j) Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(k) Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(l) Severance Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(m) Voting Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(n) Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
(o) Assets and Liabilities at Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(p) Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(q) Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(r) Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(s) Insurance Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(t) Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(u) No Fraudulent Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(v) Information Supplied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE III COVENANTS OF GULFMARK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.1 CONDUCT OF BUSINESS BY GULFMARK PENDING THE MERGER. . . . . . . . . . . . . . . . . . . . . . . . . 24
3.2 NET WORKING CAPITAL REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.3 AFFILIATES' AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE IV COVENANTS OF EVI PRIOR TO THE EFFECTIVE TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.1 CONDUCT OF BUSINESS BY EVI PENDING THE MERGER. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.2 RESERVATION OF EVI STOCK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.3 STOCK EXCHANGE LISTING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE V ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.1 JOINT PROXY STATEMENT/PROSPECTUS; REGISTRATION STATEMENT. . . . . . . . . . . . . . . . . . . . . . 28
5.2 ACCOUNTANTS LETTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.3 MEETINGS OF STOCKHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.4 FILINGS; CONSENTS; REASONABLE EFFORTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.5 NOTIFICATION OF CERTAIN MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.6 EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.7 GULFMARK'S EMPLOYEE BENEFITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE VI CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.1 CONDITIONS TO OBLIGATION OF EACH PARTY TO EFFECT THE MERGER. . . . . . . . . . . . . . . . . . . . . 31
6.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF EVI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF GULFMARK. . . . . . . . . . . . . . . . . . . . . . . . . . 33
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE VII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.1 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.2 EFFECT OF TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.3 WAIVER AND AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.4 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.5 PUBLIC STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.6 ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.7 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.8 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.9 ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.10 SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.11 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.12 HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.13 CONFIDENTIALITY AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.14 ENTIRE AGREEMENT: THIRD PARTY BENEFICIARIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.15 DISCLOSURE LETTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
GLOSSARY OF DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
</TABLE>
LIST OF EXHIBITS
Exhibit A - Form of Agreement and Plan of Distribution
Exhibit B - Amended and Restated Certificate of Incorporation of GulfMark
iii
<PAGE> 5
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, dated as of the 5th day of
December, 1996 (this "Agreement"), is among ENERGY VENTURES, INC., a Delaware
corporation ("EVI"), GULFMARK ACQUISITION CO., a Delaware corporation and
wholly-owned subsidiary of EVI ("Sub"), GULFMARK INTERNATIONAL, INC., a
Delaware corporation ("GulfMark"), and NEW GULFMARK INTERNATIONAL, INC., a
Delaware corporation and wholly-owned subsidiary of GulfMark ("Spinco").
WHEREAS, subject to and in accordance with the terms and conditions of
this Agreement, the respective Boards of Directors of EVI, Sub and GulfMark,
and EVI as sole stockholder of Sub, have approved the merger of Sub with and
into GulfMark (the "Merger"), whereby each issued and outstanding share of
common stock, par value $1.00 per share, of GulfMark ("GulfMark Common Stock")
not owned directly or indirectly by GulfMark will be converted into the right
to receive .6695 of one share of common stock, par value $1.00 per share, of
EVI ("EVI Common Stock"); and
WHEREAS, as a condition to the Merger, GulfMark will contribute to
Spinco (a) all of the stock of GulfMark's subsidiaries other than Ercon (the
"Marine Subsidiaries") and (b) the general corporate assets of GulfMark
(excluding (i) all EVI Common Stock held by GulfMark, (ii) any and all
property, assets, claims and rights, tangible and intangible of Ercon, as
defined herein, (iii) the original tax, accounting and other corporate records
of GulfMark and (iv) all of the shares of common stock and other ownership
interests held by GulfMark in American Independent Oil Company ("AIOC"), such
excluded assets being referred to herein as the "Excluded Assets") (the
"Assets") and Spinco will assume certain liabilities associated with the
Assets, the Marine Subsidiaries and GulfMark (the "Contribution") pursuant to
an Agreement and Plan of Distribution between GulfMark, Spinco and EVI in
substantially the form attached hereto as Exhibit A (the "Distribution
Agreement");
WHEREAS, as a condition to the Merger, GulfMark will distribute to its
stockholders prior to the Merger all of the outstanding stock of Spinco (the
"Distribution");
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), and
the Contribution and Distribution qualify as transactions within the meaning of
Sections 368(a)(1)(D) and 355 of the Code; and
WHEREAS, the parties hereto desire to set forth certain
representations, warranties and covenants made by each to the other as an
inducement to the consummation of the Merger;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained, the parties hereto
hereby agree as follows:
<PAGE> 6
ARTICLE I
THE MERGER
1.1 THE MERGER. Subject to and in accordance with the terms and
conditions of this Agreement and in accordance with the General Corporation Law
of the State of Delaware ("DGCL"), at the Effective Time (as defined in Section
1.3), Sub shall be merged with and into GulfMark. As a result of the Merger,
the separate corporate existence of Sub shall cease and GulfMark shall continue
as the surviving corporation (sometimes referred to herein as the "Surviving
Corporation"), and all the properties, rights, privileges, powers and
franchises of Sub and GulfMark shall vest in the Surviving Corporation, without
any transfer or assignment having occurred, and certain liabilities, debts and
duties of Sub and GulfMark shall attach to the Surviving Corporation, all in
accordance with the DGCL and subject to the provisions of the Distribution
Agreement.
1.2 CLOSING DATE. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Fulbright &
Jaworski L.L.P, Houston, Texas, as soon as practicable after the satisfaction
or waiver of the conditions set forth in Article VI or at such other time and
place and on such other date as EVI and GulfMark shall agree; provided that the
closing conditions set forth in Article VI shall have been satisfied or waived
at or prior to such time. The date on which the Closing occurs is herein
referred to as the "Closing Date".
1.3 CONSUMMATION OF THE MERGER. As soon as practicable on the
Closing Date, the parties hereto will cause the Merger to be consummated by
filing with the Secretary of State of Delaware a certificate of merger in such
form as required by, and executed in accordance with, the relevant provisions
of the DGCL. The "Effective Time" of the Merger, as that term is used in this
Agreement, shall mean such time as a certificate of merger is duly filed with
the Delaware Secretary of State or at such later time (not to exceed 90 days
from the date the Certificate is filed) as is specified in the certificate of
merger pursuant to the mutual agreement of EVI and GulfMark.
1.4 EFFECTS OF THE MERGER. The Merger shall have the effects set
forth in the applicable provisions of the DGCL. If at any time after the
Effective Time of the Merger, the Surviving Corporation shall consider or be
advised that any further assignments or assurances in law or otherwise are
necessary or desirable to vest, perfect or confirm, of record or otherwise, in
the Surviving Corporation, all rights, title and interests in all real estate
and other property and all privileges, powers and franchises of GulfMark and
Sub, the Surviving Corporation and its proper officers and directors, in the
name and on behalf of GulfMark and Sub, shall execute and deliver all such
proper deeds, assignments and assurances in law and do all things necessary and
proper to vest, perfect or confirm title to such property or rights in the
Surviving Corporation and otherwise to carry out the purpose of this Agreement,
and the proper officers and directors of the Surviving Corporation are fully
authorized in the name of GulfMark or otherwise to take any and all such
action.
1.5 CERTIFICATE OF INCORPORATION; BYLAWS. The Certificate of
Incorporation of GulfMark, as amended by the amendment set forth in Exhibit B
attached hereto, shall be the
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Certificate of Incorporation of the Surviving Corporation and thereafter shall
continue to be its Certificate of Incorporation until amended as provided
therein or under the DGCL. The bylaws of Sub, as in effect immediately prior to
the Effective Time, shall be the bylaws of the Surviving Corporation and
thereafter shall continue to be its bylaws until amended as provided therein or
under the DGCL.
1.6 DIRECTORS AND OFFICERS. The directors of Sub immediately
prior to the Effective Time shall be the directors of the Surviving Corporation
at and after the Effective Time, each to hold office in accordance with the
Certificate of Incorporation and bylaws of the Surviving Corporation, and the
officers of Sub immediately prior to the Effective Time shall be the officers
of the Surviving Corporation at and after the Effective Time, in each case
until the earlier of their resignation or removal or their respective
successors are duly elected or appointed and qualified.
1.7 CONVERSION OF SECURITIES. Subject to the terms and conditions
of this Agreement, at the Effective Time, by virtue of the Merger and without
any action on the part of EVI, GulfMark, Sub or their stockholders:
(a) Subject to adjustment pursuant to Section 1.7(e)
hereof, each share of GulfMark Common Stock issued and outstanding
immediately prior to the Effective Time (the "Shares"), shall be
converted into the right to receive .6695 of a share of EVI Common
Stock (the "Exchange Ratio"); provided, however, that no fractional
shares of EVI Common Stock shall be issued and in lieu thereof, a cash
payment shall be made in accordance with Section 1.7(d) hereof.
Except as set forth in the preceding sentence with respect to cash in
lieu of fractional shares, no other consideration will be paid to
GulfMark or its stockholders.
(b) Each Share owned directly or indirectly by GulfMark
as treasury stock and each Share owned by Sub, EVI or any direct or
indirect wholly-owned subsidiary of EVI or of GulfMark immediately
prior to the Effective Time shall be canceled and extinguished without
any conversion thereof and no payment shall be made with respect
thereto.
(c) Each share of common stock, par value $1.00 per
share, of Sub issued and outstanding immediately prior to the
Effective Time shall be converted into one fully paid and
nonassessable share of common stock, $1.00 par value per share, of the
Surviving Corporation.
(d) No fractional shares of EVI Common Stock shall be
issued in the Merger. All fractional shares of EVI Common Stock that
a holder of Shares would otherwise be entitled to receive as a result
of the Merger shall be aggregated and if a fractional share of EVI
Common Stock results from such aggregation (i) such fractional share
of EVI Common Stock shall be disregarded and the shares of EVI Common
Stock issuable to such holder shall be rounded off to the nearest
whole share of EVI Common Stock if such fractional share of EVI Common
Stock represents less than one-half of one percent of the total shares
of EVI Common Stock such holder is entitled to receive in the Merger
and (ii) in all other cases, such holder shall be entitled to receive,
in lieu of a fractional
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share of EVI Common Stock, an amount in cash determined by multiplying
the average of the daily closing sale price per share of EVI Common
Stock on the New York Stock Exchange ("NYSE") for the ten trading days
immediately preceding the Effective Time of the Merger by the fraction
of a share of EVI Common Stock to which such holder would otherwise
have been entitled. No such cash in lieu of fractional shares of EVI
Common Stock shall be paid to any holder of fractional shares of EVI
Common Stock until Certificates (as defined in Section 1.8(c))
representing such shares of EVI Common Stock are surrendered and
exchanged in accordance with Section 1.8(c). The total amount of cash
to be received by the stockholders of GulfMark in lieu of fractional
shares of EVI Common Stock will not exceed one percent of the total
fair market value of the EVI Common Stock (as of the date on which the
Effective Time occurs) to be issued in the Merger.
The Exchange Ratio is based on (i) 3,338,852 shares of GulfMark Common Stock
being issued and outstanding immediately prior to the Effective Time. In the
event the number of shares of GulfMark Common Stock outstanding immediately
prior to the Effective Time is greater or less than 3,338,852, or the number of
shares of EVI Common Stock held by GulfMark is greater or less than 2,235,572,
the Exchange Ratio shall be adjusted to equal the number of shares of EVI
Common Stock held by GulfMark immediately prior to the Effective Time divided
by the number of shares of GulfMark Common Stock issued and outstanding
immediately prior to the Effective Time.
1.8 EXCHANGE OF CERTIFICATES.
(a) Exchange Agent. Prior to the Effective Time of the
Merger, EVI shall select a bank or trust company to act as exchange
agent (the "Exchange Agent") for the issue of shares of EVI Common
Stock upon surrender of certificates representing Shares.
(b) Payment of Merger Consideration. EVI shall take all
steps necessary to enable and cause there to be provided to the
Exchange Agent on a timely basis, as and when needed after the
Effective Time of the Merger, certificates for the shares of EVI
Common Stock to be issued upon the conversion of the Shares pursuant
to Section 1.7. EVI or the Surviving Corporation shall timely make
available to the Exchange Agent any cash necessary to make payments in
lieu of fractional shares.
(c) Exchange Procedure. As soon as reasonably practical
after the Effective Time of the Merger, the Exchange Agent shall mail
to each holder of record of a certificate or certificates that
immediately prior to the Effective Time of the Merger represented
outstanding Shares (the "Certificates"), other than EVI, Sub and
GulfMark and any directly or indirectly wholly-owned subsidiary of
EVI, Sub or GulfMark, (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the
Exchange Agent and shall be in a form and have such other provisions
as EVI and Sub may reasonably specify) and (ii) instructions for use
in effecting the surrender of the Certificates in exchange for the
certificates representing the shares of EVI Common Stock and any cash
in lieu of a fractional share. Upon surrender of a Certificate for
cancellation to the Exchange Agent or to such other agent or agents as
may be appointed
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by the Surviving Corporation, together with such letter of
transmittal, duly executed, and such other documents as may reasonably
be required by the Exchange Agent, the holder of such Certificate
shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of whole shares of EVI Common
Stock into which the Shares theretofore represented by such
Certificate shall have been converted pursuant to Section 1.7 and any
cash payable in lieu of a fractional Share, and the Certificate so
surrendered shall forthwith be canceled. If the shares of EVI Common
Stock are to be issued to an individual, corporation, limited
liability company, partnership, governmental authority or any other
entity (a "Person"), other than the person in whose name the
Certificate so surrendered is registered, it shall be a condition of
exchange that such Certificate shall be properly endorsed or otherwise
in proper form for transfer and that the Person requesting such
exchange shall pay any transfer or other taxes required by reason of
the exchange to a Person other than the registered holder of such
Certificate or establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not applicable. Until
surrendered as contemplated by this Section 1.8, each Certificate
shall be deemed at any time after the Effective Time of the Merger to
represent only the right to receive upon such surrender the number of
shares of EVI Common Stock and cash, if any, in lieu of fractional
shares of EVI Common Stock into which the Shares theretofore
represented by such Certificate shall have been converted pursuant to
Section 1.7. The Exchange Agent shall not be entitled to vote or
exercise any rights of ownership with respect to the shares of EVI
Common Stock held by it from time to time hereunder, except that it
shall receive and hold all dividends or other distributions paid or
distributed with respect thereto for the account of Persons entitled
thereto.
(d) Distributions with Respect to Unexchanged Shares. No
dividends or other distributions declared or made after the Effective
Time of the Merger with respect to the shares of EVI Common Stock with
a record date after the Effective Time of the Merger shall be paid to
the holder of any unsurrendered Certificate with respect to the shares
of EVI Common Stock represented thereby and no cash payment in lieu of
fractional shares shall be paid to any such holder pursuant to Section
1.7(d) until the holder of record of such Certificate shall surrender
such Certificate. Subject to the effect of applicable laws, following
surrender of any such Certificate, there shall be paid to the record
holder of the Certificates representing the shares of EVI Common Stock
issued in exchange therefor, without interest, (i) at the time of such
surrender, the amount of any cash payable in lieu of a fractional
share of EVI Common Stock to which such holder is entitled pursuant to
Section 1.7(d) and the amount of dividends or other distributions with
a record date after the Effective Time of the Merger theretofore paid
with respect to such whole shares of EVI Common Stock, as the case may
be, and (ii) at the appropriate payment date, the amount of dividends
or other distributions with a record date after the Effective Time of
the Merger but prior to surrender and a payment date subsequent to
surrender payable with respect to such whole shares of EVI Common
Stock.
(e) No Further Ownership Rights in Shares. All shares of
EVI Common Stock issued upon the surrender of Certificates in
accordance with the terms of this Article I, together with any
dividends payable thereon to the extent contemplated by this Section
1.8, shall be deemed to have been exchanged and paid in full
satisfaction of all
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rights pertaining to the Shares theretofore represented by such
Certificates and there shall be no further registration of transfers
on the stock transfer books of the Surviving Corporation of the Shares
that were outstanding immediately prior to the Effective Time of the
Merger. If, after the Effective Time of the Merger, Certificates are
presented to the Surviving Corporation for any reason, they shall be
canceled and exchanged as provided in this Article I.
(f) None of EVI, Sub, GulfMark, the Surviving Corporation
or their transfer agents shall be liable to a holder of the Shares for
any amount properly paid to a public official pursuant to applicable
property, escheat or similar laws.
1.9 TAKING OF NECESSARY ACTION; FURTHER ACTION. The parties
hereto shall take all such reasonable and lawful action as may be necessary or
appropriate in order to effectuate the Merger and the Distribution as promptly
as possible. If, at any time after the Effective Time, any such further action
is necessary or desirable to carry out the purposes of this Agreement or the
Distribution Agreement, and to vest the Surviving Corporation with full right,
title and possession to all assets, property, rights, privileges, powers and
franchises of GulfMark or Sub as of the Effective Time, such corporations shall
direct their respective officers and directors to take all such lawful and
necessary action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF EVI AND SUB. EVI and Sub
hereby jointly and severally represent and warrant to GulfMark that:
(a) Organization and Compliance with Law. Each of EVI
and Sub is a corporation duly organized, validly existing and in good
standing under the laws of the state of Delaware and has all requisite
corporate power and corporate authority to own, lease and operate all
of its properties and assets and to carry on its business as now being
conducted, except where the failure to be so organized, existing or in
good standing would not have a material adverse effect on the
financial condition of EVI and its subsidiaries (the "EVI
Subsidiaries"), taken as a whole (an "EVI MAE"). Each of EVI and Sub
is duly qualified to do business, and is in good standing, in each
jurisdiction in which the property owned, leased or operated by it or
the nature of the business conducted by it makes such qualification
necessary, except in such jurisdictions where the failure to be duly
qualified would not have an EVI MAE. Each of EVI and Sub is in
compliance with all applicable laws, judgments, orders, rules and
regulations, except where such failure would not have an EVI MAE. EVI
has heretofore delivered to GulfMark true and complete copies of EVI's
Certificate of Incorporation (the "EVI Certificate") and Sub's
Certificate of Incorporation and their respective bylaws as in
existence on the date hereof.
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(b) Capitalization.
(i) The authorized capital stock of EVI consists
of 40,000,000 shares of EVI Common Stock, par value $1.00 per
share, and 3,000,000 shares of preferred stock, par value
$1.00 per shares ("EVI Preferred Stock"). As of September 30,
1996, there were issued and outstanding 22,939,625 shares of
EVI Common Stock. As of October 8, 1996, 1,550,268 shares of
EVI Common Stock were reserved for issuance pursuant to EVI's
1981 Employee Stock Option Plan, 1992 Employee Stock Option
Plan, Non- Employee Director Stock Option Plan and restricted
stock plan for foreign key employees, of which 834,268 shares
of EVI Common Stock were reserved for issuance upon exercise
of outstanding options. At October 8, 1996, there were no
shares of EVI Preferred Stock issued or outstanding. No
holder of EVI Common Stock is entitled to preemptive rights
under Delaware law or EVI's Certificate of Incorporation.
(ii) As of the date hereof, the authorized capital
stock of Sub consists of 1,000 shares of common stock, par
value $1.00 per share, all of which are validly issued, fully
paid and nonassessable and are owned by EVI.
(iii) Each share of EVI Common Stock to be issued
hereunder as a result of the Merger will be fully paid and
non-assessable upon issuance.
(c) Authorization and Validity of Agreement. The
execution and delivery by EVI and Sub of this Agreement and the
consummation by each of them of the transactions contemplated hereby
have been duly authorized by all necessary corporate action (subject
only, with respect to the Merger, to approval of this Agreement by
each of their stockholders as provided for in Section 5.3). On or
prior to the date hereof, the Board of Directors of EVI or duly
authorized committee thereof has determined to recommend approval of
the Merger to the stockholders of EVI, and such determination is in
effect on the date hereof. This Agreement has been duly executed and
delivered by EVI and Sub and is the valid and binding obligation of
EVI and Sub, enforceable against EVI and Sub in accordance with its
terms.
(d) No Approvals or Notices Required; No Conflict .
Neither the execution and delivery of this Agreement nor the
performance by EVI or Sub of its obligations hereunder, nor the
consummation of the transactions contemplated hereby by EVI and Sub,
will (i) conflict with the EVI Certificate or the bylaws of EVI or
Sub; (ii) assuming satisfaction of the requirements set forth in
clause (iii) below, violate any provision of law applicable to EVI or
any of the EVI Subsidiaries; (iii) except for (A) requirements of
Federal or state securities laws, (B) requirements arising out of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act"),
(C) requirements of notice filings in such foreign jurisdictions as
may be applicable, and (D) the filing of a Certificate of Merger by
Sub in accordance with the DGCL, require any consent or approval of,
or filing with or notice to, any public body or authority, domestic or
foreign, under any provision of law applicable to EVI or any of the
EVI Subsidiaries; or (iv) require any consent, approval or notice
under, or violate, breach, be in conflict with or constitute a default
(or an event that, with notice or lapse of time or both, would
constitute a default)
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under, or permit the termination of any provision of, or result in the
creation or imposition of any lien, mortgage, pledge, security
interest, restriction on transfer, option, charge, right of any third
Person or any other encumbrance of any nature (a "Lien") upon any
properties, assets or business of EVI or any of the EVI Subsidiaries
under, any note, bond, indenture, mortgage, deed of trust, lease,
franchise, permit, authorization, license, contract, instrument or
other agreement or commitment or any order, judgment or decree to
which EVI or any of the EVI Subsidiaries is a party or by which EVI or
any of the EVI Subsidiaries or any of its or their assets or
properties is bound or encumbered, except (A) those that have already
been given, obtained or filed and (B) those that, in the aggregate,
would not have an EVI MAE.
(e) Commission Filings; Financial Statements. EVI has
filed all reports and documents required to filed with the Securities
and Exchange Commission (the "Commission") since December 31, 1993.
All reports, registration statements and other filings (including all
notes, exhibits and schedules thereto and documents incorporated by
reference therein) filed by EVI with the Commission since December 31,
1993, through the date of this Agreement, together with any amendments
thereto, are sometimes collectively referred to as the "EVI Commission
Filings". EVI has heretofore delivered to, or made accessible to,
GulfMark copies of the EVI Commission Filings. As of the respective
dates of their filing with the Commission, the EVI Commission Filings
complied in all material respects with the applicable requirements of
the Securities Act of 1934 (the "Securities Act"), the Securities
Exchange Act of 1934 (the "Exchange Act") and the rules and
regulations of the Commission thereunder, and did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
(f) Absence of Certain Charges and Events. Since
December 31, 1995, except as contemplated by this Agreement or as
disclosed in the EVI Commission Filings filed with the Commission
prior to the date hereof, there has been no EVI MAE.
(g) Tax Matters.
(i) Except as set forth in Section 2.1(f) of the
disclosure letter delivered by EVI to GulfMark on the date
hereof (the "EVI Disclosure Letter"), all returns and reports,
including, without limitation, information and withholding
returns and reports ("Tax Returns"), of or relating to any
foreign, federal, state or local tax, assessment or other
governmental charge ("Taxes" or a "Tax") that are required to
be filed on or before the Closing Date by or with respect to
EVI or any of the EVI Subsidiaries, or any other corporation
that is or was a member of an affiliated group (within the
meaning of Section 1504(a) of the Code) of corporations of
which EVI was a member for any period ending on or prior to
the Closing Date, have been or will be duly and timely filed,
and all Taxes, including interest and penalties, due and
payable pursuant to such Tax Returns have been paid or, except
as set forth in Section 2.1(f) of the EVI Disclosure
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Letter, adequately provided for in reserves established by
EVI, except where the failure to file, pay or provide for
would not have a EVI MAE.
(ii) EVI has no present plan or intention after
the Merger to (A) liquidate the Surviving Corporation, (B)
merge the Surviving Corporation with or into another
corporation, (C) sell or otherwise dispose of the stock of the
Surviving Corporation, (D) cause or permit the Surviving
Corporation to sell or otherwise dispose of any of the assets
of GulfMark or the assets of Sub vested in the Surviving
Corporation except for dispositions made in the ordinary
course of business or transfers of assets to a corporation
controlled by the Surviving Corporation within the meaning of
Section 368(a)(2)(C) of the Code, (E) reacquire any of the
stock issued to the GulfMark stockholders pursuant to the
Merger, (F) cause or permit the Surviving Corporation to
discontinue the historic business of GulfMark, or (G) acquire
Spinco or Spinco Assets.
(iii) EVI is not an investment company as defined
in Section 368(a)(2)(F)(iii) and (iv) of the Code or as
defined in the Investment Company Act of 1940 and the rules
and regulations promulgated thereunder.
(h) Voting Requirements. The affirmative vote of the
holders of a majority of the shares of EVI Common Stock present at the
special stockholders' meeting and entitled to vote is the only vote of
the holders and any class or series of the capital stock of EVI
necessary to approve this Agreement and the Merger.
(i) Brokers. Except for fees and expenses payable by EVI
to Prudential Securities Corporation, no broker, investment banker, or
other Person acting on behalf of EVI is or will be entitled to any
broker's, finder's or other similar fee or commission in connection
with the transactions contemplated by this Agreement.
(j) Information Supplied. None of the information
supplied or to be supplied by EVI for inclusion or incorporation by
reference in (i) the Registration Statement (as defined in Section
5.1) will, at the time the Registration Statement is filed with the
Commission, and at any time it is amended or supplemented or at the
time it becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (ii) the Proxy Statement will, at the date
the Proxy Statement is first mailed to EVI's stockholders and at the
time of the EVI Stockholders Meeting, contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they are made, not
misleading. The Proxy Statement will comply as to form in all
material respects with the requirements of the Exchange Act and the
rules and regulations thereunder. For purposes of this Agreement, the
parties agree that the statements made and information in the
Registration Statement and the Proxy Statement relating to the Federal
income tax consequences of the transactions contemplated hereby shall
be deemed to be supplied by GulfMark and Spinco and not by EVI or Sub.
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2.2 REPRESENTATIONS AND WARRANTIES OF GULFMARK AND SPINCO. Each
of GulfMark and Spinco, jointly and severally hereby represents and warrants to
EVI that:
(a) Organization. Each of GulfMark and Spinco is a
corporation duly organized, validly existing and in good standing
under the laws of the state of Delaware and Ercon Development Company,
a wholly owned subsidiary of GulfMark to be merged into GulfMark prior
to the Effective Time ("Ercon") is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Texas. Each of GulfMark, Spinco and Ercon has all requisite corporate
power and corporate authority and all necessary governmental
authorizations to own, lease and operate all of its properties and
assets and to carry on its business as now being conducted, except
where the failure to be so organized, existing or in good standing or
to have such governmental authority would not (i) have a material
adverse effect on the financial condition of GulfMark or Ercon after
giving effect to the Distribution or (ii) prevent or adversely affect
the ability of GulfMark and Spinco to perform and comply with their
respective obligations under this Agreement, the Distribution
Agreement or any other agreement to be executed and delivered in
connection with the transactions contemplated hereby or thereby (a
"GulfMark MAE"). Except as set forth in Section 2.2(a) of the
disclosure letter delivered by GulfMark to EVI on the date hereof (the
"GulfMark Disclosure Letter"), each of GulfMark, Ercon and Spinco is
duly qualified as a foreign corporation to do business, and is in good
standing, in each jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes
such qualification necessary, except in such jurisdictions where the
failure to be duly qualified does not and would not have a GulfMark
MAE. Each of GulfMark, Ercon and Spinco is in compliance with all
applicable laws, judgments, orders, rules and regulations, domestic
and foreign, except where failure to be in such compliance would not
have a GulfMark MAE. GulfMark has heretofore delivered to EVI true
and complete copies of GulfMark's Certificate of Incorporation (the
"GulfMark Certificate") and bylaws, Spinco's Certificate of
Incorporation and bylaws and Ercon's Articles of Incorporation and
bylaws as in existence on the date hereof.
(b) Capitalization.
(i) The authorized capital stock of GulfMark
consists of 10,000,000 shares of GulfMark Common Stock, par
value $1.00 per share and 500,000 shares of Preferred Stock,
par value $50.00 per share. As of September 30, 1996, there
were issued and outstanding 3,338,852 shares of GulfMark
Common Stock and no shares of GulfMark Common Stock were held
as treasury shares. There are no outstanding shares of
GulfMark Preferred Stock. A total of 390,833 shares of
GulfMark Common Stock have been reserved for issuance pursuant
to the stock option plans described in Section 2.2(b)(iii).
All issued and outstanding shares of GulfMark Common Stock are
validly issued, fully paid and nonassessable and no holder
thereof is entitled to preemptive rights. GulfMark is not a
party to, and is not aware of, any voting agreement, voting
trust or similar agreement or arrangement relating to any
class or series of its capital
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stock, or any agreement or arrangement providing for
registration rights with respect to any capital stock or other
securities of GulfMark.
(ii) The authorized capital stock of Ercon
consists of 10,000 shares of Ercon Common Stock, par value
$1.00 per share. As of September 30, 1996, there were issued
and outstanding 10,000 shares of Ercon Common Stock and no
shares of Ercon Common Stock were held as treasury shares.
All issued and outstanding shares of Ercon Common Stock are
validly issued, fully paid and nonassessable and no holder
thereof is entitled to preemptive rights. Ercon is not a
party to, any voting agreement, voting trust or similar
agreement or arrangement relating to any class or series of
its capital stock, or any agreement or arrangement providing
for registration rights with respect to any capital stock or
other securities of Ercon. GulfMark owns all of the issued
and outstanding Common Stock of Ercon.
(iii) As of the date hereof, there are outstanding
options (the "GulfMark Options") to purchase an aggregate of
109,500 shares of GulfMark Common Stock under the 1987 Stock
Option Plan and the Amended and Restated 1993 Non-Employee
Director Stock Option Plan (collectively the "GulfMark
Plans"). All GulfMark Options will be transferred to Spinco's
Adjustment Plans prior to the Effective Time. As of the
Effective Time, there will be no options outstanding under the
GulfMark Plans. There are not now (other than as set forth in
this Section 2.2(b)), and at the Effective Time there will not
be, any (A) shares of capital stock or other equity securities
of GulfMark outstanding other than GulfMark Common Stock
issued pursuant to the exercise of GulfMark Options or (B)
outstanding options, warrants, scrip, rights to subscribe for,
calls or commitments of any character whatsoever relating to,
or securities or rights convertible into or exchangeable for,
shares of any class of capital stock of GulfMark, or
contracts, understandings or arrangements to which GulfMark is
a party, or by which it is or may be bound, to issue
additional shares of its capital stock or options, warrants,
scrip or rights to subscribe for, or securities or rights
convertible into or exchangeable for, any additional shares of
its capital stock.
(iv) GulfMark owns all of the issued and
outstanding Common Stock of Spinco.
(v) Section 2.2(b)(v) of the GulfMark Disclosure
Letter sets forth a list of all corporations, partnerships,
limited liability companies and other entities of which
GulfMark owns directly or indirectly, an equity interest (such
entities, excluding EVI and its subsidiaries referred to
herein as the "GulfMark Subsidiaries").
(c) Authorization and Validity of Agreement. Each of
GulfMark and Spinco has all requisite corporate power and authority to
enter into this Agreement, the Distribution Agreement and the other
agreements and instruments contemplated to be executed and delivered
in connection with the Merger and the Distribution (the Distribution
Agreement and such other agreements and instruments contemplated to be
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executed and delivered in connection with the Merger and the
Distribution being referred to as the "Other Agreements") and to
perform its obligations hereunder and thereunder. The execution and
delivery by GulfMark and Spinco of this Agreement and the Other
Agreements to which it is a party and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action (subject only, with respect to the
Merger and the Distribution, to approval of this Agreement and the
Contribution and Distribution by the GulfMark stockholders as provided
for in Section 5.3). On or prior to the date hereof the Board of
Directors of GulfMark has determined to recommend approval of the
Merger and the Contribution and Distribution to the stockholders of
GulfMark, and such determination is in effect as of the date hereof.
This Agreement has been duly executed and delivered by GulfMark and
Spinco and is the valid and binding obligation of GulfMark and Spinco,
enforceable against them in accordance with its terms. The Other
Agreements, when executed and delivered by GulfMark and Spinco, as
applicable, will constitute valid and binding obligations of GulfMark
and Spinco, enforceable against them in accordance with their
respective terms.
(d) No Approvals or Notices Required; No Conflict with
Instruments to which GulfMark is a Party. The execution and delivery
of this Agreement and the Other Agreements do not, and the
consummation of the transactions contemplated hereby and thereby and
compliance with the provisions hereof and thereof will not, conflict
with, or result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of or "put" right with
respect to any obligation or to loss of a material benefit under, or
result in the creation of any Lien upon any of the properties or
assets of GulfMark, Ercon Spinco or any of their subsidiaries under,
any provision of (i) the GulfMark Certificate or bylaws of GulfMark,
the Ercon Articles of Incorporation or bylaws of Ercon, the Spinco
Certificate of Incorporation or bylaws of Spinco or any provision of
the comparable organizational documents of their subsidiaries, (ii)
except as set forth in Section 2.2(d) of the GulfMark Disclosure
Letter, any loan or credit agreement, note, bond, mortgage, indenture,
lease, guaranty or other financial assurance agreement or other
agreement, instrument, permit, concession, franchise or license
applicable to GulfMark or Ercon, or their respective properties or
assets, (iii) except as set forth in Section 2.2(d) of the GulfMark
Disclosure Letter, any loan or credit agreement, note, bond, mortgage,
indenture, lease, guaranty or other financial assurance agreement or
other agreement, instrument, permit, concession, franchise or license
applicable to Spinco or any other GulfMark Subsidiary (other than
Ercon), or their respective properties or assets and (iv) subject to
governmental filing and other matters referred to in the following
sentence, any judgment, order, decree, statute, law, ordinance, rule
or regulation or arbitration award applicable to GulfMark, Ercon,
Spinco or any of their subsidiaries or their respective properties or
assets, other than, in the case of clauses (ii) and (iii), any such
conflicts, violations, defaults, rights or Liens that individually or
in the aggregate would not have a GulfMark MAE. No consent, approval,
order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other
governmental authority or agency, domestic or foreign, including local
authorities (a "Governmental Entity"), is required by or with respect
to GulfMark, Ercon, Spinco or any of their subsidiaries in connection
with the execution and delivery of this
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Agreement by GulfMark, and Spinco or the consummation by GulfMark,
Ercon and Spinco of the transactions contemplated hereby, except for
(i) the filing of a pre-merger notification and report form by
GulfMark under the HSR Act, (ii) the filing with the Commission of (A)
a proxy or information statement relating to Stockholder Approval
(such proxy or information statement as amended or supplemented from
time to time, the "Proxy Statement"), and (B) such reports under
Section 13(a) of the Exchange Act as may be required in connection
with this Agreement and the transactions contemplated hereby, (iii)
the filing of a Certificate of Merger with the Delaware Secretary of
State and the Texas Secretary of State with respect to the merger of
Ercon into GulfMark and the filing of appropriate document(s) with the
relevant authority of other states in which each of Ercon and GulfMark
is qualified to do business, (iv) the filing of the Certificate of
Merger with the Delaware Secretary of State with respect to the Merger
as provided in the DGCL and appropriate documents with the relevant
authorities of other states in which each of GulfMark and Spinco is
qualified to do business and (v) such other consents, approvals,
orders, authorizations, registrations, declarations, filings and
notices as are set forth in Section 2.2(d) of the GulfMark Disclosure
Letter.
(e) Commission Filings; Financial Statements. GulfMark
has filed all reports, registration statements and other filings,
together with any amendments required to be made with respect thereto,
that they have been required to file with the Commission. All
reports, registration statements and other filings (including all
notes, exhibits and schedules thereto and documents incorporated by
reference therein) filed by GulfMark with the Commission since
December 31, 1993 through the date of this Agreement, together with
any amendments thereto, are sometimes collectively referred to as the
"GulfMark Commission Filings." GulfMark has heretofore delivered to
EVI copies of the GulfMark Commission Filings. As of the respective
dates of their filing with the Commission, the GulfMark Commission
Filings complied in all material respects with the Securities Act, the
Exchange Act and the rules and regulations of the Commission
thereunder, and did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading. To the best
knowledge of GulfMark, all material contracts of GulfMark and its
subsidiaries have been included in the GulfMark's filings with the
Commission since the initial registration of its stock under the
Exchange Act, except for those contracts not required to be filed
pursuant to the rules and regulations of the Commission.
Each of the consolidated financial statements (including any
related notes or schedules) included in the GulfMark Commission
Filings was prepared in accordance with generally accepted accounting
principles applied on a consistent basis (except as may be noted
therein or in the notes or schedules thereto) and complied with the
rules and regulations of the Commission. Such consolidated financial
statements fairly present the consolidated financial position of
GulfMark as of the dates thereof and the results of operations, cash
flows and changes in stockholders' equity for the periods then ended
(subject, in the case of the unaudited interim financial statements,
to normal year-end audit adjustments on a basis comparable with past
periods). As of the date hereof, GulfMark has no liabilities,
absolute or contingent, that may reasonably be expected to have a
GulfMark MAE, that are not reflected in the GulfMark Commission
Filings,
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<PAGE> 18
except (i) those incurred in the ordinary course of business
consistent with past operations and not relating to the borrowing of
money, and (ii) those set forth in Section 2.2(e) of the GulfMark
Disclosure Letter.
(f) Conduct of Business in the Ordinary Course; Absence
of Certain Changes and Events. Since December 31, 1995, except as
contemplated by this Agreement, the Distribution Agreement or as
disclosed in the GulfMark Commission Filings or set forth in Section
2.2(f) of the GulfMark Disclosure Letter, GulfMark and its
subsidiaries have conducted their respective businesses only in the
ordinary and usual course in accordance with past practice, and there
has not been: (i) a GulfMark MAE or any other material adverse change
in the financial condition, results of operations, assets or business
of GulfMark, taken as a whole, or (ii) to the knowledge of GulfMark,
any other condition, event or development that reasonably may be
expected to result in any such material adverse change or a GulfMark
MAE; (iii) any change by GulfMark or Ercon in its accounting methods,
principles or practices; (iv) any revaluation by GulfMark or Ercon of
any of its assets, including, without limitation, writing down the
value of inventory or writing off notes or accounts receivable other
than in the ordinary course of business and consistent with past
practice; (v) any entry by GulfMark or Ercon into any commitment or
transaction that would be material to GulfMark or Ercon; (vi) any
declaration, setting aside or payment of any dividends or
distributions in respect of the GulfMark Common Stock or any
redemption, purchase or other acquisition of any of its securities;
(vii) any damage, destruction or loss (whether or not covered by
insurance) adversely affecting the properties or business of GulfMark
or Ercon; (viii) any increase in indebtedness of borrowed money other
than borrowing under existing credit facilities as disclosed in
Section 2.2(f) of the GulfMark Disclosure Letter; (ix) any granting of
a security interest or Lien on any property or assets of GulfMark or
Ercon, other than (A) Liens for taxes not due and payable and (B)
inchoate mechanics', warehousemen's and other statutory Liens incurred
in the ordinary course of business (collectively, "Permitted Liens");
or (x) any increase in or establishment of any bonus, insurance,
severance, deferred compensation, pension, retirement, profit sharing,
stock option (including, without limitation, the granting of stock
options, stock appreciation rights, performance awards or restricted
stock awards), stock purchase or other employee benefit plan or any
other increase in the compensation payable or to become payable to any
directors, officers or key employees of GulfMark or Ercon or which
GulfMark or Ercon would be responsible.
(g) Litigation. Except as disclosed in the GulfMark
Commission Filings or as set forth in Section 2.2(g) of the GulfMark
Disclosure Letter, there are no claims, actions, suits,
investigations, inquiries or proceedings, ("Demands"), pending or, to
the knowledge of GulfMark, threatened against or affecting (i)
GulfMark or Ercon or any of their respective properties at law or in
equity, or any of their employee benefit plans or fiduciaries of such
plans, or (ii) Spinco or any GulfMark or Spinco subsidiaries or any of
their respective properties at law or in equity, or any of their
respective employee benefit plans or fiduciaries of such plans, before
or by any federal, state, municipal or other governmental agency or
authority, or before any arbitration board or panel (each a
"Governmental Entity"), wherever located (i) that exist today or (ii)
that would otherwise, if adversely determined, have a GulfMark MAE.
None of GulfMark, Ercon
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or Spinco is subject to any judicial, governmental or administrative
order, writ, judgment, injunction or decree.
(h) Employee Benefit Plans.
(i) Section 2.2(h) of the GulfMark Disclosure
Letter provides a description of each of the following which
is sponsored, maintained or contributed to by GulfMark or any
corporation, trade, business or entity under common control
with GulfMark within the meaning of Section 414(b), (c), (m)
or (o) of the Code or Section 4001 of ERISA (a "GulfMark ERISA
Affiliate") for the benefit of its employees, or has been so
sponsored, maintained or contributed to within three years
prior to the Closing Date.
(A) each "employee benefit plan," as
such term is defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), ("Plan"); and
(B) each stock option plan, collective
bargaining agreement, bonus plan or arrangement,
incentive award plan or arrangement, vacation policy,
severance pay plan, policy or agreement, deferred
compensation agreement or arrangement, executive
compensation or supplemental income arrangement,
consulting agreement, employment agreement and each
other employee benefit plan, agreement, arrangement,
program, practice or understanding that is not
described in Section 2.2(h)(i)(A) to which GulfMark
or Ercon is a party or has any obligation ("Benefit
Program or Agreement").
True and complete copies of each of the Plans, Benefit
Programs or Agreements, related trusts, if applicable, and all
amendments thereto, together with (i) the Forms 5500, 990 and
1041, as applicable, for the three most recent fiscal years,
(ii) all current summary plan descriptions for each such Plan,
(iii) the most recent Internal Revenue Service determination
letters for each such Plan, as applicable, and all
correspondence with the Internal Revenue Service and the
Department of Labor relating to such Plans, Benefit Programs
and Agreements have been furnished to EVI.
(ii) Except as otherwise set forth in Section
2.2(h) of the GulfMark Disclosure Letter,
(C) None of GulfMark or any GulfMark
ERISA Affiliate contributes to or has an obligation
to contribute to, or has at any time contributed to
or had an obligation to contribute to, a plan subject
to Title IV of ERISA, including, without limitation,
a multi employer plan within the meaning of Section
3(37) of ERISA, nor have such companies engaged in
any transaction described in Sections 406 and 407 of
ERISA (unless exempt under Section 408) or Section
4975 of the Code (unless exempt);
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(D) Each Plan and each Benefit Program
or Agreement has been administered, maintained and
operated in all material respects in accordance with
the terms thereof and in compliance with its
governing documents and applicable law (including,
where applicable, ERISA and the Code and timely
filing of Form 5500's for each year);
(E) There is no matter pending with
respect to any of the Plans before any governmental
agency, and there are no actions, suits or claims
pending (other than routine claims for benefits) or,
to the knowledge of GulfMark or Spinco, threatened
against, or with respect to, any of the Plans or
Benefit Programs or Agreements or their assets;
(F) No act, omission or transaction has
occurred which would result in imposition on GulfMark
or any GulfMark ERISA Affiliate of breach of
fiduciary duty liability damages under Section 409 of
ERISA, a civil penalty assessed pursuant to
subsections (c), (i) or (l) of Section 502 of ERISA
or a tax imposed pursuant to Chapter 43 of Subtitle D
of the Code; and
(G) Except as provided in Section 5.7,
the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby
will not require GulfMark or any GulfMark ERISA
Affiliate to make a larger contribution to, or pay
greater benefits under, any Plan, Benefit Program or
Agreement than it otherwise would or create or give
rise to any additional vested rights or service
credits under any Plan or Benefit Program or
Agreement or cause the companies to make accelerated
payments.
(iii) Except as set forth in Section 2.2(h) of the
GulfMark Disclosure Letter, termination of employment of any
employee of GulfMark or Ercon immediately after consummation
of the transactions contemplated by this Agreement would not
result in payments under the Plans, Benefit Programs or
Agreements which, in the aggregate, would result in imposition
of the sanctions imposed under Sections 280G and 4999 of the
Code.
(iv) Each Plan may be unilaterally amended or
terminated in its entirety without liability except as to
benefits accrued thereunder prior to such amendment or
termination.
(v) Except as set forth in Section 2.2(h) of the
GulfMark Disclosure Letter, none of the employees of GulfMark
or Ercon are subject to union or collective bargaining
agreements.
(vi) None of GulfMark or any of the GulfMark ERISA
Affiliates has agreed or is obligated to provide retiree
medical coverage and each of such companies has fully complied
with all obligations under COBRA applicable to it.
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(i) Taxes.
(i) Except as set forth in Section 2.2(i) of the
GulfMark Disclosure Letter, all Tax Returns of or relating to
any Tax that are required to be filed on or before the Closing
Date by or with respect to GulfMark or any GulfMark
Subsidiary, or any other corporation that is or was a member
of an affiliated group (within the meaning of Section 1504(a)
of the Code) of corporations of which GulfMark was a member
for any period ending on or prior to the Closing Date, have
been or will be duly and timely filed, and all Taxes,
including interest and penalties, due and payable pursuant to
such Tax Returns have been or will be duly and timely paid or
adequately provided for in reserves established by GulfMark or
any such GulfMark Subsidiary, except where the failure to
file, pay or provide for would not have a material adverse
effect on the financial condition, results of operations, or
business of GulfMark or otherwise result in a GulfMark MAE.
All income Tax returns of or with respect to GulfMark or any
GulfMark Subsidiary have been audited by the applicable
Governmental Authority, or the applicable statute of
limitations has expired, for all periods up to and including
the tax year ended December 31, 1991. There is no material
claim against GulfMark or any GulfMark Subsidiary with respect
to any Taxes, and no material assessment, deficiency or
adjustment has been asserted or proposed with respect to any
Tax Return of or with respect to GulfMark or any GulfMark
Subsidiary that has not been adequately provided for in
reserves established by GulfMark or such GulfMark Subsidiary.
The total amounts set up as liabilities for current and
deferred Taxes in the consolidated financial statements
included in the GulfMark Commission Filings have been prepared
in accordance with generally accepted accounting principles
and are sufficient to cover the payment of all material Taxes,
including any penalties or interest thereon and whether or not
assessed or disputed, that are, or are hereafter found to be,
or to have been, due with respect to the operations of
GulfMark or any GulfMark Subsidiary through the periods
covered thereby. GulfMark has (and as of the Closing Date
will have) made estimated tax payments for taxable years for
which the United States consolidated federal income Tax return
is not yet due required with respect to Taxes. Except as set
forth in Section 2.2(i) of the GulfMark Disclosure Letter, no
waiver or extension of any statute of limitations as to any
federal, state, local or foreign Tax matter has been given by
or requested from GulfMark or any GulfMark Subsidiary. Except
for statutory Liens for current Taxes not yet due, no Liens
for Taxes exist upon the assets of GulfMark. Except as set
forth in paragraph 2.2(i) of the GulfMark Disclosure Letter,
none of GulfMark or any GulfMark Subsidiary has filed
consolidated income Tax Returns with any corporation, other
than consolidated federal, state or foreign income Tax returns
by GulfMark for any taxable period which is not now closed by
the applicable statute of limitations. None of GulfMark or
any GulfMark Subsidiary has any deferred intercompany gain as
defined in Treasury Regulations Section 1.1502-13.
(ii) As of the Closing Date, to GulfMark's
knowledge, there is no plan or intention by the stockholders
of GulfMark to sell, exchange or otherwise dispose of a number
of shares of EVI received in the Merger that would reduce
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the GulfMark stockholders' ownership of EVI shares to a number
of shares having a value, as of the date of the Merger, of
less than 50% of the value of all of the formerly outstanding
Shares as of the same date. For purposes of this
representation, Shares exchanged for cash or other property or
exchanged in lieu of fractional shares of EVI will be treated
as outstanding Shares on the date of the Merger. Moreover,
the shares of EVI held by the GulfMark stockholders and
otherwise sold, redeemed or disposed of prior or subsequent to
the Merger will be considered in making this representation.
(iii) GulfMark is not an investment company as
defined in Section 368(a)(2)(F)(iii) and (iv) of the Code.
(iv) GulfMark is not under the jurisdiction of a
court in a Title 11 or similar case with the meaning of
Section 368(a)(3)(A) of the Code.
(v) There is no intercorporate indebtedness
existing between GulfMark and EVI that was issued, acquired or
will be settled at a discount.
(j) Environmental Matters. Except as set forth in
Section 2.2(j) of the GulfMark Disclosure Letter, (i) the properties,
operations and activities of GulfMark and each of its subsidiaries
complies in all material respects with all applicable Environmental
Laws; (ii) none of GulfMark or any of its GulfMark Subsidiaries is
subject to any existing, pending or, to the knowledge of GulfMark,
threatened action, suit, investigation, inquiry or proceeding by or
before any governmental authority under any Environmental Law; (iii)
except where the failure would have a GulfMark MAE, all notices,
permits, licenses, or similar authorizations, if any, required to be
obtained or filed by GulfMark or Ercon under any Environmental Law in
connection with any aspect of the business of GulfMark, Ercon or any
GulfMark Subsidiary, including without limitation those relating to
the treatment, storage, disposal or release of a hazardous substance
or solid waste, have been duly obtained or filed and will remain valid
and in effect after the Merger and the Distribution, and GulfMark and
Ercon is in compliance with the terms and conditions of all such
notices, permits, licenses and similar authorizations; (iv) GulfMark
and each of its subsidiaries has satisfied and are currently in
compliance with all financial responsibility requirements applicable
to their operations and imposed by any governmental authority under
any other Environmental Law, and none of such parties has received any
notice of noncompliance with any such requirements; (v) to GulfMark's
knowledge, there are no physical or environmental conditions existing
on any property currently owned or previously owned by GulfMark or any
entity in which it has or had ownership interest that could reasonably
be expected to give rise to any on-site or off-site remedial
obligations under any Environmental Laws; and (vi) to GulfMark's
knowledge, since the effective date of the relevant requirements of
applicable Environmental Laws, all hazardous substances or solid
wastes generated by GulfMark or used in connection with their
properties or operations have been transported only by carriers
authorized under Environmental Laws to transport such substances and
wastes, and disposed of only at treatment, storage, and disposal
facilities authorized under environmental laws to treat, store or
dispose of such substances and wastes, and, to the knowledge of
GulfMark, such carriers and facilities have been and are operating
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in compliance with such authorizations and are not the subject of any
existing, pending, or overtly threatened action, investigation, or
inquiry by any governmental authority in connection with any
Environmental Laws.
For purposes of this Agreement, the term "Environmental Laws"
shall mean any and all laws, statutes, ordinances, rules, regulations,
orders or determinations of any Governmental Authority pertaining to
health or the environment currently in effect in any and all
jurisdictions in which the party in question and its subsidiaries own
property or conduct business, including without limitation, the Clean
Air Act, as amended, the Comprehensive Environmental, Response,
Compensation, and Liability Act of 1980 ("CERCLA"), as amended, the
Federal Water Pollution Control Act, as amended, the Occupational
Safety and Health Act of 1970, as amended, the Resource Conservation
and Recovery Act of 1976 ("RCRA"), as amended, the Safe Drinking Water
Act, as amended, the Toxic Substances Control Act, as amended, the
Hazardous & Solid Waste Amendments Act of 1984, as amended, the
Superfund Amendments and Reauthorization Act of 1986, as amended, the
Hazardous Materials Transportation Act, as amended, the Oil Pollution
Act of 1990 ("OPA"), any state laws pertaining to the handling of oil
and gas exploration and production wastes or the use, maintenance, and
closure of pits and impoundments, and all other environmental
conservation or protection laws. For purposes of this Agreement, the
terms "hazardous substance" and "release" have the meanings specified
in RCRA; provided, however, that to the extent the laws of the state
in which the property is located establish a meaning for "hazardous
substance," "release," "solid waste" or "disposal" that is broader
than that specified in either CERCLA or RCRA, such broader meaning
shall apply. For purposes of this Agreement, the term "Governmental
Authority" includes the United States, any foreign jurisdiction, the
state, county, city, and political subdivisions in which the party in
question owns property or conducts business, and any agency,
department, commission, board, bureau or instrumentality of any of
them.
(k) Investment Company. GulfMark is not an investment
company as defined in the Investment Company Act of 1940 and the rules
and regulations promulgated thereunder.
(l) Severance Payments. Except as set forth in Section
2.2(l) of the GulfMark Disclosure Letter, GulfMark will not have any
liability or obligation to pay a severance payment or similar
obligation to any of their respective employees, officers, or
directors as a result of the Merger or the transactions contemplated
by this Agreement, nor will any of such Persons be entitled to an
increase in severance payments or other benefits as a result of the
Merger, the Contribution, the Distribution or the transactions
contemplated by this Agreement or the Other Agreements in the event of
the subsequent termination of their employment.
(m) Voting Requirements. The affirmative vote of the
holders of a majority of the outstanding shares of GulfMark Common
Stock is the only vote of the holders of any class or series of the
capital stock of GulfMark necessary to approve this Agreement, the
Merger, the Contribution, the Distribution and the transactions
contemplated hereby
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and by the Other Agreements in order to comply with the DGCL,
GulfMark's Certificate of Incorporation and Bylaws and the rules and
regulations of The NASDAQ Stock Market.
(n) Brokers. Except for Jefferies & Company, Inc., whose
fees shall be paid by GulfMark, no broker, investment banker, or other
Person acting on behalf of GulfMark is or will be entitled to any
broker's, finder's or other similar fee or commission in connection
with the transactions contemplated by this Agreement.
(o) Assets and Liabilities at Closing. At the Effective
Time:
(i) the assets of GulfMark shall consist of (1)
2,235,572 shares of EVI Common Stock, which shall be held free
and clear of all Liens, (2) 200 shares of Common Stock of
AIOC, which represents all of the ownership interest of
GulfMark and the GulfMark Subsidiaries in AIOC, (3) all assets
used in connection with the business and operations previously
conducted by Ercon, (4) all tax, financial, accounting and
other general corporate records, including records relating to
all past operations and subsidiaries (including partnerships
and joint ventures) other than those constituting a part of
the Assets, (5) GulfMark's accounts receivable (billed and
unbilled) relating to the business conducted by Ercon, (6)
cash in the amount of $300,000 and (7) cash in the amount of
the transactional expenses of GulfMark to be paid by GulfMark
relating to the Contribution, the Distribution and the Merger;
(ii) the liabilities of GulfMark shall consist
only of certain expenses related to the Merger and the
Distribution which shall have been fully reserved for in the
Net Working Capital, and GulfMark's accounts payable relating
to the business conducted by Ercon, which shall have been
fully reserved for in the Net Working Capital;
(iii) all obligations and liabilities (fixed or
contingent, known or unknown) of GulfMark shall have been
assumed by Spinco other than liabilities described in clause
(ii) and the obligation to perform in the future under
contracts relating to Ercon that will be identified on
schedules to the Distribution Agreement; and
(iv) the Net Working Capital of GulfMark shall
equal $300,000. "Net Working Capital" shall mean the current
assets of GulfMark excluding inventory, less the liabilities
of GulfMark as reflected on the balance sheet of GulfMark as
of the Effective Time on an unconsolidated basis. Current
assets and liabilities shall have the meaning attributable to
them by generally accepted account principles as applied
historically by GulfMark, provided, however, for purposes of
the definition of Net Working Capital, (i) accounts receivable
shall be net of reserves for bad debt and doubtful accounts,
(ii) the stock of AIOC shall not be considered a current asset
and (iii) liabilities shall mean the full undiscounted amount
of any liabilities of GulfMark and Ercon, including any
liabilities that will accrue as a result of the Merger, the
Contribution or the Distribution, whether or
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not such liabilities would be required to be reflected as a
liability by generally accepted accounting principles.
(p) Compliance with Laws. GulfMark, Spinco, Ercon and
each of their respective subsidiaries hold all required, necessary or
applicable permits, licenses, variances, exemptions, orders,
franchises and approvals of all Governmental Entities, except where
the failure to so hold could not reasonably be expected to have a
GulfMark MAE (the "GulfMark Permits"). All applications with respect
to such permits, licenses, variances, exemptions, orders, franchises
and approvals were complete and correct in all material respects when
made and neither GulfMark nor Spinco know of any reason why any of
such permits, licenses, variances, exemptions, orders, franchises and
approvals would be subject to cancellation. GulfMark, Spinco, Ercon,
and each of their respective subsidiaries are in compliance with the
terms of the GulfMark Permits except where the failure to so comply
could not reasonably be expected to have a GulfMark MAE. None of
GulfMark, Spinco, Ercon, nor any of their respective subsidiaries has
violated or failed to comply with any statute, law, ordinance,
regulation, rule, permit or order of any Federal, state or local
government, domestic or foreign, or any Governmental Entity, any
arbitration award or any judgment, decree or order of any court or
other Governmental Entity, applicable to GulfMark, Spinco, Ercon or
any of their respective subsidiaries or their respective business,
assets or operations, except for violations and failures to comply
that would not have a GulfMark MAE.
(q) Contracts.
(i) Section 2.2(q) to the GulfMark Disclosure
Letter contains a complete list of the following contracts,
agreements, arrangements and commitments: (i) all employment
or consulting contracts or agreements to which GulfMark or
Ercon is contractually obligated; (ii) current leases, sales
contracts and other agreements with respect to any property,
real or personal, of GulfMark or Ercon or to which GulfMark or
Ercon is contractually obligated; (iii) contracts or
commitments for capital expenditures or acquisitions in excess
of $30,000 to which GulfMark or Ercon is obligated; (iv)
agreements, contracts, indentures or other instruments
relating to the borrowing of money, or the guarantee of any
obligation for the borrowing of money, to which GulfMark,
Ercon, Spinco or any of their subsidiaries is a party or any
of their respective properties is bound; (v) contracts or
agreements or amendments thereto that would be required to be
filed as an exhibit to an Annual Report on Form 10-K filed by
GulfMark as of the date hereof that has not been filed as an
exhibit to the GulfMark's Annual Report on Form 10-K for the
year ended December 31, 1995, filed by it with the Commission
or any report filed with the Commission under the Exchange Act
since such date; (vi) all outstanding proposals to which Ercon
is subject to as of November 21, 1996; (vii) all corporations,
partnerships, limited liability companies and other entities
which GulfMark has owed, directly or indirectly, an equity
interest since 1969, in which the officers of GulfMark are
aware after reasonable investigation, (viii) all material
indemnification and guaranty or other similar obligations to
which GulfMark or Ercon is bound and which the officers of
GulfMark or Ercon, after reasonable investigation, are aware,
(ix) any
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outstanding bonds, letters of credit posted or guaranteed by
GulfMark or Ercon with respect to any Person, (x) any
covenants not to compete or other obligations affecting
GulfMark or Ercon that would restrict the Surviving
Corporation or EVI and its affiliates from engaging in any
business or activity which the officers of GulfMark or Ercon
are aware, after reasonable investigation and (xi) contracts,
agreements, arrangements or commitments, other than the
foregoing that could reasonably be considered to be material
to GulfMark or Ercon.
(ii) True and correct copies of all the
instruments described in Section 2.2(q) of the GulfMark
Disclosure Letter have been furnished or made a available to
EVI. Except as noted in the GulfMark Disclosure Letter, all
such agreements, arrangements or commitments are valid and
subsisting and each of GulfMark, Ercon, Spinco and their
respective subsidiaries to the extent each is a party, has
duly performed its obligations thereunder in all material
respects to the extent such obligations have accrued, and no
breach or default thereunder by GulfMark, Ercon, Spinco or
their respective subsidiaries or, to the knowledge of
GulfMark, any other party thereto has occurred that could
impair the ability of each of GulfMark, Ercon, Spinco or their
respective subsidiaries to enforce any material rights
thereunder. There are no material liabilities of any of the
parties to any of the contracts between GulfMark, Ercon,
Spinco or any of their subsidiaries and third parties arising
from any breach of or default in any provision thereof or
which would permit the acceleration of any obligation of any
party thereto or the creation of a Lien upon any asset of
GulfMark, Ercon, Spinco or any of their subsidiaries. Neither
GulfMark nor Ercon has any information that might reasonably
indicate that any of the material customers or suppliers to
Ercon intend to cease purchasing from, selling to or dealing
with it, nor has any information been brought to the attention
of GulfMark or Ercon that might reasonably lead either to
believe any such customer or supplier intends to alter in any
material respect the amount of such purchases, sales or the
extent of dealings with GulfMark or Ercon or would alter in
any significant respect such purchases, sales or dealings in
the event of the consummation of the transactions contemplated
hereby.
(r) Title to Property.
(i) At the Effective Time, GulfMark will have
good and marketable title to, or valid leasehold interests in,
all its properties and assets. GulfMark has good and valid
title to 2,235,572 shares of EVI Common Stock, free and clear
of all Liens. GulfMark has good and valid title to 200 shares
of AIOC Common Stock, free and clear of all Liens.
(ii) Each of GulfMark and Ercon has complied in
all material respects with the terms of all leases to which it
is a party and under which it is in occupancy, and all such
leases are in full force and effect. Each of GulfMark and
Ercon enjoys peaceful and undisturbed possession under all
such leases.
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(s) Insurance Policies. Section 2.2(s) of the GulfMark
Disclosure Letter contains a correct and complete description of all
insurance policies of GulfMark covering GulfMark, Ercon and their
subsidiaries, any employees or other agents of GulfMark and its
subsidiaries or any assets of GulfMark, Ercon and their subsidiaries.
Each such policy is in full force and effect, is with responsible
insurance carriers and is substantially equivalent in coverage and
amount to policies covering companies of the size of GulfMark and in
the business in which GulfMark and its subsidiaries is engaged, in
light of the risk to which such companies and their employees,
businesses, properties and other assets may be exposed. All
retroactive premium adjustments under any worker's compensation policy
of GulfMark or any of its subsidiaries have been recorded in
GulfMark's financial statements in accordance with generally accepted
accounting principles and are reflected in the financial statements
contained in the Commission Filings.
(t) Loans. Section 2.2(t) of the GulfMark Disclosure
Letter sets forth all existing loans, advances or other extensions of
credit (excluding accounts receivable arising in the ordinary course
of business) by GulfMark or Ercon subsidiaries to any party other than
intercompany loans, advances, guaranties or extensions of credit. All
items listed in Section 2.2(t) of the GulfMark Disclosure Letter will
be repaid in full, or assumed by Spinco, prior to the Effective Time
of the Merger. All intercompany obligations and loans between
GulfMark and its subsidiaries, including Spinco, will be extinguished
prior to the Distribution without any ongoing liability to GulfMark or
Spinco with respect thereto, except as set forth herein or in the
Distribution Agreement.
(u) No Fraudulent Transfer. GulfMark has not within the
last twelve months made any transfer or incurred any obligation with
actual intent to hinder, delay or defraud any entity to which it was
or may become indebted and it has not transferred any material
property without receiving reasonably equivalent value for any such
transfer obligation. Both immediately prior to and immediately after
the Distribution and the Merger, (i) the fair value of GulfMark's
assets and Spinco's assets after the Distribution at a fair valuation
exceeds its debts and liabilities, subordinated, contingent or
otherwise, (ii) the present fair saleable value of GulfMark's and
Spinco's property is greater than the amount that will be required to
pay its probable liability on its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and liabilities
become absolute and mature, (iii) GulfMark prior to the Distribution
and Spinco after the Distribution each reasonably expect to be able to
pay its debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured, and (iv)
GulfMark before the Distribution and Spinco after the Distribution
will not have unreasonably small capital with which to conduct the
business in which it is engaged as such business is now conducted and
is proposed to be conducted. For all purposes of clauses of (i)
through (iv), the amount of contingent liabilities at any time shall
be computed as the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(v) Information Supplied. None of the information
supplied or to be supplied by GulfMark for inclusion or incorporation
by reference in (i) the Registration Statement
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(as defined in Section 5.1) will, at the time the Registration
Statement is filed with the Commission, and at any time it is amended
or supplemented or at the time it becomes effective under the
Securities Act, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) the
Proxy Statement will, at the date the Proxy Statement is first mailed
to GulfMark's stockholders and at the time of the GulfMark
Stockholders Meeting, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Proxy
Statement will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder. For purposes of this Agreement, the parties agree that
the statements made and information in the Registration Statement and
the Proxy Statement relating to the Federal income tax consequences of
the transactions contemplated hereby shall be deemed to be supplied by
GulfMark and Spinco and not by EVI or Sub.
ARTICLE III
COVENANTS OF GULFMARK
3.1 CONDUCT OF BUSINESS BY GULFMARK PENDING THE MERGER. GulfMark
covenants and agrees that, from the date of this Agreement until the Effective
Time, unless EVI shall otherwise agree in writing or as otherwise expressly
contemplated by this Agreement or the Distribution Agreement or set forth in
Section 3.1 of the GulfMark Disclosure Letter:
(a) the business of GulfMark, including that of Ercon,
and the GulfMark Subsidiaries shall be conducted only in, and GulfMark
and the GulfMark Subsidiaries shall not take any action except in, the
ordinary course of business and consistent with past practice;
provided, however, that GulfMark shall cause Ercon to be merged into
it prior to the Effective Time;
(b) GulfMark shall not directly or indirectly do any of
the following: (i) issue, sell, pledge, dispose of or encumber any
capital stock of GulfMark except upon the exercise of GulfMark
Options; (ii) split, combine, or reclassify any outstanding capital
stock, or declare, set aside, or pay any dividend payable in cash,
stock, property, or otherwise with respect to its capital stock
whether now or hereafter outstanding; (iii) redeem, purchase or
acquire or offer to acquire any of its capital stock; (iv) acquire,
agree to acquire or make any offer to acquire for cash or other
consideration, any equity interest in or assets of any corporation,
partnership, joint venture, or other entity in an amount greater than
$500,000; or (v) enter into any contract, agreement, commitment, or
arrangement with respect to any of the matters set forth in this
Section 3.1(b);
(c) GulfMark shall not transfer, dispose or otherwise
convey any of the shares of EVI Common Stock held by it or grant or
permit there to exist any Lien on such shares;
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(d) GulfMark shall not enter into any contract regarding
the business of Ercon having a term greater than 120 days or involving
an amount in excess of $50,000 or commit to do the same provided, it
is understood that EVI shall send a representative to Ercon's weekly
sales meetings to approve or reject pending proposals and contracts.
If no EVI representative attends the weekly meeting to make such
decisions, Ercon shall forward the weekly proposals listing to the EVI
representative; unless EVI objects in writing, proposals and contracts
shall be deemed approved by EVI two (2) business days after receipt of
the weekly proposals listing;
(e) GulfMark shall not become bound by any agreement or
obligation in an amount in excess of $500,000 in the aggregate for all
such agreements and obligations unless by the terms of such agreement
or obligation such agreement or obligation will be assumed by Spinco
as of the Distribution and GulfMark will have no further obligations
with respect thereto;
(f) GulfMark shall not pledge or encumber any of the
assets to be held by GulfMark following the Distribution;
(g) GulfMark shall not enter into any employment or
consulting contracts;
(h) GulfMark shall not enter into any contract or
agreement that if effective on the date hereof would be required to be
identified as a disclosure pursuant to Section 2.2(q)(i), (ii) or (x)
of the GulfMark Disclosure Letter.
(i) GulfMark shall not sell, lease, mortgage, pledge,
grant a Lien on or otherwise encumber or otherwise dispose of any of
GulfMark's or Ercon's properties or assets, except sales of inventory
in the ordinary course of business consistent with past practice;
(j) Neither GulfMark nor Ercon shall directly or
indirectly incur any indebtedness for borrowed money or guarantee any
such indebtedness of another Person, issue or sell any debt securities
or warrants or other rights to acquire any debt securities of GulfMark
or Ercon, guarantee any debt securities of another Person, enter into
any "keep well" or other agreement to maintain any financial statement
condition of another Person or enter into any arrangement having the
economic effect of any of the foregoing, except for short-term
borrowings incurred in the ordinary course of business consistent with
past practice which obligations in respect of GulfMark and Ercon shall
be released in connection with the Distribution, or make or permit to
remain outstanding any loans, advances or capital contributions to, or
investments in, any other Person, other than to GulfMark or any direct
or indirect wholly owned subsidiary of GulfMark;
(k) GulfMark shall not make any election relating to
Taxes;.
(l) Neither GulfMark nor Ercon shall not change any
accounting principle used by it or applicable to Ercon;
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(m) GulfMark shall use its reasonable efforts (i) to
preserve intact the business organization of GulfMark and Ercon, (ii)
to maintain in effect any material authorizations or similar rights of
GulfMark or Ercon, (iii) to preserve the goodwill of those having
material business relationships with it; (iv) to maintain and keep
each of GulfMark's and Ercon's properties in the same repair and
condition as presently exists, except for deterioration due to
ordinary wear and tear and damage due to casualty; and (v) to maintain
in full force and effect insurance comparable in amount and scope of
coverage to that currently maintained by it and Ercon;
(n) GulfMark shall, and shall cause the GulfMark
Subsidiaries to, perform their respective obligations under any
contracts and agreements to which it is a party or to which any of its
assets is subject, except to the extent such failure to perform would
not have a GulfMark MAE, and except for such obligations as GulfMark
in good faith may dispute;
(o) GulfMark shall cause there to exist immediately prior
to the Effective Time Net Working Capital of not less than $300,000;
(p) Neither GulfMark nor Ercon shall settle or compromise
any litigation (whether or not commenced prior to the date of this
Agreement) other than settlements or compromises: (i) of litigation
where the amount paid in settlement or compromise does not exceed
$500,000, or if greater, the amount of the reserve therefor reflected
in the most recent SEC Documents and the terms of the settlement would
not otherwise have a GulfMark MAE, or (ii) in consultation and
cooperation with EVI, and, with respect to any such settlement, with
the prior written consent of EVI;
(q) GulfMark shall cause the Distribution Agreement to be
executed and delivered by GulfMark and Spinco and the Contribution and
Distribution to be effected prior to the Merger immediately prior to
the Effective Time; and
(r) GulfMark shall not authorize any of, or commit or
agree to take any of, or permit any GulfMark Subsidiary to take any
of, the foregoing actions to the extent prohibited by the foregoing
and shall not, and shall not permit any of the GulfMark Subsidiaries
to, take any action that would, or that reasonably could be expected
to, result in any of the representations and warranties set forth in
this Agreement becoming untrue or any of the conditions to the Merger
set forth in Article VI not being satisfied. GulfMark promptly shall
advise EVI orally and in writing of any change or event having, or
which, insofar as reasonably can be foreseen, would have, a material
adverse effect on GulfMark and the GulfMark Subsidiaries, taken as a
whole; or cause a GulfMark MAE.
3.2 NET WORKING CAPITAL REQUIREMENTS. GulfMark covenants that as
of the Effective Time it shall have Net Working Capital equal to $300,000. Net
Working Capital shall have the meaning set forth in Section 2.2(o) of this
Agreement. Spinco and GulfMark covenant and agree that they will adjust the
Net Working Capital 90 days after the Effective Date as follows ("Adjustment
Date");
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(a) to the extent there exists on the Adjustment Date any
uncollected accounts receivable (including uncollected unbilled
accounts receivable) or notes receivable which were counted in the
calculation of Net Working Capital as of the Effective Date
("Uncollected Receivables"), Spinco shall purchase from GulfMark such
Uncollected Receivables for the face amounts thereof and GulfMark
shall assign such Uncollected Receivables to Spinco without recourse;
(b) on the Adjustment Date after any purchase of
Uncollected Receivables, if it is determined that as of the Effective
Time Net Working Capital exceeded $300,000, GulfMark shall remit any
amounts in excess of $300,000 to Spinco in cash;
(c) on the Adjustment Date, after any purchase of
Uncollected Receivables, it is determined that Net Working Capital was
less than $300,000 at the Effective Time, Spinco shall remit to
GulfMark an amount equal to the difference between $300,000 and the
amount of Net Working Capital as the Effective Time (after
consideration of purchases of Uncollected Receivables);
(d) the provisions of this Section 3.2 shall not affect
Spinco's obligations under the Distribution Agreement to assume and
indemnify EVI as set forth therein.
3.3 AFFILIATES' AGREEMENTS. Prior to the Closing Date, GulfMark
shall deliver to EVI a letter identifying all Persons that are, at the time
this Agreement is submitted for approval to the stockholders of GulfMark,
"affiliates" of GulfMark for purposes of Rule 145 under the Securities Act.
GulfMark shall use its reasonable efforts to cause each such Person to deliver
to EVI on or prior to the Closing Date a written agreement confirming such
Person's obligations under Rule 145.
ARTICLE IV
COVENANTS OF EVI PRIOR TO THE EFFECTIVE TIME
4.1 CONDUCT OF BUSINESS BY EVI PENDING THE MERGER. EVI covenants
and agrees that, from the date of this Agreement until the Effective Time,
unless GulfMark shall otherwise agree in writing or as otherwise expressly
contemplated by this Agreement, it will not take any action that would, or that
reasonably could be expect to, result in any of the representations and
warranties set forth in this Agreement becoming untrue or any of the conditions
to the Merger set forth in Article VI not being satisfied.
4.2 RESERVATION OF EVI STOCK. EVI shall reserve for issuance, out
of its authorized but unissued capital stock, such number of shares of EVI
Common Stock as may be issuable upon consummation of the Merger.
4.3 STOCK EXCHANGE LISTING. EVI shall use reasonable efforts to
cause the shares of EVI Common Stock to be issued in the Merger to be approved
for listing on the New York Stock Exchange, subject to official notice of
issuance, prior to the Closing Date.
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ARTICLE V
ADDITIONAL AGREEMENTS
5.1 JOINT PROXY STATEMENT/PROSPECTUS; REGISTRATION STATEMENT. As
promptly as reasonably practicable after the execution of this Agreement, EVI
and GulfMark shall prepare and file with the Commission preliminary proxy
materials that shall constitute the Proxy Statement of EVI and GulfMark and the
registration statement with respect to the EVI Common Stock to be issued in
connection with the Merger (the "Registration Statement"). As promptly as
reasonably practicable after final comments are received from and cleared by
the Commission on the preliminary proxy materials, EVI and GulfMark shall file
with the Commission a combined joint proxy statement and registration statement
on Form S-4 (or on such other form as shall be appropriate) relating to the
approval and adoption of the Merger and this Agreement by the stockholders of
EVI and the stockholders of GulfMark and the issuance by EVI of EVI Common
Stock in connection with the Merger and shall use their reasonable efforts to
cause the Registration Statement to become effective as soon as practicable.
Subject to the terms and conditions set forth in Section 6.2 and the fiduciary
obligations of the Board of Directors of EVI with respect to such matters, the
Proxy Statement shall contain a statement that the Board of Directors of EVI
recommended that the stockholders of EVI approve and adopt the Merger and this
Agreement. Subject to the terms and conditions set forth in Section 6.3 and
the fiduciary obligations of the Board of Directors of GulfMark with respect to
such matters, the Proxy Statement shall contain a statement that the Board of
Directors of GulfMark recommended that the stockholders of GulfMark approve and
adopt the Merger and this Agreement.
5.2 ACCOUNTANTS LETTERS.
(a) GulfMark shall use its reasonable efforts to cause
Arthur Andersen LLP to deliver a letter dated as of the date of the
Proxy Statement and confirmed and updated at the Closing as of the
Closing Date, and addressed to itself and EVI, in the form and
substance reasonably satisfactory to EVI and customary in the scope
and substance for agreed upon procedures letters delivered by
independent public accountants in connection with registration
statements and proxy statements similar to the Registration Statement
and Proxy Statement.
(b) EVI shall use its reasonable efforts to cause Arthur
Andersen LLP to deliver a letter dated as of the date of the Proxy
Statement and confirmed and updated at the Closing as of the Closing
Date, and addressed to itself and GulfMark, in form and substance
reasonably satisfactory to GulfMark and customary in scope and
substance for agreed upon procedures letters delivered by independent
public accountants in connection with registration statements and
proxy statements similar to the Registration Statement and Proxy
Statement.
5.3 MEETINGS OF STOCKHOLDERS.
(a) GulfMark shall promptly take all action reasonably
necessary in accordance with the DGCL and its Certificate of
Incorporation and bylaws to convene a meeting of its stockholders to
consider and vote upon the adoption and approval of the
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Merger and this Agreement and the Distribution. Subject to the terms
and conditions set forth in Section 6.3 and the fiduciary obligations
of the Board of Directors of GulfMark with respect to such matters,
the Board of Directors of GulfMark (i) shall recommend at such meeting
that the stockholders of GulfMark vote to adopt and approve the Merger
and this Agreement and the Distribution, (ii) shall use its reasonable
efforts to solicit from stockholders of GulfMark proxies in favor of
such adoption and approval and (iii) shall take all other action
reasonably necessary to secure a vote of its stockholders in favor of
the adoption and approval of the Merger and this Agreement.
(b) EVI shall promptly take all action reasonably
necessary in accordance with the DGCL and its Certificate of
Incorporation and bylaws to convene a meeting of its stockholders to
consider and vote upon the adoption and approval of the Merger and
this Agreement. Subject to the terms and conditions set forth in
Section 6.2 and the fiduciary obligations of the Board of Directors of
EVI with respect to such matters, the Board of Directors of EVI (i)
shall recommend at such meeting that the stockholders of EVI vote to
adopt and approve the Merger and this Agreement, (ii) shall use its
reasonable efforts to solicit from stockholders of EVI proxies in
favor of such adoption and approval and (iii) shall take all other
action reasonably necessary to secure a vote of its stockholders in
favor of the adoption and approval of the Merger and this Agreement.
(c) EVI and GulfMark shall coordinate and cooperate with
respect to the timing of such meetings and shall endeavor to hold such
meetings on the same day and as soon as practicable after the date
hereof.
5.4 FILINGS; CONSENTS; REASONABLE EFFORTS. Subject to the terms
and conditions of this Agreement, GulfMark and EVI shall (i) make all necessary
filings with respect to the Merger and this Agreement under the HSR Act, the
Securities Act, the Exchange Act, and applicable blue sky or similar securities
laws and shall use all reasonable efforts to obtain required approvals and
clearances with respect thereto; (ii) use reasonable efforts to obtain all
consents, waivers, approvals, authorizations, and orders required in connection
with the authorization, execution, and delivery of this Agreement and the
consummation of the Merger; and (iii) use reasonable efforts to take, or cause
to be taken, all appropriate action, and do, or cause to be done, all things
necessary, proper, or advisable to consummate and make effective as promptly as
practicable the transactions contemplated by this Agreement.
5.5 NOTIFICATION OF CERTAIN MATTERS. GulfMark shall give prompt
notice to EVI, and EVI shall give prompt notice to GulfMark, orally and in
writing, of (i) the occurrence, or failure to occur, of any event which
occurrence or failure would be likely to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate at any time from the
date hereof to the Effective Time; and (ii) any material failure of GulfMark or
EVI, as the case may be, or any officer, director, employee or agent thereof,
to comply with or satisfy any covenant, condition or agreement to be compiled
with or satisfied by it hereunder.
5.6 EXPENSES. Whether or not the Merger is consummated, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses, except
those out-of-pocket expenses (which do not include fees for attorneys and
accountants) incurred in connection with (i) the registration fees
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for the EVI Common Stock under the Securities Act to be issued in the Merger,
(ii) the registration and qualification of the EVI Common Stock under any state
securities and blue sky laws, (iii) the listing of the EVI Common Stock on the
NYSE, (iv) the HSR filing fee and (v) the printing and mailing of the
Registration Statement and the Proxy Statement shall be paid equally by EVI and
GulfMark; provided, however, that if this Agreement shall have been terminated
pursuant to Section 7.1 as a result of the willful breach by a party of any of
its representations, warranties, covenants, or agreements set forth in this
Agreement, such breaching party shall pay the direct out-of-pocket costs and
expenses of the other parties in connection with the transactions contemplated
by this Agreement.
5.7 GULFMARK'S EMPLOYEE BENEFITS.
(a) GulfMark shall take action prior to the Merger and
the Distribution to transfer the GulfMark Options to the Spinco
adjustment plans and then terminate the GulfMark Plans such that all
obligations with respect thereto shall be that of Spinco.
(b) Subject to the receipt of a favorable Internal
Revenue Service determination letter under Section 401(a) and 501(a)
of the Code with respect to GulfMark 401(k) Plan and resolution of any
outstanding issues regarding the GulfMark 401(k) Plan in a manner
satisfactory to EVI's counsel, EVI will cause the GulfMark 401(k) Plan
to be merged into an EVI plan qualified under Section 401(a) and
501(a) of the Code ("EVI Plan"). Spinco shall be responsible for and
perform any and all obligations relating to the (i) filing of the
GulfMark 401(k) Plan for a determination letter under Section 401(a)
and 501(a) of the Code and (ii) resolution of any issues regarding the
GulfMark 401(k) Plan, both to the satisfaction of EVI's counsel, so
that EVI will cause the GulfMark 401(k) Plan to be merged into the EVI
Plan. GulfMark and EVI, upon being satisfied with the filings and
documentation prepared by Spinco in satisfaction of obligations (i)
and (ii) above, shall execute and deliver such filings and documents
as required to effect the merger of the GulfMark 401(k) Plan and the
EVI Plan. All reasonable costs, including attorneys fees, filing
fees, transfer fees, settlement payments and other expenses, not
otherwise satisfied by Spinco as stated herein, relating to the
continuation, qualification and merger of the GulfMark 401(k) Plan
shall be paid by Spinco. Once the GulfMark 401(k) Plan is merged into
an EVI Plan, Spinco shall not be responsible for liabilities relating
to the GulfMark 401(k) Plan occurring after the merging of such plans.
(c) GulfMark shall transfer to Spinco all employees of
GulfMark who are not directly associated with the business conducted
by Ercon without any liability to the Surviving Corporation. Spinco
shall be responsible for all severance and other obligations with
respect to such terminated employees, if any.
(d) Prior to the Effective Time, Spinco shall file a
registration statement on Form S-8 (or other appropriate form) with
respect to the shares of Spinco Common Stock subject to the adjusted
GulfMark options, and shall use its best efforts to maintain the
effectiveness of such registration statement (and maintain the current
status of any prospectus contained therein) for so long as any of the
adjusted GulfMark options remain outstanding.
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ARTICLE VI
CONDITIONS
6.1 CONDITIONS TO OBLIGATION OF EACH PARTY TO EFFECT THE MERGER.
The respective obligations of each party to effect the Merger shall be subject
to the fulfillment at or prior to the Closing Date of the following conditions:
(a) Ercon shall have been merged into GulfMark.
(b) This Agreement and the Merger (and the Contribution
and the Distribution in the case of GulfMark) shall have been approved
and adopted by the requisite vote of the stockholders of GulfMark and
EVI, as may be required by law, by the rules of The Nasdaq Stock
Market and the New York Stock Exchange and by any applicable
provisions of their respective charters or bylaws;
(c) The waiting period (and any extension thereof)
applicable to the consummation of the Merger under the HSR Act shall
have expired or been terminated;
(d) No order shall have been entered and remain in effect
in any action or proceeding before any foreign, federal or state court
or governmental agency or other foreign, federal or state regulatory
or administrative agency or commission that would prevent or make
illegal the consummation of the Contribution, Distribution and Merger;
(e) The Registration Statement shall be effective on the
Closing Date, and all post-effective amendments filed shall have been
declared effective or shall have been withdrawn; and no stop-order
suspending the effectiveness thereof shall have been issued and no
proceedings for that purpose shall have been initiated or, to the
knowledge of the parties, threatened by the Commission;
(f) There shall have been obtained any and all material
permits, approvals and consents of securities or blue sky commissions
of any jurisdiction, and of any other governmental body or agency,
that reasonably may be deemed necessary so that the consummation of
the Merger and the transactions contemplated thereby will be in
compliance with applicable laws, the failure to comply with which
would have a GulfMark MAE or EVI MAE;
(g) The shares of EVI Common Stock issuable upon
consummation of the Merger shall have been approved for listing on the
New York Stock Exchange, subject to official notice of issuance; and
(h) All approvals and consents of third Persons (i) the
granting of which is necessary for the consummation of the Merger, the
Distribution or the transactions contemplated in connection therewith
and (ii) the non-receipt of which would have a GulfMark MAE or an EVI
MAE.
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6.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF EVI. The obligation
of EVI to effect the Merger is, at the option of EVI, also subject to the
fulfillment at or prior to the Closing Date of the following conditions:
(a) The representations and warranties of GulfMark
contained in Section 2.2 shall be accurate as of the date of this
Agreement and (except to the extent such representations and
warranties speak specifically as of an earlier date) as of the Closing
Date as though such representations and warranties had been made at
and as of that time; all of the terms, covenants and conditions of
this Agreement to be complied with and performed by GulfMark on or
before the Closing Date shall have been duly complied with and
performed in all material respects; and a certificate to the foregoing
effect dated the Closing Date and signed by the executive vice
president of GulfMark shall have been delivered to EVI;
(b) There shall not have occurred or exist any fact or
condition that would reasonably result in a GulfMark MAE or would
constitute a material fixed or contingent liability to GulfMark, and
EVI shall have received a certificate signed by the executive vice
president of GulfMark dated the Closing Date to such effect;
(c) The Board of Directors of EVI shall have received
from Prudential Securities Corporation, financial advisor to EVI, a
written opinion, satisfactory in form and substance to the Board of
Directors of EVI, to the effect that consideration to be received by
EVI in the Merger is fair to EVI from a financial point of view, which
opinion shall have been confirmed in writing to such Board as of a
date reasonably proximate to the date the Proxy Statement is first
mailed to the stockholders of EVI and not subsequently withdrawn;
(d) GulfMark shall have received, and furnished written
copies of EVI of, the GulfMark affiliates' agreements pursuant to
Section 3.3;
(e) EVI shall have received from Griggs & Harrison P.C.,
counsel to GulfMark, an opinion dated the Closing Date covering
customary matters relating to the Agreement, the Distribution
Agreement, the Merger, the Contribution and the Distribution;
(f) EVI shall have received from Arthur Andersen, LLP a
written opinion, in form and substance satisfactory to EVI, dated as
of the date that the Proxy Statement is first mailed to the
Stockholders of GulfMark and EVI to the effect that (i) the Merger
will be treated for U.S. federal income tax purposes as a
reorganization within the meaning of Section 368(a)(1)(B) of the Code,
(ii) the Distribution will not result in any gain or loss to GulfMark
under the Code, (iii) EVI, Sub and GulfMark will each be a party to
that reorganization within the meaning of Section 368(b) of the Code,
(iv) EVI, Sub and GulfMark shall not recognize any gain or loss for
U.S. federal or state income tax purposes as a result of the Merger or
the Distribution and (v) GulfMark and Spinco shall not recognize any
gain or loss for U.S. federal or state income tax purposes as a result
of the Contribution or Distribution, and such opinion shall be
confirmed at the Closing;
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(g) Spinco shall have executed and delivered to GulfMark
and EVI the Distribution Agreement in form and substance, including
schedules, acceptable to EVI;
(h) The conveyances and assumptions under the
Distribution Agreement shall have occurred;
(i) The Distribution under the Distribution Agreement
shall have occurred; and
(j) GulfMark shall have delivered to EVI a pro forma
balance sheet after giving effect to the Distribution reflecting Net
Working Capital in an amount of not less than $300,000.
6.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF GULFMARK. The
obligation of GulfMark to effect the Merger is, at the option of GulfMark, also
subject to the fulfillment at or prior to the Closing Date of the following
conditions:
(a) The representations and warranties of EVI and Sub
contained in Section 2.1 shall be accurate as of the date of this
Agreement and (except to the extent such representations and
warranties speak specifically as of an earlier date) as of the Closing
Date as though such representations and warranties had been made at
and as of that time; all the terms, covenants and conditions of this
Agreement to be complied with and performed by EVI on or before the
Closing Date shall have been duly complied with and performed in all
material respects; and a certificate to the foregoing effect dated the
Closing Date and signed by the chief executive officer of EVI shall
have been delivered to GulfMark;
(b) The Board of Directors of GulfMark shall have
received from Jefferies & Company, Inc., financial advisor to
GulfMark, a written opinion, satisfactory in form and substance to the
Board of Directors of GulfMark, to the effect that the exchange ratio
for the Merger is fair to the stockholders of GulfMark from a
financial point of view, which opinion shall have been confirmed in
writing to such Board as of a date reasonably proximate to the date
the Proxy Statement is first mailed to the stockholders of GulfMark
and EVI and not subsequently withdrawn;
(c) GulfMark shall have received from Fulbright &
Jaworski, L.L.P. counsel to EVI, an opinion dated the Closing Date
covering customary matters relating to this Agreement and the Merger;
(d) GulfMark shall have received from Arthur Andersen
LLP, a written opinion, in form and substance satisfactory to
GulfMark, dated as of the date that the Proxy Statement is first
mailed to stockholders of GulfMark and EVI to the effect that (i) the
Merger will be treated for U.S. federal income tax purposes as a
reorganization within the meaning of Section 368(a)(1)(B) of the Code;
(ii) the Distribution will not result in any gain or loss to GulfMark
under the Code, (iii) EVI, Sub and GulfMark will each be a party to
that reorganization within the meaning of Section 368(b) of the Code,
(iv) EVI, Sub and GulfMark shall not recognize any gain or loss for
U.S. federal or state
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<PAGE> 38
income tax purposes as a result of the Merger or the Distribution, and
(v) GulfMark and Spinco shall not recognize any gain or loss for U.S.
federal or state income tax purposes as a result of the Contribution
or Distribution, and such opinion shall be confirmed at the Closing;
(e) The Contribution under the Distribution Agreement
shall have occurred; and
(f) The Distribution under the Distribution Agreement
shall have occurred.
ARTICLE VII
MISCELLANEOUS
7.1 TERMINATION. This Agreement may be terminated and the Merger
and the other transactions contemplated herein may be abandoned at any time
prior to the Effective Time, whether prior to or after approval by the
stockholders of EVI or the stockholders of GulfMark:
(a) by mutual written consent of EVI and GulfMark;
(b) by either EVI or GulfMark if (i) the Merger has not
been consummated on or before March 31, 1997 (provided that the right
to terminate this Agreement under this clause (i) shall not be
available to any party whose breach of any representation or warranty
or failure to fulfill any covenant or agreement under this Agreement
has been the cause of or resulted in the failure of the Merger to
occur on or before such date); (ii) any court of competent
jurisdiction, or some other governmental body or regulatory authority
shall have issued an order, decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the Merger; (iii) the
stockholders of GulfMark shall not approve the Contribution, the
Distribution or the Merger at the GulfMark stockholder meeting or at
any adjournment thereof; (iv) the stockholders of EVI shall not
approve the Merger at the EVI stockholder meeting or any adjournment
thereof; or (v) in the exercise of its good faith judgment as to its
fiduciary duties to its stockholders imposed by law, as advised by
outside counsel, the Board of Directors of GulfMark or EVI determines
that such termination is appropriate in complying with its fiduciary
obligations.
(c) by GulfMark if (i) EVI shall have failed to comply in
any material respect with any of the covenants or agreements contained
in this Agreement to be complied with or performed by EVI or Sub at or
prior to such date of termination (provided such breach has not been
cured within 30 days following receipt by EVI of written notice from
GulfMark of such breach and is existing at the time of termination of
this Agreement); (ii) any representation or warranty of EVI contained
in this Agreement shall not be true in all respects when made
(provided such breach has not been cured within 30 days following
receipt by EVI of written notice from GulfMark of such breach and is
existing at the time of termination of this Agreement) or on and as of
the Effective Time as if made on and as of the Effective Time (except
to the extent it relates to a particular date), except for such
failures to be so true and correct which would not individually or in
the
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<PAGE> 39
aggregate, reasonably be expected to have an EVI MAE, assuming the
effectiveness of the Merger; or (iii) the Board of Directors of EVI
withdraws, modifies or changes its recommendation of this Agreement or
the Merger in a manner adverse to GulfMark or shall have resolved to
do any of the foregoing.
(d) by EVI if (i) GulfMark shall have failed to comply in
any material respect with any of the covenants or agreements contained
in this Agreement to be complied with or performed by it at or prior
to such date of termination (provided such breach has not been cured
within 30 days following receipt by GulfMark of written notice from
EVI of such breach and is existing at the time of termination of this
Agreement; (ii) any representation or warranty of GulfMark contained
in this Agreement shall not be true in all respects when made
(provided such breach has not been cured within 30 days following
receipt by GulfMark of written notice from EVI of such breach and is
existing at the time of termination of this Agreement) or on and as of
the Effective Time as if made on and as of the Effective Time (except
to the extent it relates to a particular date), except for such
failures to be so true and correct which would not individually or in
the aggregate, reasonably be expected to have a GulfMark MAE assuming
the effectiveness of the Merger or (iii) the Board of Directors of
GulfMark withdraws, modifies or changes its recommendation of this
Agreement or the Merger in a manner adverse to EVI or shall have
resolved to do any of the foregoing.
7.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either EVI or GulfMark as provided in Section 7.1, this Agreement
shall forthwith become void and there shall be no liability or obligation on
the part of EVI, Sub or GulfMark, except (i) with respect to this Section 7.2,
Section 5.7 and Section 7.13, and (ii) such termination shall not relieve any
party hereto for any intentional breach prior to such termination by a party
hereto of any of its representations or warranties or of any of its covenants
or agreements set forth in this Agreement.
7.3 WAIVER AND AMENDMENT. Any provision of this Agreement may be
waived at any time by the party that is, or whose stockholders are, entitled to
the benefits thereof. This Agreement may not be amended or supplemented at any
time, except by an instrument in writing signed on behalf of each party hereto,
provided that after this Agreement has been approved and adopted by the
stockholders of EVI and GulfMark, this Agreement may be amended only as may be
permitted by applicable provisions of the DGCL. The waiver by any party hereto
of any condition or of a breach of another provision of this Agreement shall
not operate or be construed as a waiver of any other condition or subsequent
breach. The waiver by any party hereto of any of the conditions precedent to
its obligations under this Agreement shall not preclude it from seeking redress
for breach of this Agreement other than with respect to the condition so
waived.
7.4 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except for the
representations and warranties of Spinco contained herein, which shall survive
without limitation, none of the representations and warranties in this
Agreement shall survive the Effective Time.
7.5 PUBLIC STATEMENTS. GulfMark and EVI agree to consult with
each other prior to issuing any press release or otherwise making any public
statement with respect to the transactions contemplated hereby, and shall not
issue any such press release or make any such
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<PAGE> 40
public statement prior to such consultation, except as may be required by law
or applicable stock exchange policy.
7.6 ASSIGNMENT. This Agreement shall inure to the benefit of and
will be binding upon the parties hereto and their respective legal
representatives, successors and permitted assigns. Except as set forth in this
Agreement, this Agreement shall not be assignable by the parties hereto.
7.7 NOTICES. All notices, requests, demands, claims and other
communications which are required to be or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (i)
delivered in Person or by courier, (ii) sent by telecopy or facsimile
transmission, answer back requested, or (iii) mailed, certified first class
mail, postage prepaid, return receipt requested, to the parties hereto at the
following addresses:
if to GulfMark or Spinco:
GulfMark International, Inc.
5 Post Oak Park, Suite 1170
Houston, Texas 77027
Attn: Frank R. Pierce
Facsimile: (713) 963-9796
with a copy to: Griggs & Harrison, P.C.
1301 McKinney, Suite 3200
Houston, Texas 77010-3033
Attn: W. Garney Griggs, Esq.
Facsimile: (713) 651-1944
if to EVI or Sub: Energy Ventures, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas 77027
Attn: Bernard J. Duroc-Danner
Facsimile: (713) 297-8488
with a copy to: Fulbright & Jaworski, L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Attn: Curtis W. Huff
Facsimile: (713) 651-5246
or to such other address as any party shall have furnished to the other by
notice given in accordance with this Section 7.7. Such notices shall be
effective, (i) if delivered in Person or by courier, upon actual receipt by the
intended recipient, (ii) if sent by telecopy or facsimile transmission, when
the answer back is received, or (iii) if mailed, upon the earlier of five days
after deposit in the mail and the date of delivery as shown by the return
receipt therefor.
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<PAGE> 41
7.8 GOVERNING LAW. All questions arising out of this Agreement
and the rights and obligations created herein, or its validity, existence,
interpretation, performance or breach shall be governed by the laws of the
State of Delaware, without regard to conflict of laws principles.
7.9 ARBITRATION. Any disputes, claims or controversies connected
with, arising out of, or related to, this Agreement and the rights and
obligations created herein, or the breach, validity, existence or termination
hereof, shall be settled by Arbitration to be conducted in accordance with the
Commercial Rules of Arbitration of the American Arbitration Association, except
as such Commercial Rules may be changed by this Section 7.9. The disputes,
claims or controversies shall be decided by three independent arbitrators (that
is, arbitrators having no substantial economic or other material relationship
with the parties), one to be appointed by Spinco and one to be appointed by
EVI within fourteen days following the submission of the claim to the parties
hereto and the third to be appointed by the two so appointed within five days.
Should either party refuse or neglect to join in the timely appointment of the
arbitrators, the other party shall be entitled to select both arbitrators.
Should the two arbitrators fail timely to appoint a third arbitrator, either
party may apply to the Chief Judge of the United States District Court for the
Southern District of Texas to make such appointment. The arbitrators shall
have ninety days after the selection of the third arbitrator within which to
allow discovery, hear evidence and issue their decision or award and shall in
good faith attempt to comply with such time limits; provided, however, if two
of the three arbitrators believe additional time is necessary to reach a
decision, they may notify the parties and extend the time to reach a decision
in thirty day increments, but in no event to exceed an additional ninety days.
Discovery of evidence shall be conducted expeditiously by the Parties, bearing
in mind the Parties desire to limit discovery and to expedite the decision or
award of the arbitrators at the most reasonable cost and expense of the
parties. Judgment upon an award rendered pursuant to such Arbitration may be
entered in any court having jurisdiction, or application may be made to such
court for a judicial acceptance of the award, and an order of enforcement, as
the case may be. The place of Arbitration shall be Houston, Texas. The
decision of the arbitrators, or a majority thereof, made in writing, shall be
final and binding upon the parties hereto as to the questions submitted, and
each party shall abide by such decision. Notwithstanding the provisions of
this Section 7.9, neither party shall be prohibited from seeking injunctive
relief pending the completion of any arbitration. The costs and expenses of
the arbitration proceeding, including the fees of the arbitrators and all costs
and expenses, including legal fees and witness fees, incurred by the prevailing
party, shall be borne by the losing party.
Solely for purposes of injunctive relief, orders in aid of arbitration
and entry of the arbitrators' award:
(a) each of the parties hereto irrevocably consents to
the non-exclusive jurisdiction of, and venue in, any state court
located in Harris County, Texas or any federal court sitting in the
Southern District of Texas in any suit, action or proceeding seeking
injunctive relief, orders in aid of arbitration, or entry of an
arbitral award arising out of or relating to this Agreement or any of
the other agreements contemplated hereby and any other court in which
a matter that may result in a claim for indemnification hereunder by
an EVI Indemnified Party may be brought with respect to any claim for
indemnification by an EVI Indemnified Party;
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<PAGE> 42
(b) each of the parties hereto waives, to the fullest
extent permitted by law, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding seeking
injunctive relief, orders in aid of arbitration or entry of an
arbitral award arising out of or relating to this Agreement or any of
the other agreements contemplated hereby brought in any state court
located in Harris County, Texas or any federal court sitting in the
Southern District of Texas or any other court in which a matter that
may result in a claim for indemnification hereunder by an EVI
Indemnified Party may be brought with respect to any claim for
indemnification by an EVI Indemnified Party, and further irrevocably
waive any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum;
(c) each of the parties hereto irrevocably designates,
appoints and empowers CT Corporation System, Inc. and any successor
thereto as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property,
service of any and all legal process, summons, notices and documents
which may be served in any suit, action or proceeding arising out of
or relating to this Agreement or any of the other agreements
contemplated hereby for the purposes of injunctive relief, orders in
aid of arbitration and entry of an arbitral award..
7.10 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provision, covenants and
restrictions of this Agreement shall continue in full force and effect and
shall in no way be affected, impaired or invalidated.
7.11 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
7.12 HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
7.13 CONFIDENTIALITY AGREEMENT. The Confidentiality Agreement
entered into between EVI and GulfMark on October 21, 1996 (the "Confidentiality
Agreement") is hereby incorporated by reference herein and made a part hereof.
7.14 ENTIRE AGREEMENT: THIRD PARTY BENEFICIARIES. This Agreement,
the Other Agreements and the Confidentiality Agreements constitute the entire
agreement and supersede all other prior agreements and understandings, both
oral and written, among the parties or any of them, with respect to the subject
matter hereof and neither this nor any document delivered in connection with
this Agreement confers upon any Person not a party hereto any rights or
remedies hereunder except as provided in Sections 5.6 and 5.7.
7.15 DISCLOSURE LETTERS.
(a) The GulfMark Disclosure Letter, executed by GulfMark
as of the date hereof, and delivered to EVI on the date hereof,
contains all disclosure required to be made by GulfMark under the
various terms and provisions of this Agreement. Each item
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<PAGE> 43
of disclosure set forth in the GulfMark Disclosure Letter specifically
refers to the Article and Section of the Agreement to which such
disclosure responds, and shall not be deemed to be disclosed with
respect to any other Article or Section of the Agreement.
(b) The EVI Disclosure Letter, executed by EVI as of the
date hereof, and delivered to GulfMark on the date hereof, contains
all disclosure required to be made by EVI under the various terms and
provisions of this Agreement. Each item of disclosure set forth in
the EVI Disclosure Letter specifically refers to the Article and
Section of the Agreement to which such disclosure responds, and shall
not be deemed to be disclosed with respect to any other Article or
Section of the Agreement.
[signatures on the following page]
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<PAGE> 44
IN WITNESS WHEREOF, each of the parties caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
date first above written.
ENERGY VENTURES, INC.
By: /S/ JAMES G. KILEY
------------------------------------
Name: JAMES G. KILEY
Title: VICE PRESIDENT
GULFMARK ACQUISITION CO.
By: /S/ JAMES G. KILEY
------------------------------------
Name: JAMES G. KILEY
Title: VICE PRESIDENT
GULFMARK INTERNATIONAL, INC.
By: /S/ FRANK R. PIERCE
------------------------------------
Frank R. Pierce
Executive Vice President
NEW GULFMARK INTERNATIONAL, INC.
By: /S/ FRANK R. PIERCE
------------------------------------
Frank R. Pierce
Executive Vice President
40
<PAGE> 45
As permitted by Item 601(b)(2) of Regulation S-K, the Company has not
filed any schedules and exhibits with this Exhibit No. 2.2. Listed below is a
brief description of the omitted exhibits and schedules. The Company agrees to
furnish supplementally a copy of any of such omitted exhibits and schedules to
the Commission upon request.
Disclosure Schedules
- --------------------
2.2(a) Organization, Good Standings and Compliance with Laws
2.2(b) List of GulfMark's Subsidiaries, Partnerships and Equity Investments
2.2(d) List of Consents and Approvals Needed
2.2(e) List of Material Liabilities
2.2(f) Subsequent Events of GulfMark
2.2(g) Litigation Involving GulfMark or its Subsidiaries
2.2(h) Employee Benefit Matters
2.2(i) Tax Matters
2.2(j) Environmental Matters
2.2(l) Employee Severance Payments
2.2(q) List of Contracts, Leases, Loan Agreements, Entities Owned Previously,
and Indemnification Obligations of GulfMark and Subsidiaries
2.2(s) Insurance of GulfMark
2.2(t) GulfMark or Subsidiaries Extensions of Credit
Exhibits
- --------
A Form of Agreement and Plan of Distribution
B Amended and Restated Certificate of Incorporation of GulfMark
41
<PAGE> 1
EXHIBIT 2.3
AGREEMENT AND PLAN OF DISTRIBUTION
BY AND AMONG
GULFMARK INTERNATIONAL, INC.,
NEW GULFMARK INTERNATIONAL, INC.
AND
ENERGY VENTURES, INC.
DECEMBER 5, 1996
<PAGE> 2
AGREEMENT AND PLAN OF DISTRIBUTION
THIS AGREEMENT AND PLAN OF DISTRIBUTION (this "Agreement") is dated as
of December 5, 1996, by and among GULFMARK INTERNATIONAL, INC., a Delaware
corporation ("GulfMark"), NEW GULFMARK INTERNATIONAL, INC., a Delaware
corporation ("Spinco") and ENERGY VENTURES, INC. ("EVI"), a Delaware
corporation.
W I T N E S S E T H:
WHEREAS, Spinco is a wholly owned subsidiary of GulfMark; and
WHEREAS, GulfMark owns certain Assets used in the operation of the
Business and owns the Subsidiaries' Stock, all as hereinafter defined; and
WHEREAS, pursuant to this Agreement the Assets and the Subsidiaries'
Stock will be contributed by GulfMark to Spinco, in consideration for the
issuance by Spinco to GulfMark of additional shares of Spinco common stock, and
the assumption by Spinco of the Assumed Liabilities (as hereinafter defined)
(the transactions described in this paragraph are referred to collectively
herein as the "Contribution"); and
WHEREAS, after the transfer of the Assets and the Subsidiaries' Stock
to Spinco, and the assumption of the Assumed Liabilities by Spinco, GulfMark
will distribute to its stockholders all of the outstanding stock of Spinco (the
"Distribution") as further defined in Article III hereof; and
WHEREAS, immediately following the Distribution, and as a condition to
the Distribution, GulfMark will merge with GulfMark Acquisition Co., a Delaware
corporation and wholly owned subsidiary of EVI (the "Merger"); and
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the "Code") and
the Contribution and Distribution will qualify as transactions pursuant to
Sections 368(a)(1)(D) and 355 of the Code;
NOW, THEREFORE, in consideration of the premises and the mutual terms,
covenants and conditions herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms have the following
respective meanings:
- 1 -
<PAGE> 3
1.1 "Additional Shares" shall mean that number of shares of Spinco
common stock as shall be equal to two times the number of shares of GulfMark
common stock outstanding on the Record Date for the Distribution.
1.2 "Affiliate" means, as to the person specified, any person
controlling, controlled by or under common control with such person, with the
concept of control in such context meaning the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of another, whether through the ownership of voting securities, by
contract or otherwise.
1.3 "Agreement" has the meaning specified in the preamble.
1.4 "Assets" means, collectively, all the property, assets and
rights, tangible and intangible, (other than the Excluded Assets) of GulfMark
or Ercon which are used directly or indirectly, in the Business and are
acquired by Spinco pursuant to this Agreement, which include the following:
(a) all cash on hand or in the banks on the Contribution
Date, except such amounts as are required to remain in GulfMark
pursuant to the Net Working Capital requirements Sections 2.2(o) and
3.2 of the Merger Agreement;
(b) all accounts receivable and notes receivable of
GulfMark, excluding those relating to Ercon, existing on the
Contribution Date;
(c) the Vessel SEARUNNER, together with her respective
machinery and equipment engines, machinery, mooring systems and
equipment, covers, anchors, chains, cables, tackle, rigging, apparel,
furniture, computers and computer equipment, computer software,
fittings and equipment, tools, pumps and pumping equipment, spare
components and parts, bunkers and lubricating oils, racking,
supporting inventory and stores, and all other appurtenances thereto
appertaining or belonging, excluding, however, equipment and stores
owned by third-party suppliers (the "Vessel");
(d) all machinery and equipment, engines, mooring
systems, covers, anchors, chains, cables, tackle, rigging, apparel,
furniture, computers, computer equipment and computer software,
fittings and equipment, tools, pumps and pumping equipment, spare
components and parts, supporting inventory and stores, wherever
located that are owned by GulfMark and are used or maintained in
connection with the Business (collectively, "Inventory and
Equipment");
(e) the following tangible and intangible assets used or
held for use in connection with the Business, to the extent assignable
by law:
(i) all Transferred Intellectual Property (as
hereinafter defined) owned by GulfMark relating to, or used in
connection with the operation of, the Business, and all rights
to recover for infringement thereon;
- 2 -
<PAGE> 4
(ii) the certificates, licenses, permits,
consents, operating authorities, orders, exemptions,
franchises, approvals, registrations and other authorizations
and applications therefor specifically associated with the
operation of the Business ("Permits");
(iii) the benefit and burden, after the date
hereof, of all right, title and interest of GulfMark
(excluding the Ercon) under contracts or other charters or
arrangements, and any amendments thereto relating to the
Business and existing on or before the Contribution Date (the
"Contracts"); and
(iv) all records to be delivered to Spinco pursuant
to Section 2.6;
(f) the corporate office assets identified on Schedule
1.4(f) attached hereto;
(g) the Louisiana assets, other than Inventory and
Equipment, identified on Schedule 1.4(g) attached hereto; and
(h) all other miscellaneous assets owned and used by
GulfMark or Ercon in the operation of the Business.
1.5 "Assumed Liabilities" shall mean any and all Liabilities and
Environmental Liabilities that are not Retained Liabilities and to which
GulfMark or any of the Assets may now or at any time in the future become
subject (whether directly or indirectly, including by reason of GulfMark or any
GulfMark Company owning, controlling or operating any business or assets of any
Person (including any current or past Affiliate)), resulting from, arising out
of or relating to (i) any GulfMark Company, (ii) any GulfMark Taxes for periods
ending on or before the Effective Date, (iii) any obligation, matter, fact,
circumstance or action or omission by any Person in any way relating to or
arising from the business, operations or assets of GulfMark that existed on or
prior to the Effective Date, (iv) any product or service provided by GulfMark
or any GulfMark Company prior to the Effective Date, (v) the Merger, the
Contribution, the Distribution or any of the other transactions contemplated
hereby, (vi) previously conducted operations of GulfMark or any GulfMark
Company or (vii) the Assets. The term "Assumed Liabilities" shall also
include, without limitation, the following:
(a) Any and all Liabilities and Environmental Liabilities
resulting from, arising out of or relating to (i) the assets,
activities, operations, current or former facilities, actions or
omissions of GulfMark or any of its respective officers, directors,
employees, independent contractors or agents, occurring on or before
the Effective Date, (ii) the assets, activities, operations, current
or former facilities, actions or omissions of any GulfMark Company or
any of its respective officers, directors, employees, independent
contractors or agents, (iii) any product liability claim, recall,
replacement, returns or customer allowances of or relating to GulfMark
or any GulfMark Company (excluding those obligations with respect to
those contracts and permits retained by GulfMark in the Retained
Liabilities) or (iv) any contract or permit of GulfMark or any
GulfMark Company (excluding those retained by GulfMark in the Retained
Liabilities
- 3 -
<PAGE> 5
but, regardless of whether the contract or permit is assigned,
conveyed or leased hereunder or under any other agreement contemplated
hereby);
(b) Any and all accounts and notes payable of GulfMark or
any GulfMark Company, excluding, however, the accounts payable which
have been accounted for in the calculation of the required Net Working
Capital set forth in the Merger Agreement;
(c) Any and all Liabilities relating to the GulfMark
401(k) Plan and the GulfMark Employee Benefit Plans except that once
GulfMark's 401(k) Plan is merged into an EVI plan qualified under
Sections 401(a) and 501(a) of the Code, Spinco shall not be
responsible for Liabilities relating to the GulfMark 401(k) Plan
occurring after the merging of such plans;
(d) Any and all Liabilities and Environmental Liabilities
to, on behalf of, or which arise from or relate to (i) active
employees, or retired and inactive employees, of GulfMark or any
GulfMark Company for claims occurring on or before the Effective Date
and (ii) active employees, or retired and inactive employees, of any
GulfMark Company after the Effective Date, including, without
limitation, (1) liability for any salaries, wages, tax equalization
payments, vacation pay, sick leave, personal leave, severance pay,
wrongful dismissal or discrimination claims; (2) liability for or
under any employee benefit plan, policy or arrangement not covered by
subsection (c) above including, without limitation, retirement,
pension, medical, dental, profit sharing, unemployment, supplemental
unemployment or disability plan policy or arrangement; (3) liability
for any payroll taxes, social security or similar taxes or
withholding; (4) liability arising from claims or litigation and (5)
liability arising from any injury, death, loss, disability,
occupational disease or claims under any workers' compensation laws;
(e) Any and all Liabilities and Environmental Liabilities
resulting from, arising out of, relating to or occurring on the
Properties, including those Properties listed on Schedule 1.5(e)
hereto, the operations on any of the foregoing, and any off-site
Environmental Liabilities related to any of the foregoing, including,
without limitation, those under any indemnification agreement or
obligation of GulfMark or any GulfMark Company and any documents
related thereto; provided, however, that Liabilities and Environmental
Liabilities resulting from, arising out of, relating to or occurring
on the Post-Effective Date Properties after the Effective Date shall
not be Assumed Liabilities but shall be Retained Liabilities hereunder
(Schedule 1.5(e) shall list all Properties;
(f) Any and all Liabilities of Ercon with respect to any
projects or transactions performed or engaged in by it prior to the
Effective Date, excluding those Liabilities which are Retained
Liabilities;
(g) Any and all litigation and claims Liabilities of
GulfMark or any GulfMark Company existing as of the Effective Date,
excluding those Liabilities which are Retained Liabilities;
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(h) Any and all Liabilities for GulfMark Taxes, arising
out of, or related to, GulfMark for taxable periods on or before the
Effective Date, but excluding those Liabilities which are Retained
Liabilities;
(i) Any and all liability for GulfMark Taxes, arising out
of or related to any GulfMark Company whether for taxable periods
ending before or after the Effective Date;
(j) Any misrepresentation or incorrect representation or
warranty of GulfMark under the Merger Agreement without regard to any
materiality or knowledge qualification; and
(k) Any and all legal, accounting, consulting and expert
fees and expenses incurred in investigating, preparing, defending,
settling or discharging any claim or action arising under, out of or
in connection with any of the Assumed Liabilities or Assets other than
those associated with EVI's counsel's evaluation of the Contribution
hereunder, the Merger or the Distribution.
1.6 "Business" means all businesses engaged in by any GulfMark
Company, other than Ercon or the business of owning the EVI Common Stock and
the Common Stock of American Independent Oil Company, as conducted on or before
the Distribution Date.
1.7 "Business Day" means a day on which national banks are
generally open for the transaction of business in Houston, Texas.
1.8 "CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq.
1.9 "Circumstance" has the meaning specified in Section 6.2
hereof.
1.10 "Consent Required Contract" has the meaning specified in
Section 2.5 hereof.
1.11 "Contracts" has the meaning specified in paragraph (e)(iii) of
the definition of Assets set forth in Section 1.4 hereof.
1.12 "Contribution" shall have the meaning specified in the third
"WHEREAS" clause hereof.
1.13 "Distribution" means the distribution by GulfMark to its
stockholders of all of the outstanding shares of Spinco and all transactions
occurring immediately prior to the distribution in connection therewith,
including the transfer of Assets to Spinco, the transfer of the Subsidiaries'
Stock to Spinco and the assumption of the Assumed Liabilities relating thereto.
1.14 "Distribution Date" shall mean the time and date as of which
the Distribution is effective.
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1.15 "Contribution Date" shall mean the time and date immediately
prior to the Distribution Date as of which the Contribution is effective.
1.16 "Effective Date" shall mean the time and date the Merger is
made effective.
1.17 "Environmental Conditions" means any pollution, contamination,
degradation, damage or injury caused by, related to, arising from or in
connection with the generation, handling, use, treatment, storage,
transportation, disposal, discharge, release or emission of any Waste
Materials.
1.18 "Environmental Law" or "Environmental Laws" means all laws,
rules, regulations, statutes, ordinances, decrees or orders of any governmental
entity now or at any time in the future in effect relating to (i) the control
of any potential pollutant or protection of the air, water or land, (ii) solid,
gaseous or liquid waste generation, handling, treatment, storage, disposal or
transportation, and (iii) exposure to hazardous, toxic or other substances
alleged to be harmful. The term "Environmental Law" or "Environmental Laws"
includes, without limitation, (1) the terms and conditions of any license,
permit, approval or other authorization by any governmental entity and (2)
judicial, administrative or other regulatory decrees, judgments and orders of
any governmental entity. The term "Environmental Law" or "Environmental Laws"
includes, but is not limited to the following statutes and the regulations
promulgated thereunder: the Clean Air Act, 42 U.S.C. Section 7401 et seq., the
Clean Water Act, 33 U.S.C. Section 1251 et seq., the Resource Conservation
Recovery Act, 42 U.S.C. Section 6901 et seq., the Superfund Amendments and
Reauthorization Act, 42 U.S.C. Section 11011 et seq., the Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq., the Water Pollution Control Act,
33 U.S.C. Section 1251, et seq., the Safe Drinking Water Act, 42 U.S.C.
Section 300f et seq., CERCLA and any state, county or local regulations
similar thereto.
1.19 "Environmental Liabilities" means any and all liabilities,
responsibilities, claims, suits, losses, costs (including remediation, removal,
response, abatement, clean-up, investigative or monitoring costs and any other
related costs and expenses), other causes of action recognized now or at any
later time, damages, settlements, expenses, charges, assessments, liens,
penalties, fines, pre-judgment and post-judgment interest, attorney fees and
other legal fees (i) pursuant to any agreement, order, notice, requirement,
responsibility or directive (including directives embodied in Environmental
Laws), injunction, judgment or similar documents (including settlements)
arising out of or in connection with any Environmental Laws, or (ii) pursuant
to any claim by a governmental entity or other person or entity for personal
injury, property damage, damage to natural resources, remediation or similar
costs or expenses incurred or asserted by such entity or person pursuant to
common law or statute.
1.20 "Ercon" means the wholly owned subsidiary of GulfMark, Ercon
Development Corporation, and upon its merger into GulfMark, the Ercon division
of GulfMark.
1.21 "EVI" shall mean Energy Ventures, Inc., a Delaware
corporation.
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1.22 "EVI Indemnified Parties" shall have the meaning set forth in
Section 6.1(a) hereof.
1.23 "Excluded Assets" means (i) any and all property, assets,
claims and rights, tangible and intangible of Ercon, (ii) the EVI Common Stock
owned by GulfMark, (iii) 200 shares of common stock of American Independent Oil
Company and (iv) the original tax, accounting and other corporate records of
GulfMark.
1.24 "GMdB" shall mean Gulf Marine do Brazil, a Brazilian
corporation.
1.25 "GNSL" shall mean GulfMark North Sea, Ltd., a U.K.
corporation.
1.26 "GOMI" shall mean Gulf Offshore Marine International, Inc., a
Panamanian corporation.
1.27 "GulfMark", for purposes of the assumption and indemnification
provisions of this Agreement, includes GulfMark International, Inc. and Ercon
Development Corporation and any and all predecessors thereto, whether by
merger, purchase or other acquisition of assets or otherwise, and any and all
predecessors to such entities.
1.28 "GulfMark 401(k) Plan" shall mean the GulfMark International,
Inc. 401(k) Plan.
1.29 "GulfMark Common Stock" means shares of common stock, $1.00
par value per share, of GulfMark.
1.30 "GulfMark Company" means any corporation, partnership, limited
liability company, association or other entity, excluding GulfMark and Ercon,
of which GulfMark or any GulfMark Company now or at any time in the past owned,
directly or indirectly, an ownership interest in (whether or not such ownership
interest constituted control of the entity and whether or not such interest
represented a passive or active investment), including, without limitation,
those companies and entities described on Schedule 1.30 hereto.
1.31 "GulfMark Employee Benefit Plans" shall have the meaning
specified in Section 4.3 hereof.
1.32 "GulfMark Taxes" means any and all taxes to which GulfMark or
any GulfMark Company may be obligated relating to or arising from (i) the
current or past operations or assets of GulfMark or any GulfMark Company
through the Effective Date, (ii) the Contribution and the Distribution, (iii)
the Merger, (iv) any tax return filed by any current or past member of
GulfMark's consolidated group, (v) any Tax for which GulfMark may be alleged to
be liable by reason of being affiliated with any other Person for all periods
prior to the Effective Date, (vi) property taxes with respect to the assets of
GulfMark or any GulfMark Company for all periods prior to the Effective Date
(with property taxes for the assets of GulfMark after the Distribution being
prorated) and (vii) any transfer taxes or value added in connection with the
transactions contemplated by the Contribution, Distribution and the Merger.
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1.33 "Inventory and Equipment" has the meaning specified in
paragraph (d) of the definition of Assets.
1.34 "Liability" means any and all claims, demands, liabilities,
responsibilities, disputes, causes of action and obligations of every nature
whatsoever, liquidated or unliquidated, known or unknown, matured or unmatured,
or fixed or contingent.
1.35 "Merger" means the merger of GulfMark Acquisition Co. with and
into GulfMark as contemplated by the Merger Agreement.
1.36 "Merger Agreement" means the Agreement and Plan of Merger
dated December 5, 1996, by and among EVI, GulfMark, GulfMark Acquisition Co.
and New GulfMark International, Inc.
1.37 "Permits" has the meaning specified in paragraph (e)(ii) of
the definition of Assets.
1.38 "Person" means an individual, corporation, limited liability
company, partnership, governmental authority or any other entity.
1.39 "Post-Effective Date Properties" shall mean only the
Properties owned, leased or operated by GulfMark or Ercon after the Effective
Date.
1.40 "Properties" means the properties currently or previously
owned or operated by GulfMark or any GulfMark Company.
1.41 "Record Date" shall have the meaning specified in Section 3.3
hereof.
1.42 "Retained Intellectual Property" means patents, trademarks,
service marks, trade names, service names, brand names, copyrights, trade
secrets, know-how, inventions, computer software (including documentation and
object and source codes) and similar rights used in Ercon, including without
limitation, all right, title and interest of GulfMark in and to the name
"Ercon" and any derivative thereof, including without limitation, "Ercon
Development Corporation" and all registrations, applications, licenses and
rights with respect to any of the foregoing.
1.43 "Retained Liabilities" shall mean and be limited solely to (i)
those accounts payable relating to the business of Ercon that are reflected on
the Effective Date balance sheet of GulfMark (ii) those accounts payable
reflected on the Effective Date balance sheet of GulfMark and agreed to by EVI
prior to the Effective Date and (iii) the obligations of GulfMark and Ercon
that arise after the Effective Date (other than obligations relating to matters
existing or occurring on or prior to the Effective Date and indemnification,
warranty and product liability, wrongful death or property claims associated
with actions or omissions prior to the Effective Date or any business conducted
prior to the Effective Date) including those obligations set forth under the
express terms of the contracts of GulfMark listed on Schedule 1.43 and any
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<PAGE> 10
new contracts of GulfMark that are added to such Schedule prior to the
Effective Date subject to the limitations on new contracts set forth in Article
III of the Merger Agreement.
1.44 "Service of Process" shall have the meaning specified in
Section 6.1 hereof.
1.45 "Spinco" shall have the meaning specified in the preamble.
1.46 "Spinco 401(k) Plan" shall have the meaning specified in
Section 4.2 hereof.
1.47 "Spinco Common Stock" means shares of common stock, $1.00 par
value per share, of Spinco.
1.48 "Spinco Employee Benefit Plans" shall have the meaning
specified in Section 4.3 hereof.
1.49 "Stock Option Plans" means the following stock option plans
maintained by GulfMark:
(a) 1993 Amended and Restated Non-Employee Director Stock
Option Plan;
(b) the 1987 Stock Option Plan, as amended, and
(c) the 1988 Non-Employee Director Option Plan.
1.50 "Subsidiaries" shall mean Gulf Offshore Marine International,
Inc., a Panamanian corporation; GulfMark North Sea, Ltd., a U.K. corporation;
and a ninety percent (90%) interest in Gulf Marine do Brazil, a Brazilian
corporation.
1.51 "Subsidiaries' Stock" shall mean all of the issued and
outstanding capital stock of GOMI and GNSL and a ninety percent (90%) interest
in the capital stock of GMdB.
1.52 "Taxes" shall mean all federal, state, local, foreign and
other taxes, charges, fees, duties, levies, imposts, customs or other
assessments, including, without limitation, all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, profit share,
license, lease, service, service use, value added, withholding, payroll,
employment, excise, estimated, severance, stamp, occupation, premium, property,
windfall profits, or other taxes, fees, assessments, customs, duties, levies,
imposts, or charges of any kind whatsoever, together with any interest,
penalties, additions to tax, fines or other additional amounts imposed thereon
or related thereto, and the term "Tax" means any one of the foregoing Taxes.
1.53 "Transfer Agent" shall mean American Stock Transfer & Trust
Company located at 40 Wall Street, New York, New York.
1.54 "Transferred Intellectual Property" means patents, trademarks,
service marks, trade names, service names, brand names, copyrights, trade
secrets, know-how, inventions,
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computer software (including documentation and object and source codes) and
similar rights used in the Business, including without limitation, all right,
title and interest of the GulfMark Company in and to the name "GulfMark" and
any derivative thereof, including without limitation, "GulfMark International,
Inc." and all registrations, applications, licenses and rights with respect to
any of the foregoing.
1.55 "Vessel" has the meaning specified in paragraph (c) of the
definition of Assets.
1.56 "Waste Materials" means any (i) toxic or hazardous materials
or substances; (ii) solid wastes, including asbestos, polychlorinated
biphenyls, mercury, buried contaminants, chemicals, flammable or explosive
materials; (iii) radioactive materials; (iv) petroleum wastes and spills or
releases of petroleum products; and (v) any other chemical, pollutant,
contaminant, substance or waste that is regulated by any governmental entity
under any Environmental Law.
ARTICLE II
CONTRIBUTION AND ASSUMPTION TRANSACTIONS
2.1 Contribution of Assets and Subsidiaries' Stock.
(a) Effective as of the Contribution Date, GulfMark
hereby contributes, assigns, transfers, conveys and delivers to Spinco
and Spinco hereby acquires and accepts, as hereinafter provided, all
of GulfMark's right, title and interest in and to the Assets and the
Subsidiaries' Stock. Notwithstanding the foregoing, GulfMark hereby
retains all of GulfMark's right, title and interest in and to the
Excluded Assets.
(b) GULFMARK MAKES NO REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, WITH RESPECT TO THE ASSETS (CURRENT, FIXED, PERSONAL,
REAL, TANGIBLE OR INTANGIBLE), INCLUDING, BUT NOT LIMITED TO,
CONDITION OR WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS
THEREIN, WHETHER LATENT OR PATENT, CAPACITY, SUITABILITY, UTILITY,
SALABILITY, AVAILABILITY, COLLECTIBILITY, OPERATIONS, CONDITIONS,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IT BEING THE
EXPRESS AGREEMENT OF SPINCO AND GULFMARK THAT, EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, SPINCO WILL OBTAIN THE ASSETS IN THEIR
PRESENT CONDITION AND STATE OF REPAIR, ON AN "AS IS AND WHERE IS, WITH
ALL FAULTS" BASIS.
2.2 Assumption. Effective as of the Contribution Date, as an
inducement to EVI to merge with GulfMark, Spinco hereby unconditionally assumes
and undertakes to pay, satisfy and discharge when due the Assumed Liabilities.
Notwithstanding the foregoing, GulfMark hereby retains and Spinco will have no
liability with respect to the Retained Liabilities.
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2.3 Consideration. The aggregate consideration for the
transactions provided for herein shall consist of (a) the issuance to GulfMark
of the Additional Shares and (b) the assumption by Spinco of the Assumed
Liabilities.
2.4 ABSOLUTE ASSUMPTION. IT IS THE INTENT OF THE PARTIES THAT THE
LIABILITIES AND ENVIRONMENTAL LIABILITIES ASSUMED BY SPINCO UNDER THIS
AGREEMENT SHALL BE WITHOUT REGARD TO THE CAUSE THEREOF OR THE NEGLIGENCE OF ANY
PERSON, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, ACTIVE OR
PASSIVE, AND WHETHER SUCH LIABILITY OR ENVIRONMENTAL LIABILITY IS BASED ON
STRICT LIABILITY, ABSOLUTE LIABILITY OR ARISING AS AN OBLIGATION OF
CONTRIBUTION. SPINCO HEREBY WAIVES AND RELEASES FOR ITSELF AND ON BEHALF OF
SPINCO'S AFFILIATES ANY CLAIMS, DEFENSES OR CLAIMS FOR CONTRIBUTION THAT IT HAS
OR MAY HAVE AGAINST GULFMARK, EVI OR ANY OF THEIR RESPECTIVE AFFILIATES WITH
RESPECT TO THE ASSUMED LIABILITIES.
2.5 Limitation on Assignments. Notwithstanding any other
provision hereof, this Agreement shall not constitute nor require an assignment
to Spinco of any Contract, Permit, license or other right if an attempted
assignment of the same without the consent of any party would constitute a
breach thereof or a violation of any law or any judgment, decree, order, writ,
injunction, rule or regulation of any governmental entity unless and until such
consent shall have been obtained. In the case of any such Contract, Permit,
license or other right that cannot be effectively transferred to Spinco without
such consent (a "Consent Required Contract"), GulfMark agrees that it will
attempt to enter into a reasonable arrangement designed to provide Spinco with
the benefit of GulfMark's rights under such Consent Required Contract,
including enforcement of any and all rights of GulfMark against any other party
as Spinco may reasonably request, all such actions to be at Spinco's sole cost
and expense.
2.6 Delivery of Records. Spinco shall be entitled to all books,
records, papers and instruments of GulfMark of whatever nature that relate to
the Assets, the Subsidiaries or the operation of the Business, including,
without limitation, all financial and accounting records, on the Closing Date,
and all books and records relating to employees, the purchase of materials,
supplies and services, research and development, engineering drawings, designs,
schematics, blueprints, instruction manuals, flowsheets, models, maintenance
schedules and similar technical records, and dealings with customers, vendors
and suppliers of the Business, and including computerized books and records and
other computerized storage media and the software (including documentation and
object and source codes) used in connection therewith; provided that GulfMark
shall be entitled to retain all originals of its corporate, financial,
accounting, legal, tax and auditing records, and GulfMark shall be entitled to
retain copies at its expense of any such other books and records that are
necessary for its tax, accounting or legal purposes.
ARTICLE III
RECAPITALIZATION OF SPINCO; MECHANICS OF DISTRIBUTION
3.1 Spinco Capitalization. The current equity capitalization of
Spinco consists of one issued and outstanding share of Spinco Common Stock (the
"Existing Spinco Common Stock"), all of which is outstanding and owned
beneficially and of record by the Company.
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3.2 Recapitalization of Spinco. Immediately prior to the
Distribution Date, the GulfMark shall cause Spinco to exchange the Existing
Spinco Common Stock owned by GulfMark for the Additional Shares.
3.3 Mechanics of Distribution. The Distribution shall be effected
by the distribution to each holder of record of GulfMark Common Stock, as of
the record date designated for the Distribution by or pursuant to the
authorization of the Board of Directors of GulfMark (the "Record Date"), of
certificates representing two shares of Spinco Common Stock for each share of
GulfMark Common Stock held by such holder.
3.4 Timing of Distribution. The Board of Directors of the
GulfMark shall formally declare the Distribution and shall authorize GulfMark
to pay it immediately prior to the Effective Date, subject to the satisfaction
or waiver of the conditions set forth in Article VIII, by delivery of
certificates for Spinco Common Stock to the Transfer Agent for delivery to the
holders entitled thereto. The Distribution shall be deemed to be effective
upon notification by GulfMark to the Transfer Agent that the Distribution has
been declared and that the Transfer Agent is authorized to proceed with the
distribution of Spinco Common Stock.
ARTICLE IV
EMPLOYEE BENEFIT PLANS
4.1 Employee Benefits Generally. All obligations of the Spinco
under this Article IV with respect to employee benefit plans, arrangements or
policies for the benefit of employees and former employees (and their
beneficiaries) of GulfMark and the GulfMark Companies in place immediately
prior to the Contribution Date shall be treated as Assumed Liabilities and not
as Retained Liabilities under this Agreement.
4.2 As soon as administratively possible after the Distribution
Date, Spinco shall establish a defined contribution plan (the "Spinco 401(k)
Plan") which shall be qualified under Section 401(a) of the Internal Revenue
Code of 1986, as amended, and effective as of the Distribution Date. As soon
as administratively feasible following the Distribution Date, and in accordance
with the terms of the GulfMark 401(k) Plan, GulfMark shall cause the account
balance attributable to each individual who will cease to be an employee of
GulfMark following the Distribution Date to be distributed directly to such
individual, or upon the request of any such individual, transferred to another
qualified rollover investment (including the Spinco 401(k) Plan if such
individual is eligible to participate therein) specified in such request to the
extent that such transfer or distribution is permitted by law. Each individual
who becomes an employee of Spinco on the Distribution Date shall, for
eligibility and vesting purposes under the Spinco 401(k) Plan, be credited with
the same service with which he or she is credited for such purposes under the
GulfMark 401(k) Plan immediately prior to the Distribution Date.
4.3 Employee Health, Life and Disability Insurance Plans.
Effective as of the Distribution Date, Spinco shall establish such employee
health, life and disability insurance plans and other employee welfare or
fringe benefit arrangements (collectively the "Spinco Employee
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<PAGE> 14
Benefit Plans") which are comparable in the aggregate to the health, life and
disability insurance plans and other employee welfare or fringe benefit
arrangements which had been maintained by GulfMark for its employees and the
employees of its Subsidiaries prior to the Distribution Date (collectively the
"GulfMark Employee Benefit Plans"). Service by any employee with GulfMark or
its Subsidiaries prior to the Distribution Date shall be counted for purposes
of determining any period of eligibility to participate in, or to vest in
benefits (including vacation rights) provided under, the Spinco Employee
Benefit Plans, and any amounts previously expended by any such employees of
GulfMark or its Subsidiaries prior to the Distribution Date for purposes of
satisfying such plan year's deductible, co-payment limitations maximum
out-of-pocket provisions and applicable annual and/or life-time maximum benefit
limitations shall be credited for purposes of satisfying such plan year's
deductible, co-payment limitations under the Spinco Employee Benefit Plans and
any coverage waiting period for pre-existing conditions for such employees
shall be waived under the Spinco Employee Benefit Plans.
ARTICLE V
GULFMARK STOCK OPTION PLANS
5.1 As of the Distribution Date, Spinco shall assume the GulfMark
Stock Option Plans, and pursuant to the equitable adjustment provisions of the
applicable Stock Option Plan, each outstanding stock option previously granted
pursuant to any of GulfMark's Stock Option Plans to an employee, officer or
director of GulfMark who will, following the Distribution, become an employee,
officer or director of Spinco, will be converted into and represent an option
to acquire shares of Spinco Common Stock.
5.2 The number of shares of Spinco Common Stock subject to, and
the exercise price of, each such Spinco option will be adjusted in accordance
with the requirements of Section 424 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder, to reflect the
Distribution as set forth in Section 5.3 so that (i) the aggregate intrinsic
value (difference between market value per share and exercise price) of each
option immediately after the Distribution is not greater than the aggregate
intrinsic value of such option immediately before the Distribution, and (ii)
the ratio of the exercise price per option to the market value per share is not
reduced. The vesting provisions and option period of the new Spinco options
will remain unchanged from the GulfMark options so replaced.
5.3 As of the Distribution Date, to effect the adjustment
described in Section 5.2, (i) the number of shares of Spinco Common Stock
covered by each new Spinco option shall be the number of shares covered by the
GulfMark option being replaced thereby, multiplied by a fraction equal to the
ratio of the pre-Distribution market price per share of GulfMark Common Stock
to the post-Distribution market price per share of Spinco Common Stock, and
(ii) the exercise price per share of each new Spinco option shall be the
exercise price per share of the GulfMark option being replaced thereby,
multiplied by a fraction equal to the ratio of the post-Distribution market
price per share of the Spinco Common Stock to the pre-Distribution market price
per share of GulfMark Common Stock.
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5.4 For purposes of the foregoing adjustments, (i) the
pre-Distribution market price per Share of GulfMark Common Stock shall be
deemed to be the average of the arithmetic mean between the highest and lowest
sales prices per share of GulfMark Common Stock as reported by the NASDAQ Stock
Market on each of the ten trading days before the Distribution or such other
market price as the Board of Directors of Spinco deems equitable, and (ii) the
post- Distribution market price per share of Spinco Common Stock shall be
deemed to be the average of the arithmetic mean between the highest and lowest
sales prices per share of Spinco Common Stock as reported by the NASDAQ Stock
Market on each of the ten trading days beginning on the eleventh trading day
after the Distribution or such other market price as the Board of Directors of
Spinco deems equitable.
5.5 GulfMark and Spinco will cooperate and take all action
necessary (including obtaining the consent of the holders of GulfMark options,
if required) to amend (if necessary) the GulfMark Stock Option Plans or
otherwise provide for adjustments of authorized shares and outstanding option
awards under the GulfMark Stock Option Plans, and to effect Spinco's assumption
of the GulfMark Stock Option Plans, in accordance with the provisions of this
Article V.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification Matters.
(a) Indemnification. Spinco hereby agrees to indemnify,
defend and hold GulfMark, EVI and their respective officers, directors,
employees, agents and assigns (collectively, the "EVI Indemnified
Parties") harmless from and against any and all Liabilities or
Environmental Liabilities (including, without limitation, reasonable
fees and expenses of attorneys, accountants, consultants and experts)
that the EVI Indemnified Parties incur, are subject to a claim for, or
are subject to, that are based upon, arising out of, relating to or
otherwise in respect of:
(i) any breach of any covenant or agreement of
Spinco contained in this Agreement or any other agreement
contemplated hereby;
(ii) the acts or omissions of GulfMark or any
GulfMark Company on or before the Effective Date;
(iii) the acts or omissions of any GulfMark
Company, Spinco or any of Spinco's Affiliates or the conduct
of any business by them on or after the Effective Date;
(iv) the Assumed Liabilities;
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(v) the Assets, regardless of any GulfMark
Company's prior use of any such Asset;
(vi) the conveyance, assignment, sale, lease or
making available of the Assets;
(vii) the conveyance, assignment, sale, merger or
contribution of the stock or share capital or assets of Ercon
Development Corporation to GulfMark;
(viii) any Taxes as a result of the Distribution,
the Contribution or the Merger subsequently being determined
to be a taxable transaction for foreign, federal, state or
local law purposes regardless of the theory or reason for the
transactions being subject to Tax;
(ix) any and all amounts for which GulfMark or EVI
may be liable on account of any claims, administrative
charges, self-insured retentions, deductibles, retrospective
premiums or fronting provisions in insurance policies,
including as the result of any uninsured period, insolvent
insurance carriers or exhausted policies, arising from claims
by GulfMark's or any GulfMark Company's Affiliates, or the
employees of any of the foregoing, or claims by insurance
carriers of GulfMark or any GulfMark Company for indemnity
arising from or out of claims by or against GulfMark or any
GulfMark Company for acts or omissions of GulfMark or any
GulfMark Company, or related to any current or past business
of GulfMark or any GulfMark Company or any product or service
provided by GulfMark or any GulfMark Company in whole or part
prior to the Effective Date;
(x) any COBRA Liability with respect to any
employees of GulfMark or any GulfMark Company who become
employees of Spinco after the Distribution;
(xi) any settlements or judgments in any
litigation commenced by one or more insurance carriers against
GulfMark or EVI on account of claims by Spinco or any GulfMark
Company or employees of Spinco or any GulfMark Company;
(xii) any and all Liabilities incurred by GulfMark
or EVI pursuant to its obligations hereunder in seeking to
obtain or obtaining any consent or approval to assign,
transfer or lease any interest in any asset or instrument,
contract, lease, permit or benefit arising thereunder or
resulting therefrom;
(xiii) any Liability relating to the failure to
comply with any bulk sales or transfer laws in connection
herewith or with any of the other agreements contemplated
hereby;
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(xiv) the on-site or off-site handling, storage,
treatment or disposal of any Waste Materials generated by
GulfMark or any GulfMark Company on or prior to the Effective
Date or any GulfMark Company at any time;
(xv) any and all Environmental Conditions, known
or unknown, existing on, at or underlying any of the
Post-Effective Date Properties on or prior to the Effective
Date;
(xvi) any and all Environmental Conditions, known
or unknown, existing on, at or underlying any of the
Properties other than the Post-Effective Date Properties;
(xvii) any acts or omissions of GulfMark or any
GulfMark Company relating to the ownership or operation of the
business of GulfMark or any GulfMark Company or the Properties
on or prior to the Effective Date;
(xviii) any Liability relating to any claim or demand
by any stockholder of GulfMark or EVI with respect to the
Merger, the Contribution, the Distribution or the transactions
relating thereto; and
(xix) any Liability relating to the GulfMark 401(k)
Plan and the other employee benefit or welfare plans of
GulfMark or any GulfMark Company arising out of circumstances
occurring on or prior to the Effective Date.
(b) Absolute Indemnity. NONE OF THE EVI INDEMNIFIED
PARTIES WILL BE OBLIGATED TO INSTITUTE ANY LEGAL PROCEEDINGS IN
CONNECTION WITH THE COLLECTION OR PURSUIT OF ANY INSURANCE IN ORDER TO
EXERCISE AN INDEMNIFICATION REMEDY UNDER THIS ARTICLE VI. UNLESS
OTHERWISE SPECIFICALLY EXPRESSED, THIS INDEMNITY OBLIGATION SHALL APPLY
WITHOUT REGARD TO WHETHER THE LIABILITY OR ENVIRONMENTAL LIABILITY WAS
CAUSED BY THE ORDINARY OR GROSS NEGLIGENCE OF ANY OF THE EVI
INDEMNIFIED PARTIES (WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR
CONCURRENT OR ACTIVE OR PASSIVE), OR WHETHER THE LIABILITY OR
ENVIRONMENTAL LIABILITY IS BASED ON STRICT LIABILITY, ABSOLUTE
LIABILITY OR ARISES AS AN OBLIGATION OF CONTRIBUTION OR INDEMNITY.
SPINCO ACKNOWLEDGES THAT IT IS AWARE OF VARIOUS THEORIES KNOWN AS THE
"EXPRESS NEGLIGENCE" DOCTRINE AND OTHER SIMILAR DOCTRINES AND THEORIES
THAT MAY LIMIT INDEMNIFICATION AND AGREES AND STIPULATES THAT THE
PROVISIONS OF THIS AGREEMENT REFLECT THE EXPRESS INTENT OF THE PARTIES
THAT THE INDEMNIFICATION TO BE PROVIDED BY SPINCO APPLY NOTWITHSTANDING
THE FACT THAT THE LIABILITY OR ENVIRONMENTAL LIABILITY (I) MAY NOT
CURRENTLY BE KNOWN BY IT OR MANIFEST ITSELF IN ANY REGARD, (II) MAY
ARISE UNDER A STATUTE
- 16 -
<PAGE> 18
OR THEORY THAT MAY NOT CURRENTLY EXIST OR BE KNOWN TO SPINCO, (III) MAY
ARISE AS A RESULT OF A NEGLIGENT ACT OR OMISSION BY ANY OF THE EVI
INDEMNIFIED PARTIES (WHETHER SUCH CONDUCT BE SOLE, JOINT OR CONCURRENT
OR ACTIVE OR PASSIVE) OR (IV) MAY CONSTITUTE A VIOLATION OF ANY
APPLICABLE CIVIL OR CRIMINAL LAW OR REGULATION.
6.2 Notice of Circumstance. After receipt by EVI of notice, or
EVI's actual discovery, of any action, proceeding, claim, demand or potential
claim which could give rise to a right to indemnification pursuant to any
provision of this Agreement (any of which is individually referred to as a
"Circumstance"), EVI shall give Spinco written notice describing the
Circumstance in reasonable detail; provided, however, that no delay by EVI in
notifying Spinco shall relieve Spinco from any Liability or Environmental
Liability hereunder unless (and then solely to the extent) Spinco's position is
actually adversely prejudiced. In the event Spinco notifies EVI within 15 days
after such notice that Spinco is assuming the defense thereof, (i) Spinco will
defend the EVI Indemnified Parties against the Circumstances with counsel of
its choice, provided such counsel is reasonably satisfactory to EVI, (ii) the
EVI Indemnified Parties may retain separate co-counsel at its or their sole
cost and expense (except that Spinco will be responsible for the fees and
expenses for the separate co-counsel to the extent EVI concludes reasonably
that the counsel Spinco has selected has a conflict of interest), (iii) the EVI
Indemnified Parties will not consent to the entry of any judgment or enter into
any settlement with respect to the Circumstances without the written consent of
Spinco and (iv) Spinco will not consent to the entry of any judgment with
respect to the Circumstances, or enter into any settlement which (x) requires
any payments by or continuing obligations of an EVI Indemnified Party, (y)
requires an EVI Indemnified Party to admit any facts or liability that could
reasonably be expected to adversely affect an EVI Indemnified Party in any
other matter or (z) does not include a provision whereby the plaintiff or
claimant in the matter releases the EVI Indemnified Parties from all Liability
with respect thereto, without the written consent of EVI. In the event Spinco
does not notify EVI within 15 days after EVI has given notice of the
Circumstance that Spinco is assuming the defense thereof, the EVI Indemnified
Parties may defend against, or enter into any settlement with respect to, the
Circumstance in any manner the EVI Indemnified Parties reasonably may deem
appropriate, at Spinco's sole cost. The foregoing provisions shall not apply
to the provisions of Section 5.7 of the Merger Agreement.
6.3 Insurance. Spinco shall not be obligated to indemnify the EVI
Indemnified Parties for amounts which shall have been covered and paid by
insurance of the EVI Indemnified Parties, provided, however, insurance shall
not include deductibles or self-insured retentions.
6.4 Scope of Indemnification. INDEMNIFICATION UNDER THIS ARTICLE
VI SHALL BE IN ADDITION TO ANY REMEDIES THE GULFMARK, EVI OR ANY EVI
INDEMNIFIED PARTY MAY HAVE AT LAW OR EQUITY. THERE SHALL BE NO TIME LIMIT AS
TO SPINCO'S INDEMNIFICATION OBLIGATIONS HEREUNDER.
6.5 Indemnity for Certain Environmental Liabilities. It is the
intention of the parties that the indemnity provided herein with respect to
Environmental Liabilities under CERCLA and
- 17 -
<PAGE> 19
corresponding provisions of state law is an agreement expressly not barred by
42 U.S.C. Section 9607(e)(i) and corresponding provisions of state law.
ARTICLE VII
ADDITIONAL COVENANTS OF SPINCO
7.1 Employment. Spinco shall offer employment or continued
employment from the Contribution Date to all employees of GulfMark, except
those employed by Ercon, on terms that are substantially the same as the terms
on which they were employed by GulfMark immediately prior to the Contribution
Date; provided, however, that nothing contained in this Section 7.1 is intended
to confer upon any employee who so continues to be employed or who accepts such
an offer of employment by Spinco ("Spinco Group Continuing Employees") any
right to continued employment after the Contribution Date. GulfMark hereby
consents to Spinco making such offers. Spinco shall recognize the service with
GulfMark through the Contribution Date of each Spinco Group Continuing Employee
and shall credit on the Contribution Date, such service with Spinco (i) for all
plan purposes under any employee benefit plan, arrangement or policy of the
Spinco Group in effect as of the Contribution Date in which they are then
participating and (ii) for eligibility and vesting purposes only under any
employee benefit plan, arrangement or policy for which they become eligible on
or following the Contribution Date.
7.2 Spinco Covenants. To assure the performance of the
obligations of Spinco under this Agreement, Spinco hereby covenants and agrees
that it will not, and will cause its Subsidiaries to not, merge, convert into
another entity, engage in a share exchange for a majority of its shares,
liquidate or transfer, assign or otherwise convey or allocate, directly or
indirectly, in one or more transactions, whether or not related, a majority of
Spinco's assets (determined in good faith by a board resolution prior to the
transaction on a fair value and consolidated basis) to any Person unless the
acquiring Person expressly assumes the obligations of Spinco hereunder, (ii)
executes and delivers to GulfMark and EVI an agreement agreeing to be bound by
each and every provision of this Agreement as if it were Spinco and (iii) has a
net worth on a pro forma basis after giving effect to the acquisition or
business combination equal to or greater than that of Spinco (on a consolidated
basis).
7.3 Tax Allocation Agreement. Prior to the Distribution,
GulfMark, Spinco and EVI shall enter into a Tax Allocation Agreement acceptable
in all respects to EVI and Spinco, which will set forth each party's rights and
obligations with respect to payments and refunds, if any, of Taxes for periods
before and after the Effective Date and related matters such as the filing of
tax returns and the conduct of audits and other tax proceedings.
- 18 -
<PAGE> 20
ARTICLE VIII
CONDITIONS
8.1 Conditions to Obligations of GulfMark. The obligations of the
GulfMark to consummate the Distribution hereunder shall be subject to the
fulfillment of each of the following conditions:
(a) All of the transactions contemplated by Article II
shall have been consummated.
(b) The recapitalization of Spinco in accordance with
Section 3.2 shall have been consummated.
(c) Each condition to the Closing of the Merger Agreement
set forth in Article VI thereof, other than conditions as to the
consummation of the Contribution and the Distribution, shall have been
fulfilled or waived by the party for whose benefit such condition
exists.
(d) The Board of Directors of GulfMark shall be
reasonably satisfied that, after giving effect to the Contribution, (i)
GulfMark will not be insolvent and will not have unreasonably small
capital with which to engage in its businesses and (ii) the GulfMark
surplus would be sufficient to permit, without violation of Section 170
of the DGCL, the Distribution.
ARTICLE IX
MISCELLANEOUS
9.1 Governing Law. All questions arising out of this Agreement
and the rights and obligations created herein, or its validity, existence,
interpretation, performance or breach shall be governed by the laws of the
State of Texas, without regard to conflict of laws principles.
9.2 Arbitration. Any disputes, claims or controversies connected
with, arising out of, or related to, this Agreement and the rights and
obligations created herein, or the breach, validity, existence or termination
hereof, shall be settled by Arbitration to be conducted in accordance with the
Commercial Rules of Arbitration of the American Arbitration Association, except
as such Commercial Rules may be changed by this Section 9.2. The disputes,
claims or controversies shall be decided by three independent arbitrators (that
is, arbitrators having no substantial economic or other material relationship
with the parties), one to be appointed by Spinco and one to be appointed by
EVI within fourteen days following the submission of the claim to the parties
hereto and the third to be appointed by the two so appointed within five days.
Should either party refuse or neglect to join in the timely appointment of the
arbitrators, the other party shall be entitled to select both arbitrators.
Should the two arbitrators fail timely to appoint a third arbitrator, either
party may apply to the Chief Judge of the United States
- 19 -
<PAGE> 21
District Court for the Southern District of Texas to make such appointment.
The arbitrators shall have ninety days after the selection of the third
arbitrator within which to allow discovery, hear evidence and issue their
decision or award and shall in good faith attempt to comply with such time
limits; provided, however, if two of the three arbitrators believe additional
time is necessary to reach a decision, they may notify the parties and extend
the time to reach a decision in thirty day increments, but in no event to
exceed an additional ninety days. Discovery of evidence shall be conducted
expeditiously by the Parties, bearing in mind the parties desire to limit
discovery and to expedite the decision or award of the arbitrators at the most
reasonable cost and expense of the parties. Judgment upon an award rendered
pursuant to such Arbitration may be entered in any court having jurisdiction,
or application may be made to such court for a judicial acceptance of the
award, and an order of enforcement, as the case may be. The place of
Arbitration shall be Houston, Texas. The decision of the arbitrators, or a
majority thereof, made in writing, shall be final and binding upon the parties
hereto as to the questions submitted, and each party shall abide by such
decision. Notwithstanding the provisions of this Section 9.2, neither party
shall be prohibited from seeking injunctive relief pending the completion of
any arbitration. The costs and expenses of the arbitration proceeding,
including the fees of the arbitrators and all costs and expenses, including
legal fees and witness fees, incurred by the prevailing party, shall be borne
by the losing party.
Solely for purposes of injunctive relief, orders in aid of arbitration
and entry of the arbitrator's award:
(a) each of the parties hereto irrevocably consents to
the non-exclusive jurisdiction of, and venue in, any state court
located in Harris County, Texas or any federal court sitting in the
Southern District of Texas in any suit, action or proceeding seeking
injunctive relief, arising out of or relating to this Agreement or any
of the other agreements contemplated hereby and any other court in
which a matter that may result in a claim for indemnification hereunder
by an EVI Indemnified Party may be brought with respect to any claim
for indemnification by an EVI Indemnified Party;
(b) each of the parties hereto waives, to the fullest
extent permitted by law, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding seeking
injunctive relief, orders in aid of arbitration or entry of an
arbitration arising out of or relating to this Agreement or any of the
other agreements contemplated hereby brought in any state court located
in Harris County, Texas or any federal court sitting in the Southern
District of Texas or any other court in which a matter that may result
in a claim for indemnification hereunder by an EVI Indemnified Party
may be brought with respect to any claim for indemnification by an EVI
Indemnified Party, and further irrevocably waive any claim that any
such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum;
(c) each of the parties hereto irrevocably designates,
appoints and empowers CT Corporation System, Inc. and any successor
thereto as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property,
service of any and all legal process, summons, notices and documents
which
- 20 -
<PAGE> 22
may be served in any suit, action or proceeding arising out of or
relating to this Agreement or any of the other agreements contemplated
hereby.
9.2 Notices. All notices and other communications required or
permitted to be given or made hereunder by either party hereto shall be in
writing and shall be deemed to have been duly given if delivered personally or
transmitted by first class registered or certified mail, postage prepaid,
return receipt requested, or sent by prepaid overnight delivery service, or
sent by cable, telegram, telefax or telex, to the parties at the following
addresses (or at such other addresses as shall be specified by the parties by
like notice):
If to Spinco:
GulfMark International, Inc.
5 Post Oak Park, Suite 1170
Houston, Texas 77027
Attn: Frank R. Pierce
Telephone: (713) 963-9522
Facsimile: (713) 963-9796
with a copy to:
Griggs & Harrison, P.C.
1301 McKinney, Suite 3200
Houston, Texas 77010
Attn: W. Garney Griggs
Telephone: (713) 651-0600
Facsimile: (713) 651-1944
If to GulfMark or EVI:
Energy Ventures, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas 77027
Attn: Bernard J. Duroc-Danner
Telephone: (713) 297-8400
Facsimile: (713) 297-8488
and with a copy to:
Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Attn: Curtis W. Huff
Telephone: (713) 651-5151
Fax: (713) 651-5246
- 21 -
<PAGE> 23
9.4 Entire Agreement. This Agreement, including the Schedules,
Exhibits and other writings referred to herein or delivered pursuant hereto,
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between the parties with respect to the subject matter
hereof.
9.5 Amendments and Waiver; Rights and Remedies. This Agreement
may be amended, superseded, canceled, renewed or extended, and the terms hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance. No delay on the part of
either party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of either party
of any such right, power or privilege, or any single or partial exercise of any
such right, power or privilege, preclude any further exercise thereof or the
exercise of any other such right, power or privilege.
9.6 Governing Law. The parties agree that the laws of the State
of Texas (without giving effect to the principles of conflicts of laws thereof)
shall govern the interpretation and enforcement of this Agreement and all
disputes arising under or in connection with this Agreement.
9.7 Binding Effect; Assignment; No Third Party Benefit.
(a) This Agreement and all the provisions hereof shall be
binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns.
(b) Nothing in this Agreement, express or implied, is
intended to or shall confer upon any person other than Spinco,
GulfMark, EVI, and the EVI Indemnified Parties any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
9.8 Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same agreement.
9.9 References. All references in this Agreement to Articles,
Sections and other subdivisions refer to the Articles, Sections and other
subdivisions of this Agreement unless expressly provided otherwise. The words
"this Agreement," "herein," "hereof," "hereby," "hereunder" and words of
similar import refer to this Agreement as a whole and not to any particular
subdivision unless expressly so limited.
9.10 Severability of Provisions. If any provision of this
Agreement is held to be unenforceable, this Agreement shall be considered
divisible and such provision shall be deemed inoperative to the extent it is
deemed unenforceable, and in all other respects this Agreement shall remain in
full force and effect; provided, however, that if any such provision may be
made
- 22 -
<PAGE> 24
enforceable by limitation thereof, then such provision shall be deemed to be so
limited and shall be enforceable to the maximum extent permitted by applicable
law.
9.11 Gender. Pronouns in masculine, feminine, and neuter genders
shall be construed to include any other gender, and words in the singular form
shall be construed to include the plural and vice versa, unless the context
otherwise requires.
9.12 Descriptive Headings. The descriptive headings herein are
inserted or convenience of reference only, do not constitute a part of this
Agreement, and shall not affect in any manner the meaning or interpretation of
this Agreement.
9.13 Currency. All dollar amounts in this Agreement are stated in
United States dollars.
[signatures of the following page]
- 23 -
<PAGE> 25
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers hereunto duly authorized as of the date
first above written.
GULFMARK: GULFMARK INTERNATIONAL, INC.
By: /S/ FRANK R. PIERCE
--------------------------------
Name: FRANK R. PIERCE
Title: EXECUTIVE VICE PRESIDENT
SPINCO: NEW GULFMARK INTERNATIONAL, INC.
By: /S/ FRANK R. PIERCE
-------------------------------
Name: FRANK R. PIERCE
Title: EXECUTIVE VICE PRESIDENT
EVI: ENERGY VENTURES, INC.
By: /S/ JAMES G. KILEY
-------------------------------
Name: JAMES G. KILEY
Title: VICE PRESIDENT
- 24 -
<PAGE> 26
As permitted by Item 601(b)(2) of Regulation S-K, the Company has not
filed any schedules with this Exhibit No. 2.3. Listed below is a brief
description of the omitted schedules. The Company agrees to furnish
supplementally a copy of any of such omitted schedules to the Commission upon
request.
Schedules
- ---------
1.4(f) Corporate Office Assets
1.4(g) Louisiana Assets, Other Than Inventory and Equipment
1.5(e) List of Properties Previously Owned
1.30 List of GulfMark Subsidiaries Owned Now or Previously
1.43 List of Retained Liabilities
- 25 -
<PAGE> 1
EXHIBIT 4.1
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
CREDIT AGREEMENT
- --------------------------------------------------------------------------------
AMONG
ENERGY VENTURES, INC.,
as the Company,
THE SUBSIDIARY GUARANTORS,
THE LENDERS DEFINED THEREIN
AND
THE CHASE MANHATTAN BANK,
as the Agent
- --------------------------------------------------------------------------------
DATED AS OF DECEMBER 6, 1996
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
ARTICLE I
DEFINITIONS; ACCOUNTING TERMS; INTERPRETATION
<S> <C> <C>
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02. Types of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 1.03. Accounting Terms; Changes in GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 1.04. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE II
LOANS
SECTION 2.01. Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 2.02. Minimum Amount of Each Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 2.03. Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 2.04. Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 2.05. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 2.06. Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 2.07. Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 2.08. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 2.09. Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 2.10. Interest Rate Not Ascertainable, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 2.11. Reserve Requirements; Change in Circumstances . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 2.12. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 2.13. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 2.14. Telephonic Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE III
LETTERS OF CREDIT
SECTION 3.01. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 3.02. Letter of Credit Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 3.03. Letter of Credit Participations; Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 3.04. Agreement to Repay Letter of Credit Drawings . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 3.05. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 3.06. Conflict between Applications and Agreement . . . . . . . . . . . . . . . . . . . . . . . . 57
</TABLE>
<PAGE> 3
ARTICLE IV
FEES; COMMITMENTS; PAYMENTS
<TABLE>
<S> <C> <C>
SECTION 4.01. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 4.02. Voluntary Termination of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 4.03. Mandatory Termination of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 4.04. Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 4.05. Scheduled Principal Payments and Mandatory Prepayments . . . . . . . . . . . . . . . . . . 59
SECTION 4.06. Method and Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 4.07. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to the Initial Credit Event . . . . . . . . . . . . . . . . . . . . . 62
SECTION 5.02. Conditions Precedent to All Credit Events . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 5.03. Conditions Precedent to Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 5.04. Delivery of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Organization and Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 6.02. Authorization, Validity, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 6.03. Governmental Consents, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 6.04. Conflicting or Adverse Agreements or Restrictions . . . . . . . . . . . . . . . . . . . . . 66
SECTION 6.05. Title to Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 6.06. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 6.07. Information Memorandum; Financial Statements . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 6.08. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 6.09. Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 6.10. Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 6.11. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 6.12. Tax Returns and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 6.13. Requirements of Law; Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 6.14. Purpose of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 6.15. Franchises and Other Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 6.16. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 6.17. No Intent to Hinder, Delay or Defraud . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
</TABLE>
ii
<PAGE> 4
ARTICLE VII
AFFIRMATIVE COVENANTS
<TABLE>
<S> <C> <C>
SECTION 7.01. Information Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 7.02. Books, Records and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 7.03. Insurance and Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 7.04. Payment of Taxes and other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 7.05. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 7.06. Compliance with Statutes, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 7.07. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 7.08. End of Fiscal Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 7.09 Subrogation; Purchase Money Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 7.10. Performance of Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 7.11. Indemnification for Breach of Representations or Covenants . . . . . . . . . . . . . . . . 80
ARTICLE VIII
NEGATIVE COVENANTS
SECTION 8.01. Change in Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 8.02. Consolidation, Merger, Sale or Purchase of Assets, Etc . . . . . . . . . . . . . . . . . . 80
SECTION 8.03. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 8.04. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 8.05. Stock Issuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 8.06. Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 8.07. Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 8.08. Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 8.09. Other Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 8.10. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 8.11. Ownership of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 8.12. Limitation on Sale-Leaseback Transactions . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 8.13. Change in Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
ARTICLE IX
GUARANTY
SECTION 9.01. Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 9.02. Continuing Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 9.03. Effect of Debtor Relief Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 9.04. General Limitation on Guaranteed Obligations . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 9.05. Rights of Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 9.06. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 9.07. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 9.08. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 9.09. Full Force and Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
SECTION 10.01. Events of Default and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 10.02. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 10.03. Application of Moneys During Continuation of Event of Default . . . . . . . . . . . . . . . 101
ARTICLE XI
THE AGENT
SECTION 11.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 11.02. Agent's Reliance, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 11.03. Agent and Affiliates; Chase and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . 103
SECTION 11.04. Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 11.05. Agent's Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 11.06. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 11.07. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 11.08. Consents under Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 12.02. Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 12.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 12.04. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 12.05. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 12.06. Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 12.07. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 12.08. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
SECTION 12.09. Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . 111
SECTION 12.10. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
SECTION 12.11. Successors and Assigns; Participations . . . . . . . . . . . . . . . . . . . . . . . . . . 111
SECTION 12.12. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
SECTION 12.13. Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C> <C>
SECTION 12.14. Independence of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
SECTION 12.15. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
SECTION 12.16. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
SECTION 12.18. Ratification of Security Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
SECTION 12.19. SUBMISSION TO JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
SECTION 12.20. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
SECTION 12.21. FINAL AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
EXHIBITS
Exhibit 1.01A - Administrative Questionnaire
Exhibit 1.01B - Borrowing Base Certificate
Exhibit 2.03 - Notice of Borrowing
Exhibit 2.05 - Form of Note
Exhibit 3.02 - Letter of Credit Request
Exhibit 8.02 - Form of Subsidiary Guarantor Counterpart
Exhibit 12.11 - Form of Assignment and Acceptance
SCHEDULES
Schedule 1.01A - Permitted Indebtedness
Schedule 1.01B - Permitted Liens
Schedule 6.01 - List of Subsidiaries of the Company
Schedule 6.13 - Environmental Matters
Schedule 8.06 - Permitted Investments
</TABLE>
v
<PAGE> 7
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December
6, 1996 (this "Agreement"), is among:
(a) Energy Ventures, Inc., a Delaware corporation (the
"Company");
(b) EVI Oil Tools, Inc., a Delaware corporation; Grant
Prideco, Inc., a Delaware corporation (the successor of
a merger of Prideco, Inc., a Texas corporation, with and
into Grant Prideco, Inc.); Prideco Holdings, Inc., a
Delaware corporation; Channelview Real Property, Inc., a
Delaware corporation; EVI Management Inc., a Delaware
corporation; EVI Arrow, Inc., a Delaware corporation;
and EVI Watson Packers, Inc., a Delaware corporation
(together with each other Person that becomes a
Subsidiary Guarantor pursuant to Section 8.02,
collectively, the "Subsidiary Guarantors");
(c) the banks and other financial institutions listed on the
signature pages hereof under the caption "Lenders"
(together with each other Person that becomes a Lender
pursuant to Section 12.11, collectively, the "Lenders");
and
(d) The Chase Manhattan Bank, a New York banking corporation
and the successor to The Chase Manhattan Bank, N.A.,
individually as a Lender and as agent for the other
Lenders (in such capacity together with any other Person
that becomes the Agent pursuant to Section 11.06, the
"Agent").
PRELIMINARY STATEMENTS
(A) The Company, the Subsidiary Guarantors (or, in the case of Grant
Prideco, Inc., its predecessors and excluding EVI Arrow, Inc., and EVI Watson
Packers, Inc., which were created subsequently to the date of the Original
Credit Agreement, defined below), Mallard Bay Drilling, Inc., a Louisiana
corporation ("Mallard Bay Drilling"), Bay Drilling Corporation, a Louisiana
corporation ("Bay Drilling"), EV Offshore, Inc., a Louisiana corporation ("EV
Offshore"), AWI Drilling & Workover, Inc., a Louisiana corporation ("AWI"),
Mallard Peru Holdings, Inc., a Delaware corporation, that was formerly EVI
International, Inc., a Delaware corporation ("EVI International"), and Delta
Crewboats, Inc., a Louisiana corporation ("Delta", and together with Bay
Drilling, EV Offshore, AWI and EVI International,collectively the "Mallard
Subsidiaries") entered into a credit agreement dated as of June 26, 1996 with
the Lenders (the "Original Credit Agreement"), and the Lenders were willing to
make (1) Tranche A Revolving Credit Loans (as defined therein) to the Company
in an aggregate amount not exceeding $90,000,000 at any time outstanding and
(2) Tranche B Revolving Credit Loans (as
<PAGE> 8
defined therein) to the Company in an aggregate amount not exceeding
$30,000,000 at any time outstanding.
(B) Prideco, Inc., a Texas corporation, has been merged with and
into Grant Prideco, Inc., a Delaware corporation.
(C) The Company has, with the consent of the Lenders, sold Mallard
Bay Drilling and the Mallard Subsidiaries, and Mallard Bay Drilling and the
Mallard Subsidiaries ceased to be parties to the Original Credit Agreement.
(D) The Company has requested the Lenders to amend and restate the
Original Credit Agreement to, inter alia, merge the Tranche A Revolving Credit
Commitment (as defined therein) and the Tranche B Revolving Credit Commitment
(as defined therein) into a single $120,000,000 commitment and to amend certain
other provisions of the Original Credit Agreement. The Lenders are willing to
so amend and restate the Original Credit Agreement on the terms and conditions
herein set forth. Accordingly, the Company, the Agent and the Lenders agree as
follows:
ARTICLE I
DEFINITIONS; ACCOUNTING TERMS; INTERPRETATION
SECTION 1.01. Definitions. As used in this Agreement, the
following terms shall have the following meanings:
"Administrative Questionnaire" means an Administrative
Questionnaire in the form of Exhibit 1.01A, which each Lender shall complete
and provide to the Agent and the Company.
"Affiliate" means, with respect to any Person, any other
Person that, directly or indirectly, controls, is controlled by or is under
direct or indirect common control with, such Person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling" and "controlled"), when used with respect to any Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise.
"Affiliate Transaction" has the meaning specified in Section
8.10.
"Agent" has the meaning specified in the introduction to this
Agreement.
"Agent's Letter" has the meaning specified in Section 4.01(c).
"Agreement" has the meaning specified in the introduction to
this Agreement.
"Alberta" means 675833 Alberta Ltd., a province of Alberta
corporation.
2
<PAGE> 9
"Alternate Base Rate" means, for any date, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. For purposes hereof, the term "Prime Rate" shall mean, as of
a particular date, the prime rate most recently announced by the Agent at its
Payment Office, automatically fluctuating upward and downward with and at the
time specified in each such announcement without notice to the Company or any
other Person, which prime rate may not necessarily represent the lowest or best
rate actually charged to a customer. "Base CD Rate" shall mean the sum of (x)
the product of (i) the Three-Month Secondary CD Rate and (ii) Statutory
Reserves and (y) the Assessment Rate. "Three-Month Secondary CD Rate" means,
for any day, the secondary market rate, for three-month certificates of deposit
reported as being in effect on such day (or, if such day is not a Business Day,
the next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will, under
the current practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate shall
not be so reported on such day or such next preceding Business Day, the average
of the secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately 9:00 a.m.
(New York City time) on such day (or, if such day shall not be a Business Day,
on the next preceding Business Day) by the Agent from three New York City
negotiable certificate of deposit dealers of recognized standing selected by
it. "Federal Funds Effective Rate" means, for any day, 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 such day on
such transactions received by the Agent from three federal funds brokers of
recognized standing selected by it. If for any reason the Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Base CD Rate or the Federal Funds Effective Rate,
or both, for any reason, including the inability or failure of the Agent to
obtain sufficient quotations in accordance with the terms hereof, the Alternate
Base Rate shall be determined without regard to clause (b) or (c), or both, of
the first sentence of this definition, as appropriate, until the circumstances
giving rise to such inability or failure no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate, respectively.
"Alternate Base Rate Loan" means any Loan bearing interest at
a rate determined by reference to the Alternate Base Rate in accordance with
the provisions of Article II.
"Applicable Fee Percentage" means, with respect to any
Reference Period, the applicable percentage set forth below:
3
<PAGE> 10
(a) during the period from the Execution Date to the
Financial Statement Delivery Date for the fiscal quarter ending December 31,
1996, 1/4 of 1%; and
(b) if the Applicable Fee Percentage is to be determined
with respect to the financial statements delivered pursuant to Section 7.01(a)
or Section 7.01(b), on any Financial Statement Delivery Date for any fiscal
quarter ending on or after December 31, 1996, the percentage shown below
opposite the applicable percentage that Consolidated Indebtedness is of Total
Capitalization for such fiscal quarter:
<TABLE>
<CAPTION>
Consolidated Indebtedness
as a Percentage of Applicable Fee
Total Capitalization Percentage
------------------------------ ----------------
<S> <C>
less than 40% 1/4 of 1%
equal to or greater than 40% 3/8 of 1%
</TABLE>
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of an Alternate Base
Rate Loan and such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Loan.
"Application" means an application, in such form as the
Issuing Bank may specify from time to time, requesting the Issuing Bank to
issue a Letter of Credit.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day which is payable by a member of the Bank Insurance
Fund classified as well capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.4(e) (or any successor provision) to the FDIC for the FDIC
insuring time deposits at offices of such institution in the United States.
"Asset Disposition" means any sale, lease, conveyance,
transfer or other disposition (or series of related sales, leases, conveyances,
transfers or dispositions) of any Capital Stock of a Subsidiary (whether or not
upon issuance), property or other assets (each referred to for purposes of this
definition as a "disposition") by the Company or any of the Restricted
Subsidiaries, whether for cash or other consideration (other than (a) a
disposition by a domestic Restricted Subsidiary to the Company or another
domestic Restricted Subsidiary, (b) a disposition by a foreign Restricted
Subsidiary to the Company, a domestic Restricted Subsidiary or another foreign
Restricted Subsidiary (other than Highland Corod), (c) an advance of the
proceeds of any Loan by the Company to a Restricted Subsidiary, (d) a
disposition of Inventory in the ordinary course of business, (e) a disposition
that is a Permitted Joint Venture Investment, (f) mergers, consolidations or
exchanges made in compliance with Section 8.02, (g) dispositions pursuant to
Section 8.02(e), or (h) a disposition or dispositions by the Company and the
Restricted Subsidiaries having an aggregate fair market value of less than
$1,000,000 for all such dispositions during any 12-month period).
4
<PAGE> 11
"Assignment and Acceptance" has the meaning specified in
Section 12.11(c).
"Assurance" means, as to any Person, any guaranty or other
contingent liability of such Person (other than any endorsement for collection
or deposit in the ordinary course of business) or obligations as an account
party in respect of letters of credit, direct or indirect, with respect to any
obligation of another Person, through an agreement or otherwise, including (a)
any other endorsement or discount with recourse or undertaking substantially
equivalent to or having economic effect similar to a guarantee in respect of
any such obligation and (b) any agreement (i) to purchase, or to advance or
supply funds for the payment or purchase of, any such obligation, (ii) to
purchase securities or to purchase, sell or lease property (whether as lessee
or lessor), products, materials or supplies, or transportation or services, in
respect of enabling such other Person to pay any such obligation or to assure
the owner thereof against loss regardless of the delivery or non-delivery of
the securities, property, products, materials or supplies, or transportation or
services or (iii) to make any loan, advance or capital contribution to or other
investment in, or to otherwise provide funds to or for, such other Person in
respect of enabling such Person to satisfy any obligation (including any
liability for a dividend, stock liquidation payment or expense) or to assure a
minimum equity, working capital or other balance sheet condition in respect of
any such obligation. The amount of any Assurance shall be an amount equal to
the lesser of the stated or determinable amount of the primary obligation in
respect of which such Assurance is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in good
faith.
"Attributable Debt" means, with respect to any particular
Capital Lease under which any Person is at the time liable and at any date as
of which the amount thereof is to be determined, the present value of the total
net amount of rent required to be paid by such Person under the lease during
the primary term thereof, without giving effect to any renewals at the option
of the lessee, discounted from the respective due dates thereof to such date at
the rate of interest per annum implicit in the terms of the lease. As used in
the preceding sentence, the "net amount of rent" under any lease for any such
period shall mean the sum of rental and other payments required to be paid with
respect to such period by the lessee thereunder excluding any amounts required
to be paid by such lessee on account of maintenance and repairs, insurance,
taxes, assessments, water rates or similar charges. In the case of any lease
which is terminable by the lessee upon payment of a penalty, such net amount of
rent shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated. Tax Benefit Transfer Lease Obligations
shall not constitute Attributable Debt.
"Average Life" means, as of the date of determination, with
reference to any Indebtedness, the quotient obtained by dividing (a) the sum of
the products of the number of years from the date of determination to the dates
of each successive scheduled principal payment of such Indebtedness multiplied
by the amount of such principal payment by (b) the sum of all such principal
payments.
5
<PAGE> 12
"Bankruptcy Code" has the meaning specified in Section
9.01(a).
"Base CD Rate" has the meaning specified in the definition of
the term Alternate Base Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Board of Directors" means, with respect to any Person, the
Board of Directors of such Person or any committee of the Board of Directors of
such Person duly authorized to act on behalf of the Board of Directors of such
Person.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and
to be in full force and effect on the date of such certification, and delivered
to the Agent.
"Borrowing" means a borrowing pursuant to a Notice of
Borrowing comprised of one Type of Loans from all the Lenders (or resulting
from a conversion or conversions on the same date having in the case of
Eurodollar Rate Loans the same Interest Period (except as otherwise provided in
this Agreement)) made by all of the Lenders concurrently to the Company.
"Borrowing Base" means, as at any date, the amount of the
Borrowing Base as of the date of the Borrowing Base Certificate then most
recently delivered pursuant to Section 7.01(c), determined by calculating the
sum of:
(a) 80% of the aggregate amount of Eligible Receivables
at that date, plus
(b) 30% of the aggregate amount of Grant Prideco Eligible
Inventory at that date, plus
(c) 50% of the aggregate amount of all EVI Oil Tools
Eligible Inventory, plus
(d) 100% of the aggregate amount of cash held in deposit
accounts maintained by the Company or any Restricted Subsidiary in
excess of $20,000,000.
The sum of the amounts to be included in the Borrowing Base determined pursuant
to clause (b) and clause (c) shall at no time exceed 50% of the Borrowing Base.
Notwithstanding the foregoing, until the date on which the first Borrowing Base
Certificate is required to be delivered pursuant to Section 7.01(c), the
Borrowing Base shall be $120,000,000.
6
<PAGE> 13
"Borrowing Base Certificate" means a certificate, duly
executed by the chief executive officer or the chief financial officer of the
Company, appropriately completed and in substantially the form of Exhibit 1.01B
hereto.
"Borrowing Date" means, with respect to each Borrowing, the
Business Day upon which the proceeds of such Borrowing are to be made available
to the Company.
"Business Day" means any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York or the State of
Texas) on which banks are open for business in New York, New York and in
Houston, Texas; provided, however, that, when used in connection with a
Eurodollar Rate Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London
Interbank Market.
"Capital Expenditures" means, for any period, the sum of all
expenditures (whether paid in cash or accrued as a liability, including the
portion of Capital Lease Obligations originally incurred during such period
that are capitalized for the consolidated balance sheet of the Company) by the
Company and the Restricted Subsidiaries during such period, that, in conformity
with GAAP, are included in "capital expenditures," "additions to property,
plant or equipment" or comparable items in the consolidated financial
statements of the Company, provided, however, that such term shall not include
any amount in respect of the value of all net non-current assets of businesses
acquired by the Company and the Restricted Subsidiaries during such period,
including all purchase price adjustments.
"Capital Lease" means, as to any Person, any lease in respect
of which the rental obligation of such Person constitutes a Capitalized Lease
Obligation.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents (however designated) of such Person's equity, including all
common stock and preferred stock, any limited or general partnership interest
and any limited liability company membership.
"Capitalized Lease Obligation" means, with respect to any
Person, the obligation of such Person to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) real or personal
property that is required to be classified and accounted for as a capital lease
obligation on a balance sheet of such Person under GAAP and, for purposes of
this Agreement, the amount of such obligation at any date will be the
capitalized amount thereof at such date, determined in accordance with GAAP.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act.
"Change of Control" means an event or series of events by
which (a) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act as in effect on
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<PAGE> 14
the Execution Date) or related persons constituting a "group" (as such term is
used in Rule 13d-5 under the Exchange Act in effect on the Execution Date) is
or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, as in effect on the Execution Date, except that a person or
such group shall be deemed to have "beneficial ownership" of all shares that
any such person or such group has the right to acquire without condition, other
than the passage of time, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of 50% or more of the total
voting power of the Voting Stock of the Company; (b) the Company consolidates
with or merges into another Person or conveys, transfers or leases all or
substantially all of its assets to any Person, or any Person consolidates with,
or merges into, the Company in a transaction not otherwise permitted by Section
8.02; (c) the Company conveys, transfers or leases all or substantially all of
its assets to any Person; (d) the stockholders of the Company approve any plan
of liquidation or dissolution of the Company; or (e) during any period of
twelve consecutive months, individuals who, at the beginning of such period,
constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the stockholders of the Company, as applicable, was approved by a
vote of not less than a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Company then in office.
"Change of Control Event" means (a) the execution of any
definitive agreement which when fully performed by the parties thereto, would
result in a Change of Control; or (b) the commencement of a tender offer
pursuant to Section 14(d) of the Exchange Act.
"Chase" means The Chase Manhattan Bank, a New York banking
corporation.
"Code" means Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated thereunder.
"Collateral" means, collectively, all the properties and
assets of the Loan Parties described in and subject to the Liens purported to
be created by the Security Documents.
"Commitment" means, with respect to each Lender, the amount
set forth opposite the name of such Lender under the heading "Commitment" on
the signature page for such Lender or, in the case of any Person who becomes a
Lender after the Execution Date, on the signature page of the Assignment and
Acceptance executed by such Lender, in each case, as the same may be terminated
in whole or from time to time in part pursuant to Section 4.02, Section 4.03 or
Article X.
"Commitment Fees" has the meaning specified in Section
4.01(a).
"Communications" has the meaning specified in Section 12.02.
"Company" has the meaning specified in the introduction to
this Agreement.
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<PAGE> 15
"Company Pledge Agreement" means the Pledge Agreement dated as
of June 26, 1996, as amended as of the date hereof, and executed by the Company
and the Agent for the benefit of Secured Parties.
"Company Security Agreement" means the Security Agreement
dated as of June 26, 1996, as amended as of the date hereof, and executed by
the Company and the Agent for the benefit of the Secured Parties.
"Consolidated EBITDA" means, for any period, the Consolidated
Net Income of the Company and the Restricted Subsidiaries for such period,
increased (to the extent deducted in determining Consolidated Net Income) by
the sum of (a) all income taxes (including state franchise taxes based on
income) of the Company and the Restricted Subsidiaries paid or accrued
according to GAAP for such period; (b) Consolidated Interest Expense of the
Company and the Restricted Subsidiaries for such period; (c) depreciation and
amortization of the Company and the Restricted Subsidiaries for such period
determined in accordance with GAAP; and (d) other non-cash charges (excluding
any such non- cash charges to the extent they require an accrual of, or reserve
for, cash charges for any future periods) for such period determined in
accordance with GAAP.
"Consolidated Indebtedness" means, at the date of any
determination thereof, Indebtedness of the Company and the Restricted
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means (without duplication),
with respect to the Company and the Restricted Subsidiaries for any period, the
aggregate amount of interest, whether expensed or capitalized, paid, accrued or
scheduled to be paid or accrued during such period in respect of all
Indebtedness of the Company and the Restricted Subsidiaries including (a) the
interest portion of any deferred payment obligation, (b) the portion of any
rental obligation (other than rental obligations incurred in connection with
Tax Benefit Transfer Leases) in respect of any Capitalized Lease Obligation or
Sale-Leaseback Transaction allocable to interest expense and (c) any non-cash
interest payments or accruals (including amortization of original issue
discounts but excluding amortization of capitalized issuance costs), all
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" of the Company and the Restricted
Subsidiaries means, for any period, the net income or loss of the Company and
the Restricted Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP; provided, that there shall be excluded, without
limitation, from such net income (to the extent otherwise included therein):
(a) net extraordinary gains and losses;
(b) net gains or losses in respect of dispositions of
assets other than in the ordinary course of business;
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<PAGE> 16
(c) the net income of any Person in which any of the
Company or any Restricted Subsidiary has a joint equity interest, but
only to the extent of the amount of dividends or other distributions
actually paid to the Company or any Restricted Subsidiary by such
other Person during such period;
(d) the net income of any Unrestricted Subsidiary, except
to the extent of the amount of dividends or other distributions
actually paid to the Company or any Restricted Subsidiary by such
Unrestricted Subsidiary during such period;
(e) the net income of any Person accrued prior to the
date it becomes a Restricted Subsidiary or is merged into or
consolidated with the Company or any Restricted Subsidiary or prior to
the date its assets are acquired by the Company or any of the
Restricted Subsidiaries;
(f) the net income of any Restricted Subsidiary to the
extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary;
(g) any gains or losses attributable to write-ups or
write-downs of assets other than in the ordinary course of business;
and
(h) foreign currency translations or adjustments.
"Credit Event" means the making of any Loan or the issuance or
the extension of any Letter of Credit.
"Default" means the occurrence of any event which with the
giving of notice or the passage of time or both could become an Event of
Default.
"Default Rate" has the meaning specified in Section 2.08.
"Designated Payment Date" means June 30, September 30,
December 31 and March 31 in any year; provided, however, if in any such year a
Designated Payment Date shall be a day which is not a Business Day, such
Designated Payment Date shall be the preceding Business Day.
"Disqualified Stock" means any Capital Stock issued by the
Company or any Restricted Subsidiary that, by its terms (or by the terms of any
security into which it is convertible or for which it is exercisable,
redeemable or exchangeable), or upon the happening of an event or with the
passage of time, matures, or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the option of the holder
thereof, in whole or in part, in each case on, or prior to, the Stated Maturity
Date, or which is
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<PAGE> 17
exchangeable or convertible into debt securities of the Company or any
Subsidiary, except to the extent that such exchange or conversion rights cannot
be exercised prior to the Stated Maturity Date.
"Distribution Date" has the meaning specified in Section
10.03.
"Dollars" and the symbol "$" mean the lawful currency of the
United States of America.
"domestic" means, when used with respect to any Subsidiary of
any Person, a Subsidiary of such Person organized under the laws of one of the
states of the United States or the District of Columbia.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" on such
Lender's signature page to this Agreement or, as to any Person who becomes a
Lender after the date hereof, on the signature page of the Assignment and
Acceptance executed by such Person, in the Administrative Questionnaire
delivered by such Person or such other office of such Lender as such Lender may
hereinafter designate from time to time its "Domestic Lending Office" by notice
to the Company and the Agent.
"Domestically Owned Foreign Restricted Subsidiary" means any
foreign Restricted Subsidiary of the Company, all of the Capital Stock of which
is owned by the Company or one or more domestic Restricted Subsidiaries or
both.
"Drawing" has the meaning specified in Section 3.04(a).
"Effective Date" means the date on which the conditions to
borrowing set forth in Article V are first met.
"Eligible Assignee" means (a) any Lender; (b) a commercial
bank organized or licensed under the laws of the United States, or a state
thereof, and having total assets in excess of $1,000,000,000; (c) a commercial
bank organized under the laws of any other country which is a member of the
OECD, or a political subdivision of any such country, and having total assets
in excess of $1,000,000,000; provided that such bank is acting through a branch
or agency located in the country in which it is organized or another country
which is also a member of the OECD; and (d) any other bank approved by the
Agent and the Company.
"Eligible Inventory" means, at any time, all inventory (as
such term is defined in Section 9-109(4) of the UCC) of a Loan Party for which
each of the following statements is accurate and complete (and the Company by
including such inventory in any computation of the Borrowing Base shall be
deemed to represent and warrant to the Agent, the Issuing Bank and each Lender
the accuracy and completeness of such statements as to said inventory):
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<PAGE> 18
(a) Said inventory shall be valued in accordance with
GAAP and (i) shall include raw materials and finished goods but (ii)
shall not include goods that are classified as "work-in-progress";
(b) Said inventory is in good condition, meets all
standards imposed by any Governmental Authority having regulatory
authority over it, its use and/or sale and is either currently usable
or currently salable in the normal course of business of a Loan Party;
(c) Said inventory is not (i) located outside the United
States of America or (ii) in the possession or control of any
warehouseman, bailee, or any agent or processor for or customer of a
Loan Party or, if it is in any such Person's possession, the Company
or its applicable Subsidiaries shall have notified (in a manner that
effectively under applicable law creates a valid and first priority
perfected Lien in favor of the Agent, on behalf of the Lenders, in
such inventory) such warehouseman, bailee, agent, processor or
customer and such warehouseman, bailee, agent, processor or customer
has waived or subordinated any Lien (other than Permitted Collateral
Liens of a type described in clause (a) or (b) of the definition of
that term) it may claim therein and agreed to hold all such inventory
for the Agent's account subject to the Agent's instructions;
(d) Each of the representations and warranties set forth
in the Security Documents with respect to said inventory is true and
correct in all material respects on such date;
(e) Said inventory is, and at all times will be, free and
clear of all Liens, except the Agent, on behalf of the Lenders, shall
have the first-priority perfected Lien covering said inventory subject
only to Permitted Collateral Liens of a type described in clause (a)
or (b) of the definition of that term;
(f) Said inventory does not include goods that have been
damaged or returned;
(g) Said inventory is not Permitted Consigned Inventory;
and
(h) Said inventory does not include goods that are not
owned by a Loan Party or that are held by a Loan Party pursuant to a
consignment agreement.
"Eligible Receivables" means, at any time, the net invoice or
ledger amount owing on each account (which shall mean any "account" as such
term is defined in Section 9-106 of the UCC and any "chattel paper" as such
term is defined in Section 9-105(l)(b) of the UCC) of a Loan Party arising from
the sale, lease or exchange of goods or the rendering of any service by a Loan
Party (net of any credit balance, returns, trade discounts or unbilled amounts
or retention) for which each of the following statements is accurate and
complete (and the Company by including such account in any computation of the
Borrowing Base shall be deemed to
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<PAGE> 19
represent and warrant to the Agent, the Issuing Bank and the Lenders the
accuracy and completeness of such statements):
(a) Said account or chattel paper is a binding and valid
obligation of the obligor thereon in full force and effect;
(b) Said account or chattel paper is genuine as appearing
on its face or as represented in the books and records of a Loan
Party;
(c) Said account or chattel paper is free from claims
regarding rescission, cancellation or avoidance, whether by operation
of law or otherwise;
(d) Payment of said account or chattel paper is less than
90 days past due as determined by the due date stated on the invoice
therefor (or if said account or chattel paper is not paid by reference
to an invoice in the ordinary course of business but instead by
reference to the terms of the agreements creating said account or
chattel paper, said account or chattel paper has not remained unpaid
beyond 90 days after the due date therefor);
(e) Said account or chattel paper is net of concessions,
offset (excluding any accounts payable offset supported by a letter of
credit) or understandings with the obligor thereon of any kind;
(f) Said account or chattel paper is, and at all times
will be, free and clear of all Liens, except the Agent, on behalf of
the Lenders, shall have a first priority perfected Lien covering said
account;
(g) Said account or chattel paper is derived from goods
sold or leased or services rendered to the obligor in the ordinary
course of business of a Loan Party;
(h) Said account or chattel paper is not (i) carried on
the books of a Loan Party, as an "exchange account receivable" or (ii)
subject to an exchange agreement with another Person;
(i) Said account or chattel paper is not payable by an
obligor who is more than 90 days past due with regard to 20% or more
of the total accounts and chattel paper owed by such obligor or any of
its Affiliates;
(j) The obligor on said account or chattel paper has been
sent an invoice within 10 days after said account or chattel paper has
been entered on the financial records of a Loan Party;
(k) All consents, licenses, approvals or authorizations
of, or registrations or declarations with, any Governmental Authority
required to be obtained, effected or given
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<PAGE> 20
in connection with the execution, delivery and performance of said
account or chattel paper by each party obligated thereunder have been
duly obtained, effected or given and are in full force and effect;
(l) The obligor on said account or chattel paper (i) is
not the subject of any bankruptcy or insolvency proceeding, has not
had a trustee or receiver appointed for all or a substantial part of
its property, has not made an assignment for the benefit of creditors,
admitted its inability to pay its debts as they mature or suspended
its business; and (ii) is not affiliated, directly or indirectly, with
the Company as a Subsidiary or other Affiliate, employee or otherwise;
(m) The goods sold or leased or services rendered
resulting in the right to payment in connection with said account were
sold, leased or rendered in a state or territory of the United States
of America (excluding, however, such goods which are sold or leased
for export outside of the United States of America), said account or
chattel paper is payable in the United States of America, and the
obligor thereon is subject to the jurisdiction of federal, state or
provincial courts in the United States of America, unless said account
or chattel paper is backed by a letter of credit in form and substance
acceptable to the Agent and issued by an issuer, having capital and
surplus in excess of $500,000,000 and having ratings of A1 and P1 by
Standard & Poor's Rating Group and Moody's Investors Service, Inc.,
respectively;
(n) In the case of the sale of goods, the subject goods
have been sold to an obligor on an absolute sale basis on open account
and not on consignment, on approval or a "sale or return" basis or
subject to any other repurchase or return agreement and no material
part of the subject goods has been returned, rejected, lost or
damaged, the said account is not, evidenced by chattel paper or an
instrument of any kind;
(o) Each of the representations and warranties set forth
in the Security Documents with respect to said account or chattel
paper is true and correct in all material respects on such date; and
(p) Said account or chattel paper has not been otherwise
determined by the Agent, in its good faith discretion, to be
unacceptable in accordance with its customary practices for facilities
of this nature;
provided, that, if any account, when added to all other accounts that are
obligations of the same obligor and its Affiliates, results in a total sum that
exceeds 15% of the total balance then due on all Eligible Receivables, the
amount of said account in excess of 15% of such total balance then due shall be
excluded from Eligible Receivables.
"Environmental Laws" means any Requirement of Law and any
applicable judicial or administrative interpretations thereof, as well as any
applicable judicial or administrative
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<PAGE> 21
orders, decrees or judgments, relating to pollution, environmental, health,
safety, industrial hygiene or similar matters.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the regulations promulgated thereunder.
"ERISA Affiliate" means (a) any trade or business (whether or
not incorporated) which is under common control with the Company or any other
Loan Party within the meaning of Section 4001 of ERISA or is part of a group
which includes the Company or any Loan Party and which is treated as a single
employer under Section 414 of the Code and the regulations thereunder, with a
Loan Party and (b) any Subsidiary of any Loan Party.
"Eurodollar Lending Office" means, with respect to each
Lender, the branches or affiliates of such Lender which such Lender has
designated as its "Eurodollar Lending Office" on such Lender's signature page
to this Agreement or, as to any Person who becomes a Lender after the date
hereof, on the signature page of the Assignment and Acceptance executed by such
Person, in the Administrative Questionnaire delivered by such Person or such
other office of such Lender as such Lender may hereafter designate from time to
time as its "Eurodollar Lending Office" by notice to the Company and the Agent.
"Eurodollar Rate Borrowing" means a Borrowing comprised of
Eurodollar Rate Loans.
"Eurodollar Rate Loan" means any Loan bearing interest at a
rate determined by reference to the LIBO Rate in accordance with the provisions
of Article II.
"Events of Default" has the meaning specified in Section
10.01.
"EVI Arrow" means EVI Arrow, Inc., a Delaware corporation.
"EVI-Highland" means EVI-Highland Pump Company, a Delaware
corporation.
"EVI International" has the meaning specified in the
introduction to this Agreement.
"EVI Oil Tools" means EVI Oil Tools, Inc., a Delaware
corporation, resulting from the merger of EVI Oil Tools, Inc., a Delaware
corporation, and Production Oil Tools, Inc., a Wyoming corporation, with and
into EVI-Highland and the change of the name of EVI-Highland to EVI Oil Tools,
Inc..
"EVI Oil Tools Eligible Inventory" means the Eligible
Inventory owned by EVI Oil Tools.
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<PAGE> 22
"EVI Watson Packers" means EVI Watson Packers, Inc., a
Delaware corporation.
"Excess Funding Obligor" has the meaning specified in Section
9.05.
"Excess Payment" has the meaning specified in Section 9.05.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Execution Date" means the earliest date upon which all of the
following shall have occurred: counterparts of this Agreement shall have been
executed by the Loan Parties and each Lender listed on the signature pages
hereof and the Agent shall have received counterparts hereof which taken
together, bear the signature of the Loan Parties and each Lender and the Agent.
"FDIC" means the Federal Deposit Insurance Corporation (or
any successor).
"Federal Funds Effective Rate" has the meaning specified in
the definition of the term "Alternate Base Rate."
"Fees" means all amounts payable pursuant to Section 4.01.
"Financial Statement Delivery Date" means the date on which
the quarterly or annual financial statements of the Company are to be delivered
pursuant to Section 7.01(a) or Section 7.01(b), as the case may be.
"foreign" means , when used with respect to a Subsidiary of
any Person, a Subsidiary of such Person organized under the laws of any
jurisdiction other than a state of the United States or the District of
Columbia.
"Foreign Owned Foreign Restricted Subsidiary" means any
foreign Restricted Subsidiary the Capital Stock of which is owned by one or
more foreign Restricted Subsidiaries of the Company.
"GAAP" means generally accepted accounting principles as in
effect from time to time as set forth in the opinions, statements and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants, the Financial Accounting Standards Board and, in
the case of the Company, such other Persons who shall be approved by a
significant segment of the accounting profession and concurred in by the
independent certified public accountants certifying any audited financial
statements of the Company.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
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<PAGE> 23
"Grant Prideco" means Grant Prideco, Inc., a Delaware
corporation, the successor of a merger of Prideco, Inc., a Texas corporation,
with and into Grant Prideco, Inc.
"Grant Prideco Eligible Inventory" means the Eligible
Inventory owned by Grant Prideco.
"Guaranteed Obligations" has the meaning specified in Section
9.01.
"Guaranty" means the guaranty of the Subsidiary Guarantors
contained in Article IX.
"Hazardous Materials" means any hazardous substance, hazardous
or toxic waste, pollutant, contaminant, oil, petroleum product, or other
substance which is listed, regulated, or designated as toxic or hazardous (or
words of similar meaning and regulatory effect), or with respect to which
remedial obligations may be imposed, under any Environmental Laws.
"Highest Lawful Rate" means, as to any Lender, at the
particular time in question, the maximum nonusurious rate of interest which,
under applicable law, such Lender is then permitted to charge the Company on
the Loans.
"Highland Corod" means Highland Corod, Inc., a corporation
organized under the laws of Canada.
"Highland Corod Indebtedness" means the indebtedness of
Highland Corod to one or more lenders in a principal amount not to exceed
20,000,000 Canadian dollars at any time outstanding.
"Impermissible Qualification" means, relative to any opinion
by independent public accountants as to any financial statement of the Company
and its Subsidiaries, any qualification or exception to such opinion:
(a) which is of a "going concern" or a similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement or reliance on the opinions of
other independent public accountants (other than scope limitations included in
the standard form of opinion utilized by such accountants); or
(c) which relates to the treatment or classification of
any item in such financial statement and which, as a condition to its removal,
would require an adjustment to such item the effect of which would be to cause
a default under Article VIII.
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<PAGE> 24
"Indebtedness" means (without duplication), with respect to
any Person, (a) any liability of such Person (i) for borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof), or under any reimbursement obligation relating to a
letter of credit, bankers' acceptance or note purchase facility, (ii) evidenced
by a bond, note, debenture or similar instrument, (iii) for the balance
deferred and unpaid of the purchase price for any property or any obligation
upon which interest charges are customarily paid (except for trade payables
arising in the ordinary course of business), or (iv) for the payment of money
relating to the principal portion of any Capitalized Lease Obligation; (b) any
obligation of any Person secured by (or for which the holder of such obligation
has an existing right, contingent or otherwise, to be secured by) a consensual
Lien on property owned or acquired, whether or not any obligation secured
thereby has been assumed, by such Person; (c) all net obligations of such
Person as of the date of a required calculation under foreign currency hedges
entered into in the ordinary course of business and not for the purpose of
speculation; (d) all Assurances of such Person of the Indebtedness of any other
Person of the type referred to in clauses (a) or (c); and (e) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to above.
"Indemnitee" has the meaning specified in Section 12.05.
"Indenture" means the Indenture dated as of March 15, 1994,
among the Company, certain Subsidiaries thereof, and Chemical Bank, as trustee,
and covering the 10 1/4% Senior Notes due 2004.
"Information Memorandum" means the Confidential Information
Memorandum dated May 1996 furnished by the Agent to the Lenders.
"Insurance Opinion" has the meaning specified in Section 7.03.
"Interest Coverage Ratio" means, at December 31, 1996 and at
the end of each fiscal quarter thereafter, the ratio of (a) the excess of
Consolidated EBITDA for the fiscal quarter then ended and for the immediately
preceding three fiscal quarters over Capital Expenditures of the Company and
the Restricted Subsidiaries made or incurred during such four fiscal quarters
to (b) Consolidated Interest Expense for such four fiscal quarters.
"Interest Period" has the meaning specified in Section 2.09.
"Interest Rate Agreement" means an interest rate protection
agreement (including interest rate swaps, caps, floors, collars and similar
agreements) and other types of interest rate hedging agreements.
"Investment" means, as applied to any Person, any direct or
indirect purchase or other acquisition by such Person of stock or other
securities of any other Person, or any direct or indirect loan, advance or
capital contribution by such Person to any other Person, and any other item
which would be classified as an "investment" on a balance sheet of such Person
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<PAGE> 25
prepared in accordance with GAAP, including any direct or indirect contribution
by such Person of property or assets to a joint venture, partnership or other
business entity in which such Person retains an interest.
"Issuing Bank" means the Lender that issues Letters of Credit
under this Agreement, which on the Effective Date will be Chase.
"Issuing Bank Fees" has the meaning specified in Section
4.01(b).
"Lender" has the meaning specified in the introduction to this
Agreement.
"Letter of Credit Fees" has the meaning specified in Section
4.01(b).
"Letter of Credit Limit" means $15,000,000.
"Letter of Credit Margin" means, with respect to each Letter
of Credit, the Margin applicable from time to time to Loans that are Eurodollar
Rate Loans.
"Letter of Credit Outstandings" means, at any time, the sum
of, without duplication, (a) the aggregate Stated Amount of all outstanding
Letters of Credit and (b) the amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" has the meaning specified in
Section 3.02.
"Letters of Credit" has the meaning provided in Section 3.01.
"LIBO Rate" means, with respect to each day during each
Interest Period pertaining to a Eurodollar Rate Loan, the rate at which dollar
deposits approximately equal in principal amount to the entire portion of such
Borrowing and for a maturity equal to the applicable Interest Period are
offered in immediately available funds at the principal office of Chase or any
other institution that may be the Agent in London, England (or if such other
institution does not at the time any such determination is made, maintain an
office in London, England, the principal office of any Affiliate of such other
institution in London, England) by leading banks in the London interbank market
for eurodollars at approximately 11:00 a.m. (London, England time) two Business
Days prior to the commencement of such Interest Period.
"Lien" means any lien, mortgage, pledge, assignment (including
any assignment of rights to receive payments of money), security interest,
charge or encumbrance of any kind including any conditional sale or other title
retention agreement or any lease (excluding, however, any lease that is not a
Capital Lease) in the nature thereof (whether voluntary or involuntary and
whether imposed or created by operation of law or otherwise), and any agreement
to give a lien, mortgage, pledge, assignment (including any assignment of
rights to receive payments of money), security interest, charge or other
encumbrance of any kind.
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Neither negative pledges, nor covenants to abstain from granting liens on or
security interests in assets of the Company or any of its Subsidiaries, shall
constitute Liens, and the inclusion of any such provisions in agreements of the
Company or any of its Subsidiaries shall not constitute a breach or violation
of this Agreement.
"Lines of Business" means any of (a) the manufacture,
production, distribution or sale of oil field service equipment; (b) the
provision of any other oil field services to Persons in the oil and gas
industry; (c) the manufacture, production, distribution, leasing as a lessor or
sale of any products for use in the oil and gas industry; and (d) the provision
of other services and the sale of other goods related to any of the foregoing.
"Loan" and "Loans" have the meanings provided in Section 2.01.
"Loan Documents" means, collectively, this Agreement
(including the Guaranty), the Notes, the Letter of Credit Requests, the
Applications, the Agent's Letter, the Security Documents and all other
instruments and documents from time to time executed and delivered by any Loan
Party in connection herewith and therewith.
"Loan Party" means the Company or any Subsidiary Guarantor and
"Loan Parties" means the Company and the Subsidiary Guarantors.
"Majority Lenders" means, at any time, Lenders holding at
least 66 2/3% of the then aggregate unpaid principal amount of the Loans or if
no Loans are outstanding, Lenders having at least 66 2/3% of the sum of the
available Total Commitment.
"Mallard Bay Drilling" has the meaning specified in the
Preliminary Statements.
"Mallard Subsidiaries" has the meaning specified in the
Preliminary Statements.
"Margin" means, with respect to any Loan for any Reference
Period, the rate of interest per annum determined as set forth below as a
function of whether such Loan is a Eurodollar Rate Loan or an Alternate Base
Rate Loan:
(a) during the period from the Execution Date to the
Financial Statement Delivery Date for the fiscal quarter of the
Company ending December 31, 1996, the Margin will be:
20
<PAGE> 27
<TABLE>
<CAPTION>
Eurodollar Alternate Base
Rate Loan Rate Loan
---------- ---------------
<S> <C>
7/8% 0%
</TABLE>
(b) if the Margin is to be determined with respect to the
consolidated balance sheet included in the financial statements
delivered pursuant to Section 7.01(a) or Section 7.01(b), on any
Financial Statement Delivery Date for any fiscal quarter of the
Company ending on or after December 31, 1996, the Margin for each Type
of Loan shown below the applicable percentage that Consolidated
Indebtedness is of Total Capitalization based on that balance sheet:
(i) if, at the end of such fiscal quarter,
Consolidated Indebtedness is less than 30% of Total Capitalization,
the Margin will be:
Eurodollar Alternate Base
Rate Loan Rate Loan
---------- --------------
5/8% 0%
(ii) if, at the end of such fiscal quarter,
Consolidated Indebtedness is equal to or greater than 30% but less
than 40% of Total Capitalization, the Margin will be:
Eurodollar Alternate Base
Rate Loan Rate Loan
---------- --------------
7/8% 0%
(iii) if, at the end of such fiscal quarter,
Consolidated Indebtedness is equal to or greater than 40% but less
than 45% of Total Capitalization, the Margin will be:
Eurodollar Alternate Base
Rate Loan Rate Loan
---------- --------------
1 1/4% 1/4%
(iv) if, at the end of such fiscal quarter,
Consolidated Indebtedness is equal to or greater than 45% of Total
Capitalization, the Margin will be:
Eurodollar Alternate Base
Rate Loan Rate Loan
---------- --------------
1 1/2% 1/2%
21
<PAGE> 28
Notwithstanding the foregoing, if any of the financial
statements required pursuant to Section 7.01(a) or Section 7.01(b) are not
delivered within the time periods specified in Section 7.01(a) or Section
7.01(b), as the case may be, the Margin shall be the Margin set forth in clause
(b)(iv) above until the date such statements are delivered.
"Material Adverse Effect" means, relative to any occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding) and after taking into
account actual insurance coverage and effective indemnification with respect to
such occurrence, (a) a material adverse effect on the financial condition,
business or operations of the Company and the Restricted Subsidiaries taken as
a whole, (b) the impairment of (i) the ability of the Loan Parties to
collectively perform the payment or other material obligations hereunder or
under the Notes and other Loan Documents or (ii) the ability of the Agent or
the Lenders to realize the material benefits intended to be provided by the
Loan Parties under the Loan Documents or (c) the subjection of any of the
Agent or any Lender to any civil or criminal liability.
"Multiemployer Plan" means any plan which is a "multiemployer
plan" (as such term is defined in Section 4001(a)(3) of ERISA).
"Net Available Proceeds" means, with respect to any Asset
Disposition, the cash and cash equivalent payments (including any cash received
by way of deferred payment pursuant to a note receivable or otherwise, but only
as and when so received and excluding any other consideration until such time
as such consideration is converted into cash) received from such Asset
Disposition, net of (a) fees, commissions, expenses and other direct costs of
sale (including, without limitation, legal, accounting and investment banking
fees and sales commissions); (b) taxes paid or payable as a result thereof
(after taking into account any available tax credits or deductions); (c)
amounts required to be applied to the repayment of Indebtedness which is
secured by a Lien on the asset or assets that are subject to such Asset
Disposition or Indebtedness which must by its terms, or in order to obtain a
necessary consent, or by applicable law, be repaid out of the proceeds of such
Asset Disposition; (d) any amount required to be paid to any Person (other than
the Company or any of the Restricted Subsidiaries) owning a beneficial interest
in the stock or other assets sold; and (e) any reserve or adjustment in respect
of the sale price of such asset or assets.
"Net Worth" means, as to the Company, the sum of the par value
or stated value of its Capital Stock, capital in excess of par or stated value
of shares of its Capital Stock, retained earnings (or minus accumulated
deficit) and any other account which, in accordance with GAAP, constitutes
stockholders' equity, excluding (a) any treasury stock, (b) the net worth of
all Unrestricted Subsidiaries determined for each Unrestricted Subsidiary in
accordance with the provisions of this definition but without regard to this
clause (b) and (c) the effects upon net worth resulting from the translation of
foreign currency denominated assets into Dollars.
22
<PAGE> 29
"New Subsidiary" has the meaning specified in Section 8.02(f).
"Non-Excluded Taxes" has the meaning specified in Section
4.07.
"Note" and "Notes" have the meanings specified in Section
2.05(a).
"Notice of Borrowing" has the meaning provided in Section
2.03.
"Notice of Conversion" has the meaning provided in Section
2.06.
"Notice of Default" has the meaning specified in Section
10.01.
"Obligations" means collectively:
(a) the payment of all indebtedness and liabilities by,
and performance of all other obligations of, the Company in respect of the
Loans;
(b) all obligations of the Company under, with respect to
and relating to the Letters of Credit whether contingent or matured;
(c) the payment of all other indebtedness and liabilities
by and performance of all other obligations of, the Company to the Agent and
the other Secured Parties under, with respect to, and arising in connection
with, the Loan Documents, and the payment of all indebtedness and liabilities
of the Company to the Agent and the other Secured Parties for fees, costs and
expenses (including reasonable attorneys' fees and expenses) under the Loan
Documents;
(d) the payment of all sums advanced by the Agent or any
other Secured Party under any other Security Document to protect the Collateral
or any other collateral covered thereby, with interest thereon at the Default
Rate;
(e) the payment of all sums advanced and costs and
expenses incurred by the Agent or any other Secured Party under any Loan
Document (whether directly or indirectly) in connection with the Obligations or
any part thereof, any renewal, extension or change of or substitution for the
Obligations or, any part thereof, or the acquisition or perfection of the
security therefor, whether such advances, costs and expenses were made or
incurred at the request of any Loan Party, the Agent or any other Secured
Party; and
(f) all renewals, extensions, amendments and changes of,
or substitutions or replacements for, all or any part of the items described
under (a) through (e) above.
"OECD" means the Organization for Economic Cooperation and
Development (or any successor).
23
<PAGE> 30
"Operating Rights" has the meaning specified in Section 6.15.
"Other Activities" has the meaning specified in Section 11.03.
"Original Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Other Financings" has the meaning specified in Section 11.03.
"Parker" means Parker Drilling Company, a Delaware
corporation.
"Payment Office" means the office of the Agent located at 270
Park Avenue, New York, New York 10017, or such other office as the Agent may
hereafter designate in writing as such to the other parties hereto.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle 1 or any entity succeeding to all or any of
its functions under ERISA.
"Percentage Participation" means, for each Lender, with
respect to the Loans, each Letter of Credit and the Letter of Credit
Outstandings, that percentage obtained when dividing the amount of such
Lender's Commitment by the Total Commitment.
"Permitted Business Acquisition" has the meaning specified in
Section 8.02(f).
"Permitted Business Investments" means (a) Investments by the
Company or any domestic Wholly Owned Restricted Subsidiary in any Person
(other than Highland Corod) which, immediately after the making of such
Investment, is a Wholly Owned Restricted Subsidiary; (b) Investments in the
Company by any Restricted Subsidiary which, if any such Investment is a loan or
other extension of credit, is evidenced by a note and subordinated in right of
payment to full and final payment of the Obligations; (c) loans and other
extensions of credit to officers, directors and employees of the Company and
its Subsidiaries for travel, entertainment and moving and other relocation
expenses made in direct furtherance and in the ordinary course of the business
of the Company and its Subsidiaries; (d) Investments and payments to any
employee, officer or director of the Company or any of the Restricted
Subsidiaries pursuant to employee benefit plans or compensation arrangements
entered into in the ordinary course of business and approved by the Board of
Directors of the Company or such Restricted Subsidiary or payments,
contributions or transactions relating to such plans; (e) Permitted Joint
Venture Investments; (f) Investments in up to 30,566 shares of Parker Series D
Convertible Preferred Stock, $1.00 par value per share, issued by Parker, and
any capital stock of Parker acquired upon conversion of the Series D Preferred
Stock, and all securities acquired in exchange for any of the foregoing, and
(g) the repurchase option, set forth in the Stock Repurchase Agreement dated as
of August 20, 1996, between the Company and Alberta, pursuant to which the
Company or its Subsidiary acquired shares of capital stock of Alberta, and
24
<PAGE> 31
Alberta was granted the right to repurchase such shares for Canadian $1,000,000
(subject to adjustment) plus interest on the purchase price from the date the
Company purchased such shares; provided, that the aggregate principal amount of
loans and other extensions of credit, Investments and payments made pursuant to
clauses (c) and (d) above does not exceed $2,000,000 at any one time
outstanding.
"Permitted Collateral Liens" means (a) the security interests
created pursuant to the Security Documents, (b) Liens for taxes not yet
delinquent or which are being contested in good faith by appropriate
proceedings; provided that adequate reserves with respect thereto are being
maintained on the books of the Company in conformity with GAAP, (c) carriers',
warehouseman's, landlords', storage, mechanics', materialmen's, repairmen's or
other like Liens securing liabilities arising in the ordinary course of
business and not overdue for a period of more than 60 days or which are being
contested in good faith by appropriate proceedings, (d) Liens of creditors of
consignees of Permitted Consigned Inventory and (e) other Liens on Inventory of
the Company or any of its Subsidiaries provided the aggregate amount of
liabilities secured by all such Liens does not exceed $1,000,000.
"Permitted Company Refinancing Indebtedness" means (a)
Indebtedness of the Company existing on June 26, 1996, the terms of which have
been amended, modified or supplemented in a manner that does not (i) adversely
affect the priority of such Indebtedness in right of payment in relation to the
Notes, (ii) accelerate the maturity of such Indebtedness or (iii) shorten the
Average Life of such Indebtedness and (b) Indebtedness of the Company, the net
proceeds of which are used to renew, extend, refinance, refund or repurchase
outstanding Indebtedness of the Company; provided that (A) if the Indebtedness
(including the Notes) being renewed, extended, refinanced, refunded or
repurchased is pari passu with or subordinated in right of payment to the
Notes, then such Indebtedness is pari passu with or subordinated in right of
payment to the Notes at least to the same extent as the Indebtedness being
renewed, extended, refinanced, refunded or repurchased and (B) such
Indebtedness is scheduled to mature no earlier than the Indebtedness being
renewed, extended, refinanced, refunded or repurchased and such Indebtedness
has an Average Life at the time such Indebtedness is incurred that is equal to
or greater than the remaining Average Life of the Indebtedness being renewed,
extended, refinanced, refunded or repurchased; provided, further, that such
Indebtedness is in an aggregate principal amount (or, if such Indebtedness is
issued at a price less than the principal amount thereof, the aggregate amount
of gross proceeds therefrom is) not in excess of the sum of (x) the aggregate
principal amount then outstanding of the Indebtedness being renewed, extended,
refinanced, refunded or repurchased (or if the Indebtedness being renewed,
extended, refinanced, refunded or repurchased was issued at a price less than
the principal amount thereof, then not in excess of the amount of liability in
respect thereof determined in accordance with GAAP), (y) the amount of accrued
and unpaid interest, if any, on the Indebtedness being renewed, extended,
refinanced, refunded or repurchased and (z) the amount of fees, expenses and
costs related to the incurrence of such Permitted Company Refinancing
Indebtedness.
"Permitted Consigned Inventory" means (a) inventory of the
Loan Parties which the Loan Parties have consigned to persons for sale in the
ordinary course of such Person's
25
<PAGE> 32
business; provided that the aggregate fair market value (as evidenced by the
invoiced sales price to such consignee) of the Inventory of all Loan Parties so
consigned does not at any time exceed $10,000,000, as determined in good faith
by the Board of Directors of the Company and (b) tubular goods delivered from
time to time by a Loan Party for additional processing by third parties so long
as the aggregate book value of all such goods delivered by the Company and the
Restricted Subsidiaries does not at any time exceed $10,000,000.
"Permitted Financial Investments" means the following kinds of
instruments:
(a) investments in certificates of deposit maturing
within one year from the date of issuance thereof, issued by a bank or
trust company (i) organized under the laws of the United States or any
state thereof, having capital, surplus and undivided profits
aggregating at least $200,000,000 and whose long-term certificates of
deposit are, at the time of acquisition thereof by the Company or any
of the Restricted Subsidiaries, rated A-1 by Standard & Poor's Rating
Group or P-1 by Moody's Investors Service, Inc. or (ii) organized
under the laws of any jurisdiction other than the United States or any
state thereof, provided that such foreign bank shall be one of the
three most reputable, creditworthy banks in such country;
(b) deposit accounts (i) in 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
$200,000,000 and whose commercial paper (or that of the holding
company with which such bank or trust company is affiliated) is rated
A-1 by Standard & Poor's Rating Group or P-1 by Moody's Investors
Service, Inc., (ii) in banks outside of the United States, in
currencies other than U.S. dollars, which banks provide working
capital, operating accounts or similar services to one or more
Restricted Subsidiaries at such foreign banks, provided that such
foreign bank shall be one of the three most reputable, creditworthy
banks in such country and (iii) in a bank organized under the laws of
the United States or any state thereof not included in the
descriptions in clause (i) or (ii) above, so long as the aggregate
amount on deposit in such bank by the Company and the Restricted
Subsidiaries does not exceed $500,000;
(c) receivables arising from the sale of goods and
services in the ordinary course of business of the Company and the
Restricted Subsidiaries;
(d) investments in eurodollars not in excess of
$10,000,000 in the aggregate at any one time outstanding, issued by
any bank or trust company having capital, surplus and undivided
profits aggregating at least $200,000,000 and whose long term
certificates of deposit are, at the time of acquisition thereof by the
Company or any Restricted Subsidiary, rated A-1 by Standard & Poor's
Ratings Group or P-1 by Moody's Investor Service, Inc.;
(e) marketable direct obligations issued or
unconditionally guaranteed by the United States or Canadian government
or issued by any agency thereof and backed by
26
<PAGE> 33
the full faith and credit of the United States or Canada, as the case
may be, in each case maturing no later than one year from the date of
acquisition;
(f) the acquisition or ownership of Capital Stock or
obligations or securities received in settlement of debts (created in
the ordinary course of business) owing to the Company or any
Restricted Subsidiary;
(g) money market, mutual or similar funds that invest in
obligations referred to in clauses (a) or (e) of this definition, in
each case having assets in excess of $500,000,000;
(h) foreign currency hedging transactions entered into in
the ordinary course of business and not for the purpose of speculation
the effect of which is to hedge or limit the risk of the Company or
any Restricted Subsidiary arising from exchange rate fluctuations on
investments in the currency position hedged; and
(i) investments and common stock of publicly held
companies not exceeding $25,000 at any one time outstanding.
"Permitted Indebtedness" means, without duplication,
(a) Indebtedness of the Company and the Restricted
Subsidiaries under this Agreement and the other Loan Documents;
(b) the Highland Corod Indebtedness and any guaranty
thereof by the Company;
(c) other Indebtedness of the Company and the Restricted
Subsidiaries outstanding on the Execution Date and listed on Schedule
1.01A;
(d) Indebtedness of the Company to any Restricted
Subsidiary; provided that such Indebtedness of the Company is
evidenced by a note and is subordinated in right of payment to the
prior payment in full of the Obligations;
(e) Indebtedness of a Restricted Subsidiary (other than
Highland Corod) to another Restricted Subsidiary;
(f) Indebtedness of Highland Corod to the Company or any
Restricted Subsidiary so long as the aggregate amount of all such
Indebtedness does not exceed $5,000,000 at any time outstanding;
(g) Indebtedness of any entity or asset existing at the
time such entity or asset is acquired by the Company or any Restricted
Subsidiary, whether by merger, consolidation, purchase of assets or
otherwise; provided (i) that such Indebtedness is not
27
<PAGE> 34
created, incurred or assumed in contemplation of such acquisition of
such entity or asset and (ii) the aggregate amount of all such
Indebtedness does not exceed in the aggregate $10,000,000 outstanding
at any time;
(h) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn
against insufficient funds in the ordinary course of business;
provided that such Indebtedness is extinguished within two Business
Days;
(i) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations,
or from guarantees, letters of credit, surety bonds or performance
bonds securing any obligation of the Company or any Restricted
Subsidiary incurred or assumed in connection with the disposition of
any business, assets or any Restricted Subsidiary other than
Assurances by the Company or any Restricted Subsidiary of Indebtedness
incurred by any Person acquiring all or a portion of such business,
asset or Restricted Subsidiary for the purpose of financing such
acquisition; provided that the maximum aggregate liability with
respect to all such Indebtedness and the amount of Indebtedness
subject to such Assurances, in each case with respect to a particular
transaction, shall at no time exceed the gross proceeds actually
received from the sale of such business, asset or Restricted
Subsidiary in the transaction in compliance with Section 8.02;
(j) Indebtedness constituting the net obligations of a
Person as of the date of a required calculation under foreign currency
hedges entered into in the ordinary course of business and not for the
purpose of speculation;
(k) Permitted Subsidiary Refinancing Indebtedness;
(l) Permitted Company Refinancing Indebtedness;
(m)(i) Indebtedness arising under industrial revenue bonds
due from Grant Prideco, as successor to Tubular Corporation of
America, a Delaware corporation ("TCA"), in an amount not to exceed
$2,000,000; (ii) reimbursement obligations, not to exceed $1,500,000,
that may become due from Grant Prideco, as successor to TCA, to
Toronto-Dominion Bank; (iii) indebtedness arising under that certain
Tax Benefit Transfer Lease dated November 30, 1982 between The Scott
Fetzer Company and Grant Prideco, as successor to TCA; (iv)
indebtedness arising under that certain Tax Benefit Transfer Lease
dated November 30, 1982 between The Scott Fetzer Company and Grant
Prideco, as successor to the Muskogee Inspection Company, (v)
indebtedness arising under that certain Tax Benefit Transfer Lease
dated November 30, 1982 between The Scott Fetzer Company and Grant
Prideco, as successor to the Muskogee Inspection Company; (vi)
indebtedness arising under that certain Tax Benefit Transfer Lease
dated November 30, 1982 between The Scott Fetzer Company and Grant
Prideco, as successor to the Muskogee Inspection Company; (vii)
indebtedness arising under that certain Tax
28
<PAGE> 35
Benefit Transfer Lease dated December 27, 1982 between St. Clairs'
Inc. and Grant Prideco, as successor to TCA; (viii) indebtedness
arising under that certain capitalized Equipment Lease dated September
20, 1994 between ICO, Inc. and Grant Prideco, as successor to TCA;
(ix) Promissory Note of Grant Prideco, as successor to TCA, dated
March 29, 1990, payable to USX Corporation in the amount of $360,000;
(x) Note of Grant Prideco, as successor to TCA, payable to Premium
Finance Specialists for $119,883 as of June 21, 1996; (xi) Deferred
Rental Commitment of Grant Prideco, as successor to TCA, owed to
Muskogee City-County Authority, in the amount of $126,753 as of June
21, 1996; and (xii) Promissory Note from EVI to Thomas P. McGrann
dated August 5, 1996 in the amount of $656,789.83 related to the TCA
acquisition;
(n) Indebtedness of Production Engemaq Industria E
Comercio Ltda (Engemaq) and Irmaos Geremia Ltda., not to exceed
$3,000,000;
(o) Indebtedness of the Company or any of its
Subsidiaries, not to exceed Canadian $1,300,000 in the aggregate,
incurred in connection with the acquisition of the business and assets
of Superior Tube Limited Partnership;
(p) Indebtedness of the Company or any of its
Subsidiaries, not to exceed $3,650,000 in the aggregate, assumed
thereby or arising in connection with the acquisition of the business
and assets of Arrow Completion Systems, Inc., a Texas corporation; and
(q) additional Indebtedness of the Company and the
Restricted Subsidiaries which does not exceed in the aggregate
$10,000,000 outstanding at any time.
"Permitted Joint Venture" means an investment in a Person
other than a Restricted Subsidiary (a) that is engaged in one or more Lines of
Business; and (b) no debt or equity interest in which (other than directors'
qualifying shares) is or will be held by an officer or director of the Company
or of any Restricted Subsidiary, or any spouse, immediate family member of, or
other relative having the same principal residence as, any such officer or
director, or any trust the beneficiary of which is any of the foregoing parties
or any other Affiliate of the Company (except the Company or a Restricted
Subsidiary).
"Permitted Joint Venture Investments" means Investments (other
than Investments that are Permitted Financial Investments or a Permitted
Business Investment pursuant to clauses (a) through (d) of the definition of a
Permitted Business Investment) by the Company or any Restricted Subsidiary in a
Permitted Joint Venture if, after giving effect to such Investment, the
aggregate book value of all assets of the Company and the Restricted
Subsidiaries (determined on the date of transfer) transferred since the
Execution Date to Permitted Joint Ventures (less the lesser of (a) the
aggregate fair market value (as determined in good faith by the Board of
Directors of the Company and evidenced by a Board Resolution) and (b) the
aggregate book value of all such assets subsequently transferred back to the
Company or any of its Wholly Owned Restricted Subsidiaries) would not exceed
10% of the Consolidated Tangible Net Worth
29
<PAGE> 36
of the Company and the Restricted Subsidiaries (determined as of the end of the
Company's most recent fiscal quarter for which financial information is
available immediately prior to the date of determination).
"Permitted Liens" means, without duplication,
(a) Liens on assets of Highland Corod which on the date
hereof secure the Highland Corod Indebtedness and Liens existing on
the Execution Date and listed on Schedule 1.01B;
(b) Liens on assets of Restricted Subsidiaries securing
Indebtedness of such Restricted Subsidiaries permitted under this
Agreement;
(c) Liens for taxes not yet delinquent or which are being
contested in good faith by appropriate proceedings; provided that
adequate reserves with respect thereto are maintained on the books of
the Company or the Restricted Subsidiaries, as the case may be, in
conformity with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and not overdue for a period of more than 60 days or which
are being contested in good faith by appropriate proceedings;
(e) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(f) easements, rights-of-way, use restrictions, minor
defects or irregularities in title and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and which do not in any case materially
detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the Company or
any Restricted Subsidiary;
(g) judgment and attachment Liens not giving rise to an
Event of Default or Liens created by or existing from any litigation
or legal proceeding that are currently being contested in good faith
by appropriate proceedings, promptly instituted and diligently
conducted, and for which adequate reserves have been made to the
extent required by GAAP;
(h) Liens on the assets of any entity or asset existing
at the time such entity is acquired by the Company or any Restricted
Subsidiary, whether by merger, consolidation, purchase of assets or
otherwise; provided that such Liens (i) are not created, incurred or
assumed by such entity in contemplation of such entity's being
acquired by the Company or any Restricted Subsidiary; (ii) do not
extend to any other
30
<PAGE> 37
assets of the Company or any Restricted Subsidiary; and (iii) the
Indebtedness secured by such Lien is permitted pursuant to this
Agreement;
(i) Liens created pursuant to this Agreement and the
other Loan Documents;
(j) Liens incurred to secure the performance of tenders,
bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance and return-of-money bonds and other
obligations of a like nature incurred in the ordinary course of
business (exclusive of obligations for the payment of borrowed money);
(k) leases or subleases granted to others not interfering
in any material respect with the business of the Company or any
Restricted Subsidiary;
(l) Liens to secure obligations arising from statutory or
regulatory requirements;
(m) any interest or title of a lessor in property subject
to any Capitalized Lease Obligation or operating lease which, in each
case, is permitted under this Agreement;
(n) Liens in favor of collecting or payor banks having a
right of setoff, revocation, refund or chargeback with respect to
money or instruments of the Company or any Restricted Subsidiary on
deposit with or in possession of such bank;
(o) any renewal of or substitution for any Lien permitted
by any of the preceding clauses; provided that the debt secured is not
increased nor the Lien extended to any additional assets;
(p) Liens securing Permitted Subsidiary Refinancing
Indebtedness so long as such Permitted Subsidiary Refinancing
Indebtedness is secured only by Liens on those assets that secured
such Indebtedness prior to the renewal, extension, refinancing, refund
or repurchase or by Liens otherwise permitted by this definition;
(q) Liens granted or Letters of Credit issued in
connection with the Tax Benefit Transfer Lease Obligations; and
(r) additional Liens securing obligations in an aggregate
amount not to exceed $10,000,000 at any one time.
"Permitted Subsidiary Refinancing Indebtedness" means
(a) Indebtedness of any Restricted Subsidiary (i)
existing on June 26, 1996 and listed on Schedule 1.01A and (ii) would
exist on the Execution Date (assuming that all unfunded commitments to
advance any such Indebtedness are fully funded), the terms of which
have been amended, modified or supplemented in a manner that does not
(A)
31
<PAGE> 38
adversely affect the priority of such Indebtedness in right of payment
in relation to the Guaranty, (B) accelerate the maturity of such
Indebtedness or (C) shorten the Average Life of such Indebtedness; and
(b) Indebtedness of any Restricted Subsidiary, the net
proceeds of which are used to renew, extend, refinance, refund or
repurchase outstanding Indebtedness of such Restricted Subsidiary,
provided that (A) with respect to Indebtedness of a Subsidiary
Guarantor, if the Indebtedness (including any guarantee thereof) being
renewed, extended, refinanced, refunded or repurchased is pari passu
with or subordinated in right of payment to the Guaranty, then such
Indebtedness is pari passu with or subordinated in right of payment to
the Guaranty at least to the same extent as the Indebtedness being
renewed, extended, refinanced, refunded or repurchased, (B) such
Indebtedness is scheduled to mature no earlier than the Indebtedness
being renewed, extended, refinanced, refunded or repurchased, and (C)
such Indebtedness has an Average Life at the time such Indebtedness is
incurred that is equal to or greater than the remaining Average Life
of the Indebtedness being renewed, extended, refinanced, refunded or
repurchased; provided further, that such Indebtedness is in an
aggregate principal amount (or, if such Indebtedness is issued at a
price less than the principal amount thereof, the aggregate amount of
gross proceeds therefrom is) not in excess of the sum of (x) the
aggregate principal amount then outstanding under the Indebtedness
being renewed, extended, refinanced, refunded or repurchased (or if
the Indebtedness being renewed, extended, refinanced, refunded or
repurchased was issued at a price less than the principal amount
thereof, then not in excess of the amount of liability in respect
thereof determined in accordance with GAAP), (y) the amount of accrued
and unpaid interest, if any, on the Indebtedness being renewed,
extended, refinanced, refunded or repurchased and (z) the amount of
fees, expenses and costs related to the incurrence of such Permitted
Subsidiary Refinancing Indebtedness.
"Person" means any individual, corporation, limited or general
partnership, limited liability company, joint venture, association, joint stock
company, trust, unincorporated organization or other entity, or a government or
any agency or political subdivision thereof.
"Plan" means any employee pension benefit plan (as defined in
Section 3(2) of ERISA), subject to Title IV of ERISA or Section 412 of the
Code, other than a Multiemployer Plan, with respect to which a Loan Party or an
ERISA Affiliate contributes or has an obligation or liability to contribute or
to the PBGC, including any such plan that may have been terminated.
"Pro Rata Share" has the meaning specified in Section 9.05.
"Qualified Stock" means, with respect to any Person, any
Capital Stock of such Person or a Subsidiary of such Person that is not
Disqualified Stock.
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"Reference Period" means a period commencing on a Financial
Statement Delivery Date and ending the day preceding the next succeeding
Financial Statement Delivery Date.
"Register" has the meaning specified in Section 12.11(e).
"Regulation A" means Regulation A of the Board (respecting
loans to depository institutions), as the same is from time to time in effect,
and all official rulings and interpretations thereunder or thereof.
"Regulation D" means Regulation D of the Board (respecting
reserve requirements), as the same is from time to time in effect, and all
official rulings and interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board (respecting
margin credit extended by banks), as the same is from time to time in effect,
and all official rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board (respecting
borrowers who obtain margin credit), as the same is from time to time in
effect, and all official rulings and interpretations thereunder or thereof.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing into the environment (including the abandonment or discarding of
barrels, containers and other closed receptacles).
"Reportable Event" means an event described in Section 4043(b)
of ERISA with respect to a Plan as to which the 30-day notice requirement has
not been waived by the PBGC.
"Requirement of Law" means, as to any Person, any law, treaty,
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Requirements of Environmental Laws" means, as to any Person,
the Requirement of Law imposed under any applicable Environmental Law relating
to or affecting such Person or the condition or operation of such Person's
business or its properties, both real and personal.
"Reserve Percentage" means, for any Lender and for any
Interest Period, the reserve percentage applicable during such Interest Period
under regulations issued from time to time by the Board (or if more than one
such percentage is so applicable, the daily average for such percentages for
those days in such Interest Period during which any such percentage shall be so
applicable) for determining the maximum reserve requirement (including any
marginal,
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supplemental or emergency reserves) for such Lender in respect of liabilities
or assets consisting of or including Eurocurrency Liabilities.
"Responsible Officer" means, with respect to any Loan Party,
the President, the chief financial officer, the controller or any vice
president of such Loan Party.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
stock of the Company now or hereafter outstanding, except a dividend payable
solely in shares of stock or warrants, rights or options to acquire shares of
stock of the Company, (b) any redemption, retirement, purchase or other
acquisition, direct or indirect, of any shares of any class of stock of the
Company, now or hereafter outstanding, or of any warrants, rights or options to
acquire any such shares, except to the extent that the consideration therefor
consists of shares of stock (including warrants, rights or options relating
thereto) of the Company and (c) any Investment by the Company or any Restricted
Subsidiary not permitted by Section 8.06.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary. The Board of Directors of the Company,
by a Board Resolution, may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided, that before and after giving effect thereto
(a) no Default or Event of Default shall have occurred and be continuing or
would result therefrom, (b) the Company and the Restricted Subsidiaries shall
be in compliance, on a pro forma basis, after giving effect to such
designation, with the covenants contained in Article VIII, recomputed as at the
last day of the most recently ended fiscal quarter of the Company and the
Restricted Subsidiaries as if such designation had occurred on the first day of
each relevant period for testing such compliance and (c) the Company shall have
delivered to the Agent and the Lenders a certificate of a Responsible Officer
to such effect, together with all relevant financial information and
calculations demonstrating such compliance.
"Sale-Leaseback Transaction" means, with respect to the
Company or any Restricted Subsidiary, any arrangement with any Person (other
than the Company or a Restricted Subsidiary) providing for the leasing by the
Company or any Restricted Subsidiary of any principal property, acquired or
placed into service more than 180 days prior to such arrangement, whereby such
property has been or is to be sold or transferred by the Company or any
Restricted Subsidiary to such Person.
"Scheduled Capital Expenditures" means Capital Expenditures
(other than Capital Expenditures made as part of a Permitted Business
Acquisition).
"Secured Parties" means (a) the Lenders and (b) the Agent.
"Security Documents" means, collectively, the Company Pledge
Agreement, the Subsidiary Guarantors Pledge Agreements, the Company Security
Agreement, the Subsidiary Guarantors Security Agreements and any other
agreement executed by any Loan Party securing
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the Obligations, including all security agreements and other documents
delivered pursuant to Section 8.02(f).
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent" has the meaning specified in Section 6.16.
"Stated Amount" means, with respect to each Letter of Credit,
at any time, the maximum amount then available to be drawn thereunder (without
regard to whether any condition to drawing thereon could be met).
"Stated Maturity Date" means June 30, 1999 or the earlier date
of the acceleration of the maturity of the Obligations pursuant to Section
10.01.
"Statutory Reserves" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves),
expressed as a decimal, established by the Board and any other banking
authority to which Chase (or any other institution that is both a Lender and
the Agent) is subject with respect to the Base CD Rate, for new negotiable
nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to three months. Such reserve percentages shall include
those imposed pursuant to Regulation D.
"Subsidiary" means (a) a corporation a majority of whose
Voting Stock is at the time, directly or indirectly, owned by such Person, by
one or more subsidiaries of such Person or by such Person and one or more
subsidiaries of such Person, (b) a partnership in which such Person or a
subsidiary of such Person is, at the date of determination, a general or
limited partner of such partnership, but only if such Person or its subsidiary
is entitled to receive more than 50% of the assets of such partnership upon its
dissolution, or (c) any other Person (other than a corporation or partnership)
in which such Person, directly or indirectly, at the date of determination
thereof, has (i) at least a majority ownership interest or (ii) the power to
elect or direct the election of a majority of the directors or other governing
body of such Person.
"Subsidiary Guarantors" has the meaning specified in the
introduction to this Agreement.
"Subsidiary Guarantors Pledge Agreements" means the Pledge
Agreement dated as of June 26, 1996 executed by Grant Prideco, Inc., a Delaware
corporation, to the Agent for the benefit of the Secured Parties.
"Subsidiary Guarantors Security Agreements" means,
collectively, the separate Security Agreements, each dated as June 26, 1996, as
amended as of the date hereof and executed by a Subsidiary Guarantor to the
Agent for the benefit of the Secured Parties and any
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security agreement executed after the date hereof by any New Subsidiary
pursuant to Section 8.02(f).
"Tangible Net Worth" means, as to the Company as of the date
of determination, Net Worth after deducting therefrom the following:
(a) any surplus resulting from the write-up of assets
subsequent to December 31, 1996;
(b) goodwill, including any amounts (however designated
on the balance sheet) representing the cost of acquisitions of
Subsidiaries in excess of underlying tangible assets;
(c) patents, trade names, trademarks, service marks and
copyrights;
(d) leasehold improvements not recoverable at the
expiration of a lease;
(e) deferred charges (including unamortized debt discount
and expense, organization expenses and experimental and development
expenses, but excluding prepaid expenses); and
(f) any items not included in clauses (a) through (e)
above which are treated as intangibles in conformity with GAAP.
"Tax Benefit Transfer Lease Obligations" means TCA's
obligations incurred in connection with the TBT Leases.
"TBT Leases" means (i) tax transfer lease Agreement dated
November 30, 1982, between The Scott Fetzer Company and the Company with
related Escrow Agreement; (ii) tax transfer lease Agreement dated November 30,
1982 between The Scott Fetzer Company and Muskogee Inspection Company with
related Escrow Agreement covering equipment with a tax cost of $1,678,158,
(iii) tax transfer lease Agreement dated November 30, 1982, between The Scott
Fetzer Company and Muskogee Inspection Company with related Escrow Agreement
covering equipment with a tax cost of $670,000 and (iv) tax transfer lease
Agreement dated December 27, 1982, between St. Clairs' Inc. and the Company
with related Escrow Agreement.
"TCA" has the meaning specified in the definition of Permitted
Indebtedness.
"Total Capitalization" means, at any date, the sum of
Consolidated Indebtedness and Net Worth at such date.
"Total Commitment" means the sum of the Commitments of the
Lenders, which on the Effective Date will be $120,000,000.
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"Total Unutilized Commitment" means, at any time, the sum of
the Unutilized Commitments of the Lenders.
"UCC" means the Uniform Commercial Code in effect from time to
time in the State of New York.
"UCP" means the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce, Publication No. 500
(and any subsequent revisions thereof approved by a Congress of the
International Chamber of Commerce and adhered to by the Issuing Bank).
"Unfunded Current Liability" means, with respect to any Plan,
the amount, if any, by which the present value of the accrued benefits under
the Plan as of the close of its most recent Plan year exceeds the fair market
value of the assets allocable thereto, determined in accordance with Section
412 of the Code.
"United States" and "U.S." each means United States of
America.
"Unpaid Drawing" has the meaning specified in Section 3.04(a).
"Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary or (b) any Subsidiary of the Company or of a Restricted
Subsidiary that is designated as an Unrestricted Subsidiary by a Board
Resolution of the Company in accordance with the requirements of the following
sentence with the consent of the Majority Lenders (which consent shall not be
unreasonably withheld). The Company may hereafter designate any Subsidiary of
the Company or of a Restricted Subsidiary (other than a Subsidiary Guarantor)
to be an Unrestricted Subsidiary by a Board Resolution of the Company, as
evidenced by written notice thereof delivered to the Agent, if at the time of
and after giving effect to such designation, (i) no Default or Event of Default
shall have occurred and be continuing, (ii) such Subsidiary does not own or
hold any Capital Stock of, or any Lien on any property of, the Company or any
Restricted Subsidiary and (iii) such Subsidiary is not liable, directly or
indirectly, with respect to any Indebtedness other than Unrestricted Subsidiary
Indebtedness. As of the date hereof, the Unrestricted Subsidiaries are: ENGY,
Inc., Dongying Shengli- Highland Company Limited, Energy Ventures (Cyprus)
Limited, Prideco Europe Limited, BakTexas, Grant Tubular Finishing, Limited,
EVI (Barbados) Inc., Energy Ventures Far East Limited, Production Engemaq
Comercio E Servicos Ltda. (Marservice, Ltd.), Irmaos Geremia Ltda., ENERPRO de
Mexico S.A. de C.V., EVI, Inc., and EVI International, Inc.
"Unrestricted Subsidiary Indebtedness" of any Person, means
Indebtedness of such Person (a) as to which neither the Company nor any
Restricted Subsidiary is directly or indirectly liable (by virtue of the
Company's or such Restricted Subsidiary's being the primary obligor, or
guarantor of, or otherwise contractually liable in any respect on, such
Indebtedness), except that Unrestricted Subsidiary Indebtedness may include
Assurances of such Person of Indebtedness of the Company, (b) which, with
respect to Indebtedness incurred after the
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Execution Date by the Company or any Restricted Subsidiary, upon the occurrence
of a default with respect thereto, does not result in, or permit any holder of
any Indebtedness of the Company or any Restricted Subsidiary to declare, a
default on such Indebtedness of the Company or any Restricted Subsidiary and
(c) which is not secured by any assets of the Company or of any Restricted
Subsidiary.
"Unutilized Commitment" for any Lender, at any time, means the
remainder of (a) such Lender's Commitment at such time less (b) the sum of (i)
the outstanding Loans made by such Lender and (ii) the product of (A) the
Letter of Credit Outstandings at such time multiplied by (B) such Lender's
Percentage Participation.
"Voting Stock" means, with respect to any Person, securities
of any class or classes of Capital Stock in such Person entitling holders
thereof (whether at all times or only so long as no senior class of stock has
voting power by reason of any contingency) to vote in the election of members
of the Board of Directors or other governing body of such Person.
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary of which all issued and outstanding Capital Stock (excluding
directors' qualifying shares) is directly or indirectly owned by the Company.
SECTION 1.02. Types of Loans. Loans hereunder are
distinguished by"Type." The "Type" of a Loan refers to the determination
whether such Loan is a Eurodollar Rate Loan or an Alternate Base Rate Loan.
SECTION 1.03. Accounting Terms; Changes in GAAP. All
accounting and financial terms used herein and not otherwise defined herein and
the compliance with each covenant contained herein which relates to financial
matters shall be determined in accordance with GAAP applied by the Company on a
consistent basis, except to the extent that a deviation therefrom is expressly
stated. Should there be a change in GAAP from that in effect on the Execution
Date, such that the defined terms set forth in Section 1.01 or the covenants
set forth in Article VIII would then be calculated in a different manner or
with different components or would render the same not meaningful criteria for
evaluating the matters contemplated to be evidenced by such covenants, (a) the
Company and the Lenders agree, within the 60-day period following any such
change, to negotiate in good faith and enter into an amendment to this
Agreement in order to conform the defined terms set forth in Section 1.01 or
the covenants set forth in Article VIII, or both, in such respects as shall
reasonably be deemed necessary by the Majority Lenders so that the criteria for
evaluating the matters contemplated to be evidenced by such covenants are
substantially the same criteria as were effective prior to any such change in
GAAP or Statutory Accounting Practices, and (b) the Company shall be deemed to
be in compliance with such covenants during the 60-day period following any
such change, or until the earlier date of execution of such amendment, if and
to the extent that the Company would have been in compliance therewith under
GAAP as in effect immediately prior to such change.
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SECTION 1.04. Interpretation. (a) In this Agreement, unless
a clear contrary intention appears:
(i) the singular number includes the plural number and
vice versa;
(ii) reference to any gender includes each other gender;
(iii) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole and
not to any particular Article, Section or other subdivision;
(iv) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such successors and
assigns are permitted by this Agreement, and reference to a Person in
a particular capacity excludes such Person in any other capacity or
individually, provided that nothing in this clause (iv) is intended to
authorize any assignment not otherwise permitted by this Agreement;
(v) except as expressly provided to the contrary herein,
reference to any agreement, document or instrument (including this
Agreement) means such agreement, document or instrument as amended,
supplemented or modified and in effect from time to time in accordance
with the terms thereof and, if applicable, the terms hereof, and
reference to any Note or other note includes any note issued pursuant
hereto in extension or renewal thereof and in substitution or
replacement therefor;
(vi) unless the context indicates otherwise, reference to
any Article, Section, Schedule or Exhibit means such Article or
Section hereof or such Schedule or Exhibit hereto;
(vii) the word "including" (and with correlative meaning
"include") means including, without limiting the generality of any
description preceding such term;
(viii) with respect to the determination of any period of
time, except as expressly provided to the contrary, the word "from"
means "from and including" and the word "to" means "to but excluding";
and
(ix) reference to any law, rule or regulation means such
as amended, modified, codified or reenacted, in whole or in part, and
in effect from time to time.
(b) The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the construction
hereof.
(c) No provision of this Agreement shall be interpreted
or construed against any Person solely because that Person or its legal
representative drafted such provision.
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ARTICLE II
LOANS
SECTION 2.01. Commitments. Subject to and upon the terms and
conditions herein set forth, each Lender severally agrees at any time and from
time to time on and after the Effective Date and prior to the Stated Maturity
Date, to make a loan or loans (each a "Loan") to the Company, which Loans (i)
shall, at the option of the Company, be made and maintained pursuant to one or
more Borrowings comprised of Alternate Base Rate Loans or Eurodollar Rate
Loans; provided that, except as otherwise specifically provided herein, all
Loans comprising all or a portion of the same Borrowing shall at all times be
of the same Type and, in the case of a Eurodollar Rate Borrowing, shall have
the same Interest Period, (ii) may be borrowed, repaid and reborrowed in
accordance with the provisions hereof and (iii) shall not exceed in aggregate
principal amount at any time outstanding (after giving effect to the principal
amount for any Lender of all Loans repaid and all Unpaid Drawings in respect of
Letters of Credit reimbursed prior to or concurrently with the making of any
Loan) that amount which, when added to the product of such Lender's Percentage
Participation of the Letter of Credit Outstandings at such time, equals the
Commitment of such Lender. Notwithstanding the foregoing, the sum of the
aggregate outstanding principal amount of the Loans of all Lenders plus the
Letter of Credit Outstandings at no time shall exceed the lesser of the Total
Commitment and the Borrowing Base. The provisions of this Section 2.01 shall
not be applicable to Loans made by the Lenders pursuant to Section 3.03(b).
SECTION 2.02. Minimum Amount of Each Borrowing. Except with
respect to Loans made pursuant to Section 3.03(b), the aggregate principal
amount of each Borrowing made by the Lenders shall not be less than the lesser
of (i) $3,000,000 and (ii) the Total Unutilized Commitment and, if greater,
shall be an integral multiple of $1,000,000.
SECTION 2.03. Notice of Borrowing. (a) Whenever the Company
desires to make a Borrowing hereunder, the Company shall give notice (which may
be in the form of telephonic notice promptly confirmed in writing) to the Agent
(a "Notice of Borrowing") (i) in the case of a Borrowing to be comprised of
Alternate Base Rate Loans, not later than 10:00 a.m. (New York City time) on
the Borrowing Date for such Borrowing and (ii) in the case of a Eurodollar Rate
Borrowing, not later than 11:00 a.m. (New York City time) three Business Days
prior to the Borrowing Date for such Borrowing. Each Notice of Borrowing shall
be irrevocable and shall be in the form of Exhibit 2.03 specifying (A) the
aggregate principal amount of the Loans to be made pursuant to such Borrowing,
(B) the Borrowing Date (which shall be a Business Day), (C) whether the Loans
to be made pursuant to such Borrowing is to be initially maintained as
Alternate Base Rate Loans or Eurodollar Rate Loans and (D) if the proposed
Borrowing is to be comprised of Eurodollar Rate Loans, the initial Interest
Period to be
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applicable thereto. The Company may submit one or more Notices of Borrowing on
any Business Day.
(b) The Agent shall promptly give the Lenders telecopy
notice or telephonic notice (promptly confirmed in writing) of each proposed
Borrowing, of each Lender's proportionate share thereof and of the other
matters covered by each Notice of Borrowing.
SECTION 2.04. Disbursement of Funds. (a) Not later than noon
(New York City time) on the Borrowing Date for each Borrowing, each Lender will
make available its pro rata portion of the amount of such Borrowing in Dollars
and in immediately available funds at the Payment Office. The Agent will
credit the amounts so received to the general deposit account of the Company
with the Agent or, if Loans are not made on such date because any condition
precedent to a Borrowing herein specified shall not have been met, return the
amounts so received to the respective Lenders as soon as practicable; provided,
however, if and to the extent the Agent fails to return any such amounts to a
Lender on the Borrowing Date for such Borrowing, the Agent shall pay interest
on such unreturned amounts, for each day from such Borrowing Date to the date
such amounts are returned to such Lender, at the Federal Funds Effective Rate.
(b) Unless the Agent shall have been notified by any
Lender prior to the Borrowing Date that such Lender does not intend to make
available to the Agent such Lender's portion of the Borrowing to be made on
such date, the Agent may assume that such Lender has made such amount available
to the Agent on such date of Borrowing and the Agent may, in reliance upon such
assumption, make available to the Company a corresponding amount. If such
corresponding amount is not in fact made available to the Agent by such Lender
by the required time on the Borrowing Date therefor and the Agent has made
available same to the Company, the Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Agent's demand therefor, the Agent
shall promptly notify the Company, and the Company shall pay such corresponding
amount to the Agent within two Business Days after demand therefor. The Agent
shall also be entitled to recover from such Lender or the Company, as the case
may be, interest on such corresponding amount from the date such corresponding
amount was made available by the Agent to the Company to the date such
corresponding amount is recovered by the Agent, at a rate per annum equal to
(i) if paid by such Lender, the Federal Funds Effective Rate or (ii) if paid by
the Company (1) on or before the date that is two days after demand therefor,
the lesser of (A) the Highest Lawful Rate or (B) the sum of the Alternate Base
Rate or the LIBO Rate, as the case may be, in effect with respect to the Loans
made by the other Lenders comprising the remainder of the Borrowing, plus the
Margin then applicable to such Loans and (2) thereafter, the lesser of (A) the
Highest Lawful Rate or (B) the Default Rate in effect from time to time;
provided, that no such Loan shall bear interest pursuant to this clause (2) at
a rate
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per annum less than the rate of interest applicable thereto pursuant to clause
(1) above. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights
which the Company may have against any Lender as a result of any default by
such Lender hereunder.
SECTION 2.05. Notes. (a) The Company's obligation to pay the
principal of, and interest on, the Loans made by each Lender (including Loans
made pursuant to Section 3.03(b)) shall be evidenced by a promissory note duly
executed and delivered by the Company substantially in the form of Exhibit 2.05
hereto with blanks appropriately completed in conformity herewith (each a
"Note"), which Note shall (i) be payable to the order of such Lender and be
dated the Execution Date (or as to any Person that becomes a Lender after the
Execution Date, the date specified in the Assignment and Acceptance executed by
such Lender), (ii) be in a stated principal amount equal to the Commitment of
such Lender and be payable in the principal amount of the Loans evidenced
thereby, (iii) be payable prior to maturity as provided in Article IV and
mature, with respect to the Loans evidenced thereby, on the Stated Maturity
Date, (iv) bear interest as provided in the appropriate clause of Section 2.08
in respect of the Alternate Base Rate Loans and Eurodollar Rate Loans, as the
case may be, evidenced thereby and (v) be entitled to the benefits of this
Agreement, the Guaranty and the other Loan Documents.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts with respect to each Loan made by such
Lender hereunder, including the date, amount, Type and the Interest Period for
each Eurodollar Rate Loan made by such Lender to the Company hereunder, and the
amount of each payment in respect thereof and will, prior to any transfer of
either of its Notes, endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby.
(c) The Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type and the Interest
Period for each Eurodollar Rate Loan made by each Lender, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Company to each Lender hereunder and (iii) the amount of any sum received by
the Agent hereunder from the Company and each Lender's share thereof.
(d) Absent manifest error, the entries made in the
accounts maintained pursuant to paragraph (b) and (c) to this Section 2.05
shall be conclusive evidence of the existence and amounts of the obligations
therein recorded; provided, however, that the failure of any Lender or the
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligations of the Company to repay the Loans and Drawings under the
Letters of Credit in accordance with their terms.
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SECTION 2.06. Conversions. The Company shall have the
option to convert on any Business Day all or a portion equal to not less than
$3,000,000 ($1,000,000 in the case of conversions into Alternate Base Rate
Loans) of the outstanding principal amount of one Type of Loans made pursuant
to one or more Borrowings into a Borrowing or Borrowings of the other Type of
Loans provided, that (i) except as otherwise provided in Section 2.11, no
partial conversion of Eurodollar Rate Loans shall reduce the outstanding
principal amount of Eurodollar Rate Loans made pursuant to any single Borrowing
to less than $3,000,000, (ii) Alternate Base Rate Loans may only be converted
into Eurodollar Rate Loans, and Eurodollar Rate Loans may only be converted
into Eurodollar Rate Loans, if and only if, in either case, no Default or Event
of Default is in existence on the date of the conversion and (iii) no Loan may
be converted into a Eurodollar Rate Loan after the date that is one month prior
to the Stated Maturity Date. Each such conversion shall be effected by the
Company giving the Agent notice (each a "Notice of Conversion") prior to 11:00
a.m. (New York City time) at least (a) three Business Days prior to the date of
such conversion in the case of a conversion into Eurodollar Rate Loans and (b)
one Business Day in the case of a conversion into Alternate Base Rate Loans,
specifying each Type of Borrowing (or portions thereof) to be so converted and,
if to be converted into Eurodollar Rate Loans, the Interest Period to be
initially applicable thereto. The Agent shall promptly give the Lenders
written or telephonic notice (promptly confirmed in writing) of any such
proposed conversion affecting any of its Loans.
SECTION 2.07. Pro Rata Borrowings. All Borrowings under this
Agreement shall be incurred from the Lenders pro rata on the basis of their
respective Commitments. It is understood that no Lender shall be responsible
for any default by any other Lender in its obligation to make Loans hereunder
and that each Lender shall be obligated to make the Loans provided to be made
by it hereunder, regardless of the failure of any other Lender to fulfill its
commitments hereunder.
SECTION 2.08. Interest. (a) Subject to Section 12.08, the
Company agrees to pay interest in respect of the unpaid principal amount of
each Alternate Base Rate Loan from the date of the respective Borrowing to
maturity (whether by acceleration or otherwise) at a rate per annum which shall
at all times be equal to the lesser of (i) the Highest Lawful Rate and (ii) the
applicable Margin plus the Alternate Base Rate, in each case, in effect from
time to time. If the Alternate Base Rate is based on the Prime Rate, interest
shall be computed on the basis of the actual number of days elapsed over a year
of 365 or 366 days, as the case may be. If the Alternate Base Rate is based on
the Base CD Rate or the Federal Funds Effective Rate, interest shall be
computed on the basis of the actual number of days elapsed over a year of 360
days.
(b) Subject to Section 12.08, the Company agrees to pay
interest in respect of the unpaid principal amount of each Eurodollar Rate Loan
from the date of the respective Borrowing to the end of the Interest Period
therefor (unless such Loan is earlier accelerated or
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converted pursuant to Section 2.06) at a rate per annum (computed on the basis
of the actual number of days elapsed over a year of 360 days) which shall,
during each Interest Period applicable thereto, be equal to the lesser of (i)
the Highest Lawful Rate and (ii) the applicable Margin plus the relevant LIBO
Rate for such Interest Period. The applicable LIBO Rate shall be fixed for
each Interest Period and shall not change during said Interest Period but the
applicable Margin, which is added to the LIBO Rate to determine the total
interest payable to the Lender on each Eurodollar Rate Loan, shall be adjusted,
effective on the first day of each Reference Period, whether or not said
adjustment occurs at a time other than the beginning of an Interest Period.
(c) Subject to Section 12.08, overdue principal and, to
the extent permitted by law, overdue interest in respect of each Loan and all
other overdue amounts owing hereunder shall bear interest for each day that
such amounts are overdue at a rate per annum equal to the lesser of (i) the
Highest Lawful Rate and (ii) 2% in excess of the sum of the applicable Margin
and the Alternate Base Rate, in each case, in effect from time to time (such
lesser rate of interest being the "Default Rate"); provided, that no Loan shall
bear interest after maturity (whether by acceleration or otherwise) at a rate
per annum less than the rate of interest applicable thereto at maturity.
(d) Interest on the Loans made hereunder shall accrue
from the date of such Loan to the date of any repayment thereof and shall be
payable (i) in respect of Eurodollar Rate Loans (A) on the last day of the
Interest Period applicable thereto and also, in the case of any Interest Period
in excess of three months, on the date that would have been the last day of the
Interest Period if such Loan had an Interest Period of three months and (B) on
the date of any voluntary or mandatory prepayment or any conversion (on the
amount prepaid or converted), (ii) in respect of each Alternate Base Rate Loan
(A) on each Designated Payment Date and (B) on the date of any voluntary or
mandatory prepayment (on the amount prepaid) and (iii) in respect of each Loan,
at maturity (whether by acceleration or otherwise) and, after maturity, on
demand.
(e) The Agent, upon determining the LIBO Rate for any
Interest Period, shall promptly notify by telephone (confirmed in writing) or
in writing the Company and the Lenders thereof. Each such determination shall,
absent manifest error, be final and conclusive and binding on all parties
hereto.
SECTION 2.09. Interest Periods. (a) At the time the Company
gives any Notice of Borrowing or Notice of Conversion in respect of the making
of, or conversion into, a Eurodollar Rate Borrowing, the Company shall have the
right to elect, by giving notice to the Agent on the dates and at the times
specified in Section 2.03 or Section 2.06, as the case may be, of the selected
interest period (each an "Interest Period") applicable to such Eurodollar Rate
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Borrowing, which Interest Period shall be either a one, two, three or six month
period; provided, that:
(i) all Loans comprising a Eurodollar Rate Borrowing
shall at all times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Rate
Borrowing shall commence on the date of such Eurodollar Rate Borrowing
(including the date of any conversion thereto pursuant to Section
2.06) and each Interest Period occurring thereafter in respect of such
Eurodollar Rate Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(iii) if any Interest Period relating to a Eurodollar Rate
Borrowing begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iv) if any Interest Period would otherwise expire on a
day which is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day; provided, however, that if any
Interest Period in respect of a Eurodollar Rate Borrowing would
otherwise expire on a day which is not a Business Day, but is a day of
the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(v) no Interest Period shall extend beyond the Stated
Maturity Date; and
(vi) at no time shall there be more than ten Interest
Periods in effect under this Agreement.
(b) If upon the expiration of any Interest Period
applicable to a Eurodollar Rate Borrowing, the Company has failed to elect a
new Interest Period to be applicable to such Borrowing as provided above, the
Company shall be deemed to have elected to convert such Borrowing into a
Borrowing of Alternate Base Rate Loans effective as of the expiration date of
such current Interest Period.
SECTION 2.10. Interest Rate Not Ascertainable, Etc. In the
event that the Agent shall have determined (which determination shall be
reasonably exercised and shall, absent manifest error, be final, conclusive and
binding upon all parties) that on any date for determining the LIBO Rate for
any Interest Period, by reason of any changes arising after the date of this
Agreement affecting the interbank eurodollar market or any Lender's position in
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such market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of LIBO
Rate, then, and in any such event, the Agent shall forthwith give notice (by
telephone, confirmed in writing) to the Company and to the Lenders of such
determination. Until the Agent notifies the Company that the circumstances
giving rise to the suspension described herein no longer exist, the obligations
of the Lenders to make Eurodollar Rate Loans shall be suspended; each requested
Eurodollar Rate Borrowing (by a Notice of Conversion or otherwise) shall
instead be made or maintained as a Borrowing of Alternate Base Rate Loans and
any outstanding Eurodollar Rate Loan shall be converted, on the last day of the
then applicable Interest Period, to an Alternate Base Rate Loan.
SECTION 2.11. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if, after the Execution Date,
the introduction or adoption of or any change (including any imposition or
increase of reserve requirements) in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender (or its
Applicable Lending Office) with any guideline, request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority exercising control over banks or financial institutions generally:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar
Rate Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for (i) Non-Excluded Taxes
covered by Section 4.07 and (ii) changes in the rate of tax on the
overall net income or revenue of such Lender or its Applicable Lending
Office imposed by the jurisdiction in which the principal executive
office of such Lender or its Applicable Lending Office is located); or
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
of, deposits with or for the account of, or credit extended by, any
Lender's Applicable Lending Office shall be imposed or deemed
applicable or any other condition affecting its Eurodollar Rate Loans
or its obligations to make Eurodollar Rate Loans shall be imposed on
any Lender, its Applicable Lending Office or the interbank eurodollar
market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, or funding or maintaining Eurodollar Rate Loans
or there shall be a reduction in the amount received or receivable by such
Lender or its Applicable Lending Office, then, in any such case, the Company
shall pay to the Agent for the account of such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduced
amount to such Lender upon demand by such Lender (through the Agent).
Notwithstanding the foregoing, in no event shall the compensation payable under
this Section 2.11(a) (to the extent,
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if any, constituting interest under applicable laws), together with all amounts
constituting interest under applicable laws and payable in connection with this
Agreement, the Notes and the other Loan Documents, exceed the Highest Lawful
Rate.
(b) If any Lender shall have determined in good faith
that the adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the Execution Date has or would have
the effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations hereunder to a level
below that which such Lender or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then, from time to time, the Company
shall pay to the Agent for the account of such Lender such additional amount or
amounts as will compensate such Lender for such reduction by such Lender
(through the Agent). Notwithstanding the foregoing, in no event shall the
compensation payable under this Section 2.11(b) (to the extent, if any,
constituting interest under applicable laws) together with all amounts
constituting interest under applicable laws and payable in connection with this
Agreement, the Notes or the other Loan Documents, exceed the Highest Lawful
Rate.
(c) Each Lender will notify the Company through the Agent
of any event occurring after the Execution Date which will entitle such Lender
to compensation pursuant to this Section 2.11, as promptly as practicable, and
in any event within 120 days after it becomes aware thereof and determines to
request compensation. A certificate of a Lender setting forth in reasonable
detail (i) such amount or amounts as shall be necessary to compensate such
Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii)
the calculation of such amount or amounts under clause (a)(i), shall be
delivered to the Company (with a copy to the Agent) and shall be conclusive
absent manifest error. The Company shall pay to the Agent for the account of
such Lender the amount shown as due on any such certificate within 10 days
after its receipt of the same. Upon the request of the Company, each Lender
agrees that it will use reasonable efforts to designate a different Applicable
Lending Office for the Loans due to it affected by the matters described in
Sections 2.11(a) and 2.11(b), if such designation will avoid or reduce the
liability of the Company to such Lender under this Section 2.11 so long as such
designation is not disadvantageous to such Lender as determined by such Lender
in its sole discretion.
(d) Except as expressly provided in Section 2.11(c),
failure on the part of any Lender to demand compensation for any increased
costs or reduction in amounts received or receivable or reduction in return on
capital with respect to any Interest Period shall not constitute
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a waiver of such Lender's rights to demand compensation for any increased costs
or reduction in amounts received or receivable or reduction in return on
capital with respect to such Interest Period or any other Interest Period.
(e) In the event any Lender shall seek compensation
pursuant to this Section 2.11, the Company may give notice to such Lender (with
copies to the Agent) that it wishes to seek one or more Eligible Assignees to
assume the Commitments of such Lender and to purchase its outstanding Loans,
other Obligations and Notes. Each Lender requesting compensation pursuant to
this Section 2.11 agrees to sell its Commitments, Loans, other Obligations,
Notes and interest in this Agreement and the other Loan Documents pursuant to
Section 12.11(c) to any Eligible Assignee for an amount equal to the sum of the
outstanding unpaid principal of and accrued interest on such Loans, such other
Obligations and Notes plus all other fees and amounts (including any
compensation claimed by such Lender under this Section 2.11, Section 2.13 and
Section 3.05) due such Lender hereunder calculated, in each case, to the date
such Commitments, Loans, other Obligations, Notes and interest are purchased,
whereupon such Lender shall have no further Commitment or other obligation to
the Company hereunder or under any Note.
SECTION 2.12. Illegality. (a) In the event that any Lender
shall have determined (which determination shall be reasonably exercised and
shall be presumptively correct) at any time that the making or continuance of
any Eurodollar Rate Loan has become unlawful by compliance by such Lender in
good faith with any Requirement of Law (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful), then, in any
such event, the Lender shall give prompt notice (by telephone confirmed in
writing) to the Company and to the Agent of such determination.
(b) Upon the giving of notice to the Company referred to
in Section 2.12(a) above, (i) the Company's right to request (by Notice of
Conversion or otherwise) and such Lender's obligation to make Eurodollar Rate
Loans shall be immediately suspended, and any such requested Eurodollar Rate
Borrowing shall instead be made as a Borrowing of Alternate Base Rate Loans,
and (ii) if the affected Eurodollar Rate Loan or Loans are then outstanding,
the Company shall immediately, or if permitted by applicable law, no later than
the date permitted thereby, upon at least one Business Day's notice to the
Agent and the affected Lender, convert each such Eurodollar Rate Loan into an
Alternate Base Rate Loan, provided that if more than one Lender is affected at
any time, then all affected Lenders must be treated the same pursuant to this
Section 2.12(b).
(c) Each Lender agrees that it will use reasonable
efforts to designate a different Applicable Lending Office for the Eurodollar
Rate Loans due to it affected by this Section 2.12, if such designation will
avoid the illegality described in this Section 2.12 so long
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as such designation will not be disadvantageous to such Lender as determined by
such Lender in its sole discretion.
(d) For purposes of this Section 2.12, a notice to the
Company (with a copy to the Agent) by any Lender pursuant to paragraph (a)
above shall be effective on the date of receipt thereof by the Company.
(e) In the event any Lender shall give a notice to the
Company pursuant to this Section 2.12, the Company may give notice to such
Lender (with copies to the Agent) that it wishes to seek one or more Eligible
Assignees to assume the Commitments of such Lender and to purchase its
outstanding Loans, Obligations and Notes. Each Lender giving a notice to the
Company pursuant to this Section 2.12 agrees to sell its Commitments, Loans,
Obligations, Notes and interest in this Agreement and the other Loan Documents
pursuant to Section 12.11(c) to any such Eligible Assignee for an amount equal
to the sum of the outstanding unpaid principal of and accrued interest on such
Loans, Obligations and Notes plus all other fees and amounts (including any
compensation claimed by such Lender under Section 2.11, Section 2.13 and
Section 3.05) due such Lender hereunder calculated, in each case, to the date
such Commitment, Loans, Obligations, Notes and interest are purchased,
whereupon such Lender shall have no further Commitment or other obligation to
the Company hereunder or under any Note.
SECTION 2.13. Indemnity. The Company shall indemnify each
Lender against any loss (provided that any such loss with respect to
anticipated profits shall be limited as expressly provided in clauses (i) and
(ii) below) or reasonable expense which such Lender may sustain or incur as a
consequence of (a) any failure by the Company to fulfill on the date of any
Borrowing hereunder the applicable conditions set forth in Article V, (b) for
any reason, a Borrowing of or a conversion from or into Eurodollar Rate Loans
not occurring on the date specified therefor in a Notice of Borrowing or Notice
of Conversion, (c) any payment, prepayment or conversion of a Eurodollar Rate
Loan required by any other provision of this Agreement or otherwise made on a
date other than the last day of the applicable Interest Period, (d) any default
in the payment or prepayment of the principal amount of any Loan or any part
thereof or interest accrued thereon, as and when due and payable (at the due
date thereof, by notice of prepayment or otherwise) or (e) the occurrence of
any Event of Default, including, in the case of any of the events set forth in
clauses (a) through (d) of this Section 2.13, any loss or reasonable expense
sustained or incurred or to be sustained or incurred in liquidating or
employing deposits from third parties acquired to effect or maintain such Loan
or any part thereof as a Eurodollar Rate Loan. Such loss or reasonable expense
shall include an amount equal to the excess, if any, as reasonably determined
by each Lender of (i) its cost of obtaining the funds for the Loan being paid,
prepaid or converted or not borrowed (based on the LIBO Rate) for the period
from the date of such payment, prepayment or conversion or failure to borrow to
the last day of the Interest Period for such Loan (or, in the case of a failure
to
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borrow, the Interest Period for the Loan which would have commenced on the date
of such failure to borrow) over (ii) the amount of interest (as reasonably
determined by such Lender) that would be realized by such Lender in reemploying
the funds so paid, prepaid or converted or not borrowed for such period or
Interest Period, as the case may be. Each Lender will notify the Company
through the Agent of any loss or expense which will entitle such Lender to
compensation pursuant to this Section 2.13, as promptly as possible and in any
event within 120 days after it becomes aware thereof and determines to accept
compensation. A certificate of each Lender setting forth any amount or amounts
which such Lender is entitled to receive pursuant to this Section 2.13 shall be
delivered to the Company (with a copy to the Agent) and shall be conclusive, if
made in good faith, absent manifest error. The Company shall pay to the Agent
for the account of each Lender the amount shown as due on any certificate
within 10 days after its receipt of the same. Notwithstanding the foregoing,
in no event shall the compensation payable under this Section 2.13 (to the
extent, if any, constituting interest under applicable laws) together with all
amounts constituting interest under applicable laws and payable in connection
with this Agreement or the Notes, exceed the Highest Lawful Rate. Without
prejudice to the survival of any other obligation of the Company hereunder, the
obligations of the Company under this Section 2.13 shall survive the
termination of this Agreement, the payment of the Obligations and the
assignment of any of the Notes.
SECTION 2.14. Telephonic Notice. Without in any way limiting
the Company's obligation to confirm in writing any telephonic notice it is
entitled to give under this Agreement, the Agent may act without liability upon
the basis of a telephonic notice believed in good faith by the Agent to be from
the Company prior to receipt of written confirmation. In each such case, each
Loan Party hereby waives the right to dispute the Agent's record of the terms
of such telephonic notice.
ARTICLE III
LETTERS OF CREDIT
SECTION 3.01. Letters of Credit. (a) Subject to and upon the
terms and conditions herein set forth, the Issuing Bank agrees that it will, at
any time and from time to time on or after the Effective Date and prior to the
date that is not later than 30 calendar days prior to the Stated Maturity Date,
following its receipt of a Letter of Credit Request and an Application, issue
for the account of the Company or the Company and any of the Restricted
Subsidiaries and in support of the obligations of the Company or any of the
Restricted Subsidiaries, one or more irrevocable letters of credit (all such
letters of credit collectively, the "Letters of Credit") up to a maximum not
exceeding the Letter of Credit Limit for all Letter of
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Credit Outstandings, provided that the Issuing Bank shall be under no
obligation to issue any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall purport by its terms to enjoin or
restrain the Issuing Bank from issuing such Letter of Credit or any
Requirement of Law applicable to the Issuing Bank or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuing Bank shall
prohibit, or request that the Issuing Bank refrain from, the issuance
of letters of credit generally; or
(ii) if the Stated Amount of such Letter of Credit shall
be greater than an amount which when added to the Letter of Credit
Outstandings at such time and the aggregate principal amount of all
Loans then outstanding (after giving effect to the principal amount of
all Loans repaid and all Unpaid Drawings reimbursed prior to or
concurrently with the issuance of such Letter of Credit), would exceed
the lesser of (A) the Total Commitment (after giving effect to any
reductions to the Total Commitment on such date) and (B) the Borrowing
Base; or
(iii) if the Stated Amount of such Letter of Credit shall
be greater than an amount which when added to the Letter of Credit
Outstandings at such time (after giving effect to all Unpaid Drawings
reimbursed prior to or concurrently with the issuance of such Letter
of Credit), would exceed the Letter of Credit Limit; or
(iv) if the expiry date or, in the case of any Letter of
Credit containing an expiry date that is extendible at the option of
the Issuing Bank, the initial expiry date of such Letter of Credit is
a date that is later than the date that is 30 calendar days prior to
the Stated Maturity Date; or
(v) if the proposed terms of any Letter of Credit would
require the Issuing Bank to make any payment thereunder prior to the
next Business Day after receipt of any documents or certificates to be
presented under such Letter of Credit.
(b) The Issuing Bank shall neither renew nor permit the
renewal of any Letter of Credit if any of the conditions precedent to such
renewal set forth in Section 5.02 are not satisfied or, after giving effect to
such renewal, the expiry date of such Letter of Credit would be a date that is
later than the date that is ten calendar days prior to the Stated Maturity
Date.
SECTION 3.02. Letter of Credit Requests. (a) Whenever the
Company desires that a Letter of Credit be issued or that the existing expiry
date of a Letter of Credit shall be extended, it shall give the Issuing Bank
(with copies to be sent to the Agent and each other
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Lender) (i) in the case of a Letter of Credit to be issued, at least five
Business Days' prior written request therefor and (ii) in the case of the
extension of the existing expiry date of any Letter of Credit, at least five
Business Days prior to the date on which the Issuing Bank must notify the
beneficiary thereof that the Issuing Bank does not intend to extend such
existing expiry date. Each such request shall be executed by the Company and
shall be in the form of Exhibit 3.02 attached hereto (each a "Letter of Credit
Request") and, in the case of the issuance of each Letter of Credit, shall be
accompanied by an Application therefor, completed to the satisfaction of the
Issuing Bank, and such other certificates, documents and other papers and
information as the Issuing Bank or any Lender (through the Agent) may
reasonably request. Each Letter of Credit shall be denominated in Dollars or
any foreign currency agreed upon by the Issuing Bank and the Company, shall
expire no later than the date specified in Section 3.01, shall not be in an
amount greater than is permitted under clauses (ii) or (iii) of Section 3.01(a)
and shall be in such form or forms as may be approved from time to time by the
Issuing Bank and the Company.
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Company that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, clauses (ii) or (iii) of Section 3.01(a). Unless the Issuing Bank has
received notice from any Lender before it issues the respective Letter of
Credit or extends the existing expiry date of a Letter of Credit that one or
more of the conditions specified in Article V are not then satisfied, or that
the issuance of such Letter of Credit would violate this Agreement, then the
Issuing Bank shall issue the requested Letter of Credit for the account of the
Company in accordance with the Issuing Bank's usual and customary practices;
provided, however, that the Issuing Bank shall not be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Letter of Credit Request and the related Application therefor and all other
certificates, documents and other papers and information relating thereto.
Upon its issuance of any Letter of Credit or the extension of the existing
expiry date of any Letter of Credit, as the case may be, the Issuing Bank shall
promptly notify the Company, the Agent and each Lender of such issuance or
extension, which notice shall be accompanied by a copy of the Letter of Credit
actually issued or a copy of any amendment extending the existing expiry date
of any Letter of Credit, as the case may be. For purposes of calculating the
amount of all Letters of Credit outstanding at any time, the amount of any
foreign currency denominated Letters of Credit shall be equal to that amount of
Dollars which could be purchased at such time with the amount of such foreign
currency denominated Letter of Credit.
(c) Each Letter of Credit shall be governed by and
construed and interpreted under the UCP, and, as to matters not governed by the
UCP or that are required to be governed thereby, Article 5 of the Uniform
Commercial Code of the State of New York.
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SECTION 3.03. Letter of Credit Participations; Etc. (a)
Immediately upon the issuance by the Issuing Bank of each Letter of Credit, the
Issuing Bank shall be deemed to have sold and transferred to each Lender, and
each Lender shall be deemed irrevocably and unconditionally to have purchased
and received from the Issuing Bank, without recourse or warranty, an undivided
interest and participation, to the extent of such Lender's Percentage
Participation in each such Letter of Credit (including extensions of the expiry
date thereof), each Letter of Credit issued in substitution therefor, each
Drawing made thereunder and the obligations of the Company or the Company and
any Restricted Subsidiary under this Agreement and the other Loan Documents
with respect thereto, and any security therefor or guaranty pertaining thereto
including the Guaranty.
(b) In the event that the Issuing Bank makes any payment
under any Letter of Credit and the Company shall not have reimbursed such
amount in full to the Issuing Bank pursuant to Section 3.04(a), then, upon
demand by the Issuing Bank sent to the Agent and each Lender before 10:00 a.m.
(New York City time), each Lender shall pursuant to Section 2.04 on the same
day make available to the Agent for delivery to the Issuing Bank, immediately
available funds in an amount equal to such Lender's Percentage Participation of
the amount of such payment by the Issuing Bank, and the funding of such amount
shall be treated as the funding of a Loan by such Lender and shall bear
interest at the Alternate Base Rate. Notwithstanding anything herein or in any
other Loan Document to the contrary, the funding obligations of the Lenders set
forth in this Section 3.03(b) shall be binding regardless of whether or not a
Default or an Event of Default shall exist or the other conditions precedent in
Article V are satisfied at such time. If and to the extent any Lender fails to
effect any payment due from it under this Section 3.03(b) to the Agent, then
interest shall accrue on the obligation of such Lender to make such payment
from and after the date such payment became due until such obligation is paid
in full at a rate per annum equal to the Federal Funds Effective Rate. The
failure of any Lender to pay its Percentage Participation of any payment under
any Letter of Credit shall not relieve any other Lender of its obligation
hereunder to pay to the Agent its Percentage Participation of any payment under
any Letter of Credit on the date required, as specified above, but no Lender
shall be responsible for the failure of any other Lender to pay to the Agent
such other Lender's Percentage Participation of any such payment.
(c) If the Issuing Bank receives a payment of a
reimbursement obligation from the Company as to which the Agent has received
any payments from the Lenders pursuant to clause (b) above, the Issuing Bank
shall pay to the Agent and the Agent shall promptly pay to each Lender which
has paid its Percentage Participation thereof, in Dollars and in same day
funds, an amount equal to such Lender's Percentage Participation thereof
together with any interest on such reimbursement obligation allocable to such
Lender's Percentage Participation paid by the Company to the Issuing Bank
pursuant to Section 3.04(a) and received by the Agent.
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SECTION 3.04. Agreement to Repay Letter of Credit Drawings.
(a) Upon the receipt by the Issuing Bank of any demand for payment from a
beneficiary under a Letter of Credit (a "Drawing"), the Issuing Bank promptly
will provide the Agent, the Lenders and the Company with telecopy notice of
such demand. The Company hereby agrees to reimburse the Issuing Bank by making
payment to the Agent in immediately available funds at the Payment Office, for
any payment (a "Drawing") made by the Issuing Bank under any Letter of Credit
(each such amount so paid until reimbursed, an "Unpaid Drawing") immediately
after, and in any event on the date of, such payment, with interest on the
amount so paid by the Issuing Bank, to the extent not reimbursed prior to 2:00
p.m. (New York City time) on the date of such payment, from and including the
date paid to but excluding the date reimbursement is made as provided above, at
a rate per annum equal to the Default Rate, payable on demand.
(b) The Company's obligations under this Section 3.04 to
reimburse the Issuing Bank with respect to Unpaid Drawings (including, in each
case, interest thereon) shall, to the extent permitted by law, be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Company may have or have had
against any Lender (including the Issuing Bank or any Lender as a participant
therein) or any beneficiary of a Letter of Credit, including (i) any lack of
validity or enforceability of this Agreement, such Letter of Credit or any
other Loan Document; (ii) any adverse change in the condition (financial or
otherwise) of the Company or any of its Subsidiaries; (iii) any breach of this
Agreement or any other Loan Document by any Loan Party, the Agent or any Lender
(other than the Issuing Bank); (iv) the occurrence of any Default or Event of
Default; or (v) any non-application or misapplication by the beneficiary of the
proceeds of such Drawing.
(c) The Company also agrees with the Issuing Bank and the
Lenders that the Issuing Bank shall not be responsible for, and the Company's
reimbursement obligations under Section 3.04(a) shall not be affected by, among
other things, (i) the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or (ii) any dispute between or among the
Company, any other Loan Party and the beneficiary of any Letter of Credit or
any other party to which such Letter of Credit may be transferred or (iii) any
claims whatsoever of the Company or any other Loan Party against any
beneficiary of such Letter of Credit or any such transferee.
(d) The Issuing Bank shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by such Issuing Bank's gross
negligence or willful misconduct. IT IS THE EXPRESS INTENTION OF THE PARTIES
HERETO THAT SUCH ISSUING BANK, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
(OTHER THAN WITH RESPECT TO ANY CLAIMS BY THE ISSUING BANK AGAINST ANY SUCH
OFFICER, DIRECTOR, EMPLOYEE OR
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AGENT THEREOF) SHALL BE INDEMNIFIED AND HELD HARMLESS FROM ANY ACTION TAKEN OR
OMITTED BY SUCH PERSON UNDER OR IN CONNECTION WITH ANY LETTER OF CREDIT OR ANY
RELATED DRAFT OR DOCUMENT ARISING OUT OF OR RESULTING FROM SUCH PERSON'S SOLE
OR CONTRIBUTORY NEGLIGENCE, BUT NOT FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH PERSON. The Company agrees that any action taken or omitted
by the Issuing Bank under or in connection with any Letter of Credit or the
related drafts or documents, if done in accordance with the standards of care
specified in the UCP and, as to any such actions not addressed by the UCP or
that are required to be taken thereunder, Article 5 of the Uniform Commercial
Code of the State of New York, shall not result in any liability of the Issuing
Bank to the Company or any other Person.
SECTION 3.05. Increased Costs. (a) Notwithstanding any other
provision herein, if any Lender shall have determined in good faith that any
change after the Execution Date of any Requirement of Law or the application or
effectiveness of any Requirement of Law or any change after the Execution Date
in the interpretation or administration thereof, or compliance by any Lender
(or any lending office of such Lender) or any corporation controlling such
Lender with any applicable guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) issued after
the Execution Date either (i) shall impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against Letters of
Credit issued, or participated in, by any Lender or (ii) shall impose on any
Lender any other conditions affecting this Agreement or any Letter of Credit;
and the result of any of the foregoing is to increase the cost to any Lender of
issuing, maintaining or participating in any Letter of Credit, or reduce the
amount received or receivable by any Lender or such corporation hereunder with
respect to Letters of Credit, by an amount deemed by such Lender to be
material, then, from time to time, the Company shall pay to the Agent for the
account of such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduction by such Lender.
(b) Each Lender will notify the Company through the Agent
of any event occurring after the date of this Agreement which will entitle such
Lender to compensation pursuant to subsection (a) above, as promptly as
practicable, and in any event within 120 days after it becomes aware thereof.
A certificate of a Lender (i) setting forth in reasonable detail such amount or
amounts as shall be necessary to compensate such Lender as specified in
subsection (a) above and (ii) the calculation of such amount or amounts under
subparagraph (a) may be delivered to the Company (with a copy to the Agent) and
shall be conclusive absent manifest error. The Company shall pay to the Agent
for the account of such Lender the amount shown as due on any such certificate
within 10 days after its receipt of the same.
(c) Except as expressly provided in Section 3.05(b),
failure on the part of any Lender to demand compensation for any increased
costs or reduction in amounts received or receivable or reduction in return on
capital with respect to any Letter of Credit shall not
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constitute a waiver of such Lender's rights to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to such Letter of Credit.
(d) In the event any Lender shall seek compensation
pursuant to this Section 3.05, the Company may give notice to such Lender (with
copies to the Agent) that it wishes to seek one or more Eligible Assignees to
assume the Commitments of such Lender and to purchase its outstanding Loans,
other Obligations, Notes and interest in this Agreement and the other Loan
Documents. Each Lender requesting compensation pursuant to this Section 3.05
agrees to sell its Commitments, Loans, other Obligations, Notes and interest in
this Agreement and other Loan Documents pursuant to Section 12.10(c) to any
such Eligible Assignee for an amount equal to the sum of the outstanding unpaid
principal of and accrued interest on such Loans, such other Obligations and
Notes (including any compensation claimed by such Lender under Section 2.11,
Section 2.13 and this Section 3.05) due such Lender hereunder calculated, in
each case, to the date such Commitments, Loans, other Obligations, Notes and
interest are purchased, whereupon such Lender shall have no further Commitment
or other obligation to the Company hereunder or under any Note.
SECTION 3.06. Conflict between Applications and Agreement.
To the extent that any provision of any Application related to any Letter of
Credit is inconsistent with the provisions of this Agreement, the provisions of
this Agreement shall control.
ARTICLE IV
FEES; COMMITMENTS; PAYMENTS
SECTION 4.01. Fees. (a) The Company agrees to pay the Agent
for the account of each Lender in arrears on each of the following dates: (i)
each Designated Payment Date during the period from the Execution Date to the
date on which the Total Commitment is terminated and (ii) on the Stated
Maturity Date and on any other date on which the Commitment of any Lender is
terminated as provided herein a commitment fee (collectively the "Commitment
Fees") equal to the Applicable Fee Percentage on the daily average Unutilized
Commitment of each Lender. The Commitment Fee due to each Lender shall
commence to accrue on the Execution Date and shall cease to accrue on the
earlier of the Stated Maturity Date or any other date on which the Commitment
of such Lender shall have been terminated as provided herein.
(b) The Company agrees to pay the Agent for the account
of each Lender a fee in respect of each Letter of Credit issued for the account
of the Company or the Company and any Restricted Subsidiary (collectively, the
"Letter of Credit Fees"), for the period from the date of issuance of such
Letter of Credit to the expiry date of such Letter of Credit, computed
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at a rate equal to the Letter of Credit Margin times the daily average Stated
Amount of such Letter of Credit (but in no event less than $500). The Letter of
Credit Fee shall be distributed to the Lenders (based upon their respective
Percentage Participations in the Letters of Credit). In addition, the Company
agrees to pay the Issuing Bank for its own account a fee in respect of each
Letter of Credit issued for the account of the Company or the Company and any
Restricted Subsidiary (collectively, the "Issuing Bank Fees") for the period
from the date of issuance of such Letter of Credit to the expiry date of such
Letter of Credit computed at a rate equal to 1/8 of 1% times the daily average
Stated Amount of such Letter of Credit. Accrued Letter of Credit Fees and the
Issuing Bank Fees shall be due and payable in arrears on each Designated Payment
Date commencing December 31, 1996, and on the Stated Maturity Date or, if
earlier, on the date upon which the Commitment is terminated. The Letter of
Credit Fees and the Issuing Bank Fees will be in lieu of all commissions and
fees for the Letters of Credit other than customary administrative, issuance,
amendment, payment and negotiation charges of the Issuing Bank.
(c) The Company agrees to pay to the Agent, for its own
account, such Fees as have been agreed to pursuant to that certain letter
agreement dated as of June 26, 1996 between the Company and the Agent (the
"Agent's Letter").
(d) All Fees pursuant to this Section 4.01 shall be paid
in immediately available funds and shall be calculated on the basis of the
actual number of days elapsed over a year of 360 days.
(e) In no event shall the Fees payable to any Lender
under this Section 4.01 (to the extent, if any, constituting interest under
applicable laws) together with all amounts constituting interest under
applicable laws and payable in connection with this Agreement, the Notes and
other Loan Documents exceed the Highest Lawful Rate.
SECTION 4.02. Voluntary Termination of Commitments. Upon at
least five Business Days' prior telephonic notice confirmed in writing to the
Agent (which notice the Agent shall promptly transmit to each of the Lenders),
the Company shall have the right, without premium or penalty, to terminate the
Total Unutilized Commitment in part or in whole; provided, that any such
partial termination (a) shall apply proportionately to the Commitment of each
of the Lenders and (b) shall be in the amount of $5,000,000 or, if greater, an
integral multiple of $1,000,000.
SECTION 4.03. Mandatory Termination of Commitments. (a) The
Total Commitment shall terminate upon the occurrence of a Change of Control.
(b) The Total Commitment, if not sooner terminated, shall
terminate on the Stated Maturity Date.
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SECTION 4.04. Voluntary Prepayments. The Company shall have
the right to voluntarily prepay the Loans in whole or in part from time to
time, without premium or penalty (except as provided below), on the following
terms and conditions: (a) the Company shall give the Agent at least three
Business Days' prior written or telephonic notice (if telephonic, promptly
confirmed in writing) of its intent to prepay the Loans, the principal amount
of such prepayment, the Type of Loans to be prepaid and the specific Borrowing
or Borrowings relating to such Loans, which notice the Agent shall promptly
transmit to each of the Lenders; (b) any Borrowing comprised of Eurodollar Rate
Loans may be prepaid prior to the last day of its Interest Period subject to
Section 2.13; (c) each partial prepayment of the Loans shall be in an aggregate
principal amount of $3,000,000.00 or, if greater, an integral multiple of
$1,000,000.00; and (d) each prepayment pursuant to this Section 4.04 shall be
applied, first, to the payment of accrued and unpaid interest, on the amount of
the Loans being so prepaid, and, second, to the outstanding principal of such
Loans.
SECTION 4.05. Scheduled Principal Payments and Mandatory
Prepayments. (a) On the date that a Change of Control of the type described in
clause (c) of the definition of that term occurs and on the date that is 15
days after the occurrence of any other type of Change of Control, the Company
shall prepay the outstanding principal amount of the Loans and shall deposit
with the Agent as security for the Letter of Credit Outstandings (i) with
respect to the Letters of Credit denominated in Dollars, Dollars in immediately
available funds in an amount equal to the aggregate Letter of Credit
Outstandings for such Letters of Credit and (ii) with respect to each Letter of
Credit denominated in a foreign currency, such foreign currency in immediately
available funds in an amount equal to the Letter of Credit Outstandings for
such Letter of Credit.
(b) The Company shall prepay the outstanding principal
amount of the Loans on any day on which the aggregate outstanding principal
amount of the Loans, when added to Letter of Credit Outstandings, exceeds the
lesser of the Total Commitment and the Borrowing Base, in the amount of such
excess. If, after giving effect to the prepayment of all outstanding Loans,
the Letter of Credit Outstandings exceed the lesser of the Total Commitment and
the Borrowing Base, the Company shall deposit with the Agent as security for
the Obligations, Dollars in immediately available funds in an amount equal to
such excess Letter of Credit Outstandings; provided, however, if any Letter of
Credit is denominated in a foreign currency, the deposit of funds with respect
to such Letter of Credit shall be in such foreign currency.
(c) On the Stated Maturity Date, the Company shall pay
the aggregate principal amount of the Loans outstanding on such date.
(d) All prepayments of Eurodollar Rate Loans required by
this Section 4.05 shall be subject to Section 2.13.
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(e) With respect to each prepayment of Loans required by
this Section 4.05, the Company may, consistent with the requirements of this
Section 4.05, designate the Types of Loans which are to be prepaid and, in the
case of Eurodollar Rate Loans, the specific Borrowing or Borrowings pursuant to
which made; provided, that if any prepayment of Eurodollar Rate Loans made
pursuant to a single Borrowing shall reduce the outstanding Loans made pursuant
to such Borrowing to an amount less than $3,000,000, such Borrowing shall
immediately be converted into Alternate Base Rate Loans. In the absence of a
designation by the Company as described in the preceding sentence or in the
event such designation conflicts with the requirements of this Section 4.05,
the Agent shall, subject to the above and in accordance with this Section 4.05,
make such designation in its sole discretion.
SECTION 4.06. Method and Place of Payment. Except as
otherwise specifically provided herein, all payments under this Agreement and
the other Loan Documents shall be made to the Agent for the account of the
Lender or Lenders entitled thereto (without setoff, deduction or counterclaim
except as permitted in Section 4.07) not later than noon (New York City time)
on the date when due and shall be made in Dollars in immediately available
funds at the Payment Office. If the Agent fails to send to any Lender its
portion of any Fee or of any payment of principal or interest (i) on the date
such Fee or payment of principal or interest was received if such Fee or
payment of principal or interest is received by the Agent prior to 1:00 p.m.
(New York City time) on such day and (ii) on the next succeeding Business Day
if such Fee or payment of principal or interest is received on or after 1:00
p.m. (New York City time) on any day, the Agent shall pay to such Lender
interest on its portion of such Fee or payment of principal or interest at the
Federal Funds Effective Rate from (A) the day such Fee or payment of principal
or interest was received by the Agent in the case of clause (i) and (B) such
next succeeding Business Day in the case of clause (ii), in each case, until
the date such Lender's portion of such Fee or payment of principal or interest
is sent to such Lender. Except as otherwise expressly provided herein,
whenever any payment (including principal of or interest on any Borrowing or
any Fees or other amounts) to be made hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment shall be made on the next preceding Business Day.
SECTION 4.07. Taxes. (a) All payments made by the Loan
Parties under this Agreement, the Notes and the other Loan Documents shall be
made free and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes (based on income) imposed on the
Agent or any Lender as a result of a present or former connection between the
Agent or such Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority thereof or
therein. If any such non-excluded taxes, levies, imposts, duties, charges,
fees,
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deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to the Agent or any Lender hereunder or under the
Notes, the amounts so payable to the Agent or such Lender shall be increased to
the extent necessary to yield to the Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement, the Notes and the other
Loan Documents; provided, however, that no Loan Party shall be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. The Agent
shall cooperate with any Loan Party in determining the appropriate amount
payable to any Lender or the Agent or the appropriate amount of withholding
taxes payable, to the extent reasonably required by any such Loan Party.
Whenever any Non-Excluded Taxes are payable by a Loan Party, as promptly as
possible thereafter such Loan Party shall send to the Agent for its own account
or for the account of such Lender, as the case may be, a certified copy of an
original official receipt received by such Loan Party showing payment thereof.
If a Loan Party fails to pay any Non-Excluded Taxes when due to the appropriate
taxing authority or fails to remit to the Agent the required receipts or other
required documentary evidence, the Loan Parties shall, subject to Section
12.08, indemnify the Agent and the Lenders for any incremental taxes, interest
or penalties that may become payable by the Agent or any Lender as a result of
any such failure. The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof shall:
(i) deliver to the Company and the Agent (A) two duly
completed copies of United States Internal Revenue Service Form 1001
or 4224, or successor applicable form, as the case may be, and (B) an
Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be;
(ii) deliver to the Company and the Agent two further
copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Company; and
(iii) obtain such extensions of time for filings and
complete such forms or certifications as may reasonably be requested
by the Company or the Agent;
unless in any such case an event (including any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such
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forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Company and the Agent. Such Lender shall certify (i) in the case of a Form
1001 or 4224, that it is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes and
(ii) in the case of a Form W-8 or W-9, that it is entitled to an exemption from
United States backup withholding tax. Each Person that shall become a Lender
or purchases a participation pursuant to Section 12.11 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms
and statements required pursuant to this subsection, provided that in the case
of any such participant, such participant shall furnish all such required forms
and statements to the Lender from which the related participation shall have
been purchased.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to the Initial Credit
Event. The obligation of each Lender to make its initial Loan or of the Issuing
Bank to issue the initial Letter of Credit is subject to the following
conditions:
(a) The Agent shall have received the following, each
dated the initial Borrowing Date, except for this Agreement and the Notes which
shall be dated the Execution Date:
(i) this Agreement executed by each party hereto;
(ii) a Note executed by the Company and payable to the
order of each Lender;
(iii) Subsidiary Guarantors Security Agreements executed
respectively by EVI Arrow and EVI Watson Packers;
(iv) letters from CT Corporation System, Inc. in form and
substance satisfactory to the Agent and the Lenders evidencing the
obligation of CT Corporation System, Inc. to accept service of process
in the State of New York on behalf of each of EVI Arrow and EVI Watson
Packers;
(v) a favorable, signed opinion addressed to the Agent
and the Lenders from Fulbright & Jaworski L.L.P, counsel to EVI Arrow
and EVI Watson Packers.
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(vi) a Notice of Borrowing with respect to the Loans to be
borrowed on the initial Borrowing Date meeting the requirements of
Section 2.03 and a Letter of Credit Request with respect to each
Letter of Credit to be issued on the initial Borrowing Date meeting
the requirements of Section 3.02;
(vii) a certificate of an officer and of the secretary or
an assistant secretary of each Loan Party certifying, inter alia, (A)
true and complete copies of each of the articles or certificate of
incorporation, as amended and in effect, of such Person, the bylaws,
as amended and in effect, of such Person and the resolutions adopted
by the Board of Directors of such Person (or a duly authorized
committee thereof) (1) authorizing the execution, delivery and
performance by such Person of this Agreement and the other Loan
Documents to which it is or will be a party and, in the case of the
Company, the Borrowings to be made and the Letters of Credit to be
issued hereunder, (2) approving the forms of the Loan Documents to
which it is a party and which will be delivered at or prior to the
initial Borrowing Date and (3) authorizing officers of such Person to
execute and deliver the Loan Documents to which it is or will be a
party and any related documents, including, any agreement contemplated
by this Agreement, (B) the incumbency and specimen signatures of the
officers of such Person executing any documents on its behalf and (C)
(1) that the representations and warranties made by such Loan Party in
any Loan Document to which such Person is a party and which will be
delivered at or prior to the date of the initial Borrowing Date are
true and correct in all material respects, (2) the absence of any
proceedings for the dissolution or liquidation of such Person and (3)
the absence of the occurrence and continuance of any Default or Event
of Default;
(viii) certificates of appropriate public officials as to
the existence, good standing and qualification to do business as a
foreign corporation, as applicable, of each Loan Party in each
jurisdiction in which the ownership of its properties or the conduct
of its business requires such qualifications and where the failure to
so qualify would, individually or collectively, have a Material
Adverse Effect.
(b) The Agent shall have received all of the shares of
stock of each of EVI Arrow and EVI Watson Packers together with related stock
powers executed in blank by the Company.
(c) Uniform Commercial Code financing statements, or
proper notices, statements or other instruments in respect thereof, shall be in
a form and completed to permit them to be duly recorded, published, registered
and filed in all such placed as is required by applicable law to grant to the
Agent a first priority security interest in the Collateral pledged by EVI Arrow
and EVI Watson Packers, subject only to Permitted Collateral Liens.
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(d) The Agent and its special counsel shall have received
reports of Uniform Commercial Code searches, tax searches and judgment reports
of the appropriate records of each state in which EVI Arrow or EVI Watson
Packers has assets or an office, dated a recent date prior to the Execution
Date and satisfactory in form and substance to the Agent and the Lenders.
(e) The Company, the Subsidiary Guarantors (other than
EVI Arrow and EVI Watson Packers) shall have executed and delivered the First
Amendment to Company Security Agreement, Subsidiary Guarantors Security
Agreements and Company Pledge Agreement.
(f) The Agent shall have received evidence satisfactory
to it of the sales of Mallard and the Mallard Subsidiaries for a total
consideration of not less than $300,000,000.
(g) The Company shall have paid to the Agent and the
Lenders, as applicable, all fees and expenses (including the fees and
disbursements of Andrews & Kurth L.L.P. pursuant to Section 12.04) agreed upon
by such parties to be paid on or prior to the Execution Date.
(h) The Company shall have delivered to the Agent such
other documents and instruments, if any, as it may reasonably request.
SECTION 5.02. Conditions Precedent to All Credit Events.
Except with respect to Loans made by the Lenders pursuant to Section 3.03(b),
the obligation of the Lenders to make any Loan or to issue or extend any Letter
of Credit (including any Loan made or Letter of Credit issued on the initial
Borrowing Date) is subject to the further conditions precedent that on the date
of such Credit Event:
(a) The conditions precedent set forth in Section 5.01
shall have theretofore been satisfied.
(b) The representations and warranties set forth in
Article VI and in the other Loan Documents shall be true and correct in all
material respects as of, and as if such representations and warranties were
made on, the date of the proposed Loan or Letter of Credit, as the case may be
(unless such representation and warranty expressly relates to an earlier date),
and the Loan Parties shall be deemed to have certified to the Agent and the
Lenders that such representations and warranties are true and correct in all
material respects by the Company's delivery of a Notice of Borrowing or a
Letter of Credit Request, as the case may be.
(c) The Company shall have complied with the provisions
of Section 2.03 or Section 3.02, as applicable.
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(d) No Default or Event of Default shall have occurred
and be continuing or would result from such Credit Event.
(e) The Agent and the Lenders shall have received such
other approvals, opinions or documents as the Agent or the Majority Lenders may
reasonably request.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Loan Parties, to each of the Lenders that
all of the conditions specified in this Section 5.02 above exist as of that
time.
SECTION 5.03. Conditions Precedent to Conversions. The
obligation of the Lenders to convert any existing Borrowing into a Borrowing
consisting of Eurodollar Rate Loans is subject to the condition precedent that
on the date of such conversion no Default or Event of Default shall have
occurred and be continuing or would result from the making of such conversion.
The acceptance of the benefits of each such conversion shall constitute a
representation and warranty by the Loan Parties to each of the Lenders that no
Default or Event of Default shall have occurred and be continuing or would
result from the making of such conversion.
SECTION 5.04. Delivery of Documents. All of the Notes,
certificates, legal opinions and other documents and papers referred to in this
Article V, unless otherwise specified, shall be delivered to the Agent for the
account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be satisfactory in
form and substance to the Lenders.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement
and to make the Loans provided for herein and to induce the Issuing Bank to
issue Letters of Credit and the other Lenders to participate therein, each Loan
Party makes, on or as of the Effective Date and the occurrence of each Credit
Event, the following representations and warranties to the Agent and the
Lenders:
SECTION 6.01. Organization and Qualification. The Company
and each of the Restricted Subsidiaries (a) is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation or organization, (b) has the corporate, partnership or other
power to own its property and to carry on its business as now conducted and (c)
is duly qualified as a foreign corporation to do business and is in good
standing in every
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jurisdiction in which the failure to be so qualified would, individually or
together with all such other failures of the Loan Parties and their
Subsidiaries, have a Material Adverse Effect. As of the Execution Date, the
corporations and other entities named in Schedule 6.01 are all of the
Subsidiaries of the Company, such Schedule (x) accurately reflects (i) the
direct owner of the Capital Stock of each such Subsidiary and (ii) the
percentage of the issued and outstanding Capital Stock of each such Subsidiary
owned by a Loan Party, (y) accurately identifies such Subsidiaries and (z)
accurately sets forth the jurisdictions of their respective incorporation or
organization and jurisdictions in which they are required to be qualified as
foreign corporations, foreign partnerships or other foreign entities to do
business.
SECTION 6.02. Authorization, Validity, Etc. Each Loan Party
has the corporate power and authority to execute, deliver and perform its
obligations hereunder and under the other Loan Documents to which it is a party
and, in the case of the Company, to make the Borrowings and obtain the issuance
of Letters of Credit hereunder, and all such action has been duly authorized by
all necessary corporate proceedings on its part. This Agreement and the
Security Documents have been duly and validly executed and delivered by each
Loan Party party thereto and constitute valid and legally binding agreements of
such Loan Party enforceable against such Loan Party in accordance with the
respective terms thereof, and the Notes and the other Loan Documents to which
such Loan Party is a party, when duly executed and delivered by such Loan
Party, will constitute valid and legally binding obligations of such Loan Party
enforceable in accordance with the respective terms thereof and of this
Agreement, except, in each case, (a) as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws relating to or affecting the enforcement of creditors'
rights generally, and by general principles of equity which may limit the right
to obtain equitable remedies (regardless of whether such enforceability is a
proceeding in equity or at law) and (b) as to the enforceability of provisions
for indemnification for violation of applicable securities laws, limitations
thereon arising as a matter of law or public policy.
SECTION 6.03. Governmental Consents, Etc. No authorization,
consent, approval, license or exemption of or filing or registration with any
Governmental Authority, is necessary for the valid execution, delivery or
performance by any Loan Party of any Loan Document to which it is a party,
except those that have been obtained and such matters relating to performance
as would ordinarily be done in the ordinary course of business after the
Execution Date.
SECTION 6.04. Conflicting or Adverse Agreements or
Restrictions. Neither the Company nor any of the Restricted Subsidiaries is a
party to any contract or agreement or subject to any restriction that would
reasonably be expected to have a Material Adverse Effect. Neither the
execution, delivery and performance by any Loan Party of the Loan Documents to
which it is a party, nor compliance with the terms and provisions thereof, nor
the extensions of
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credit contemplated by the Loan Documents, (a) will breach or violate any
applicable Requirement of Law, (b) will result in any breach or violation of,
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of its property or assets pursuant to the
terms of any indenture, mortgage, deed of trust, agreement or other instrument
to which it or any of its Subsidiaries is party or by which any property or
asset of it or any of its Subsidiaries is bound or to which it is subject,
except for breaches, violations and defaults under clauses (a) and (b) that
collectively for all Loan Parties will not have a Material Adverse Effect or
(c) will violate any provision of the organic documents of any Loan Party.
SECTION 6.05. Title to Assets. Without limiting the
representations as to the Collateral contained in the Security Documents, the
Company and each Restricted Subsidiary has good and indefeasible title to its
assets constituting real property and good and indefeasible title to its other
assets, subject to no Liens, except Permitted Liens and immaterial Liens.
SECTION 6.06. Litigation. Except for the COLEVE tax matter
disclosed in its most recent filing on Form 10-K filed with the Securities and
Exchange Commission, there are no actions, suits or proceedings pending for
which service of process has been accomplished or, to the best knowledge of any
Loan Party, threatened with respect to any Loan Party, the Loan Documents or
any transactions contemplated therein that are reasonably likely to have
(individually or collectively) a Material Adverse Effect.
SECTION 6.07. Information Memorandum; Financial Statements.
The Information Memorandum, as affected by the disclosures made herein, in the
other Loan Documents and in the filings made by the Company with the Securities
and Exchange Commission pursuant to the Exchange Act, did not as of the date
thereof and will not (in the case of the Information Memorandum) as of the date
of the initial Credit Event hereunder, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained therein not misleading in any material respect. Since
December 31, 1995 there has been no material adverse change in the financial
condition, business or operations of the Company and the Restricted
Subsidiaries taken as a whole.
SECTION 6.08. Default. Except for defaults or violations
which, individually or together with all other defaults and violations by the
Company and the Restricted Subsidiaries, would not reasonably be expected to
have a Material Adverse Effect, neither the Company nor any Restricted
Subsidiary is in default in any respect under the provisions of any instrument
evidencing any Indebtedness or of any agreement relating thereto, or in default
in any respect under or in violation of any Requirement of Law.
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SECTION 6.09. Investment Company Act. Neither the Company
nor any of its Subsidiaries is, or is regulated as an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended.
SECTION 6.10. Public Utility Holding Company Act. Neither
the Company nor any of its Subsidiaries is a non-exempt "holding company," or
subject to regulation as such, or, to the knowledge of any Loan Party's
officers, an "affiliate" of a "holding company" or a "subsidiary company" of a
"holding company," within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
SECTION 6.11. ERISA. (a) The Company and each ERISA
Affiliate has operated and administered each Plan and Multiemployee Plan in
compliance with all applicable laws except for such instances of noncompliance
as have not resulted in and would not reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any ERISA Affiliate has incurred any
liability pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans (as defined in
Section 3 of ERISA), and no event, transaction or condition has occurred or
exists that would reasonably be expected to result in the incurrence of any
such liability by the Company or any ERISA Affiliate, or in the imposition of
any Lien on any of the rights, properties or assets of the Company or any ERISA
Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty
or excise tax provisions or to Section 401(a)(29) or 412 of the Code, other
than such liabilities or Liens as would not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect.
(b) No accumulated funding deficiency (as defined in
Section 412 of the Code or Section 302 of ERISA) in excess of $1,000,000,
whether or not waived, exists or is expected to be incurred with respect to any
Plan.
(c) The Company and its ERISA Affiliates have not
incurred withdrawal liabilities (and are not subject to contingent withdrawal
liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer
Plans that individually or in the aggregate would reasonably be expected to
have a Material Adverse Effect.
(d) The expected post-retirement benefit obligation
(determined as of the last day of the Company's most recently ended fiscal year
in accordance with Financial Accounting Standards Board Statement No. 106,
without regard to liabilities attributable to continuation coverage mandated by
section 4980B of the Code) of the Company and the Restricted Subsidiaries would
not reasonably be expected to have a Material Adverse Effect.
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(e) No such Multiemployer Plan is in "reorganization" or
"insolvent," within the meaning of such terms as used in ERISA.
SECTION 6.12. Tax Returns and Payments. (a) The Company and
its Subsidiaries have caused to be filed all federal income tax returns and
other material tax returns, statements and reports (or obtained extensions with
respect thereto) which are required to be filed and have paid or deposited or
made adequate provision in accordance with GAAP for the payment of all taxes
(including estimated taxes shown on such returns, statements and reports) which
are shown to be due pursuant to such returns, except where the failure to pay
such taxes (individually or collectively for the Company and the Restricted
Subsidiaries) would not have a Material Adverse Effect. No material income tax
liability of the Company or the Restricted Subsidiaries has been asserted by
the Internal Revenue Service of the United States or any other Governmental
Authority for any taxes in excess of those already paid, except for taxes which
are being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP have been created on the books of the
Company and the Restricted Subsidiaries.
(b) The federal income tax liabilities, if any, of the
Company and its Subsidiaries have been finally determined by the Internal
Revenue Service and satisfied for all taxable years through the fiscal year
ending in 1992. COLEVE, a dissolved partnership in which the Company held less
than a 50% interest, has open tax years for the fiscal years ending in 1985
through 1990.
SECTION 6.13. Requirements of Law; Environmental Matters.
(a) The Company and each Restricted Subsidiary is in compliance with all
Requirements of Law, applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all Governmental Authorities in respect of
the conduct of its business and the ownership of its property, except for such
noncompliances which, individually or in the aggregate for the Company and all
such Restricted Subsidiaries, would not have a Material Adverse Effect.
(b) Without limitation of the foregoing, the Company and
each Restricted Subsidiary possesses all environmental, health and safety
licenses, permits, authorizations, registrations, approvals and similar rights
necessary under law or otherwise for the Company or such Restricted Subsidiary
to conduct its operations as now being conducted (other than those with respect
to which the failure to possess or maintain would not, individually or in the
aggregate for the Company and all such Restricted Subsidiaries, have a Material
Adverse Effect), and each of such licenses, permits, authorizations,
registrations, approvals
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and similar rights is valid and subsisting, in full force and effect and
enforceable by the Company or such Restricted Subsidiary, and the Company and
each Restricted Subsidiary is in compliance with all terms, conditions or other
provisions of such permits, authorizations, registrations, approvals and
similar rights except for such failure or noncompliance that, individually or
in the aggregate for the Company and all such Restricted Subsidiaries, would
not have a Material Adverse Effect. Except as disclosed on Schedule 6.13,
neither the Company nor any Restricted Subsidiary has received any notices of
any violation of, noncompliance with, or remedial obligation under,
Requirements of Environmental Laws, and there are no writs, injunctions,
decrees, orders or judgments outstanding, or lawsuits, claims, proceedings,
investigations or inquiries or, to the knowledge of any Loan Party, pending or
threatened, relating to the ownership, use, condition, maintenance or operation
of, or conduct of business related to, any property owned, leased or operated
by the Company or any Restricted Subsidiary or other assets of the Company or
such Restricted Subsidiary, other than those violations, instances of
noncompliance, obligations, writs, injunctions, decrees, orders, judgments,
lawsuits, claims, proceedings, investigations or inquiries that, individually
or in the aggregate for all Loan Parties and such Subsidiaries, would not have
a Material Adverse Effect. Except as disclosed on Schedule 6.13, there are no
material obligations, undertakings or liabilities arising out of or relating to
Environmental Laws to which any Loan Party or any of its Subsidiaries has
agreed, assumed or retained, or by which any Loan Party or any of its
Subsidiaries is adversely affected, by contract or otherwise, which would have
a Material Adverse Effect. Except as disclosed on Schedule 6.13, no Loan Party
nor any of its Subsidiaries has received a written notice or claim to the
effect that such Person is or may be liable to any other Person as the result
of a Release or threatened Release of a Hazardous Material, which liability
would have a Material Adverse Effect.
SECTION 6.14. Purpose of Loans. (a) The purpose of the Loans
is to provide working capital facilities to the Company and the Restricted
Subsidiaries. All proceeds of the Loans will be used by the Company for
working capital or advanced to a Restricted Subsidiary for use by such
Restricted Subsidiary for working capital. All Letters of Credit will be
issued in connection with the working capital requirements of the Company or a
Restricted Subsidiary.
(b) None of the proceeds of the Loans under the Original
Credit Agreement or this Agreement were or will be used directly or indirectly
for the purpose of buying or carrying any "margin stock" within the meaning of
Regulation U (herein called "margin stock") or for the purpose of reducing or
retiring any indebtedness (including the indebtedness repaid with the proceeds
of the loans made under the Original Credit Agreement) which was originally
incurred to buy or carry a margin stock, or for any other purpose which might
constitute this transaction a "purpose" credit within the meaning of Regulation
U. Neither any Loan Party nor any agent acting on its behalf has taken or will
take any action which might cause this Agreement or any other Loan Document to
violate Regulation U, Regulation X, or any other regulation of the Board or to
violate the Securities Exchange Act of 1934. Margin stock did not on June 26,
1996, and does not on the date hereof constitute more than 25% of the assets of
the Company or any Loan Party.
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SECTION 6.15. Franchises and Other Rights. The Company and
each Restricted Subsidiary has all franchises, permits, licenses and other
authority (collectively, the "Operating Rights") as are necessary to enable
them to carry on their respective businesses as now being conducted, except for
Operating Rights with respect to which the failure to have would not
individually or in the aggregate for all such failures by the Company and the
Restricted Subsidiaries have a Material Adverse Effect. Neither the Company
nor any Restricted Subsidiary is in default under any of the Operating Rights
which default, individually or together with all such defaults of the Company
and the Restricted Subsidiaries, would have a Material Adverse Effect.
SECTION 6.16. Solvency. Each Loan Party is Solvent.
For purposes of this Section 6.16 the term "Solvent" shall
mean, with respect to any Person, that:
(a) the assets of such Person, at a fair valuation,
exceed the total liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of such Person;
(b) based on current projections, which are based on
underlying assumptions which provide a reasonable basis for the projections and
which reflect such Person's judgment based on present circumstances, of the
most likely set of conditions and such Person's most likely course of action
for the period projected, such Person believes it has sufficient cash flow to
enable it to pay its debts as they mature; and
(c) such Person does not have unreasonably small capital
with which to engage in its anticipated business.
For purposes of this Section 6.16, the "fair valuation" of the
assets of any Person shall be determined on the basis of the amount which may
be realized within a reasonable time, either through collection or sale of such
assets at the regular market value, conceiving the latter as the amount which
could be obtained for the property in question within such period by a capable
and diligent businessman from an interested buyer who is willing to purchase
under ordinary selling conditions, including obtaining necessary consents.
SECTION 6.17. No Intent to Hinder, Delay or Defraud. Each
Subsidiary Guarantor has entered into this Agreement, including the Guaranty
and the other Loan Documents, with no intent to hinder, delay or defraud any
Person to whom such Subsidiary Guarantor was or becomes, on or after the
Execution Date, indebted, within the meaning of Section 548 of the Bankruptcy
Code.
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SECTION 6.18. Further Actions. The Loan Parties will make
all reasonable efforts to cause the Agent to have a perfected security interest
in the equity of Producion Engemaq Industria E Comercio Ltda.
ARTICLE VII
AFFIRMATIVE COVENANTS
Each Loan Party covenants and agrees for itself, and the
Company covenants and agrees with respect to each of the Restricted
Subsidiaries, that on and after the date hereof and for so long as this
Agreement is in effect and until the Commitments and each Letter of Credit have
terminated, and the Loans and Unpaid Drawings together with all of the other
Obligations are paid in full:
SECTION 7.01. Information Covenants. The Company will
furnish or cause to be furnished to the Agent and each Lender:
(a) As soon as available, and in any event within 60 days
after the end of each of the first three quarterly accounting periods in each
fiscal year (i) the Form 10-Q of the Company and (ii) the consolidated balance
sheet of the Company and its Subsidiaries as at the end of such fiscal quarter
and the related consolidated unaudited statement of income and cash flows for
such fiscal quarter and for the elapsed portion of the fiscal year ended with
the last day of such fiscal quarter, and setting forth, in each case,
comparative consolidated figures for the related periods in the prior fiscal
year, all of which shall be certified by the chief financial officer, chief
executive officer or controller of the Company subject to note changes
resulting from normal year-end audit adjustments; provided, however, if the
Form 10-Q of the Company contains the consolidated balance sheet and statements
of income, retained earnings and cash flows, the Company shall not be required
to comply with clause (ii).
(b) As soon as available, and in any event within 120
days after the close of each fiscal year, the Annual Report of the Company for
such fiscal year containing therein, the consolidated balance sheet of the
Company and its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, retained earnings and cash flows for such
fiscal year, setting forth, in each case, comparative figures for the preceding
fiscal year and certified by Arthur Andersen LLP or other independent certified
public accountants of recognized national standing reasonably acceptable to the
Agent and the Majority Lenders, whose certification shall be without
Impermissible Qualification together with a certificate of such accounting firm
stating that in the course of its regular audit of the business of the Company,
which audit was conducted in accordance with generally accepted United States
auditing standards, such accounting firm has obtained no knowledge of any
Default or Event of
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Default which has occurred and is continuing or, if in the opinion of such
accounting firm such a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof, all of the foregoing to be in
form and substance reasonably satisfactory to the Majority Lenders.
(c) As soon as available, and in any event within 30 days
after the close of each month the following: (i) a Borrowing Base Certificate
as at the last day of such month and (ii) a schedule for each Loan Party
showing the amount and aging of each Receivable of such Loan Party and the
identity of the account debtor thereon.
(d) From time to time, at the sole expense of the Company
and upon the request of the Agent or the Majority Lenders, a report of an
independent collateral auditor (which may be, or be affiliated with, one of the
Lenders) with respect to the accounts receivable and inventory components
included in the Borrowing Base, which report shall indicate whether or not,
based upon a review by such auditors of the accounts receivable (including
verification with respect to the amount, aging, identity and credit of the
respective account debtors and the billing practices of the Loan Parties) and
Inventory (including verification as to the value, location and respective
types), the information set forth in the Borrowing Base Certificate most
recently delivered is accurate and complete in all material respects.
Notwithstanding the foregoing, unless a Default or Event of Default shall have
occurred and be continuing at the time any report with respect to the accounts
receivable and inventory described in this Section 7.01(d) is requested, the
Company shall not be required to pay the cost of or reimburse the Agent for any
such report more often than once during each fiscal year.
(e) Promptly upon the mailing thereof to the shareholders
of the Company generally, copies of all financial statements, reports and proxy
statements so mailed.
(f) Promptly upon the filing thereof, copies of all
effective registration statements (other than registration statements on Form
S-8) and annual, quarterly or current reports which the Company shall have
filed with the Securities and Exchange Commission.
(g) Promptly, and in any event within two Business Days
after any Responsible Officer of any Loan Party obtains knowledge thereof,
notice of
(i) any material violation of, noncompliance with,
or remedial obligations under, Requirements of Environmental Laws
which would reasonably be expected to have a Material Adverse Effect,
(ii) any material Release or threatened material
Release of Hazardous Materials that materially and adversely affects
or is reasonably expected to affect any
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material property owned, leased or operated by the Company or any
Restricted Subsidiary or
(iii) any event or condition which constitutes a
Default or an Event of Default;
a notice of such event or condition will be delivered to each Lender specifying
the nature and period of existence thereof and specifying the notice given or
action taken by such Person and the nature of any such claimed default, event
or condition and, in the case of an Event of Default or Default, what action
has been taken, is being taken or is proposed to be taken with respect thereto.
(h) At the time of the delivery of the financial
statements provided for in Sections 7.01(a) and (b), a certificate of the chief
financial officer or the controller of the Company to the effect that no
Default or Event of Default exists or, if any Default or Event of Default does
exist, specifying the nature and extent thereof and the action that is being
taken or that is proposed to be taken with respect thereto, which certificate
shall set forth calculations required to establish whether the Company and its
Subsidiaries were in compliance with the provisions of Article VIII as at the
end of such fiscal quarter or fiscal year, as the case may be.
(i) Promptly, and in any event within five Business Days
after any Responsible Officer of any Loan Party obtains knowledge thereof,
notice
(i) of any condition or event which, in the opinion
of management of such Loan Party, would reasonably be expected to have
a Material Adverse Effect;
(ii) that any Person has given any notice to the
Company or any Restricted Subsidiary or taken any other action with
respect to a claimed default or event under any instrument or
agreement involving in excess of $1,000,000 and to which any of them
is a party;
(iii) of the institution of any litigation involving
stated claims against the Company or any Restricted Subsidiary equal
to or greater than $1,000,000 (net of any insurance that the Company
reasonably and in good faith believes effectively covers such claim)
with respect to any single cause of action or of any adverse
determination in any court proceeding in any litigation involving a
potential liability to the Company or any Restricted Subsidiary equal
to or greater than $1,000,000 (net of any insurance that the Company
reasonably and in good faith believes effectively covers such
liability) with respect to any single cause of action which makes the
likelihood of an adverse
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determination in such litigation against the Company or such Restricted
Subsidiary substantially more probable; or
(iv) of the occurrence of any Change in Control or
any Change of Control Event.
(j) Promptly, and in any event within 30 days after any
Responsible Officer of any Loan Party obtains knowledge thereof, notice:
(i) of the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, a failure to make any
required contribution to a Plan, any Lien in favor of the PBGC or a
Plan, or any withdrawal from, or the termination, reorganization or
insolvency (within the meaning of such terms as used in ERISA) of any
Multiemployer Plan; or
(ii) of the institution of proceedings or the taking
of any other action by the PBGC or the Company or any ERISA Affiliate
or any Multiemployer Plan with respect to the withdrawal from, or the
terminating, reorganization or insolvency (within the meaning of such
terms as used in ERISA) of, any Plan, except that no notice shall be
required with respect to the merger of a defined contribution plan of
one ERISA Affiliate into a defined contribution plan of another ERISA
Affiliate.
(k) Not less than 15 days prior to the end of each fiscal
year, an annual business plan and budget for the Company and the Restricted
Subsidiaries for the next succeeding fiscal year containing, inter alia, pro
forma financial statements for the next fiscal year.
(l) From time to time and with reasonable promptness,
such other information or documents (financial or otherwise with respect to the
Company or any Restricted Subsidiary) as the Agent or any Lender through the
Agent may reasonably request.
SECTION 7.02. Books, Records and Inspections. Each Loan
Party will permit, or cause to be permitted, any Person designated by any
Lender or the Lenders in writing to visit and inspect any of the properties of
the Company and the Restricted Subsidiaries, to examine the corporate books and
financial records of the Company and the Restricted Subsidiaries and make
copies thereof or extracts therefrom and to discuss the affairs, finances and
accounts of any such corporations with the officers and agents of the Company
and the Restricted Subsidiaries and with their independent public accountants,
all at such reasonable times and as often as the Agent or such Lender, through
the Agent, may reasonably request. Upon the occurrence and during the
continuance of an Event of Default, any Person designated
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by the Agent may request that such independent public accountants obtain
confirmation reports from account and chattel paper obligors of the Company and
its Subsidiaries. The Agent or its representatives may at the Company's
reasonable expense conduct an annual field exam to verify the Borrowing Base
components; provided that the field exam shall not include any communication to
or contact with any account debtor.
SECTION 7.03. Insurance and Maintenance of Properties. (a)
The Loan Parties will maintain or cause to be maintained, with financially
sound and reputable insurers, insurance with respect to its property and
business against such liabilities, casualties, risks and contingencies
(including business interruption insurance) and in such types and amounts as is
customary in the case of Persons engaged in the same or similar businesses and
similarly situated, provided that, unless such coverage is not available at
commercially reasonable rates for reasons other than the acts or omissions of
the Loan Parties, in no event shall the coverage and amount of such insurance
be less than the coverage and amount of the insurance which, in the opinion of
an independent insurance broker (the "Insurance Opinion") delivered on June 26,
1996, is adequate and customary for the Loan Parties taking into account the
Loan Parties' historical loss experience. All policies of insurance required
by the terms of this Agreement or any Security Document shall provide that at
least 20 days' prior written notice be given to the Agent of any termination,
cancellation, reduction or other material modification of such insurance, shall
contain an endorsement or agreement by the insurer that any loss shall be
payable in accordance with the terms of such policy notwithstanding any act or
negligence of any Loan Party, or any party holding under such Loan Party, which
might otherwise result in forfeiture of said insurance and shall contain the
agreement of the insurer waiving all rights of setoff, counterclaim or
deductions against such Loan Party. Notwithstanding the foregoing, the
insurance coverage of the Loan Parties on the date hereof complies with the
requirements of the foregoing sentence. The Loan Parties shall furnish or
cause to be furnished to the Agent (i) not later than April 30 in each year (A)
a certificate from an independent insurance broker demonstrating the Loan
Parties' compliance with this paragraph (a) and (B) a summary of all insurance
coverage of the Loan Parties prepared by an independent insurance broker, (ii)
upon request of the Agent, copies of all policies of insurance and (iii) as
soon as any Loan Party becomes aware thereof, a notification from such Loan
Party of any material change in the coverage or any other condition of any
policy of insurance required by this Section 7.03. The Agent, for the benefit
of the Lenders, shall be named as a loss payee as its interest may appear on
all such fire, accident and other casualty policies covering any of the
Collateral.
(b) In addition to any requirements as to the maintenance
of the Collateral contained in the Security Documents, the Company will, and
will cause the Restricted Subsidiaries to, cause all properties owned by the
Company or any Restricted Subsidiary or used or held for use in the conduct of
the business of the Company or the business of any such Restricted Subsidiary
to be maintained and kept in good condition, repair and working order and
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supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as
in the judgment of the Company may be necessary so that the business carried on
in connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 7.03(b) shall prevent
the Company from discontinuing the maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business or the business of any such Restricted Subsidiary and
not disadvantageous in any material respect to the Lenders.
SECTION 7.04. Payment of Taxes and other Claims. The Company
will, and will cause each of the Restricted Subsidiaries to, pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, (a)
all taxes, assessments and governmental charges levied or imposed upon the
Company or such Restricted Subsidiary or upon the income, profits or property
of the Company or such Restricted Subsidiary and (b) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a Lien upon
the property of the Company or such Restricted Subsidiary; provided, however,
(i) that the Company and the Restricted Subsidiaries shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings, (ii) has not been reported, so long as
the position taken by such Loan Party or such Subsidiary in not reporting same
is based on "substantial authority," as defined in Section 6661 of the Code or,
in the case of taxes other than U.S. federal income taxes, upon the reasonable
judgment of such Loan Party after consultation with tax counsel and so long as,
if any such item is challenged, it is paid or the requirements of the preceding
clause (i) are met with respect thereto, but in either case only if it has
maintained adequate reserves with respect thereto in accordance with GAAP, or
(iii) with respect to foreign Restricted Subsidiaries, if such taxes,
assessments, charges or levies are not material to the financial condition or
operation of such foreign Restricted Subsidiaries or have not been levied by a
bona fide Governmental Authority.
SECTION 7.05. Existence. Except as expressly permitted
pursuant to Section 8.02, each Loan Party will do all things necessary to
preserve and keep in full force and effect the corporate, partnership or other
existence, rights and franchises of such Loan Party and each Restricted
Subsidiary.
SECTION 7.06. Compliance with Statutes, Etc. (a) The Company
will and will cause each Restricted Subsidiary to comply with each applicable
Requirement of Law, other than those Requirements of Law, the failure to comply
with which (individually or collectively for the Company and the Restricted
Subsidiaries) would not have a Material Adverse Effect; provided, however, the
Company and each such Restricted Subsidiary shall have the right to diligently
contest any Requirement of Law; so long as (i) the contest is in good faith and
by
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appropriate proceedings and such reserve or other appropriate provision, in
any, as shall be required by GAAP shall have been made therefor, (ii) such
contest shall operate to suspend the collection of any disputed amount from
such property and (iii) such contest will not (A) subject any or any part of
such property to loss, forfeiture or sale or (B) adversely affect the Lien of
the Security Documents or (C) have a Material Adverse Effect.
(b) Without limiting the foregoing, the Company will and
will cause each Restricted Subsidiary (i) to comply in a timely fashion with,
or operate pursuant to valid waiver of the provisions of, all Requirements of
Environmental Laws, including any such laws or regulations relating to
contamination from any Hazardous Materials, except where noncompliance would
not have a Material Adverse Effect, and (ii) to produce all inventory which is
manufactured in the United States in compliance in all material respects with
the Fair Labor Standards Act.
SECTION 7.07. ERISA. As soon as possible and, in any event,
within ten Business Days after any Responsible Officer of any Loan Party knows
or has reason to know any of the following, such Loan Party will deliver or
cause to be delivered to each of the Lenders a certificate of the chief
financial officer of the Company setting forth details as to such occurrence
and such action, if any, which the Loan Party or its ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by such Loan Party or ERISA Affiliate with respect
thereto: that a Reportable Event has occurred; that an application may be or
has been made to the Secretary of the Treasury for a waiver or modification of
the minimum funding standard (including any required installment payments) or
an extension of any amortization period under Section 412 of the Code with
respect to a Plan; that the aggregate amount of Unfunded Current Liabilities
with respect to one or more Plans exceeds $1,000,000; that a Multiemployer Plan
has been or may be terminated, reorganized, partitioned or declared insolvent
under Title IV of ERISA; that any required contribution to a Plan or
Multiemployer Plan has not been or may not be timely made; that proceedings may
be or have been instituted under Section 4069(a) of ERISA to impose liability
on a Loan Party or an ERISA Affiliate or under Section 4042 of ERISA to
terminate a Plan or appoint a trustee to administer a Plan; that a Loan Party
or any ERISA Affiliate has incurred or may incur any liability (including any
contingent or secondary liability) on account of the termination of or
withdrawal from a Plan or a Multiemployer Plan under Section 4062, 4063, 4064,
4201 or 4204 of ERISA, which liability together with all other such liabilities
exceeds $1,000,000; that the Company or an ERISA Affiliate may be required to
provide security to a Plan under Section 401(a)(29) of the Code; or any other
condition(s) exist(s) or may occur with respect to one or more Plans and/or
Multiemployer Plans which (individually or collectively) is reasonably likely
to result in the imposition of a material excise tax(es), penalty(ies) or other
material liability(ies) on the Company and/or any ERISA Affiliate.
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SECTION 7.08. End of Fiscal Years. The Company shall cause
each of its, and each domestic Restricted Subsidiary's fiscal years to end on
December 31 and with respect to Restricted Subsidiaries acquired by the Company
after the date hereof, will cause such change to December 31 to occur as
promptly as possible.
SECTION 7.09 Subrogation; Purchase Money Liens. To the
extent that the Agent pays any sum under any provision of law or any instrument
or document creating any Lien prior or superior to the Lien of any Security
Document, or any such sum is paid with the proceeds of the issuance of the
Notes, then, to the extent permitted by law, the Agent for the benefit of the
Lenders shall have and be entitled to a Lien on the Collateral equal in
priority to the Lien discharged, and the Agent for the benefit of the Lenders
shall be subrogated to, and receive and enjoy all rights and Liens possessed,
held or enjoyed by, any owner or holder of such Lien, which shall remain in
existence and benefit the Agent for the benefit of the Lenders in securing the
obligations secured by the Security Documents, irrespective of whether such
Liens are released.
SECTION 7.10. Performance of Loan Documents. (a) Each Loan
Party will duly and punctually pay and perform its respective obligations under
the Loan Documents to which it is a party in accordance with, and without
breach of, the terms of each thereof.
(b) If any Loan Party fails to pay any tax, assessment,
standby fee, insurance premium or other charge, cost or expense called for
herein or in any of the other Loan Documents, the Agent may, at the request of
the Majority Lenders, pay the same, or if any Loan Party fails to perform any
of the Loan Party's covenants or agreements, or breaches any of such Loan
Party's warranties and representations, set forth herein or in any of the other
Loan Documents, the Agent may, at the request of the Majority Lenders, correct
or cure, or cause to be corrected and cured, the default or breach and pay such
sums in connection therewith as the Majority Lenders shall determine to be
necessary or advisable, and all taxes, assessments, standby fees, charges,
insurance premiums and other sums paid by the Agent in connection with such
matters shall be immediately repayable by the Loan Parties to the Agent,
together with interest on each such amount at the Default Rate from the date
the sum is paid by the Agent, until the same is refunded to the Agent, and all
such amounts and the interest thereon shall be secured by the Security
Documents. The Agent agrees to promptly notify the Company of any such tax,
assessment, standby fee, insurance premium or other sums paid by the Agent
pursuant to the immediately preceding sentence, but the failure to give such
notice shall not affect the obligation of the Loan Parties to repay any such
sums to the Agent.
(c) All covenants and other obligations contained in the
Security Documents shall be in addition to the covenants contained herein.
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SECTION 7.11. Indemnification for Breach of Representations
or Covenants. The Company shall indemnify each Indemnitee and hold each
Indemnitee harmless from and against all losses, costs, expenses (including
reasonable attorneys' fees), obligations, damages, penalties, disbursements and
liabilities which such Indemnitee may actually incur as a result of, in
connection with or arising out of (a) the breach of any representation or
warranty of the Loan Parties contained herein or in the other Loan Documents or
(b) the nonfulfillment by any Loan Party of, or its failure to perform, any of
its covenants or agreements contained in this Agreement or in the other Loan
Documents. The indemnity contained in this Section 7.11 shall survive the
termination of this Agreement.
ARTICLE VIII
NEGATIVE COVENANTS
Each Loan Party covenants and agrees for itself, and the
Company covenants and agrees with respect to each Restricted Subsidiary, that
on and after the date hereof and for so long as this Agreement is in effect and
until the Commitments and each Letter of Credit have terminated, and the Loans
and Unpaid Drawings together with all of the other Obligations are paid in
full:
SECTION 8.01. Change in Business. The Company will not, and
will not permit any Restricted Subsidiary to, engage principally in any
business other than one or more Lines of Business.
SECTION 8.02. Consolidation, Merger, Sale or Purchase of
Assets, Etc. The Company will not, and will not permit any Restricted
Subsidiary to, wind up, liquidate or dissolve its affairs, or effect any merger
or consolidation, sell, lease or otherwise dispose of all or any part of its
property or assets (other than sales of inventory in the ordinary course of
business), or purchase, lease or otherwise acquire (in one or a series of
related transactions) all or any part of the property or assets or all or any
part of the Capital Stock of any Person, or (unless such agreement shall
expressly condition consummation by the Company or such Restricted Subsidiary
of the transactions contemplated thereby upon receipt of the prior written
consent of the Majority Lenders) agree to do any of the foregoing at any future
time, except that this Section 8.02 shall not prohibit any of the following
transactions, or any agreement to effect the same:
(a) (i) the purchase, lease or sale of inventory, (ii)
the lease pursuant to Capital Leases of tangible personal property or (iii) the
acquisition of facilities, equipment and
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other assets, in each case, by the Company or any Restricted Subsidiary in the
ordinary course of business;
(b) if, at the time thereof and immediately after giving
effect thereto, no Event of Default or Default shall have occurred and be
continuing (i) the merger of any domestic Wholly Owned Restricted Subsidiary
into the Company in a transaction in which the Company is the surviving Person,
or the merger or consolidation of any domestic Wholly Owned Restricted
Subsidiary with and into any other domestic Wholly Owned Restricted Subsidiary,
in each case in a transaction in which no Person other than the Company or a
Restricted Subsidiary receives any consideration; (ii) the merger or
consolidation of any foreign Wholly Owned Restricted Subsidiary with and into a
domestic Wholly Owned Restricted Subsidiary or any other foreign Wholly Owned
Restricted Subsidiary, in each case in a transaction in which no Person other
than the Company or a Restricted Subsidiary receives any consideration; and
(iii) the merger of any other Person with and into the Company or a Restricted
Subsidiary if the Company or a Restricted Subsidiary is the surviving entity
and after giving effect to such transaction the Company and the Restricted
Subsidiaries shall be in compliance, on a pro forma basis after giving effect
to such transaction, with the covenants contained in Article VIII recomputed as
of the last day of the most recently ended fiscal quarter of the Company and
the Restricted Subsidiaries as if such transaction had occurred on the first
day of each relevant period for testing such compliance, and the Company shall
have delivered to the Agent an officer's certificate to such effect, together
with all relevant financial information and calculations demonstrating such
compliance;
(c) Investments permitted by Section 8.06;
(d) sales, leases or other dispositions of assets by the
Company or the Restricted Subsidiaries determined by the Board of Directors of
the Company to be no longer useful, necessary or desirable in the operation of
the business of the Company or the Restricted Subsidiaries; provided, unless
the consideration received for such sale, lease or other disposition has a
value in excess of $5,000,000, the determination by the Board of Directors of
the Company shall not be required;
(e) so long as at the time thereof and immediately after
giving effect thereto no Default or Event of Default shall have occurred and be
continuing:
(i) a domestic Restricted Subsidiary may transfer
property and assets to the Company or another domestic Restricted
Subsidiary;
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(ii) a foreign Restricted Subsidiary may transfer
property and assets to the Company or another Restricted Subsidiary
(other than Highland Corod except as permitted in clause (iv) below);
(iii) the Company may transfer property or assets to
any domestic Restricted Subsidiary; and
(iv) any domestic Restricted Subsidiary, or the
Company, may transfer assets or property to any foreign Restricted
Subsidiary, provided that (A) such transfers shall be made for
consideration of not less than the cost of the property or assets so
transferred, (B) licenses of technology by and among the Company and
the Restricted Subsidiaries shall not be subject to any other
limitations contained in this Agreement, and (C) in addition to and
without limitation of the foregoing, the Company and the domestic
Restricted Subsidiaries shall be permitted to transfer assets or
property to any one or more foreign Restricted Subsidiaries and any
foreign Restricted Subsidiary may transfer assets or property to
Highland Corod, provided that the aggregate book value of all such
assets or property transferred pursuant to this clause (D) during any
fiscal year of the Company does not exceed $5,000,000;
(f) the Company or any Restricted Subsidiary may acquire
all or substantially all of the assets of, or all the Capital Stock in, a
Person or division or line of business of a Person if, at the time thereof and
immediately after giving effect thereto (each such acquisition being a
"Permitted Business Acquisition"):
(i) no Event of Default or Default shall have
occurred and be continuing or would result therefrom;
(ii) all the Capital Stock of any acquired or
newly-formed corporation, partnership, association or other business
entity (a "New Subsidiary") is owned directly by the Company or one or
more Wholly Owned Restricted Subsidiaries or the Company and one or
more Wholly Owned Restricted Subsidiaries, and such New Subsidiary
shall become a Restricted Subsidiary and engaged primarily in one or
more Lines of Business and (unless it is a foreign Restricted
Subsidiary) shall have executed (A) a Subsidiary Guarantor Counterpart
in the form of Exhibit 8.02 (a "Subsidiary Guarantor Counterpart")
guaranteeing the Obligations and (B) a security agreement
substantially in the form of the Security Agreement executed by the
Subsidiary Guarantors;
(iii) if such New Subsidiary is a domestic Restricted
Subsidiary, all of the Capital Stock of such New Subsidiary shall be
pledged to the Agent and if such New
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Subsidiary is a Domestically Owned Foreign Restricted Subsidiary, 65%
of the Capital Stock of such New Subsidiary shall be pledged to the
Agent;
(iv) the Company and the Restricted Subsidiaries
shall be in compliance, on a pro forma basis, after giving effect to
such acquisition or formation, with the covenants contained in Article
VIII, recomputed as at the last day of the most recently ended fiscal
quarter of the Company and the Restricted Subsidiaries as if such
acquisition had occurred on the first day of each relevant period for
testing such compliance, and, the Company shall have delivered to the
Agent and the Lenders a certificate of a Responsible Officer to such
effect, together with all relevant financial information of such New
Subsidiary or assets and calculations demonstrating such compliance;
(v) any New Subsidiary shall not be liable for any
Indebtedness (except for Indebtedness permitted by Section 8.04);
(vi) the Majority Lenders shall have given their
prior written consent (which consent shall not be unreasonably
withheld, taking into consideration the merits of the acquisition) in
the case of any acquisition involving consideration (whether cash or
property (other than Qualified Capital Stock of the Company), as
valued at the time each investment is made) in excess of $30,000,000;
and
(vii) the Agent shall have received (A) to the extent
the UCC is applicable to such New Subsidiary or its assets, uniform
commercial code searches as to all effective financing statements (or
their equivalent) that name such New Subsidiary or the Person from
whom any assets were acquired by the Company or any of the Restricted
Subsidiaries, (B) certificates evidencing all of the issued and
outstanding Capital Stock of any New Subsidiary that is a domestic
Restricted Subsidiary of the Company and 65% of the issued and
outstanding Capital Stock of any New Subsidiary that is a Domestically
Owned Foreign Restricted Subsidiary together, in each case, with stock
powers relating thereto endorsed in blank, (C) an opinion of counsel
to the Company in form and substance satisfactory to the Agent and the
Lenders as to the enforceability and perfection of the Lien of the
Agent on such Capital Stock and as to such other matters as the Agent
and the Lenders may reasonably request, (D) such opinions of counsel
to such New Subsidiary as the Agent and the Lenders may reasonably
request as to the organization, good standing and enforceability of
this Agreement and the Security Agreement executed by such New
Subsidiary pursuant to clause (ii)(B) above on such New Subsidiary,
the perfection of the Liens granted pursuant to such security
agreement and such other matters as the Agent and the Lenders may
reasonably require and (E) such other agreements, certificates,
financing statements, approvals, reports, consents, waivers,
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estoppels, subordination agreements, filings and other documentation
as the Agent and the Majority Lenders may reasonably request.
(g) The sale by the Company or any Subsidiary of any
shares of capital stock of Alberta.
The Loan Parties shall pay all reasonable costs and expenses
(including the reasonable legal expenses and out-of-pocket expenses) incurred
by the Agent and the Lenders in connection with the satisfaction of the
requirements set forth in this Section 8.02(f).
The Agent is hereby authorized to release the Liens held by
the Agent on Collateral that any Loan Party is permitted pursuant to this
Section 8.02 to sell or otherwise dispose of in the event such Loan Party does
in fact sell or otherwise dispose of such Collateral.
SECTION 8.03. Liens. The Company will not, and will not
permit any of the Restricted Subsidiaries to, create, incur, assume or suffer
to exist any Lien upon or with respect to any property or assets of any kind
(real or personal, tangible or intangible) of the Company or such Subsidiary
whether now owned or hereafter acquired, except (a) Permitted Liens and (b)
Liens of creditors of consignees of Permitted Consigned Inventory.
SECTION 8.04. Indebtedness. The Company will not create,
incur or suffer to exist or permit any of the Restricted Subsidiaries to
create, incur or suffer to exist any Indebtedness except Permitted
Indebtedness.
SECTION 8.05. Stock Issuance. The Company will not issue any
Disqualified Stock.
SECTION 8.06. Investments. The Company will not, and will
not permit any of its Subsidiaries to, directly or indirectly, make or own any
Investment in any Person, except:
(a) The Company and the Restricted Subsidiaries may make
and own Permitted Financial Investments and Permitted Business Investments;
(b) The Company and the Restricted Subsidiaries may
continue to own Investments owned by them on the date hereof as set forth on
Schedule 8.06, including the Investments in its Subsidiaries, partnerships and
other Persons owned on the Execution Date;
(c) The Company and the Restricted Subsidiaries may make
Investments permitted to be made under (i) Section 8.07 as a Restricted Payment
or (ii) Section 8.04;
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(d) The Company and the Restricted Subsidiaries may
endorse negotiable instruments for collection in the ordinary course of
business; and
(e) The Company and the Restricted Subsidiaries may make
and own the Investments permitted under Section 8.02;
(f) So long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, the Company and the
Restricted Subsidiaries may make Investments in any Person to the extent the
consideration paid consists of Qualified Stock of the Company;
(g) The acquisition of Capital Stock or securities of a
Restricted Subsidiary;
(h) Investments in repurchase obligations with a term of
not more than one Business Day for securities with maturities of one year or
less from the date of issue or fully guaranteed or insured by the United States
Government or any agency thereof; and
(i) Investments in Highland Corod by the Company or any
Restricted Subsidiary made after the date hereof, and not exceeding $5,000,000
in the aggregate, less the sum of all loans to Highland Corod after the date
hereof by the Company or any Restricted Subsidiary outstanding.
SECTION 8.07. Restricted Payments. (a) The Company will not,
and will not permit any Restricted Subsidiary to, make or declare any
Restricted Payment; except the Company may make Restricted Payments if
immediately after giving effect to such Restricted Payment, the aggregate
amount of all Restricted Payments expended subsequent to June 30, 1996 (the
amount so expended, if other than in cash, to be valued at its fair market
value as determined by the Board of Directors of the Company, whose
determination in good faith and evidenced by a Board Resolution shall be
conclusive) does not exceed the sum of (i) 25% of the aggregate Consolidated
Net Income of the Company and the Restricted Subsidiaries (or if such
Consolidated Net Income shall be a loss, minus 100% of such loss) during the
period (treated as one accounting period) subsequent to June 30, 1996 and
ending on the last day of the fiscal quarter immediately preceding the date of
such Restricted Payment; (ii) the aggregate net proceeds, including cash and
the fair market value of property other than cash (as determined in good faith
by the Board of Directors of the Company, whose determination will be
conclusive and evidenced by a Board Resolution), received by the Company from
any Person (other than a Subsidiary) as a result of the issuance or sale of
Qualified Stock of the Company, including any net proceeds received upon
exercise of any rights, options or warrants, other than in connection with the
conversion or exchange of any Indebtedness or Disqualified Stock of the
Company; (iii) the aggregate net proceeds, including cash and the fair market
value of property
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other than cash (as determined in good faith by the Board of Directors of the
Company, whose determination will be conclusive and evidenced by a Board
Resolution), received by the Company during such period from any Person (other
than a Subsidiary) as a result of the issuance or sale of any Indebtedness to
the extent that at the time the determination is made, such Indebtedness has
been converted into or exchanged for Qualified Stock of the Company; (iv) (A)
in case any Unrestricted Subsidiary has been redesignated a Restricted
Subsidiary, an amount equal to the lesser of (x) the book value (determined in
accordance with GAAP) at the date of such redesignation of the aggregate
Investments made by the Company and the Restricted Subsidiaries in such
Unrestricted Subsidiary and (y) the fair market value of such Investments in
such Unrestricted Subsidiary at the time of such redesignation (as determined
in good faith by the Board of Directors of the Company, whose determination
will be conclusive and evidenced by a Board Resolution); or (B) in case any
Restricted Subsidiary has been redesignated an Unrestricted Subsidiary, minus
the greater of (x) the book value (determined in accordance with GAAP) at the
date of redesignation of the aggregate Investments made by the Company and the
Restricted Subsidiaries in such Restricted Subsidiary and (y) the fair market
value of such Investments in such Restricted Subsidiary at the time of such
redesignation (as determined in good faith by the Company's Board of Directors,
whose determination will be conclusive and evidenced by a Board Resolution);
(v) proceeds from the sale of capital stock of Alberta; and (vi) $10,000,000.
For purposes of any calculation pursuant to the preceding sentence that is
required to be made within 60 days after the declaration of a dividend by the
Company, such dividend shall be deemed to be paid at the date of declaration.
(b) Notwithstanding the foregoing, the above limitation
shall not prevent (i) the payment of any dividend by the Company within 60 days
after the date of its declaration if at the date of declaration the payment
would have complied with this covenant; (ii) the purchase, redemption,
acquisition or retirement of any shares of Capital Stock of the Company in
exchange for, or out of the net proceeds of the substantially concurrent sale
(other than to a Subsidiary) of, other shares of Qualified Stock of the
Company; (iii) purchases of common stock by the Company or a trust pursuant to
any employee stock ownership or similar employee benefit plan of the Company
that has been approved by the Board of Directors of the Company; (iv) payments
to Unrestricted Subsidiaries in an aggregate amount not in excess of
$10,000,000 during the period from June 30, 1996 to the date upon which the
Obligations have been finally paid in full (after the termination of the
Commitments of the Lenders); (v) payment of the redemption price not in excess
of $.02 per right with respect to any stockholders rights plan adopted by the
Company (not to exceed $1.5 million in the aggregate); (vi) the making of a
Restricted Payment by a Restricted Subsidiary to a Restricted Subsidiary (other
than Highland Corod) or the Company; or (vii) offsets against and acquisitions
of Capital Stock of the Company to satisfy indemnification and other
obligations owed to the Company or its Subsidiaries under acquisition
arrangements in which Capital Stock of the company is issued as consideration
for the acquisition; provided, however, if any such Restricted Payment is made
as
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a loan or advance to the Company it shall be evidenced by a note subordinated
in right of payment to the prior payment in full of the Obligations; provided
that no Default or Event of Default shall have occurred and be continuing at
the time, or shall occur as a result, of any of the actions contemplated in
clauses (ii) or (iv) above; and provided further that the full amount of any
such payment, purchase, redemption, acquisition or retirement pursuant to the
foregoing clauses (ii), (iii), (iv), (v) and (vii) shall be counted in the
calculation of the aggregate amount of Restricted Payments expended pursuant to
Section 8.07(a).
(c) The Company shall not permit or suffer to exist, or
permit any of the Restricted Subsidiaries to permit or suffer to exist, any
agreement or other contractual arrangement pursuant to which such Restricted
Subsidiary is prohibited or restricted from making loans or paying dividends to
any other Restricted Subsidiary or from paying dividends or making subordinate
loans to the Company; except for such restrictions existing under or by reason
of: (i) agreements binding upon any Person at the time such Person becomes a
Restricted Subsidiary (unless the agreement creating such consensual
encumbrance or consensual restriction was entered into in connection with, or
in contemplation of, such entity becoming a Subsidiary); (ii) any restrictions
existing under written agreements in effect on the Execution Date; (iii)
agreements or instruments relating to Indebtedness of Restricted Subsidiaries
pursuant to working capital facilities permitted under this Agreement; (iv)
customary restrictions in leases, purchase money financings and stock and asset
sales agreements; and (v) any agreement that amends, refinances or replaces any
agreement described in clauses (i), (ii) and (iii) above; provided that the
terms and conditions of any such restrictions are no less favorable to the
Lenders than those under the agreements so amended, refinanced or replaced.
SECTION 8.08. Net Worth. The Company will not permit
Tangible Net Worth determined without regard to any variations therein
resulting from the periodic translation of foreign currency denominated assets
into Dollars (a) at any time from the Execution Date through December 31, 1996,
to be less than $180,000,000 and (b) at any time during each fiscal year
thereafter to be less than an amount equal to the sum of (i) the amount of
Tangible Net Worth required under this Section 8.08 during the immediately
preceding year, (ii) 50% of positive Consolidated Net Income for the
immediately preceding year; provided, however, if for any fiscal year, the
portion of the fiscal year ended at such date Consolidated Net Income is less
than zero, Consolidated Net Income for such fiscal year shall be zero and (iii)
(A) 100% of the net cash proceeds received by the Company from all sales of its
Capital Stock during the period from the Execution Date to the end of such
fiscal year, plus (B) (1) the fair market value of the equity of the Company
issued in exchange for the assets or securities of any Person less (2) all
intangibles of the types described in clauses (b) through (f) of the definition
of Tangible Net Worth.
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SECTION 8.09. Other Financial Covenants. (a) The Company
will not permit Consolidated Indebtedness to exceed the following percentages
of Total Capitalization at the end of any fiscal quarter occurring during the
following periods:
Period Percentage
------ ----------
from the Effective Date through March 31, 1997 50%
from April 1, 1997 through December 31, 1997 45%
at the end of each fiscal quarter thereafter 40%
(b) The Company will not permit the Interest Coverage Ratio
at the end of any fiscal quarter to be less than 3.0 to 1.0.
SECTION 8.10. Limitation on Transactions with Affiliates. The
Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, conduct any business or enter into, renew, extend or permit to
exist any transaction (including the purchase, sale, lease or exchange of any
assets or the rendering of any service) or series of related transactions with
any Affiliate of the Company or any holder of 5% or more of the Company's
Capital Stock (other than a Wholly Owned Restricted Subsidiary or employee
benefit plan or plan trust) (an "Affiliate Transaction") on terms that are less
favorable to the Company or such Restricted Subsidiary, as the case may be,
than would be available in a comparable arm's length transaction with a Person
who is not an Affiliate or 5% stockholder of the Company or such Restricted
Subsidiary, except for (i) a sale to Alberta of the capital stock of Alberta
and (ii) transfers of assets and licenses of technology permitted under Section
8.02 (d) (iv) (A) or (B). In addition, the Company will not, and will not
permit any Restricted Subsidiary to, enter into an Affiliate Transaction, or
any series of related Affiliate Transactions, unless (a) with respect to a
transaction or series of related transactions involving aggregate consideration
equal to or greater than $1,000,000, such transaction is approved by a majority
of the Board of Directors of the Company, including a majority of the
disinterested directors; and (b) with respect to such transaction or series of
related transactions involving aggregate consideration equal to or greater than
$5,000,000, the Company has delivered to the Agent and the Lenders an opinion
of a nationally recognized investment banking firm to the effect that such
transaction or transactions are fair to the Company or such Restricted
Subsidiary, as the case may be, from a financial point of view.
Notwithstanding the foregoing, the restrictions set forth in this covenant will
not apply to (i) the payment of reasonable and customary regular fees to
directors of the Company who are not employees of the Company; (ii) loans and
advances to officers, directors and employees of the Company and its
Subsidiaries for travel, entertainment and moving and other relocation expenses
made in direct furtherance and in the ordinary course of business of the
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Company and its Subsidiaries; (iii) any other transaction with any employee,
officer or director of the Company or any of its Subsidiaries pursuant to
employee benefit or compensation arrangements entered into in the ordinary
course of business and approved by the Board of Directors of the Company or the
Board of Directors of such Restricted Subsidiary permitted by this Agreement;
(iv) customary underwriting or similar transactions with an investment banking
Affiliate; (v) any transaction entered into in the ordinary course of business
with the Company or a Restricted Subsidiary; (vi) transactions in the ordinary
course of business between the Company and the Restricted Subsidiaries
permitted by this Agreement; or (vii) the making of any Restricted Payment
otherwise permitted by this Agreement; provided, however, the aggregate
principal amount of loans and advances made pursuant to clauses (ii) and (iii)
shall not exceed $2,000,000 at any time outstanding.
SECTION 8.11. Ownership of Subsidiaries. Except as expressly
permitted in Section 8.02, the Company shall not at any time cease to own,
beneficially and of record, directly or indirectly, 100% of the Capital Stock
(except for director's qualifying shares) of each other Loan Party and each
Restricted Subsidiary.
SECTION 8.12. Limitation on Sale-Leaseback Transactions. The
Company will not, and will not permit any Restricted Subsidiary to, enter into
any Sale-Leaseback Transaction unless (a) the Company or such Restricted
Subsidiary, as the case may be, would be able to incur Indebtedness in an
amount equal to the Attributable Debt with respect to such Sale-Leaseback
Transaction and (b) the Company or such Restricted Subsidiary receives net
proceeds from such Sale-Leaseback Transaction at least equal to the fair market
value of the assets so sold (as determined by the Board of Directors of the
Company, whose determination in good faith evidenced by a Board Resolution
shall be conclusive).
SECTION 8.13. Change in Accounting. The Company will not,
and will not permit any of the Restricted Subsidiaries to, change its method of
accounting except for immaterial changes in methods, changes permitted by GAAP
in which the Company's auditors concur and changes required by GAAP.
ARTICLE IX
GUARANTY
SECTION 9.01. Guaranty. (a) In consideration of, and in
order to induce the Lenders to make the Loans and the Issuing Bank to maintain
the Existing Letters of Credit and to issue new Letters of Credit hereunder,
each Subsidiary Guarantor hereby absolutely, unconditionally and irrevocably,
jointly and severally guarantees the punctual payment and
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performance when due, whether at stated maturity, by acceleration or otherwise,
of the Obligations, and all other obligations and covenants of the Company now
or hereafter existing under this Agreement, the Notes and the other Loan
Documents to which the Company is a party whether for principal, interest
(including interest accruing or becoming owing both prior to and subsequent to
the commencement of any proceeding against or with respect to the Company under
any chapter of Title 11 of the United States Code, as now or hereafter in
effect, or any successor thereto (the "Bankruptcy Code"), Fees, commissions,
expenses (including reasonable attorneys' fees and expenses) or otherwise,
subject however to the limitation set forth in Section 9.04 (all such
obligations being the "Guaranteed Obligations"). Each Subsidiary Guarantor
agrees to pay any and all expenses incurred by each Lender and the Agent in
enforcing this Guaranty against such Subsidiary Guarantor.
(b) Each Subsidiary Guarantor agrees that the Obligations
may at any time and from time to time exceed the limitations set forth in
Section 9.04 without impairing this Guaranty or affecting the rights and
remedies of the Agent and the Lenders hereunder.
(c) This Guaranty is an absolute, unconditional, present and
continuing guaranty of payment and not of collectibility and is in no way
conditioned upon any attempt to collect from the Company, any other Loan Party,
any Collateral or any other action, occurrence or circumstance whatsoever.
SECTION 9.02. Continuing Guaranty. (a) Each Subsidiary
Guarantor guarantees that the Obligations and the Guaranteed Obligations will
be paid strictly in accordance with the terms of this Agreement, the Notes and
the other Loan Documents. Each Subsidiary Guarantor agrees that, to the
maximum extent permitted by applicable law, the Obligations, Guaranteed
Obligations and Loan Documents may be extended or renewed, and Loans repaid and
reborrowed in whole or in part, without notice to or assent by such Subsidiary
Guarantor, and that it will remain bound upon this Guaranty notwithstanding any
extension, renewal or other alteration of any Obligations, Guaranteed
Obligations or Loan Documents, or any repayment and reborrowing of Loans. To
the maximum extent permitted by applicable law, except as otherwise expressly
provided in this Agreement or any other Loan Document to which such Subsidiary
Guarantor is a party, the obligations of each Subsidiary Guarantor under this
Guaranty shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms hereof under any circumstances
whatsoever, including:
(i) any modification, amendment, supplement, renewal,
extension for any period, increase, decrease, alteration or rearrangement
of all or any part of the Obligations or the Guaranteed Obligations, or
of the Notes, or this Agreement or any other Loan Document executed in
connection herewith, or any contract or understanding among the
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Company, any Subsidiary Guarantor, the Agent and/or the Lenders, or any
other Person, pertaining to the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or compromise
that might be granted or given by the Lenders to the Company or any
Subsidiary Guarantor or any other Person liable on the Obligations or the
Guaranteed Obligations;
(iii) the insolvency, bankruptcy, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of power of the
Company, any Subsidiary Guarantor or any other Person at any time liable
for the payment of all or part of the Guaranteed Obligations; or any
dissolution of the Company or any Subsidiary Guarantor, or any sale,
lease or transfer of any or all of the assets of the Company or any
Subsidiary Guarantor, or any changes in the shareholders of the Company
or any Subsidiary Guarantor; or any reorganization of the Company or any
Subsidiary Guarantor;
(iv) the invalidity, illegality or unenforceability of all or
any part of the Obligations, the Guaranteed Obligations, or any document
or agreement executed in connection with the Obligations or the
Guaranteed Obligations, for any reason whatsoever, including, without
limitation, the fact that (A) the Obligations or the Guaranteed
Obligations, or any part thereof, exceeds the amount permitted by law,
(B) the act of creating the Obligations, the Guaranteed Obligations or
any part thereof is ultra vires, (C) the officers or representatives
executing the documents or otherwise creating the Obligations or the
Guaranteed Obligations acted in excess of their authority, (D) the
Obligations or the Guaranteed Obligations or any part thereof violate
applicable usury laws, (E) the Company or any Subsidiary Guarantor has
valid defenses, claims and offsets (whether at law or in equity, by
agreement or by statute) which render the Obligations or the Guaranteed
Obligations wholly or partially uncollectible from the Company or such
Subsidiary Guarantor, (F) the creation, performance or repayment of the
Obligations or the Guaranteed Obligations (or execution, delivery and
performance of any document or instrument representing part of the
Obligations or the Guaranteed Obligations or executed in connection with
the Obligations or the Guaranteed Obligations, or given to secure the
repayment of the Obligations or the Guaranteed Obligations) is illegal,
uncollectible, legally impossible or unenforceable, or (G) this
Agreement, any other Loan Document, or any other document or instrument
pertaining to the Obligations or the Guaranteed Obligations has been
forged or otherwise is irregular or not genuine or authentic;
(v) any full or partial release of the liability of the
Company or any Subsidiary Guarantor on the Obligations, the Guaranteed
Obligations or any part thereof, or any other Person now or hereafter
liable, whether directly or indirectly, jointly, severally, or jointly
and severally, to pay, perform, guarantee or assure the payment of the
Obligations, the
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Guaranteed Obligations or any part thereof; it being recognized,
acknowledged and agreed by each Subsidiary Guarantor that such Subsidiary
Guarantor may be required to pay the Obligations or the Guaranteed
Obligations in full without assistance or support of any other Person,
and such Subsidiary Guarantor has not been induced to enter into this
Guaranty on the basis of a contemplation, belief, understanding or
agreement that any other Person will be liable to perform the Obligations
or the Guaranteed Obligations, or that the Agent or any Lender will look
to any other Person to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security,
collateral or guaranty, or other assurance of payment, for all or any
part of the Obligations or the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment of any collateral, property or
security, at any time existing in connection with, or assuring or
securing payment of, all or any part of the Obligations or the Guaranteed
Obligations;
(viii) the failure of the Agent, the Lenders or any other
Person to exercise diligence or reasonable care in the preservation,
protection, enforcement, sale or other handling or treatment of all or
any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien
contemplated or intended to be given, created or granted as security for
the repayment of the Obligations or the Guaranteed Obligations shall not
be properly perfected or created, or shall prove to be unenforceable or
subordinate to any other Lien; it being recognized and agreed by each
Subsidiary Guarantor that such Subsidiary Guarantor is not entering into
this Guaranty in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectibility or value of any of the
collateral for the Obligations or the Guaranteed Obligations;
(x) any payment by the Company or any Subsidiary Guarantor
to the Agent or any Lender is held to constitute a preference under
bankruptcy laws, or for any reason either the Agent or any Lender is
required to refund such payment or pay such amount to the Company or any
other Person; or
(xi) any other action taken or omitted to be taken with
respect to this Agreement, any other Loan Document, the Obligations, the
Guaranteed Obligations, or the security and collateral therefor, whether
or not such action or omission prejudices any Subsidiary Guarantor or
increases the likelihood that any Subsidiary Guarantor will be required
to pay the Obligations or the Guaranteed Obligations pursuant to the
terms hereof; it is the unambiguous and unequivocal intention of each
Subsidiary Guarantor that such Subsidiary Guarantor shall be obligated to
pay the Obligations or the Guaranteed Obligations when
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due, notwithstanding any occurrence, circumstance, event, action, or
omission whatsoever, whether contemplated or uncontemplated, and whether
or not otherwise or particularly described herein, except for the full
and final payment and satisfaction of the Obligations or the Guaranteed
Obligations after the termination of the Commitments of all Lenders and
the expiration or termination of all Letters of Credit.
(b) Each Subsidiary Guarantor further agrees that, as
between such Subsidiary Guarantor, on the one hand, and the Lenders and the
Agent, on the other hand, (i) the maturity of the Guaranteed Obligations may be
accelerated as provided in Article X for the purposes of this Guaranty,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration of the Obligations or the Guaranteed Obligations, and (ii) in the
event of any acceleration of the Obligations as provided in Article X, the
Guaranteed Obligations (whether or not due and payable) shall forthwith become
due and payable by each Subsidiary Guarantor for the purpose of this Guaranty.
SECTION 9.03. Effect of Debtor Relief Laws. If after receipt
of any payment of, or proceeds of any security applied (or intended to be
applied) to the payment of all or any part of the Obligations or the Guaranteed
Obligations, the Agent or any Lender is for any reason compelled to surrender
or voluntarily surrenders, such payment or proceeds to any Person (a) because
such payment or application of proceeds is or may be avoided, invalidated,
declared fraudulent, set aside, determined to be void or voidable as a
preference, fraudulent conveyance, fraudulent transfer, impermissible set-off
or a diversion of trust funds or (b) for any other reason, including (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over the Agent, any Lender or any of their respective properties
or (ii) any settlement or compromise of any such claim effected by the Agent or
any Lender with any such claimant (including the Company), then the
Obligations, the Guaranteed Obligations or part thereof intended to be
satisfied shall be reinstated and continue, and this Guaranty shall continue in
full force as if such payment or proceeds have not been received,
notwithstanding any revocation thereof or the cancellation of any Note or any
other instrument evidencing any of the Obligations or Guaranteed Obligations or
otherwise; and the Subsidiary Guarantors, jointly and severally, shall be
liable to pay the Agent and the Lenders, and hereby do indemnify the Agent and
the Lenders and hold them harmless for the amount of such payment or proceeds
so surrendered and all reasonable expenses (including reasonable attorneys'
fees, court costs and expenses attributable thereto) incurred by the Agent or
any Lender in the defense of any claim made against it that any payment or
proceeds received by the Agent or any Lender in respect of all or part of the
Obligations or the Guaranteed Obligations must be surrendered. The provisions
of this paragraph shall survive the termination of this Guaranty, and any
satisfaction and discharge of the Company by virtue of any payment, court order
or any federal or state law.
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SECTION 9.04. General Limitation on Guaranteed Obligations.
In any action or proceeding involving any state corporate law, or any state or
federal bankruptcy, insolvency, reorganization or other law affecting the
rights of creditors generally, if the obligations of any Subsidiary Guarantor
under Section 9.01 would otherwise, taking into account the provisions of
Section 9.05, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 9.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Agent or any other Person,
be automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.
SECTION 9.05. Rights of Contribution. The Subsidiary
Guarantors hereby agree, as between themselves, that if any Subsidiary
Guarantor shall become an Excess Funding Obligor (as defined below) by reason
of the payment by such Subsidiary Guarantor of any Guaranteed Obligations, each
other Subsidiary Guarantor shall, on demand of such Excess Funding Obligor (but
subject to the next sentence), pay to such Excess Funding Obligor an amount
equal to such Subsidiary Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Obligor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations.
For purposes of this Section 9.05, (i) "Excess Funding Obligor"
shall mean, in respect of any Guaranteed Obligations, a Subsidiary Guarantor
that has paid an amount in excess of its Pro Rata Share of such Guaranteed
Obligations, (ii) "Excess Payment" shall mean, in respect of any Guaranteed
Obligations, the amount paid by an Excess Funding Obligor in excess of its Pro
Rata Share of such Guaranteed Obligations and (iii) "Pro Rata Share" shall
mean, for any Subsidiary Guarantor, the ratio (expressed as a percentage) of
(x) the amount by which the aggregate fair saleable value of all properties of
such Subsidiary Guarantor on the date of this Agreement exceeds the amount of
all the debts and liabilities of such Subsidiary Guarantor (including
contingent, subordinated, unmatured and unliquidated liabilities, but excluding
the obligations that have been guaranteed by such Subsidiary Guarantor in
Section 9.01) to (y) the amount by which the aggregate fair saleable value of
all assets of the Company and all the Subsidiary Guarantors exceeds the amount
of all the debts and liabilities (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of the Company and
the Subsidiary Guarantors hereunder) of the Company and all the Subsidiary
Guarantors, all as of the Execution Date.
SECTION 9.06. Subrogation. Notwithstanding any payment or
payments made by any Subsidiary Guarantor hereunder, or any set-off or
application by the Agent or any Lender of any security or of any credits or
claims, no Subsidiary Guarantor will assert or exercise any
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rights of the Agent or any Lender or of such Subsidiary Guarantor against the
Company to recover the amount of any payment made by such Subsidiary Guarantor
to the Agent or any Lender hereunder by way of any claim, remedy or
subrogation, reimbursement, exoneration, contribution, indemnity, participation
or otherwise arising by contract, by statute, under common law or otherwise,
and such Subsidiary Guarantor shall not have any right of recourse to or any
claim against assets or property of the Company, until all of the Guaranteed
Obligations are paid in full after the termination of the Commitments of all
Lenders and the expiration or termination of all Letters of Credit. If any
amount shall nevertheless be paid to a Subsidiary Guarantor by the Company or
another Subsidiary Guarantor prior to payment in full of the Obligations, such
amount shall be held in trust for the benefit of the Agent and the Lenders and
shall forthwith be paid to the Agent to be credited and applied to the
Guaranteed Obligations, whether matured or unmatured. The provisions of this
paragraph shall survive the termination of this Guaranty, and any satisfaction
and discharge of the Company by virtue of any payment, court order or any
federal or state law.
SECTION 9.07. Subordination. If any Subsidiary Guarantor
becomes the holder of any indebtedness payable by the Company or another
Subsidiary Guarantor (including any Permitted Business Investment made by any
such Subsidiary Guarantor to the Company), each Subsidiary Guarantor hereby
subordinates all indebtedness owing to it from the Company or such other
Subsidiary Guarantor to all indebtedness of the Company or such other
Subsidiary Guarantor to the Agent and the Lenders, and agrees that during the
continuance of any Default or Event of Default it shall not accept any payment
on the same until the first to occur of (a) the date such Default or Event of
Default no longer exists and (b) payment in full of the Obligations of the
Company under this Agreement and the other Loan Documents after the termination
of the Commitments of the Lenders and the termination or expiration of the
Letters of Credit, the Notes and all other Loan Documents, and, while any
Default or Event of Default exists, shall in no circumstance whatsoever attempt
to set-off or reduce any obligations hereunder because of such indebtedness.
If any amount shall nevertheless be paid to a Subsidiary Guarantor by the
Company or another Subsidiary Guarantor prior to payment in full of the
Guaranteed Obligations and, while any Default or Event of Default exists, such
amount shall be held in trust for the benefit of the Agent and the Lenders and
shall forthwith be paid to the Agent to be credited and applied to the
Guaranteed Obligations, whether matured or unmatured.
SECTION 9.08. Waiver. Each Subsidiary Guarantor hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Obligations and this Guaranty and waives
presentment, demand for payment, notice of intent to accelerate, notice of
dishonor or nonpayment and any requirement that the Agent or any Lender
institute suit, collection proceedings or take any other action to collect the
Guaranteed Obligations, including any requirement that the Agent or any Lender
protect, secure, perfect or insure any Lien against any property subject
thereto or exhaust any right or take any
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action against the Company or any other Person or any collateral (it being the
intention of the Agent, the Lenders and each Subsidiary Guarantor that this
Guaranty is to be a guaranty of payment and not of collection). It shall not
be necessary for the Agent or any Lender, in order to enforce any payment by
any Subsidiary Guarantor hereunder, to institute suit or exhaust its rights and
remedies against the Company, any other Subsidiary Guarantor or any other
Person, including others liable to pay any Guaranteed Obligations, or to
enforce its rights against any security ever given to secure payment thereof.
Each Subsidiary Guarantor hereby expressly waives to the maximum extent
permitted by applicable law each and every right to which it may be entitled by
virtue of the suretyship laws of the State of New York or any other state in
which it may be located, including any and all rights it may have pursuant to
Rule 31, Texas Rules of Civil Procedure, Section 17.001 of the Texas Civil
Practice and Remedies Code and Chapter 34 of the Texas Business and Commerce
Code. Each Subsidiary Guarantor hereby waives marshaling of assets and
liabilities, notice by the Agent or any Lender of any indebtedness or liability
to which such Lender applies or may apply any amounts received by such Lender,
and of the creation, advancement, increase, existence, extension, renewal,
rearrangement or modification of the Guaranteed Obligations. Each Subsidiary
Guarantor expressly waives, to the extent permitted by applicable law, the
benefit of any and all laws providing for exemption of property from execution
or for valuation and appraisal upon foreclosure.
SECTION 9.09. Full Force and Effect. This Guaranty is a
continuing guaranty and shall remain in full force and effect until all of the
Guaranteed Obligations under this Agreement and the other Loan Documents and
all other amounts payable under this Guaranty have been paid in full (after the
termination of the Commitments of the Lenders and the termination or expiration
of the Letters of Credit). All rights, remedies and powers provided in this
Guaranty may be exercised, and all waivers contained in this Guaranty may be
enforced, only to the extent that the exercise or enforcement thereof does not
violate any provisions of applicable law which may not be waived.
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
SECTION 10.01. Events of Default and Remedies. If any of the
following events ("Events of Default") shall occur and be continuing:
(a) (i) any installment of principal on any Note or any
Unpaid Drawing shall not be paid on the date on which such payment is due or
(ii) any payment of interest on any such Note or Unpaid Drawing or any other
amount due hereunder or any other Loan Document shall not be paid within five
calendar days following the date on which such payment is due; or
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(b) any representation or warranty made or, for purposes of
Article V, deemed made by or on behalf of any Loan Party herein, at the
direction of any Loan Party or by any Loan Party in any other Loan Document or
in any document, certificate or financial statement delivered in connection
with this Agreement or any other Loan Document shall prove to have been
incorrect in any material respect when made or deemed made or reaffirmed, as
the case may be; or
(c) any Loan Party shall fail to perform or observe any
covenant contained in Article VIII of this Agreement or fails to give any
notice required by Section 7.01(g) or Section 7.01(i); or
(d) any Loan Party shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement (other than those
specified in Section 10.01(a), Section 10.01(b) or Section 10.01(c)) or any
other Loan Document to which it is a party and, in any event, such failure
shall remain unremedied for 30 calendar days after the earlier of (i) written
notice of such failure shall have been given to a Responsible Officer of the
Company by the Agent or any Lender or, (ii) a Responsible Officer of any Loan
Party becomes aware of such failure; or
(e) the Company or any Restricted Subsidiary (i) fails to
make (whether as primary obligor or as guarantor or other surety) any principal
payment of or interest or premium, if any, on any Indebtedness (other than the
Notes or the Guaranty) beyond any period of grace provided with respect thereto
(not to exceed 30 days), provided that the aggregate amount of all Indebtedness
as to which such a payment default shall occur and be continuing is equal to or
exceeds $5,000,000, or (ii) fails to duly observe, perform or comply with any
agreement with any Person or any term or condition of any instrument, if such
failure, either individually or in the aggregate, shall have caused or shall
have the ability to cause the acceleration of the payment of Indebtedness with
an aggregate face amount which is equal to or exceeds $5,000,000; or
(f) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company or any Restricted Subsidiary bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
Restricted Subsidiary under any applicable federal, state or foreign law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or any Restricted Subsidiary or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or any
such
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other decree or order that shall be unstayed and in effect for a period of 60
consecutive days; or
(g) the commencement by the Company or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable federal,
state or foreign bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by the Company or any Restricted Subsidiary to the entry of a
decree or order for relief in respect of the Company or such Restricted
Subsidiary in an involuntary case or proceeding under any applicable federal,
state or foreign bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by the Company or any Restricted Subsidiary of a petition or
answer or consent seeking reorganization or relief under any applicable
federal, state or foreign law, or the consent by the Company or any Restricted
Subsidiary to the filing of such petition or the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or such Restricted Subsidiary
or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by the Company or any
Restricted Subsidiary in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company or any
Restricted Subsidiary in furtherance of any such action; or
(h) there shall be commenced against the Company or any
Restricted Subsidiary any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process against all or
any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or
(i) the Company or any Restricted Subsidiary shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (f), (g) or (h); or
(j) the Company or any Restricted Subsidiary shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(k) any Loan Document, any other agreement or security
document executed in connection with or pursuant to any Loan Document shall
(other than with the consent of the Agent and the Lenders), at any time after
its execution and delivery and for any reason, cease to be in full force and
effect in any material respect, or shall be declared to be null and void, or
shall cease to give the Agent the Liens, rights and privileges purported to be
created thereby, or the validity or enforceability thereof shall be contested
by any Loan Party or any Loan Party
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shall deny that it has any or further liability or obligation thereunder, or
any Lien granted to the Agent on any of the Collateral becomes unperfected or
is determined to be void or unenforceable, or Liens in favor of the Agent
contemplated by this Agreement or the other Loan Documents shall prove not to
have been effectively granted, recorded or filed or not to have the priority
contemplated by any relevant document, or such Liens shall be subordinated for
any reason; or
(l) any Plan shall incur an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA) which
(individually or collectively) exceeds $2,000,000, whether or not waived, or a
waiver of the minimum funding standard or extension of any amortization period
is sought or granted under Section 412 of the Code with respect to a Plan; any
proceeding shall have occurred or is reasonably likely to occur by the PBGC
under Section 4069(a) of ERISA to impose liability on the Company, any
Restricted Subsidiary or an ERISA Affiliate which (individually or
collectively) exceeds $1,000,000; any Plan shall have an Unfunded Current
Liability in excess of $1,000,000; any required contribution to a Plan or
Multiemployer Plan in excess of $1,000,000 shall not have been made within 15
days of the date such contribution is due; the Company, any Restricted
Subsidiary or an ERISA Affiliate shall have become or is reasonably likely to
incur any unfunded liability reportable under Statement of Financial Accounting
Standards Number 106 for post-retirement benefits with respect to one or more
welfare benefit plans (as defined in Section 3(1) of ERISA) which (individually
or collectively) exceeds $1,000,000; or the Company, any Restricted Subsidiary
or any ERISA Affiliate has incurred or is reasonably likely to incur a
liability to or on account of a Plan or Multiemployer Plan under Section 515,
4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall result (individually
or collectively) from any such event or events a material risk of either (i)
the imposition of a Lien(s) upon, or the granting of a security interest(s) in,
the assets of the Company, any Restricted Subsidiary and/or an ERISA Affiliate
securing an amount(s) equal to or exceeding $1,000,000, or (ii) the Company,
any Restricted Subsidiary and/or an ERISA Affiliate incurring a liability(ies)
or obligation(s) with respect thereto equal to or exceeding $1,000,000; or
(m) a judgment or order shall be entered against the Company
or any Restricted Subsidiary, which with other outstanding judgments and orders
entered against the Company and the Restricted Subsidiaries equals or exceeds
$5,000,000 in the aggregate (to the extent not covered by insurance as to which
the respective insurer has acknowledged coverage), and (i) within 30 days after
entry thereof such judgment shall not have been discharged or execution thereof
stayed pending appeal or, within 30 days after the expiration of any such stay,
such judgment shall not have been discharged, or (ii) any enforcement
proceeding shall have been commenced (and not stayed) by any creditor upon such
judgment;
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then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Agent, upon the written request of the
Majority Lenders, shall by written notice (excluding telecopy) to the Company
(a "Notice of Default") take any or all of the following actions, without
prejudice to the rights of the Agent, any Lender or other holder of any of the
Obligations to enforce its claims against any Loan Party (provided that, if an
Event of Default specified in Section 10.01(f) or Section 10.01(g) shall occur
with respect to the Company or any Restricted Subsidiary, the result of which
would occur upon the giving of a Notice of Default as specified in clauses (i),
(ii) and (v) below, shall occur automatically without the giving of any Notice
of Default): (i) declare the Total Commitment terminated, whereupon the
Commitments of the Lenders shall forthwith terminate immediately and any
accrued Commitment Fees shall forthwith become due and payable without any
other notice of any kind; (ii) declare the principal of and any accrued
interest in respect of all Loans, and all obligations owing hereunder and under
the other Loan Documents, to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, notice of demand or of dishonor and
nonpayment, protest, notice of protest, notice of intent to accelerate,
declaration or notice of acceleration or any other notice of any kind, all of
which are hereby waived by each Loan Party; (iii) exercise any rights or
remedies under any Security Document or other document securing any of the
obligations and under the other Loan Documents; (iv) terminate any Letter of
Credit which may be terminated in accordance with its terms (whether by the
giving of written notice to the beneficiary or otherwise); and (v) direct the
Company to pay, and the Company agrees that upon receipt of such notice (or
upon the occurrence of an Event of Default specified in Section 10.01(f) or
Section 10.01(g)), it will pay to the Agent at the Agent's Payment Office such
additional amount of cash as is equal to the aggregate Stated Amount of all
Letters of Credit then outstanding to be held in an interest bearing account
with and under the sole dominion and control of the Agent as security for the
Obligations and the other obligations of the Loan Parties hereunder and under
the Notes and the other Loan Documents and the Loan Parties hereby grant the
Agent for the equal and ratable benefit of the Secured Parties a security
interest in such amount of cash.
SECTION 10.02. Other Remedies. Upon the occurrence and during
the continuance of any Event of Default, the Agent, acting at the request of
the Majority Lenders, may proceed to protect and enforce its rights, either by
suit in equity or by action at law or both, whether for the specific
performance of any covenant or agreement contained in this Agreement or in any
other Loan Document or in aid of the exercise of any power granted in this
Agreement or in any other Loan Document; or may proceed to enforce the payment
of all amounts owing to the Agent and the Lenders under the Loan Documents and
interest thereon in the manner set forth herein or therein; it being intended
that no remedy conferred herein or in any of the other Loan Documents is to be
exclusive of any other remedy, and each and every remedy contained herein or in
any other Loan Document shall be cumulative and shall be in addition to every
other remedy given hereunder and under the other Loan Documents now or
hereafter existing at law or in equity or by statute or otherwise.
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SECTION 10.03. Application of Moneys During Continuation of
Event of Default. (a) So long as an Event of Default of which the Agent shall
have given notice to the Lenders shall continue, all moneys received by the
Agent (i) from any Loan Party under the Loan Documents, or (ii) as a result of
the enforcement of the rights and remedies of the Agent and the other Secured
Parties pursuant to the Loan Documents (including any sale of or realization
upon any Collateral) or otherwise, shall, except as otherwise provided in the
Security Documents or otherwise required by law, be distributed by the Agent on
the dates selected by the Agent (individually, a "Distribution Date" and
collectively, the "Distribution Dates") as follows:
first, to payment of the reasonable expenses of any sale or other
realization of the Collateral, including reasonable compensation to the
Agent, agents of the Agent and counsel to the Agent, and all reasonable
expenses, liabilities and advances incurred or made by the Agent in
connection therewith, and any other unreimbursed expenses for which the
Agent or any other Secured Party is to be reimbursed pursuant to Section
12.04 or pursuant to the Security Documents and unpaid Fees owing to the
Agent pursuant to Section 4.01(c);
second, to the ratable payment of accrued but unpaid interest on the
Obligations;
third, to the ratable payment of unpaid principal of the Obligations;
fourth, to the ratable payment of all other amounts payable by the Loan
Parties hereunder;
fifth, to the ratable payment of all other Obligations, until all
Obligations shall have been paid in full; and
finally, to payment to the Loan Parties, or their respective successors
or assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining from such proceeds.
(b) The term "unpaid" as used in this Section 10.03 shall
mean all Obligations outstanding as of a Distribution Date (including any
amounts unpaid under clause (v) of the last sentence of Section 10.01) as to
which prior distributions have not been made, after giving effect to any
adjustments which are made pursuant to Section 12.06 of which the Agent shall
have been notified.
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ARTICLE XI
THE AGENT
SECTION 11.01. Authorization and Action. Subject to Section
11.06, each Lender hereby irrevocably appoints and authorizes the Agent to act
on its behalf and to exercise such powers under this Agreement and the other
Loan Documents as are specifically delegated to or required of the Agent by the
terms hereof, together with such powers as are reasonably incidental thereto.
The Agent may perform any of its duties hereunder by or through its agents and
employees. The duties of the Agent shall be mechanical and administrative in
nature; the Agent shall not have by reason of this Agreement or any other Loan
Documents a fiduciary relationship in respect of any Lender; and nothing in
this Agreement or any other Loan Document, expressed or implied, is intended
to, or shall be so construed as to, impose upon the Agent any obligations in
respect of this Agreement or any other Loan Document except as expressly set
forth herein or therein. As to any matters not expressly provided for by this
Agreement, the Notes or the other Loan Documents (including enforcement of the
Liens created by the Security Documents and 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 instructions
of the Majority Lenders, and such instructions shall be binding upon all
Lenders and all holders of Notes and the Obligations; 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 or applicable law.
SECTION 11.02. Agent's Reliance, Etc. (a) Neither the Agent
nor any of its directors, officers, agents or employees shall be liable to any
Lender for any action taken or omitted to be taken by it or them under or in
connection with this Agreement, the Notes or any of the other Loan Documents
(i) with the consent or at the request of the Majority Lenders or (ii) in the
absence of its or their own gross negligence or willful misconduct (IT BEING
THE EXPRESS INTENTION OF THE PARTIES HERETO THAT THE AGENT AND ITS DIRECTORS,
OFFICERS, AGENTS AND EMPLOYEES SHALL HAVE NO LIABILITY FOR ACTIONS AND
OMISSIONS UNDER THIS SECTION 11.02 RESULTING FROM THEIR SOLE OR CONCURRENT
NEGLIGENCE).
(b) Without limitation of the generality of the foregoing,
the Agent: (i) may treat the payee of each Note and the Obligations 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;
(ii) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not
be liable to the Lenders 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; (iii) makes no warranty or representation to any
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Lender and shall not be responsible to any Lender for any statements,
warranties or representations made in or in connection with this Agreement, any
Note or any other Loan Document; (iv) except as otherwise expressly provided
herein, shall not have any duty to the Lenders to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
this Agreement, any Note or any other Loan Document or to inspect the property
(including the books and records) of any Loan Party; (v) except for the due
execution and delivery by the Agent of the Loan Documents to which it is a
party, shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, collectibility, genuineness, sufficiency or value of
this Agreement, any Note, any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; (vi) shall not be responsible to
any Lender for the perfection or priority of any Lien securing the Obligations;
and (vii) shall incur no liability under or in respect of this Agreement, any
Note or any other Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram or telecopier)
reasonably believed by it to be genuine and signed or sent by the proper party
or parties.
SECTION 11.03. Agent and Affiliates; Chase and Affiliates.
Without limiting the right of any other Lender to engage in any business
transactions with any Loan Party or any of its Affiliates, with respect to
their commitments, the Loans made by them and the Notes issued to them, Chase
and each other Lender who may become the Agent shall have the same rights and
powers under this Agreement, its Notes and the other Loan Document as any other
Lender and may exercise the same as though it was not the Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Chase and any such other Lender, in their individual capacities. Chase, each
other Person who becomes the Agent and their respective Affiliates may be
engaged in, or may hereafter engage in, one or more loan, letter of credit,
leasing or other financing activities not the subject of this Agreement
(collectively, the "Other Financings") with any Loan Party, any Restricted
Subsidiary or any of their respective Affiliates, or may act as trustee on
behalf of, or depositary for, or otherwise engage in other business
transactions with any Loan Party, any Restricted Subsidiary or any of their
respective Affiliates (all Other Financings and other such business
transactions being collectively, the "Other Activities") with no responsibility
to account therefor to the Lenders. Without limiting the rights and remedies
of the Lenders specifically set forth herein, no other Lender by virtue of
being a Lender hereunder shall have any interest in (a) any Other Activities,
(b) any present or future guaranty by or for the account of the Company not
contemplated or included herein, (c) any present or future offset exercised by
the Agent in respect of any such Other Activities, (d) any present or future
property taken as security for any such Other Activities or (e) any property
now or hereafter in the possession or control of the Agent which may be or
become security for the obligations of any Loan Party hereunder and under the
Notes and the other Loan Documents by reason of the general description of
indebtedness secured, or of property contained in any other agreements,
documents or instruments related to such Other Activities;
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provided, however, that if any payment in respect of such guaranties or such
property or the proceeds thereof shall be applied to reduction of the
obligations evidenced hereunder and by the Notes, then each Lender shall be
entitled to share in such application according to its pro rata portion of such
obligations.
SECTION 11.04. Lender Credit Decision. Each Lender
acknowledges and agrees that it has, independently and without reliance upon
the Agent or any other Lender and based on the financial statements referred to
in Section 6.07 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges and agrees that it will,
independently and without reliance upon the Agent or any other Lender 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 and the other Loan Documents.
SECTION 11.05. Agent's Indemnity. (a) The Agent shall not be
required to take any action hereunder or to prosecute or defend any suit in
respect of this Agreement, the Notes or any other Loan Document unless
indemnified to the Agent's satisfaction by the Lenders against loss, cost,
liability and expense. If any indemnity furnished to the Agent shall become
impaired, it may call for additional indemnity and cease to do the acts
indemnified against until such additional indemnity is given. In addition, the
Lenders agree to indemnify the Agent (to the extent not reimbursed by the
Company or any other Loan Party), ratably according to the respective aggregate
principal amounts of the Notes then held by each of them (or if no Notes are at
the time outstanding, ratably according to the respective amounts of their
Commitments, or if no Commitments are outstanding, the respective amounts of
the Commitments immediately prior to the time the Commitments ceased to be
outstanding), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement, the
Notes and the other Loan Documents (including any action taken or omitted under
Article II, Article III or Article IV of this Agreement). Without limitation
of the foregoing, each Lender agrees to reimburse the Agent promptly upon
demand for its ratable share of any out-of-pocket expenses (including
reasonable counsel fees) incurred by the Agent in connection with the
preparation, execution, administration, or enforcement of, or legal advice in
respect of rights or responsibilities under, this Agreement, the Notes and the
other Loan Documents to the extent that the Agent is not reimbursed for such
expenses by a Loan Party. The provisions of this Section 11.05 shall survive
the termination of this Agreement, the payment of the Obligations and/or the
assignment of any of the Notes.
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(b) NOTWITHSTANDING THE FOREGOING, NO LENDER SHALL BE LIABLE
UNDER THIS SECTION 11.05 TO THE AGENT FOR ANY PORTION OF SUCH LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES OR DISBURSEMENTS DUE TO THE AGENT RESULTING FROM THE AGENT'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. EACH LENDER AGREES, HOWEVER, THAT IT
EXPRESSLY INTENDS, UNDER THIS SECTION 11.05, TO INDEMNIFY THE AGENT RATABLY AS
AFORESAID FOR ALL SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS ARISING OUT OF OR
RESULTING FROM THE AGENT'S ORDINARY SOLE OR CONCURRENT NEGLIGENCE.
SECTION 11.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Company and may be
removed as Agent under this Agreement, the Notes and the other Loan Documents
at any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 calendar
days after the retiring Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized or licensed under the laws of the United States of America or of any
state thereof and having a combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as Agent hereunder and
under the Notes and the other Loan Documents by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement,
the Notes and the other Loan Documents. After any retiring Agent's resignation
or removal as Agent hereunder and under the Notes and the other Loan Documents,
the provisions of this Article XI shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement, the
Notes and the other Loan Documents.
SECTION 11.07. Notice of Default. The Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Agent shall have received notice from a Lender or
the Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." If the Agent
receives such notice, the Agent shall give notice thereof to the Lenders;
provided, however, if such notice is received from a Lender, the Agent also
shall give notice thereof to the Company. The Agent shall be entitled to take
action or refrain from taking action with respect to such Default or Event of
Default as provided in Section 11.01 and Section 11.02.
SECTION 11.08. Consents under Security Documents. The Agent
may, with the prior consent of the Majority Lenders (but not otherwise),
consent to any modification, supplement or waiver under any of the Security
Documents, provided that, without the prior
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consent of all the Lenders, the Agent shall not release any Collateral or
otherwise terminate any Lien under any Security Document providing for
collateral security, or agree to additional obligations being secured by such
collateral security.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, any Note or any other Loan Document, nor consent
to any departure by any Loan Party herefrom or therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Loan Parties
party thereto, as to amendments, and by the Majority Lenders in all cases, and
then, in any case, such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver, consent or release shall, unless in writing
and signed by 100% of the Lenders, do any of the following: (a) change the
definition of "Majority Lenders," "Total Commitment" or "Percentage
Participation," (b) reduce or increase the amount or alter the terms of the
Commitment of any Lender or subject any Lender to any additional obligations,
(c) reduce the principal of, or rate or amount of interest applicable to, any
Loan or the reimbursement obligations of the Company under the Letters of
Credit other than as expressly provided in this Agreement, any Commitment Fees
or any Letter of Credit Fees, (d) postpone any date fixed for any payment of
principal of, or interest on, the Notes or the reimbursement obligations of the
Company under any Letter of Credit, (e) change this Section 12.01, (f) change
the aggregate unpaid principal amount of the Notes or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder, (g) release any Subsidiary Guarantor, (h) effect any increase on the
advance rates under the Borrowing Base or (i) except as expressly provided in
Section 11.08, release any Collateral or other security for the Obligations
(except as expressly permitted pursuant to Section 8.02); and provided that no
amendment, waiver or consent shall, unless in writing and signed by the Agent
in addition to the Lenders required above to take such action, affect the
rights or duties of the Agent under this Agreement, any Note or any other Loan
Document. Subject to the foregoing, the amendment or waiver of any provision
of Article VI, VII, VIII or IX may be effected with the consent of the Majority
Lenders.
SECTION 12.02. Notices, Etc. The Agent, any Lender or the
holder of any of the Obligations, giving consent or notice or making any
request of any Loan Party provided for hereunder, shall notify each Lender and
the Agent thereof. In the event that the holder of any Note or any of the
Obligations (including any Lender) shall transfer such Note or Obligations, it
shall promptly so advise the Agent which shall be entitled to assume
conclusively that no transfer of any Note or any of the Obligations has been
made by any holder (including
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any Lender) unless and until the Agent receives written notice to the contrary.
Except with respect to telephone notifications specifically permitted pursuant
to Article II and Article III, all notices, consents, requests, approvals,
demands and other communications (collectively "Communications") provided for
herein shall be in writing (including facsimile Communications) and mailed,
telecopied or delivered:
(a) If to the Company, to it at:
Energy Ventures, Inc.
5 Post Oak Park, Suite 1760
Houston, TX 77027
Telephone No.: (713) 297-8400
Telecopy No.: (713) 297-8488
Attention: Chief Financial Officer
with a copy to:
Fulbright & Jaworski LLP
1301 McKinney, Suite 5100
Houston, TX 77010
Telephone No.: (713) 651-5657
Telecopy No.: (713) 651-5246
Attention: Curtis Huff, Esq.
(b) If to any Subsidiary Guarantor, to it in care
of the Company at its address shown above.
(c) If to the Agent, to it at:
The Chase Manhattan Bank
Chase Agent Services
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Telephone No.: (212) 552-7953
Telecopy No.: (212) 552-5658
Attention: Sandra Miklave
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with copies to:
for Letters of Credit: The Chase Manhattan Bank
4 Chase Manhattan Center, 8th Floor
Brooklyn, New York, 11245
Telephone No.: (212) 242-2715
Telecopy No.: (212) 242-3819
Attention: Yvon Luxama
The Chase Manhattan Bank
707 Travis Street, 5th Floor North
Houston, Texas 77002
Telephone No.: (713) 216-8869
Telecopy No.: (713) 216-8870
Attention: Peter Licalzi - Second Vice President
for all Communications: Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Telephone No.: (713) 220-4122
Telecopy No.: (713) 220-4285
Attention: Linda Dole
(d) If to any Lender, as specified on the signature page for
such Lender hereto or, in the case of any Person who becomes a Lender after the
date hereof, as specified on the Assignment and Acceptance executed by such
Person or in the Administrative Questionnaire delivered by such Person or, in
the case of any party hereto, such other address or telecopy number as such
party may hereafter specify for such purpose by notice to the other parties.
All Communications shall, when mailed, telecopied or delivered,
be effective when mailed by certified mail, return receipt requested to any
party at its address specified above, on the signature page hereof or on the
signature page of such Assignment and Acceptance (or other address designated
by such party in a Communication to the other parties hereto), or telecopied to
any party to the telecopy number set forth above, on the signature page hereof
or on the signature page of such Assignment and Acceptance (or other telecopy
number designated by such party in a Communication to the other parties
hereto), or delivered personally to any party at its address specified above,
on the signature page hereof or on the signature page of such Assignment and
Acceptance (or other address designated by such party in a Communication to the
other parties hereto); provided, however, Communications to the Agent pursuant
to Article II, Article III or Article XI shall not be effective until received
by the Agent.
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SECTION 12.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder, under any Note or under any other Loan Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right, or
any abandonment or discontinuance of any steps to enforce such right, preclude
any other or further exercise thereof or the exercise of any other right. No
notice to or demand on any Loan Party in any case shall entitle such Loan Party
to any other or further notice or demand in similar or other circumstances.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 12.04. Costs, Expenses and Taxes. The Company agrees
to pay on demand: (a) all reasonable out-of-pocket costs and expenses of the
Agent in connection with the preparation, execution and delivery of this
Agreement, the Notes, the other Loan Documents and the other documents to be
delivered hereunder, including the reasonable fees and out-of-pocket expenses
of counsel for the Agent with respect thereto and with respect to advising the
Agent as to its rights and responsibilities under this Agreement (including any
release of Collateral pursuant to Section 8.02), the Notes and the other Loan
Documents, and any modification, supplement or waiver of any of the terms of
this Agreement or any other Loan Document, (b) all reasonable out-of-pocket
costs and expenses of the Agent in connection with the syndication of the
credit evidenced by this Agreement and the other Loan Documents, (c) all
recording, filing or other fees, costs and taxes incident to perfecting a Lien
upon the Collateral, and (d) all reasonable costs and expenses of each of the
Agent, the Lenders and any other holder of an interest in the Notes, and the
Obligations of the Loan Parties hereunder and under the Loan Documents,
including reasonable legal fees and expenses, in connection with a default or
the enforcement of this Agreement, the Notes or any other Loan Document. In
addition, subject to Section 12.08, the Company shall pay any and all stamp and
similar taxes payable or determined to be payable in connection with the
execution and delivery of this Agreement, the Notes, the other Loan Documents
and the other documents to be delivered hereunder, and agrees to save the Agent
and each Lender harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay such taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of this Agreement, any Note or any other Loan Document.
Without prejudice to the survival of any other obligations of the Company
hereunder and under the Notes, the obligations of the Company under this
Section 12.04 shall survive the termination of this Agreement and the payment
of the Obligations or the assignment of the Notes.
SECTION 12.05. Indemnity. (a) The Company shall indemnify the
Agent, the Lenders and each Affiliate thereof and their respective directors,
officers, employees and agents (each such Person being an "Indemnitee") from,
and hold each Indemnitee harmless against, any and all losses, liabilities,
claims or damages (including reasonable legal fees and expenses) to which any
Indemnitee may become subject, insofar as such losses, liabilities, claims or
damages
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arise out of or result from (i) any actual or proposed use by the Company or
any Restricted Subsidiary of the proceeds of any extension of credit by any
Lender hereunder or (ii) any investigation, litigation or other proceeding
(including any threatened investigation or proceeding) relating to the
foregoing or any of the other Loan Documents, and the Company shall reimburse
each Indemnitee, upon demand for any expenses (including reasonable legal fees)
incurred in connection with any such investigation or proceeding; but excluding
any such losses, liabilities, claims, damages or expenses incurred by reason of
the gross negligence or willful misconduct of such Indemnitee.
(b) WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT, IT IS
THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH INDEMNITEE HEREUNDER
SHALL BE INDEMNIFIED AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES,
CLAIMS OR DAMAGES ARISING OUT OF OR RESULTING FROM THE SOLE OR CONCURRENT
NEGLIGENCE OF SUCH INDEMNITEE. Without prejudice to the survival of any other
obligations of the Company hereunder and under the other Loan Documents, the
obligations of the Company under this Section 12.05 shall survive the
termination of this Agreement and the other Loan Documents and the payment of
the Obligations or the assignment of the Notes.
SECTION 12.06. Right of Setoff. If any Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such
Lender, or any branch, subsidiary or Affiliate of such Lender, to or for the
credit or the account of any Loan Party against any and all the obligations of
such Loan Party to such Lender now or hereafter existing under this Agreement
and the other Loan Documents and other obligations of such Loan Party held by
such Lender, irrespective of whether or not such Lender or the Agent shall have
made any demand under this Agreement, such Note, the Obligations or such other
obligations and although the Obligations or such other obligations may be
unmatured. Each Lender agrees to promptly notify the Company after any such
setoff and application made by such Lender, but the failure to give such notice
shall not affect the validity of such setoff and application. The rights of
each Lender under this Section 12.06 are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 12.07. Governing Law. Except as expressly provided in
Section 3.02(a), this Agreement, all Notes, the other Loan Documents and all
other documents executed in connection herewith and therewith and the rights
and obligations of the parties hereto and thereto, shall be deemed to be
contracts and agreements executed by the Loan Parties, the Agent and the
Lenders under the laws of the State of New York and of the United States of
America and for all purposes shall be construed in accordance with, and
governed by, the laws of said state and, to the extent controlling, of the
United States of America.
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SECTION 12.08. Interest. Each provision in this Agreement and
each other Loan Document is expressly limited so that in no event whatsoever
shall the amount paid, or otherwise agreed to be paid, to the Agent or any
Lender for the use, forbearance or detention of the money to be loaned under
this Agreement or any Loan Document or otherwise (including any sums paid as
required by any covenant or obligation contained herein or in any other Loan
Document which is for the use, forbearance or detention of such money), exceed
that amount of money which would cause the effective rate of interest to exceed
the Highest Lawful Rate.
SECTION 12.09. Survival of Representations and Warranties.
All representations, warranties and covenants contained herein or made in
writing by the Loan Parties in connection herewith and the other Loan Documents
shall survive the execution and delivery of this Agreement, the Notes and the
other Loan Documents until two years and one day after payment in full of the
Obligations and the termination of the Commitments of the Lenders and the
termination or expiration of the Letters of Credit, and will bind and inure to
the benefit of the respective successors and assigns of the parties hereto,
whether so expressed or not, provided, that the undertaking of the Lenders to
make Loans and extend credit to the Company and the undertaking of the Issuing
Bank to issue Letters of Credit for the account of the Company or the Company
and any of its Restricted Subsidiary shall not inure to the benefit of any
successor or assign of the Company, except as provided in Section 8.02.
SECTION 12.10. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Loan Parties and the Agent
and when the Agent shall have been notified by each Lender that such Lender has
executed it.
SECTION 12.11. Successors and Assigns; Participations. (a)
All covenants, promises and agreements by or on behalf of the Loan Parties, the
Agent or the Lenders that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and permitted assigns. Except as
provided in Section 8.02, the Loan Parties may not assign or transfer any of
their rights or obligations hereunder without the written consent of all the
Lenders.
(b) Each Lender may, without the consent of any Loan Party,
sell participations to one or more banks in all or a portion of its rights and
obligations under this Agreement and the other Loan Documents (including all or
a portion of its Commitment, the Loans and the Obligations of the Loan Parties
owing to it and the Notes and participations in Letters of Credit held by it);
provided, however, that (i) the selling Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participating banks or other entities shall be entitled
to the cost protection provisions contained in Article II, Article III and
Section 12.04; provided, however, the costs to which a participant shall be
entitled to obtain pursuant to
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Articles II and III shall be determined by reference to such participant's
selling Lender and shall be recoverable solely from such selling Lender and
(iv) the Loan Parties, the Agent and the other Lenders shall continue to deal
solely and directly with the selling Lender in connection with such Lender's
rights and obligations under this Agreement and the other Loan Documents;
provided, however, as between the selling Lender and any such participant, the
selling Lender may grant such participant rights with respect to amendments,
modifications or waivers with respect to any Fees payable hereunder to such
Lender (including the amount and the dates fixed for the payment of any such
Fees) or the amount of principal or the rate of interest payable on, or the
dates fixed for any payment of principal of or interest on, the Loans, or the
release of any obligations of the Loan Parties hereunder and under the other
Loan Documents, or the release of any security for any of the Obligations.
Except with respect to the provision with respect to default and enforcement
contained in Section 12.04(d) provided to a participant pursuant to clause
(iii) of this Section 12.11(b), no participant shall be a third party
beneficiary of this Agreement and shall not be entitled to enforce any rights
provided to its selling Lender against the Company under this Agreement.
(c) A Lender may assign to any other Lender or Lenders or to
any Affiliate of a Lender and, with the consent of the Company and the Agent
(which consents shall not be unreasonably withheld), a Lender may assign to one
or more other Eligible Assignees all or a portion of its interests, rights, and
obligations under this Agreement and the other Loan Documents (including all or
a portion of its Commitment and the same portion of the Loans and other
Obligations of the Loan Parties at the time owing to it and the Note held by
it, including its participation in the Letters of Credit); provided, however,
that (i) each such assignment shall (A) be in a minimum principal amount of not
less than $10,000,000, (B) not reduce any Lender's Commitment to an amount less
than $10,000,000 (other than to zero) and (C) be of a constant, and not a
varying, percentage of all the assigning Lender's Commitment, rights and
obligations under this Agreement and (iv) the parties to each such assignment
shall execute and deliver to the Agent, for its acceptance and recording in the
Register (as defined below), an Assignment and Acceptance substantially in the
form of Exhibit 12.11 hereto (an "Assignment and Acceptance"), any Note subject
to such assignment and, in the case of the Eligible Assignee, an Administrative
Questionnaire. In addition, the Agent shall receive a processing and recording
fee of $3,000 from the assigning Lender in connection with any such Assignment
and Acceptance; provided, however, that the Company shall pay to the Agent such
processing and recording fee in connection with any assignment pursuant to
Sections 2.11, 2.12, 2.13 and 3.05. 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 five Business Days after
the execution thereof unless otherwise agreed to by the assigning Lender, the
Eligible Assignee thereunder and the Agent (x) the Eligible Assignee thereunder
shall be a party hereto and to the other Loan Documents and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations of
a Lender hereunder and under the other Loan
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Documents and (y) the assignor Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement and the other Loan Documents (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender's
rights and obligations under this Agreement and the other Loan Documents, such
Lender shall cease to be a party hereto).
(d) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the Eligible Assignee confirm to
and agree with each other and the other parties hereto as follows: (i) other
than the representation and warranty that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim
known to such Lender, such Lender assignor 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, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (ii) such Lender assignor makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance of its
respective obligations under this Agreement or any other instrument or document
furnished pursuant hereto or thereto; (iii) such Eligible Assignee confirms
that it has received a copy of this Agreement together with copies of the most
recent financial statements delivered pursuant to Section 6.07 or Section 7.01
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such Eligible Assignee will, independently and without
reliance upon the Agent, such Lender assignor or any other Lender 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 and the other Loan Documents; (v) such Eligible Assignee
appoints and authorizes the Agent to take such action on behalf of such
Eligible Assignee and to exercise such powers under this Agreement and the
other Loan Documents as are delegated to the Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; (vi) such
Eligible Assignee agrees that it will perform in accordance with its terms all
of the obligations which by the terms of this Agreement and the other Loan
Documents are required to be performed by it as a Lender; and (vii) such
Eligible Assignee confirms that it is an Eligible Assignee as defined herein.
(e) The Agent shall maintain at its office a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of, and principal
amount of the Loans and other Obligations owing to, each Lender from time to
time (the "Register"). The entries in the Register shall be conclusive, in the
absence of manifest error, and the Loan Parties, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement and the other Loan Documents. The Register
shall be available for
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inspection by the Loan Parties, any Lender or the Agent at any reasonable time
and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Eligible Assignee together with the Note
subject to such assignment and the written consent of the Company to such
assignment (to the extent required under Section 12.11(c)), the Agent shall, if
such Assignment and Acceptance has been completed and is substantially in the
form of Exhibit 12.11 hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register, and (iii) give prompt
notice thereof to the Lenders and the Company. Within five Business Days after
receipt of such notice, the Company shall, at its own expense, execute and
deliver to the Agent in exchange for the surrendered Note, a new Note to the
order of such Eligible Assignee in an amount equal to the portion of the
Commitment of the assigning Lender assumed by it pursuant to such Assignment
and Acceptance and, if the assigning Lender has retained any of its Commitment
hereunder, a new Note to the order of the assigning Lender in an amount equal
to the portion of such Commitment retained by it hereunder. Such new Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit 12.11, as applicable, hereto. Canceled Notes shall be returned to the
Company.
(g) Notwithstanding any other provision herein, any Lender
may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 12.11 disclose to the assignee or
participant or proposed assignee or participant, any information relating to
the Loan Parties furnished to such Lender by or on behalf of any Loan Party,
subject, however to the provisions of Section 12.12.
(h) Anything in this Section 12.11 to the contrary
notwithstanding, any Lender may at any time, without the consent of the Company
or the Agent, assign and pledge all or any portion of its Commitments and the
Loans owing to it to any Federal Reserve Bank (and its transferees) as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
(i) All transfers of any interest in any Note hereunder
shall be in compliance with all federal and state securities laws, if
applicable. Notwithstanding the foregoing sentence, however, the parties to
this Agreement do not intend that any transfer under this Section 12.11 be
construed as a "purchase" or "sale" of a "security" within the meaning of any
applicable federal or state securities laws.
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<PAGE> 120
SECTION 12.12. Confidentiality. Each Lender agrees to
exercise its best efforts to keep any information delivered or made available
by any Loan Party to it (including any information obtained pursuant to Section
7.01) which is clearly indicated to be confidential information, confidential
from anyone other than Persons employed or retained by such Lender who are or
are expected to become engaged in evaluating, approving, structuring or
administering the Loans or the Letters of Credit; provided that nothing herein
shall prevent any Lender from disclosing such information (a) to any other
Lender, (b) pursuant to subpoena or upon the order of any court or
administrative agency, (c) upon the request or demand of any regulatory agency
or authority having jurisdiction over such Lender, (d) which has been publicly
disclosed, (e) to the extent reasonably required in connection with any
litigation to which either Agent, any Lender, any Loan Party or their
respective Affiliates may be a party, (f) to the extent reasonably required in
connection with the exercise of any remedy hereunder or under any other Loan
Document, (g) to such Lender's legal counsel and independent auditors and (h)
to any actual or proposed participant or assignee of all or part of its rights
hereunder which has agreed in writing to be bound by the provisions of this
Section 12.12. Each Lender will promptly notify the Company of any information
that it is required or requested to deliver pursuant to clause (b) or (c) of
this Section 12.12 and, if no Loan Party is a party to any such litigation,
clause (e) of this Section 12.12.
SECTION 12.13. Pro Rata Treatment. (a) Except as permitted
under Section 2.11 and Section 2.13, each payment or prepayment of principal,
if permitted under this Agreement, and each payment of interest with respect to
a Borrowing shall be made pro rata among the Lenders in accordance with the
respective principal amounts of the Loans extended by each Lender with respect
to such Borrowing.
(b) Each Lender agrees that if it shall, through the
exercise of a right of banker's lien, setoff or counterclaim against any Loan
Party (pursuant to Section 12.06 or otherwise), including a secured claim under
Section 506 of the Bankruptcy Code or other security or interest arising from,
or in lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, obtain payment
(voluntary or involuntary) in respect of the Notes, Loans, Unpaid Drawings and
other Obligations held by it (other than pursuant to Section 2.11, Section 2.13
and Section 3.05) as a result of which the unpaid principal portion of the
Notes and the Obligations held by it shall be proportionately less than the
unpaid principal portion of the Notes and Obligations held by any other Lender,
it shall be deemed to have simultaneously purchased from such other Lender a
participation in the Notes and Obligations held by such other Lender, so that
the aggregate unpaid principal amount of the Notes, Obligations and
participations in Notes held by each Lender shall be in the same proportion to
the aggregate unpaid principal amount of the Notes and Obligations then
outstanding as the principal amount of the Notes and other Obligations held by
it prior to such exercise of banker's lien, setoff or counterclaim was to the
principal amount
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<PAGE> 121
of all Notes and other Obligations outstanding prior to such exercise of
banker's lien, setoff or counterclaim; provided, however, that if any such
purchase or purchases or adjustments shall be made pursuant to this Section
12.13 and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustments restored without
interest. Each Loan Party expressly consents to the foregoing arrangements and
agrees that any Person holding a participation in the Notes and the Obligations
deemed to have been so purchased may exercise any and all rights of banker's
lien, setoff or counterclaim with respect to any and all moneys owing by such
Loan Party to such Person as fully as if such Person had made a Loan directly
to the Company in the amount of such participation.
SECTION 12.14. Independence of Covenants. All covenants
contained in this Agreement and in the other Loan Documents shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that such action or condition would be
permitted by an exception to, or otherwise be within the limitations of,
another covenant, shall not avoid the occurrence of a Default or an Event of
Default if such action is taken or condition exists.
SECTION 12.15. Separability. Should any clause, sentence,
paragraph or Section of this Agreement be judicially declared to be invalid,
unenforceable or void, such decision will not have the effect of invalidating
or voiding the remainder of this Agreement, and the parties hereto agree that
the part or parts of this Agreement so held to be invalid, unenforceable or
void will be deemed to have been stricken herefrom and the remainder will have
the same force and effectiveness as if such part or parts had never been
included herein.
SECTION 12.16. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 12.17. Conflict with Security Documents. In the case
of any conflict or inconsistency between any provision of this Agreement and
the provision of any Security Documents, the provision of this Agreement shall
control.
SECTION 12.18. Ratification of Security Documents. Each Loan
Party hereby ratifies and confirms each of the Security Documents to which it
is a party (or,in the case of Grant Prideco, to which it, Prideco, Inc. or
Prideco Holdings, Inc. was a party) as security for the Secured Obligations (as
defined therein) of such Loan Party.
SECTION 12.19. SUBMISSION TO JURISDICTION. (a) ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND THE
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<PAGE> 122
OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY, THE AGENT, EACH LENDER AND THE
ISSUING BANK HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. EACH LOAN PARTY HEREBY
IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION SYSTEM, INC., WITH
OFFICES ON THE DATE HEREOF AT 1633 BROADWAY, NEW YORK, NEW YORK 10019, AS ITS
DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS
BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS,
SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR
PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE
TO BE AVAILABLE TO ACT AS SUCH, EACH SUCH LOAN PARTY AGREES TO DESIGNATE A NEW
DESIGNEE, APPOINTEE AND AGENT IN NEW YORK, NEW YORK ON THE TERMS AND FOR THE
PURPOSES OF THIS PROVISION SATISFACTORY TO THE AGENT. EACH LOAN PARTY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS PROVIDED IN
SECTION 12.02, SUCH SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST ANY LOAN PARTY IN ANY OTHER JURISDICTION.
(b) EACH OF THE LOAN PARTIES HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 12.20. WAIVER OF JURY TRIAL. EACH LOAN PARTY, THE
AGENT, EACH LENDER AND THE ISSUING BANK (a) IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO ANY LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN; (b) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY
RIGHT IT MAY
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<PAGE> 123
HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES; (c) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR
COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR
IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVERS; AND (d) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY BASED UPON, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION.
SECTION 12.21. FINAL AGREEMENT. THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT OF THE LOAN PARTIES, THE LENDERS
AND THE AGENT WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF, AND THERE
ARE NO PROMISES, UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY THE AGENT OR
ANY LENDER RELATIVE TO THE SUBJECT MATTER HEREOF OR THEREOF NOT EXPRESSLY SET
FORTH OR REFERRED TO HEREIN OR IN THE OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first above written.
Company:
ENERGY VENTURES, INC., a Delaware
corporation
By: /s/ James G. Kiley
---------------------------------------
Name: James G. Kiley
Title: Vice President
Subsidiary Guarantors:
EVI OIL TOOLS, INC., a Delaware corporation
By: /s/ James G. Kiley
---------------------------------------
Name: James G. Kiley
Title: Vice President
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GRANT PRIDECO, INC., a Delaware
corporation and the successor
of a merger of Prideco, Inc., a
Texas corporation, with and
into Grant Prideco, Inc.
By: /s/ James G. Kiley
---------------------------------------
Name: James G. Kiley
Title: Vice President
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PRIDECO HOLDINGS, INC., a Delaware
corporation
By: /s/ James G. Kiley
---------------------------------------
Name: James G. Kiley
Title: Vice President
CHANNELVIEW REAL PROPERTY, INC.,
a Delaware corporation
By: /s/ James G. Kiley
---------------------------------------
Name: James G. Kiley
Title: Vice President
EVI MANAGEMENT INC., a Delaware
corporation
By: /s/ James G. Kiley
---------------------------------------
Name: James G. Kiley
Title: Vice President
119
<PAGE> 126
EVI ARROW, INC., a Delaware corporation
By: /s/ James G. Kiley
---------------------------------------
Name: James G. Kiley
Title: Vice President
EVI WATSON PACKERS, INC., a Delaware
corporation
By: /s/ James G. Kiley
---------------------------------------
Name: James G. Kiley
Title: Vice President
Agent:
THE CHASE MANHATTAN BANK, AS AGENT
By: /s/ Martha Ann Fetner
------------------------------------
Name: Martha Ann Fetner
Title:Vice President
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<PAGE> 127
Lenders:
Commitment: $20,000,000 THE CHASE MANHATTAN BANK
By: /s/ Martha Ann Fetner
------------------------------------
Name: Martha Ann Fetner
Title:Vice President
Address:
270 Park Avenue
New York, New York 10017
Telecopy No.: (212) 622-0002
Domestic Lending Office
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Eurodollar Lending Office
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
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<PAGE> 128
Lenders:
Commitment: $17,500,000 ABN AMRO NORTH AMERICA, INC.,
AS AGENT FOR ABN AMRO BANK, N.V.
By: /s/ Charles W. Randall
------------------------------------
Name: Charles W. Randall
Title: Senior Vice President and
Managing Director
By: /s/ H. Gene Shiels
------------------------------------
Name: H. Gene Shiels
Title: Vice President and Director
Address:
Three Riverway, Suite 1700
Houston, Texas 77056
Telecopy No.: (713) 629-7533
Domestic Lending Office
Three Riverway, Suite 1700
Houston, Texas 77056
Eurodollar Lending Office
Three Riverway, Suite 1700
Houston, Texas 77056
122
<PAGE> 129
Lenders:
Commitment: $15,000,000 CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Pascal Poupelle
------------------------------------
Name: Pascal Poupelle
Title:Senior Vice President
Address:
1000 Louisiana, Suite 5360
Houston, Texas 77002
Telecopy No.: (713) 751-0307
Domestic Lending Office
1301 Avenue of the Americas
New York, New York 10019
Eurodollar Lending Office
1301 Avenue of the Americas
New York, New York 10019
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<PAGE> 130
Lenders:
Commitment: $15,000,000 HIBERNIA NATIONAL BANK
By: /s/ Bruce Ross
------------------------------------
Name: Bruce Ross
Title: Vice President
Address:
313 Carondelet Street
New Orleans, Louisiana 70130
Telecopy No.: (504) 533-5434
Domestic Lending Office
313 Carondelet Street
New Orleans, Louisiana 70130
Eurodollar Lending Office
313 Carondelet Street
New Orleans, Louisiana 70130
124
<PAGE> 131
Lenders:
Commitment: $15,000,000 WELLS FARGO BANK (TEXAS), N.A.
By: /s/ Frank Schageman
--------------------------------------
Name: Frank Schageman
Title: Vice President
Address:
1000 Louisiana, 3rd Floor
Houston, Texas 77002
Telecopy No.: (713) 250-7029
Domestic Lending Office
1000 Louisiana, 3rd Floor
Houston, Texas 77002
Eurodollar Lending Office
1000 Louisiana, 3rd Floor
Houston, Texas 77002
125
<PAGE> 132
Lenders:
Commitment: $12,500,000 THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
-------------------------------------
Name: F.C.H. Ashby
Title:Senior Manager Loan Operations
Address:
600 Peachtree Street N.E., Suite 2700
Atlanta, Georgia 30308
Telecopy No.: (404) 888-8998
Domestic Lending Office
600 Peachtree Street N.E., Suite 2700
Atlanta, Georgia 30308
Eurodollar Lending Office
600 Peachtree Street N.E., Suite 2700
Atlanta, Georgia 30308
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<PAGE> 133
Lenders:
Commitment: $12,500,000 BANQUE PARIBAS
By: /s/ Brian Malone
-------------------------------------
Name: Brian Malone
Title:Vice President
By:/s/ Barton D. Schouest
-------------------------------------
Name: Barton D. Schouest
Title: Group Vice President
Address:
1200 Smith Street, Suite 3100
Houston, Texas 77002
Telecopy No.: (713) 659-3832
Domestic Lending Office
1200 Smith Street, Suite 3100
Houston, Texas 77002
Eurodollar Lending Office
1200 Smith Street, Suite 3100
Houston, Texas 77002
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<PAGE> 134
Lenders:
Commitment: $12,500,000 THE FUJI BANK, LIMITED
By: /s/ David Kelley
-------------------------------------
Name: David Kelley
Title: Senior Vice President
Address:
1221 McKinney Street, Suite 4100
Houston, Texas 77010
Telecopy No.: (713) 759-0048
Domestic Lending Office
1221 McKinney Street, Suite 4100
Houston, Texas 77010
Eurodollar Lending Office
1221 McKinney Street, Suite 4100
Houston, Texas 77010
128
<PAGE> 135
FORM OF
NOTE
$________________ _____________, 199__
FOR VALUE RECEIVED, the undersigned, ENERGY VENTURES, INC., a
Delaware corporation, (the "Company"), HEREBY PROMISES TO PAY to the order of
____________________________ _________________________________________________
(the "Lender"), the lesser of (i) ____________________________________________
and No/100 DOLLARS ($__________) and (ii) the aggregate amount of Loans made by
the Lender and outstanding on the Stated Maturity Date. The principal amount
of the Loans made by the Lender to the Company shall be due and payable on the
dates and in the amounts as are specified in that certain Amended and Restated
Credit Agreement dated as of December 6, 1996 (as further amended or otherwise
modified from time to time, the "Credit Agreement") among the Company, the
Subsidiary Guarantors, the Lender, certain other lenders that are party thereto
and The Chase Manhattan Bank, as Agent for the Lender and such other lenders.
All capitalized terms used herein and not otherwise defined shall have the
meanings as defined in the Credit Agreement.
The Company promises to pay interest on the unpaid principal
amount of each Loan outstanding from time to time from the date thereof until
such principal amount is paid in full, at such interest rates and payable on
such dates as are specified in the Credit Agreement. Both principal and
interest are payable in same day funds in lawful money of the United States of
America to The Chase Manhattan Bank, as Agent, at 270 Park Avenue, New York,
New York 10017, or at such other place as the Agent shall designate in writing
to the Company.
This Note is one of the Notes referred to in, and this Note and
all provisions herein are entitled to the benefits of, the Credit Agreement and
the Guaranty. The obligations of the Company hereunder are secured by the
Security Documents. The Credit Agreement, among other things, (a) provides for
the making of Loans by the Lender and other lenders to the Company from time to
time, and (b) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events, for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified, and for limitations on the amount of interest paid such that no
provision of the Credit Agreement or this Note shall require the payment or
permit the collection of interest in excess of the Highest Lawful Rate.
This Note may be held by the Lender for the account of its
Domestic Lending Office or its Eurodollar Lending Office and may be transferred
from one to the other from time to time as the Lender may determine.
<PAGE> 136
The Company and any and all endorsers, guarantors and sureties
severally waive grace, demand, presentment for payment, notice of dishonor or
default, intent to accelerate, protest and notice of protest and diligence in
collecting and bringing of suit against any party hereto, and agree to all
renewals, extensions or partial payments hereon and to any release or
substitution of security herefor, in whole or in part, with or without notice,
before or after maturity.
This Note shall be governed by and construed under the laws of
the State of New York and the applicable laws of the United States of America.
ENERGY VENTURES, INC.
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
<PAGE> 137
As permitted by Item 601(b)(2) of Regulation S-K, the Company has not
filed any schedules and exhibits with this Exhibit No. 4.1. Listed below is a
brief description of the omitted exhibits and schedules. The Company agrees to
furnish supplementally a copy of any of such omitted exhibits and schedules to
the Commission upon request.
SCHEDULES
<TABLE>
<S> <C> <C>
Schedule 1.01A - Permitted Indebtedness
Schedule 1.01B - Permitted Liens
Schedule 6.01 - List of Subsidiaries of the Company
Schedule 6.13 - Environmental Matters
Schedule 8.06 - Permitted Investments
</TABLE>
EXHIBITS
<TABLE>
<S> <C> <C>
Exhibit 1.01A - Administrative Questionnaire
Exhibit 1.01B - Borrowing Base Certificate
Exhibit 2.03 - Notice of Borrowing
Exhibit 2.05 - Form of Note
Exhibit 3.02 - Letter of Credit Request
Exhibit 8.02 - Form of Subsidiary Guarantor Counterpart
Exhibit 12.11 - Form of Assignment and Acceptance
</TABLE>
<PAGE> 1
EXHIBIT 99.1
[ENERGY VENTURES, INC. LETTERHEAD]
FOR IMMEDIATE RELEASE
December 11, 1996, Houston, Texas - Energy Ventures, Inc. (NYSE-EVI) today
announced the completion of the previously announced acquisition of the
operating assets of Arrow Completion Systems, Inc. and Watson Packer, Inc. from
Weatherford Enterra, Inc. for total consideration of approximately $21.3
million.
EVI is an international oilfield equipment company with manufacturing
operations in eight countries. The Company manufactures drill pipe, premium
tubulars and production equipment.
Contact:
James G. Kiley
Vice President and
Chief Financial Officer
(713) 297-8400
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EXHIBIT 99.2
[ENERGY VENTURES, INC. LETTERHEAD]
FOR IMMEDIATE RELEASE
December 5, 1996, Houston, Texas - Energy Ventures, Inc. (NYSE-EVI) today
announced that it has entered into an agreement to acquire GulfMark
International, Inc. pursuant to a tax free merger in which approximately 2.2
million shares of EVI Common Stock will be issued to the stockholders of
GulfMark. Prior to the merger, GulfMark will spin-off to its stockholders the
stock of a newly formed company in which its marine transportation services
business will be contributed. Following the spinoff, the remaining assets of
GulfMark will consist of approximately 2.2 million shares of EVI Common Stock,
GulfMark's erosion control business and certain corporate and miscellaneous
assets. It is anticipated that GulfMark will have no material debt as of the
closing of the transaction.
The acquisition of GulfMark is expected to increase EVI's stockholder base
while allowing it to acquire a profitable low cost business with potential
synergies with EVI's businesses at an attractive price. Revenues and operating
income for 1995 attributable to GulfMark's erosion control business was $8.8
million and $800,000, respectively. The acquisition is subject to, among other
things, approval of the stockholders of EVI and GulfMark and certain customary
regulatory approvals. It is currently anticipated that the acquisition will be
consummated in the first quarter of 1997.
EVI is an international oilfield equipment company with manufacturing
operations in eight countries. The Company manufactures drill pipe, premium
tubulars and production equipment.
Contact:
James G. Kiley
Vice President and
Chief Financial Officer
(713) 297-8400
