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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): JUNE 15, 1998
EVI WEATHERFORD, INC.
(Exact name of registrant as specified in charter)
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<S> <C> <C>
DELAWARE 1-13086 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
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ITEM 5. OTHER
BUSINESS COMBINATION
On May 27, 1998, EVI, Inc. ("EVI") and Weatherford Enterra, Inc.
("Weatherford") merged pursuant to an Agreement and Plan of Merger dated March
4, 1998, as amended, between EVI and Weatherford, with EVI being the surviving
corporation (the "Merger"). Under the terms of the Merger, the name of the
combined company was changed to EVI Weatherford, Inc. (together with its
subsidiaries, the "Company"). Under the terms of the Merger, the stockholders
of Weatherford received 0.95 of a share of EVI common stock, $1.00 par value
("Common Stock"), in exchange for each outstanding share of Weatherford common
stock outstanding immediately prior to the Merger. The Merger has been
accounted for as a pooling of interests and the supplemental consolidated
financial statements of EVI have been restated to include the accounts of EVI
and Weatherford. The following sets forth Management's Discussion and Analysis
of Financial Condition and Results of Operations of the Company on a restated
basis. The discussion should be read in conjunction with the restated
Supplemental Consolidated Financial Statements of the Company filed with this
report. The supplemental financial statements contained herein, together with
the following Supplemental Selected Financial Data and Management's Discussion
and Analysis of Financial Condition and Results of Operations, are supplemental
to the historical Financial Statements and Management's Discussion and Analysis
of Financial Condition and Results of Operations previously filed by EVI prior
to the Merger and supersede the previously filed pro forma financial statements
filed by EVI reflecting the Merger.
SUPPLEMENTAL SELECTED FINANCIAL DATA
The following table sets forth certain supplemental selected historical
consolidated financial data of the Company and should be read in conjunction
with Management's Discussion and Analysis of Financial Condition and Results of
Operations and the Supplemental Consolidated Financial Statements and Notes
thereto included elsewhere herein. The following information may not be deemed
indicative of future operating results of the Company. The information presented
has been restated to reflect the Company's May 1997 two-for-one stock split and
the adoption of Statement of Financial Accounting Standards No. 128 ("SFAS No.
128"), Earnings Per Share.
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<CAPTION>
YEAR ENDED DECEMBER 31,
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1997 1996 1995 1994 1993
----------- ----------- ----------- ----------- -----------
(in thousands, except per share amounts)
<S> <C> <C> <C> <C> <C>
Revenues .................................... $ 1,969,089 $ 1,467,270 $ 1,125,803 $ 858,993 $ 671,470
Operating Income ............................ 335,992 169,101 12,120 70,952 59,342
Income (Loss) From Continuing
Operations............................... 196,773 92,161 (8,268) 36,046 35,231
Basic Earnings (Loss) Per Share From
Continuing Operations.................... 2.04 1.03 (0.10) 0.53 0.58
Diluted Earnings (Loss) Per Share
From Continuing Operations .............. 2.01 1.01 (0.10) 0.53 0.58
Total Assets ................................ 2,737,910 2,243,633 1,710,568 1,464,804 885,981
Long-Term Debt .............................. 252,322 417,976 416,473 303,854 56,580
5% Convertible Subordinated Preferred
Equivalent Debentures..................... 402,500 -- -- -- --
Stockholders' Equity ........................ 1,458,549 1,292,704 958,337 845,287 582,187
Cash Dividends Per Share .................... -- -- -- -- --
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GENERAL
The Company is a diversified international energy service and manufacturing
company that provides a variety of services and equipment to the exploration,
production and transmission sectors of the oil and gas industry. The Company's
principal industry segments consist of (i) drilling products, (ii) completion
and oilfield products and services and (iii) artificial lift and compression
products and services. The Company operates in virtually every oil and gas
exploration and production region in the world.
The Company's drilling products segment manufactures (i) drill pipe and other
drilling products, (ii) premium engineered connections and associated tubulars
and (iii) marine connectors and related accessories. The Company's drilling
products are designed and engineered for high performance applications. Drill
pipe, as well as drill collars, heavyweights and kellys manufactured by the
Company, serve as the principal mechanical drilling tools used to drill an oil
or natural gas well. These products constitute all components of the drill
stem used to drill a well from the rig to the drill bit. The Company's premium
tubulars consist of premium tubing, liner and casing and, together with the
Company's line of premium engineered connections, are used for the production
of oil and natural gas in harsh downhole environments. The Company's marine
connector product line consists of downhole conductors for offshore
applications and are used to define the original architecture of an offshore
well and to support subsea applications.
The Company's completion and oilfield products and services segment
manufactures, sells and services cementation products and liner hangers and
equipment used to provide oilfield services. Other products manufactured by
this segment include hydraulic power tongs and related equipment used to
provide tubular running services, milling tools, whipstocks and weighted drill
pipe used in rental and downhole services and sold to customers. This segment
also provides oilfield equipment rental, downhole services and tubular running
services. The Company's rental equipment includes specialized pressure control
equipment, drill string equipment, handling tools, stabilizers and other
equipment and tools used in the drilling, completion and workover of oil and
gas wells. Downhole services include fishing, milling, whipstock installation
and retrieval, well control assistance, plugging and abandonment services, pipe
recovery wireline services, foam services and internal casing patch
installation.
The Company's artificial lift and compression segment (i) designs,
manufactures and services a complete line of artificial lift equipment and (ii)
manufactures, packages, rents and sells parts and services for gas compressor
units over a broad horsepower range. The Company's artificial lift product
line includes a wide range of downhole pumps, surface pump drive units, gas
lift equipment, hydraulic lift products and progressing cavity pumps. The
Company's gas compressor units are used for increasing natural gas pressure to
facilitate gas flow from the wellhead and through gas gathering systems and
processing plants and injecting natural gas into oil wells to enhance recovery
and into gas storage wells. Other general applications include cogeneration,
seismic marine surveys and natural gas fueling stations.
The Company has achieved significant growth in recent years through a
consistent strategy of synergistic acquisitions and internal development.
Acquisitions have focused on the acquisition of name brand products, geographic
expansion, the development of complete product lines and savings through
consolidation. Internal development has focused on product development and
geographic expansion. The Company's growth strategy has
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resulted in the Company becoming the largest manufacturer of drill pipe, drill
collars and heavyweight drill pipe in the world, the largest provider of
premium tubular connectors in North America and one of the largest providers of
artificial lift equipment in the world. The Company is the leading worldwide
supplier of rental tools and fishing and other downhole services and the
leading worldwide provider of tubular running services. To the Company's
knowledge, none of its competitors has as broad a product line of rod lift and
progressing cavity pumps.
MARKET TRENDS
The demand for the Company's products and services is affected by the price
and demand of natural gas, the level of oil and gas exploration, production and
consumption, the number of oil and gas wells being drilled, the depth and
drilling conditions of such wells, the volume of production, the number of well
completions, the level of workover activity, the construction of gathering and
storage systems and the age and operating pressures of natural gas wells.
Exploration and production activities are affected by worldwide economic
conditions, supply and demand for oil and natural gas, seasonal trends and the
political stability of oil producing countries. Drilling and workover activity
can fluctuate significantly in a short period of time, particularly in the
United States and Canada.
The oil and gas industry has been substantially volatile over the years, due
in large part to volatility in the prevailing prices of oil and natural gas.
In 1996 and much of 1997, the oil and gas service industry experienced a
general improvement in product demand and pricing as relatively stable and
improved oil and or natural gas prices combined with a strong world economy to
increase exploration and development activity worldwide. This trend, together
with a decline in the worldwide inventory of used drill pipe, benefited the
Company and its results in 1997 and 1996. Demand for the Company's compressor
packages improved in 1997 due to stronger and more stable natural gas prices
and trend of major oil companies outsourcing certain services and selling many
of their oil and gas properties in the United States to smaller producers.
The willingness of oil and gas operators to make capital expenditures for the
exploration and production of oil and natural gas will continue to be
influenced by numerous factors over which the Company has no control, including
the prevailing and expected market prices for oil and natural gas. Such prices
are impacted by, among other factors, worldwide demand for oil and gas, costs
of exploration and production, general economic and political conditions,
availability of new leases and concessions, the ability of the members of the
Organization of Petroleum Exporting Countries ("OPEC") to maintain price
stability through voluntary production limits, the level of production by
non-OPEC countries, and governmental regulations regarding, among other things,
environmental protection, taxation, price controls and product allocations.
The worldwide price of oil has declined significantly since late 1997, with
prices having dropped as much as 40% to under $13 per barrel for spot
deliveries, and prices for natural gas have weakened slightly on a year to year
basis. These declines have been attributed to, among other things, an excess
supply of oil in the world markets, reduced domestic demand associated with an
unseasonably warm winter and the potential for lower worldwide demand due to
the impact of the economic downturn in Southeast Asia. With lower oil prices,
the Company and others in the industry have begun to experience a softening in
demand for their products and services, in particular, products and services
associated with exploration activity and oil production. Although the Company
continues to have a backlog for drill pipe, there has begun a softening in
demand from the strong demand that existed in 1997. In addition, lower prices
have impacted demand for products and services associated with the production
of heavy oil and oil from marginal wells. These declines have been somewhat
offset by improvements from consolidation and other cost savings and greater
market penetration for the Company's oilfield services and compression
products. These current market conditions are expected to have an effect on
results over the next twelve months. A prolonged period of low priced oil can
be expected to adversely affect the demand throughout the industry, including
those products manufactured and services provided by the Company. In such a
case, the Company's revenues and income could be similarly affected.
Although the short-term outlook in the industry remains uncertain, absent a
significant downturn in the U.S. and world economies, the Company believes that
market conditions in the industry should improve over the long term as the
demand and supply becomes more in balance. The timing of such recovery,
however, cannot be predicted with certainty.
1998 AND 1997 ACQUISITIONS
In the first quarter of 1998, the Company completed three acquisitions
consisting of (i) Houston Well Screen, a leading provider of downhole sand
control screens, for cash of approximately $27.6 million, (ii) Taro Industries
Limited ("Taro"), a Canadian provider of well monitoring, gas compression and
drilling equipment distribution, for 0.8 million shares of Common Stock and
(iii) Ampscot Equipment Ltd. ("Ampscot"), a Canadian manufacturer of
conventional pumping units, for cash of approximately $57.1 million. The
Company also acquired a business that
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expanded its tubular products operations for a total consideration of $30.0
million, including liabilities. The 1998 acquisitions were accounted for using
the purchase method of accounting.
The Company also completed a number of strategic acquisitions during 1997
directed at an expansion of the Company's core operations. These acquisitions
included: (i) TA Industries, Inc. ("TA"), a manufacturer of premium couplings
and casing, in April 1997 for cash of approximately $44.1 million and assumed
debt of $19.7 million, (ii) XLS Holding, Inc. ("XL"), a manufacturer of high
performance connectors for marine applications such as conductors, risers and
offshore structural components, in August 1997 for 0.9 million shares of the
Company's Common Stock, (iii) Trico Industries, Inc. ("Trico"), a manufacturer
and distributor of sub-surface pumps, sucker rods, accessories and hydraulic
lift systems, in December 1997 for cash of approximately $105.0 million and
assumed debt of $8.7 million, (iv) BMW Pump, Inc. ("BMW Pump") and BMW Monarch
(Lloydminster) Ltd. ("BMW Monarch"), a Canadian-based manufacturer and supplier
of progressing cavity pumps, in December 1997 for cash of approximately $96.8
million and assumed debt of $14.3 million, and (v) various small acquisitions,
for total cash of approximately $82.2 million, intended to expand the
Company's manufacturing capabilities, geographic scope and breadth of product
lines. The acquisition of XL was accounted for as an immaterial pooling of
interests. The other 1997 acquisitions were accounted for using the purchase
method of accounting. The results of operations of all 1997 acquisitions have
been included in the Company's operating results since their respective dates
of acquisitions.
The Company's operating results include several immaterial and non-core
businesses that the Company has sold through previously announced divestiture
programs. These businesses included the Harrisburg/Woolley division, which was
sold in 1995; Barber Industries Limited and Enterra Patco Oilfield Products,
Inc., each of which was sold in 1996; and CRC-Evans Pipeline International,
Inc. ("CRC-Evans"), Total Engineering Services Team, Inc. ("TEST") and the
American Aero Cranes division ("Cranes"), each of which was sold in 1997.
The Company recorded goodwill of approximately $303.9 million and $94.5
million in the year ended December 31, 1997 and the first quarter of 1998,
respectively, in connection with acquisitions. These acquisitions
substantially increased the Company's market share in various products and
expanded its geographic distribution capabilities. The charge associated with
the amortization of goodwill and other intangibles was $15.0 million and $5.0
million for the year ended December 31, 1997 and the first quarter of 1998,
respectively, and is expected to be approximately $21.9 million for the year
ended December 31, 1998.
SECOND QUARTER 1998 MERGER RELATED COSTS
In the second quarter of 1998, the Company estimates that it will report
approximately $60.0 million, net of taxes, in unusual charges associated with
the Merger. Such costs consist of transaction costs, severance and
termination payments to former officers and employees, facility closure costs
and costs associated with the closure of excess and duplicative distribution
and service locations primarily due to integrating EVI's businesses with
Weatherford's businesses and the impairment of various assets as a result of
the combination of operations and rationalization of product lines and the
elimination of certain products, services and operations as a result of the
changes in the operations of the Company following the Merger.
RESULTS OF OPERATIONS
A summary of operating results by industry segment is shown below:
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<CAPTION>
Three Months
Ended March 31, Year Ended December 31,
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1998 1997 1997 1996 1995
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(in thousands)
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REVENUES
Drilling Products ............... $ 190,845 $ 117,303 $ 611,715 $ 337,312 $ 149,462
Completion and Oilfield
Products and Services ......... 229,762 226,245 929,001 824,639 759,309
Artificial Lift and Gas
Compression ................... 152,853 87,705 428,373 305,319 217,032
----------- ----------- ----------- ----------- -----------
$ 573,460 $ 431,253 $ 1,969,089 $ 1,467,270 $ 1,125,803
=========== =========== =========== =========== ===========
MERGER-RELATED COSTS AND
AND OTHER UNUSUAL CHARGES
Drilling Products ............... $ -- $ -- $ -- $ -- $ --
Completion and Oilfield
Products and Services ......... -- -- -- -- 59,171
Artificial Lift and Gas
Compression ................... -- -- -- -- --
Corporate ....................... -- -- -- -- 29,011
----------- ----------- ----------- ----------- -----------
$ -- $ -- $ -- $ -- $ 88,182
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OPERATING INCOME (LOSS):
Drilling Products ............... $ 45,702 $ 21,291 $ 120,830 $ 42,573 $ 14,425
Completion and Oilfield
Products and Services ......... 59,798 45,641 215,412 146,332 5,116
Artificial Lift and Gas
Compression ................... 16,589 8,620 37,566 19,500 16,276
Corporate ....................... (11,489) (8,564) (37,816) (39,304) (23,697)
----------- ----------- ----------- ----------- -----------
$ 110,600 $ 66,988 $ 335,992 $ 169,101 $ 12,120
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THREE MONTHS ENDED MARCH 31, 1998 COMPARED TO THREE MONTHS ENDED MARCH 31, 1997
General
Net income for the first quarter 1998 was $61.1 million on revenues of
$573.5 million, as compared to net income for the first quarter 1997 of $37.9
million on revenues of $431.3 million. The increases in revenues and net
income reflect continued revenue and margin improvement in the Company's
drilling products segment as well as the beneficial effect of the Company's
1997 and 1998 acquisitions. The net effect of these acquisitions on revenues
and net income for the quarter ended March 31, 1998, compared to the first
quarter of 1997 was an increase in revenues of $122.0 million and an increase
in income from continuing operations of $10.4 million.
The Company incurred research and development costs of $3.4 million in the
first quarter of 1998 as compared to $3.6 million in the first quarter of 1997.
Expenditures relate to the development of new products for drilling products to
support high performance applications and for service equipment designs to
support the oilfield products and services businesses.
Of the Company's first quarter 1998 sales, 49%, 7%, 7%, 22% and 10%,
respectively, were attributable to sales in the U.S., Europe, Africa, Canada
and Latin America, respectively. U.S. sales for the first quarter of 1998
included sales to U.S. distributors and other U.S. companies for ultimate use
outside the U.S.
Drilling Products Segment
The Company's drilling products segment reported revenues and operating
income of $190.8 million and $45.7 million, respectively, for the first quarter
1998, up from $117.3 million and $21.3 million, respectively, for the first
quarter 1997. These improvements were primarily due to continued strong demand
and backlog for drill pipe and other drilling tools, increased sales of premium
tubular products and the effects of the Company's acquisition of TA and XL.
Premium tubular revenues increased to approximately $80.1 million in the first
quarter of 1998 up from approximately $58.9 million for 1997. The net effect
of the acquisitions of TA and XL on revenues and operating income in this
segment for the quarter ended March 31, 1998, compared to the first quarter of
1997 was an increase in revenues of $30.4 million and an increase in operating
income of $4.7 million.
Cost of goods sold declined as a percentage of revenues from 76.0% in
1997 to 70.2% in 1998, due to increased pricing on the Company's products and
reduced costs resulting from the expansion of the Company's Mexico tool joint
facility, which provided savings of at least $1.2 million in the first quarter
of 1998. Selling, general and administrative expenses as a percentage of
revenues represented 5.8% for the first quarter 1998 and 1997.
Backlog for tubular products at March 31, 1998, was approximately $352.1
million. The Company currently expects that over $264.0 million of this
backlog will be shipped by December 31, 1998, with the remainder to be shipped
within the first six months of 1999. There can be no assurance that in light
of current market conditions this level of backlog will continue and any
material changes in demand for drilling products and rig utilization could
affect the demand for the Company's drill pipe.
Completion and Oilfield Products and Services Segment
The Company's completion and oilfield products and services segment
reported revenues and operating income of $229.8 million and $59.8 million,
respectively, for the first quarter 1998, up from $226.2 million and $46.5
million,
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respectively, for the first quarter 1997. These improvements reflect the
increase in North America drilling activity and increased market share.
North American service revenues increased 15% to $96.6 million in the
first quarter of 1998 compared to the same period in 1997, with the most
significant revenue increases occurring in Canada, South and West Texas and the
Rocky Mountain region. Revenues in Canada increased 24.5% for 1998 over the
first quarter of 1997. Comparing the same periods, the average North America
drilling rig count improved 16%, and the average workover rig count declined
14%. Excluding Canada, international oilfield service revenues increased 10.7%
in the first quarter of 1998 compared to the first quarter of 1997 while the
average international rig count increased 1%.
Cost of goods sold and services and rentals declined as a percentage of
revenues from 68.0% in the first quarter of 1997 to 64.3% in the first quarter
of 1998, as a result of improved pricing in certain areas and increased volume.
Selling, general and administrative expenses for the first quarter of 1998 as a
percentage of revenues was 10.0% compared to 12.1% for the first quarter of
1997.
Artificial Lift and Compression Segment
The Company's artificial lift and compression segment reported revenues
and operating income of $152.9 million and $16.6 million, respectively, for the
first quarter 1998, up from $87.7 million and $8.6 million, respectively, for
the first quarter 1997. These improvements were due to the Company's 1997 and
1998 acquisitions and growth in the Latin American markets. The 1997 and 1998
acquisitions generated revenues and operating income for this segment of $76.7
million and $10.6 million, respectively, in the first quarter of 1998. The
improvements attributable to the businesses acquired in these acquisitions were
partially offset by substantial declines in demand for the Company's progressing
cavity pump line of artificial lift products and the manufacturing and packaging
of compressors due to lower oil prices and an associated drop in heavy oil
drilling activity primarily in Canada and other marginal oil production
activity.
Cost of goods sold declined as a percentage of revenues from 73.0% in the
first quarter 1997 to 65.6% in the first quarter 1998, as a result of an
improvement in the segment's cost structure and from the December 1997
acquisitions of Trico, BMW Pump and BMW Monarch and the 1998 acquisitions of
Taro and Ampscot and the expansion and increased utilization of the Company's
compressor rental fleet. Selling, general and administrative expenses for the
first quarter 1998 as a percentage of revenues was 23.5% compared to 17.2% for
the first quarter 1997. The increase in selling, general and administrative
expenses for this segment reflects higher costs associated with overlapping
operations at various acquired companies pending the consolidation of those
operations and increased amortization of goodwill and other intangibles relating
to the Company's 1997 and first quarter 1998 acquisitions in this segment. The
Company intends to continue to focus on reducing selling, general and
administrative expenses in this segment through the integration of acquired
operations.
Other
Corporate expenses as a percentage of revenues for the first quarter 1998
were 2.0% as compared to 2.0% for the first quarter 1997.
Interest expense for the first quarter 1998 was $12.0 million compared to
$10.5 million for the first quarter 1997. The increase in interest expense in
the first quarter 1998, as compared to the first quarter 1997, reflects the
issuance by the Company of $402.5 million principal amount of its 5%
Convertible Subordinated Preferred Equivalent Debentures due 2027 (the
"Debentures") issued in November 1997, a portion of which was utilized to
purchase substantially all of the $120.0 million principal amount of the Senior
Notes. The remaining proceeds from the issuance of the Debentures were used to
fund acquisitions and reduce bank debt.
The Company's effective tax rate on net income for the first quarter 1998
was 37.6% as compared to 35.3% for the first quarter 1997. The higher effective
tax rate in 1998 reflects the utilization of substantially all of the Company's
U.S. net operating loss and tax credit carryforwards in 1997 and differences in
the components and tax rates applicable to foreign taxable income.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996
General
Income from continuing operations for 1997 was $196.8 million on revenues
of $1,969.1 million as compared to income from continuing operations for 1996
of $92.2 million on revenues of $1,467.3 million. The increases in revenues
and income from continuing operations reflect the strength in the Company's
markets and the effect of the 1997 acquisitions and a full year of the 1996
acquisitions. The 1997 acquisitions benefited 1997 revenues by $166.5 million
and income from continuing operations by $12.3 million. The 1996 acquisitions
benefited 1997 revenues by $269.2 million and income from continuing operations
by $24.5 million. Revenues associated with disposed
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businesses were $76.9 million and $157.8 million in 1997 and 1996,
respectively. Net income associated with the disposed businesses were $8.3
million and $9.6 million in 1997 and 1996, respectively.
Net income for 1997 was $187.8 million compared to $165.8 million for
1996. The Company recorded in 1997 an extraordinary charge of $9.0 million,
net of taxes, related to the acquisition by the Company on December 15, 1997,
of $119,980,000 principal amount of the Company's outstanding 10 1/4% Senior
Notes due 2004 and 10 1/4% Senior Notes due 2004, Series B (collectively, the
"Senior Notes") from the holders of the Senior Notes pursuant to a cash tender
offer and consent solicitation of the Company (the "Tender Offer"). In 1996,
the Company reported income of $7.5 million, net of taxes, from discontinued
operations related to the Company's Mallard Bay contract drilling division
("Mallard Division"), which was sold in November 1996, and a gain of $66.9
million, net of taxes of $44.6 million, related to the disposition.
Additionally, the Company incurred an extraordinary charge of $0.7 million, net
of taxes, for the early extinguishment of debt in 1996.
Revenues during 1997 increased approximately 34% from 1996 primarily as a
result of the various acquisitions described above, the impact of consolidation,
restructuring and higher average sales prices. Cost of goods sold and services
and rentals as a percentage of revenues declined from 74.3% of total revenues in
1996 to 69.6% in 1997 due to stronger prices and sales of higher margin products
and services. Selling, general and administrative costs attributable to
segments as a percentage of total revenues was flat between 1997 and 1996
despite increased amortization of intangibles and costs associated with the
assimilation of acquired businesses.
Research and development costs of $11.8 million in 1997 increased 29% over
1996. This increase primarily reflects the expansion of the Company's
operations and the development of new products for drilling products to support
high performance applications and for service equipment designs to support the
oilfield products and services businesses.
Of the Company's 1997 sales, 52%, 9%, 4%, 14% and 8%, respectively, were
attributable to sales in the U.S., Europe, Africa, Canada and Latin America,
respectively and for 1996 represented 49%, 13%, 7%, 11% and 8%, respectively.
U.S. sales for 1997 and 1996 included sales to U.S. distributors and other
U.S. companies for ultimate use outside the U.S.
In the fourth quarter of 1996, the Company adopted a plan to close its
Bastrop, Texas tool joint manufacturing facility and to combine its two packer
facilities through the closure of one facility in Arlington, Texas. In
connection with these decisions, the Company incurred a charge of $5.8 million
associated with these closures. Of this charge, $4.3 million related to the
tool joint facility closure and relocation of equipment from this facility and
$1.5 million related to the consolidation of its packer facilities and the
closure of one of the plants. The Company incurred $3.8 million in 1996 for
costs associated with these actions during 1996, including costs relating to
the relocation of equipment at its Bastrop facility to other facilities. The
Company also accrued $2.0 million as part of the $5.8 million charge for exit
costs that it expected to be incurred in 1997 relating to a closure of its
Bastrop and Arlington facilities. These costs included $0.8 million for
severance and termination costs, $0.9 million for the reduction in the carrying
value of its Bastrop facility in light of the intended disposition of the
facility and $0.3 million for the termination of the Arlington lease.
Approximately 400 employees were affected by these closures. The Company had
substantially completed the closure of both the Bastrop and Arlington
facilities by the end of the second quarter of 1997 and incurred substantially
all charges related to the closing of these facilities.
Drilling Products Segment
The Company's drilling products segment reported revenues and operating
income of $611.7 million and $120.8 million, respectively, for 1997, up from
$337.3 million and $42.6 million, respectively, for 1996. These improvements
were primarily due to increased demand for drill pipe and other drilling tools,
strength in premium tubular activity and the Company's acquisition of TA, a
premium tubular couplings and accessories manufacturer in April 1997, and the
third quarter acquisition of XL, a manufacturer of marine connectors. The
increase in demand for drill pipe reflected higher domestic and international
drilling activity, in particular offshore drilling. Premium tubular revenues
increased to approximately $307.9 million during 1997 up from approximately
$157.8 million for 1996. The increase in premium tubular revenues reflected
strong demand in the Gulf of Mexico and the acquisition of TA. During 1997,
the acquisitions of TA, XL and various small acquisitions benefited 1997
revenues and operating income in this segment by $96.8 million and $16.1
million, respectively.
Cost of goods sold declined as a percentage of revenues from 81.3% in 1996
to 73.7% in 1997, due to increased pricing on the Company's products and
reduced costs resulting from the expansion of the Company's Mexico tool joint
facility. The Company expects annual cost savings of approximately $7.0
million relating to the expansion and consolidation of the Mexico facility. In
the third quarter of 1997, the Mexico facility became fully operational,
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which benefited operations in the second half of 1997. Selling, general and
administrative expenses for 1997 as a percentage of revenues was 6.6% compared
to 6.1% for 1996 and reflected higher selling, general and administrative
expenses associated with the operations of TA as well as the increase in the
amortization of goodwill and other intangibles.
Completion and Oilfield Products and Services Segment
The Company's completion and oilfield products and services segment reported
revenues and operating income of $929.0 million and $215.4 million,
respectively, for 1997, up from $824.6 million and $146.3 million, respectively,
for 1996. Included in operating income for this segment was a net loss of $2.7
million realized in 1997 on the sale of various non-core assets. Excluding this
loss, operating income would have increased 49% in 1997 over 1996. These
improvements reflected improvements in the sale of completion products and
oilfield services due to improved market conditions, primarily as a result of
increased drilling activity, improved pricing and the introduction of downhole
services into new markets.
Total oilfield services revenues increased 26% from $527.4 million in 1996
to $665.5 million in 1997, reflecting increased volume of activity and improved
pricing resulting from a 15% increase in worldwide drilling activity, as
reported by Baker Hughes Incorporated. The increased use of certain drilling
techniques, such as re-entry, multi-lateral, horizontal and directional
drilling, were also important contributors to revenue growth in 1997,
particularly in North America. U.S. oilfield service revenues increased 33% to
$317.7 million, while U.S. average rig count increased 21%. Revenues in Canada
increased 31%, while average Canadian rig count increased 39%. Excluding
Canada, international oilfield service revenues increased 18% compared to an
average rig count increase of 2%. International revenue increases are primarily
attributable to increased volume of rental and service activity, some pricing
improvement and the introduction of downhole services into new markets.
Completion product revenues increased 31% to $186.6 million in 1997 compared
to $139.4 million in 1996, excluding revenues of $76.9 million and $157.8
million associated with disposed businesses in 1997 and 1996, respectively.
Cementation product sales increased 32% over 1996, primarily reflecting
increased U.S. drilling activity, increased market share and the introduction of
new products. Liner hanger sales and service revenues increased 66% in 1997 over
1996, which included the results of Nodeco AS and Aarbakke AS (collectively,
"Nodeco") from the date they were acquired in May 1996. Gas lift product sales
and service revenues remained consistent with 1996 levels. Completion products
operating income increased $15.7 million, or 67%, from 1996 to 1997, primarily
as a result of the increased volume of cementation product sales, operating
efficiencies and the inclusion of the Nodeco operations for the full year of
1997.
Cost of goods sold and services and rentals declined as a percentage of
revenues from 71.7% in 1996 to 66.1% in 1997, as a result of improved pricing
in certain areas and increased volume. Selling, general and administrative
expenses for 1997 as a percentage of revenues were 11.0% compared to 10.8% for
1996.
Artificial Lift and Compression Segment
The Company's artificial lift and compression segment reported revenues and
operating income of $428.4 million and $37.6 million, respectively, for 1997,
up from $305.3 million and $19.5 million, respectively, for 1996. These
improvements were primarily due to increased sales of artificial lift equipment
in the Canadian and South American markets, in particular for the Company's
progressing cavity pump product lines. Sales of and operating income
attributable to artificial lift equipment were also materially benefited by
acquisitions in 1997. During 1997, the acquisitions of Trico, BMW Monarch and
BMW Pump and various small acquisitions benefited 1997 revenues and operating
income in this segment by $64.9 million and $6.8 million, respectively.
Revenues from sales and rental of compression equipment increased 16% to
$178.9 million in 1997, compared to $154.5 million in 1996. Manufacturing and
packaging revenues increased 21% to $78.2 million in 1997 compared to 1996,
primarily as a result of a higher volume of packaged unit sales in Canada.
Compressor rental and service revenues improved 12% to $100.7 million compared
to 1996, reflecting the expansion and increased utilization of the Company's
compressor rental fleet, which comprised over 440,000 horsepower at December
31, 1997.
Cost of goods sold and services and rentals declined as a percentage of
revenues from 73.8% in 1996 to 71.5% in 1997, as a result of an improvement in
the segment's domestic cost structure and from the December 1997 acquisitions
of Trico, BMW Pump and BMW Monarch. Selling, general and administrative
expenses for 1997 as a percentage of revenues was 19.8% compared to 19.8% for
1996 in spite of higher amortization and combination expenses. The Company
will continue in 1998 to focus on reducing selling, general and administrative
expenses through the integration of acquired operations.
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During 1996, the Company began the construction of a new Canadian
manufacturing plant to produce continuous rods, which is expected to expand
capacity by over 150%. The continuous rod expansion was completed late in the
fourth quarter of 1997. The new Canadian plant will also manufacture rotors
and stators for its progressing cavity pumps pursuant to an exclusive license
and technology transfer arrangement with Netzsch providing for customary
royalty on sales of these products manufactured using this technology.
Production of rotors and stators at this facility commenced in March 1998.
Other
Corporate expenses as a percentage of revenues for 1997 were 1.9% as
compared to 2.7% for 1996. The percentage decrease from 1996 was primarily
attributable to the growth in 1997 revenues.
The Company owns an interest of 50% or less in several joint ventures,
primarily in the oilfield services segment. The Company's equity in the
earnings of these affiliates was $2.6 million in 1997 compared to $2.1 million
in 1996. This increase was primarily attributable to increased drilling
activity in Saudi Arabia. The Company received cash dividends from its 50% or
less-owned affiliates totaling $1.3 million and $1.6 million in 1997 and 1996,
respectively.
Interest expense for 1997 was $43.3 million compared to $39.4 million for
1996. The increase in interest expense in 1997, as compared to 1996, reflects
the Company's increase in indebtedness during 1997 and the Company's $402.5
million principal amount of the Debentures issued in November 1997. This
increase in interest expense was offset by repayments of indebtedness with cash
provided from the sale of non-core businesses. Interest expense for 1998 is
expected to increase from 1997 levels as a result of the November 1997 issuance
of the Debentures. The increase in 1998 will be partially offset due to the
December 1997 acquisition of approximately $119.98 million principal amount of
the Senior Notes.
In 1997, the Company benefited from a one-time pre-tax gain of $3.4 million
relating to the sale by the Company of the Parker Drilling Company ("Parker")
common stock received in connection with the disposition of the Mallard
Division.
Other income, net, for 1997 was $0.6 million which primarily consisted of
gain on sales of fixed assets of $2.8 million offset by foreign currency losses
of $1.8 million due to the fluctuation of the U.S. dollar against the major
foreign currencies in which the Company conducts business. The net foreign
currency loss recorded in 1997 primarily resulted from the strengthening of the
U.S. dollar against European, Asian and Latin American currencies.
Additionally, the Company recorded foreign currency gains of $49,000 in 1996.
The income tax provision consists of taxes on foreign earnings, foreign
taxes withheld on certain remittances from international subsidiaries, U.S.
federal and state taxes, the recognition of general business tax credits
currently available to reduce U.S. federal income tax, and the recognition of
future taxable amounts. The Company's effective tax rate on income from
continuing operations for 1997 was approximately 35% as compared to 31% for
1996. The 1996 effective rate was favorably impacted by a $4.0 million tax
benefit resulting from the Company's $6.4 million settlement in October 1996
with the United States Internal Revenue Service (the "I.R.S.") in connection
with the dissolution in October 1990 of an oil and gas joint venture. The
Company also recorded in 1996 a tax charge of approximately $44.6 million
associated with the Company's gain on the sale of its Mallard Division.
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995
General
Income from continuing operations for 1996 was $92.2 million on revenues of
$1,467.3 million, as compared to a loss from continuing operations for 1995 of
$8.3 million on revenues of $1,125.8 million. Revenues during 1996 increased
approximately 30% from 1995 as a result of various acquisitions and improved
market conditions. The increase in income from continuing operations for 1996
was primarily attributable to increased sales and margins of drill pipe and
other drilling products. During 1996, the acquisitions of Nodeco, Geremia,
Superior Tube Limited ("Superior"), Tubular Corporation of America ("TCA") and
ENERPRO International, Inc. ("ENERPRO"), in addition to various small 1996
acquisitions benefited 1996 revenues by $112.4 million and income from
continuing operations by $8.7 million. Revenues associated with disposed
businesses were $157.8 million and $174.9 million in 1996 and 1995,
respectively. Income from continuing operations associated with the disposed
businesses was $9.6 million in 1996 and a net loss of $1.7 million in 1995.
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<PAGE> 10
Net income for the year ended December 31, 1996, was $165.8 million
compared to net income of $0.4 million for the year ended December 31, 1995.
Included in net income for 1996 was a one-time gain, net of taxes of $44.6
million, of $66.9 million from the November 1996 sale by the Company of Mallard
Division for cash of approximately $306.9 million and 3.1 million shares of
Parker preferred stock that were subsequently converted into 3.1 million shares
of Parker common stock in December 1996 and sold in 1997. Also included in net
income for 1996 was income from discontinued operations, net of taxes, of $7.5
million related to the operations of the contract drilling division.
During the second quarter of 1995, Enterra Corporation, a corporation
previously merged with Weatherford in 1995, ("Enterra") recorded unusual
charges totaling $28.3 million, representing writedowns to fair value of
certain businesses to be disposed of, asset writedowns related to certain
excess facilities, equipment and inventories, and estimated costs in connection
with the closure of certain pipeline businesses and the consolidation of
certain oilfield service administrative and operating facilities. During the
fourth quarter of 1995, the Company recorded expenses of $59.9 million related
to the Enterra merger and the financial impact of management decisions related
to the future operations of the combined companies. These acquisition-related
costs primarily consisted of transaction costs, severance and termination
agreements with former officers and employees, facility closure costs primarily
to consolidate the oilfield services operations and administrative functions of
Enterra and the Company, and the reduction in recorded value of certain assets
that had diminished future value in the operations of the combined company.
The Company incurred research and development costs of $9.2 million in 1996
increased 42.0% over 1995. This increase primarily reflects the expansion of
the Company's operations and the development of new products for drilling
products to support high performance applications and for service equipment
designs to support the oilfield products and services businesses.
Of the Company's 1996 sales, 49%, 13%, 7%, 11% and 8%, respectively, were
attributable to sales in the U.S., Europe, Africa, Canada and Latin America,
respectively and for 1995 represented 50%, 12%, 7%, 15% and 7%, respectively.
U.S. sales for 1996 and 1995 included sales to U.S. distributors and other
U.S. companies for ultimate use outside the U.S.
Drilling Products Segment
Sales of drilling products in 1996 were $337.3 million compared to $149.5
million in 1995. Operating income associated with the drilling products
segment in 1996 was $42.6 million as compared to $14.4 million in 1995.
Results in the fourth quarter of 1996 include a $4.3 million charge
attributable to the close of the Company's Bastrop tool joint facility and
relocation of its equipment to other facilities. Results for 1996 reflected a
73% increase in sales of drill pipe and a 27% increase in sales of premium
tubulars. The increase in drill pipe sales reflected an overall increase in
demand for drill pipe and the Company's June 1995 acquisition of Prideco, Inc.
The increase in demand for drill pipe was due to increased drilling activity,
particularly offshore, and a continuing decline in the supply of used drill
pipe inventory, against which the Company historically competed. The increase
in sales of premium tubular products reflected the acquisitions of ENERPRO, TCA
and Superior and an increase in demand associated with increased natural gas
and deep offshore exploration and production activity. During 1996, the
acquisitions of ENERPRO, TCA, and Superior benefited 1996 revenues by $66.8
million and operating income by $8.0 million.
Cost of goods sold and services and rentals declined as a percentage of
revenues from 83.7% in 1995 to 81.3% in 1996, as a result of an improvement in
the segment's cost structure due to an increase in volume and the
consolidation of manufacturing processes. In the third and fourth quarters of
1996, the Company implemented price increases on drill pipe, which the Company
began to receive as its 1996 backlog was filled. Price improvements, however,
were partially offset by an increase in the price of raw materials,
particularly "green" tubing, the primary material used by the Company in the
production of its tubular goods. Selling, general and administrative expenses
for 1996 as a percentage of revenues were 6.1% compared to 6.7% for 1995.
Completion and Oilfield Products and Services Segment
The Company's completion and oilfield products and services segment reported
revenues and operating income of $824.6 million and $146.3 million,
respectively, for 1996, up from $759.3 million and $5.1 million, respectively,
for 1995. Included in operating income for this segment were charges of $59.2
million in 1995, relating to the merger with Enterra Corporation. Excluding
these charges, operating income would have increased 128% in 1996 over 1995.
This improvement was primarily due to the increase in higher drilling levels,
the introduction of fishing and other downhole services into certain markets in
North and West Africa and Latin America in 1996, the introduction of new
cementation products and
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<PAGE> 11
increased pricing on services and rentals. The 1996 segment revenues and
operating income were also benefited by $30.3 million and $4.5 million,
respectively, from the Nodeco acquisition.
Revenues for the oilfield services increased 12% to $527.4 million in 1996
as compared to 1995. International service revenues increased 16% to $285.9
million, while U.S. service revenues increased 7% to $241.1 million. The
increase in international service revenues is primarily attributable to
increased activity in Canada, the North Sea, North and West Africa and Latin
America. The increase in Canada is consistent with the 17% increase in the
average drilling rig count over 1995. The average international drilling rig
count, excluding Canada, increased 5% over the prior year, which contributed to
the increase in international service revenues. International service revenues
also benefited from the introduction of fishing and other downhole services
into certain markets in North and West Africa and Latin America in 1996. U.S.
service revenues were positively impacted by an increase in the average 1996
U.S. drilling rig count of 7% over 1995, as well as price increases announced
by the Company in August 1996 affecting most U.S. services and rentals.
Excluding the impact of the acquisition-related costs and other unusual charges
in 1995, operating income for oilfield services increased 27% to $93.6 million
in 1996 as compared to 1995. This increase is attributable to the increase in
revenues experienced in 1996, along with cost savings achieved from the higher
levels of activity and from efficiencies resulting from consolidating the
operations of the Company. These increases were partially offset by additional
costs incurred to introduce fishing and other downhole services into the markets
discussed above.
Completion product revenues, excluding revenues associated with disposed
businesses, increased 30% to $186.6 million in 1996 compared to 1995,
reflecting improved operating results from all manufacturing businesses. The
Company acquired the business and assets of Nodeco, a Norwegian liner hanger
manufacturer, in May 1996. The Nodeco operations contributed $18.4 million, or
16%, to the revenue increase. Cementation product sales improved significantly
over the prior year due to an increase in market share and the higher levels of
drilling activity worldwide. Excluding the impact of the acquisition-related
costs and other unusual charges discussed below, operating income increased over
800% to $23.4 million compared to 1995. Approximately $4.0 million of the
increase in operating income is attributable to the Nodeco operations. The
remaining increase is due to the increase in revenues, combined with
manufacturing efficiencies achieved as a result of the higher volume of product
sales.
Cost of goods sold and services and rentals declined as a percentage of
revenues from 73.3% in 1995 to 71.7% in 1996, as a result of the 1996
acquisition, cost savings achieved from the higher levels of activity and from
efficiencies resulting from consolidating the operations of the Company. These
increases were partially offset by additional costs incurred to introduce
fishing and other downhole services into the markets discussed above. Selling,
general and administrative expenses for 1996 as a percentage of revenues were
10.8% compared to 14.7% for 1995.
Artificial Lift and Compression Products Segment
Revenues and operating income at the Company's artificial lift and
compression products segment were $305.3 million and $19.5 million,
respectively, for 1996, compared to $217.0 million and $16.3 million,
respectively, for 1995. As described above, the production equipment segment
recorded a charge of $1.5 million in the fourth quarter of 1996 associated with
the consolidation of two packer manufacturing facilities improved market
conditions and the effects of acquisitions. During 1996, the acquisitions of
Geremia, in addition to various small 1996 acquisitions, benefited 1996
revenues by $15.3 million and operating income by $1.6 million.
Revenues from sales and rentals of compression products and services
increased 64% to $154.5 million in 1996 as compared to 1995, primarily as a
result of the acquisition of the natural gas compression business and assets of
Energy Industries, Inc. and Zapata Energy Industries, L.P. (collectively,
"Energy Industries") in December 1995. This increase was offset by a weaker
market for sales of gas compressor packages, which resulted in a lower volume
of manufacturing and packaging sales as well as lower prices for packaged
compressors. Operating income attributable to compression products and
services increased only slightly over 1995 due to the weaker market,
inefficiencies incurred in consolidating the packaging operations of Energy
Industries into the Company's existing gas compression business, and
amortization of goodwill arising from the Energy Industries acquisition.
Other
Corporate expenses as a percentage of revenues for 1996 were 2.7% as
compared to 2.1% for 1995. The percentage decrease in 1996 was primarily
attributable to the growth in revenues from the Company's drilling products
segment.
The Company owns an interest of 50% or less in several joint ventures,
primarily in the oilfield services segment. The Company's equity in the
earnings of these affiliates was $2.1 million in 1996 compared to $1.5
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million in 1995. This increase was primarily attributable to increased
drilling activity in Saudi Arabia. The Company received cash dividends from its
50% or less-owned affiliates totaling $1.6 million and $1.7 million in 1996 and
1995, respectively.
Interest expense for 1996 of $39.4 million was comparable to $33.5 million
for 1995.
Other expense, net, was $1.2 million in 1996 which primarily represents
various financing costs of the Company. The 1995 other income, net, of $6.1
million consists of a gain on sale of assets.
The Company's effective tax rate on income from continuing operations for
1996 was approximately 31%. The effective rate was favorably impacted by a
$4.0 million tax benefit in the fourth quarter of 1996 resulting from the
Company's $6.4 million settlement in October 1996 with the United States I.R.S.
in connection with the dissolution in October 1990 of an oil and gas joint
venture. The Company also recorded a tax charge of approximately $44.6 million
associated with the Company's gain on the sale of its Mallard Division in
November 1996.
NEW ACCOUNTING PRONOUNCEMENTS
In 1996, the Financial Accounting Standards Board ("FASB") issued Statement
of Financial Accounting Standards No. 128 ("SFAS No. 128"), Earnings per Share,
which replaces primary earnings per share with basic earnings per share and
requires dual presentation of basic and diluted earnings per share. The
Company adopted SFAS No. 128 in the fourth quarter of fiscal 1997. Historical
earnings per share data has been restated to reflect the adoption of SFAS No.
128.
In June 1997, the FASB issued Statement of Financial Accounting Standards No.
130 ("SFAS No. 130"), Reporting Comprehensive Income. SFAS No. 130 establishes
standards for the reporting of comprehensive income and its components in a
full set of general-purpose financial statements and is effective for years
beginning after December 15, 1997. The Company adopted SFAS No. 130 in the
first quarter of 1998. Had SFAS No. 130 been adopted as of December 31, 1997,
the primary adjustments and reclassifications to reflect net income on a
comprehensive income basis for the years presented would have consisted of
foreign currency translation adjustments and the effect of unrealized and
realized gains on marketable securities.
In June 1997, the FASB issued Statement of Financial Accounting Standards No.
131 ("SFAS No. 131"), Disclosures About Segments of an Enterprise and Related
Information. SFAS No. 131, effective for years beginning after December 15,
1997, requires segment information to be reported on a basis consistent with
that used internally for evaluating segment performance and deciding how to
allocate resources to segments. The Company will adopt SFAS No. 131 in 1998
and is reviewing its segments in light of SFAS No. 131.
In 1998, the FASB issued Statement of Accounting Standards No. 132 ("SFAS No.
132"), Employers' Disclosures About Pensions and Other Postretirement Benefits.
SFAS No. 132 standardizes disclosure requirements for pensions and other
postretirement benefits. SFAS No. 132 will be effective for years beginning
after December 15, 1997. Had the Company adopted SFAS No. 132 as of December
31, 1997, it would have had no material impact on the consolidated financial
statements of the Company.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 1997, the Company had cash and cash equivalents of $74.2
million compared to $257.0 million at December 31, 1996. The reduction in cash
and cash equivalents since December 31, 1996, was primarily attributable to the
acquisition of the Senior Notes pursuant to the Tender Offer for $119.98
million, the use of approximately $321.5 million in cash to acquire new
businesses, the reduction of bank debt of $96.0 million and tax payments of
approximately $62.8 million relating to the 1996 sale of the Mallard Division.
The reduction in cash was partially offset by the net proceeds of $390.9
million relating to the sale of the Debentures in November 1997 and $68.8
million cash proceeds generated from the 1997 divestitures of CRC-Evans, TEST
and Cranes.
At December 31, 1997, the Company had outstanding $24.2 million in borrowings
under its working capital facilities compared to $2.9 million at December 31,
1996. In addition, the Company had outstanding approximately $27.9 million and
$28.1 million in letters of credit at December 31, 1997 and December 31, 1996,
respectively.
At March 31, 1998, the Company had cash and cash equivalents of $42.5 million
reflecting the use of cash primarily for acquisitions. At March 31, 1998, the
Company had outstanding $133.6 million in borrowings under its working capital
facilities. In addition, the Company had outstanding approximately $27.6
million in letters of credit at March 31, 1998.
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In April 1997, the Company sold its investment in Parker common stock
pursuant to a public offering effected by Parker. The net proceeds received by
the Company were approximately $23.4 million.
In November 1997, the Company completed a private placement of $402.5 million
principal amount of the Debentures. The net proceeds from the Debentures were
$390.9 million. The Debentures bear interest at an annual rate of 5% and are
convertible into Common Stock at a price of $80 per share. The Debentures are
redeemable by the Company at any time on or after November 4, 2000, at
redemption prices provided for in the indenture related to the Debentures, and
are subordinated in right of payment of principal and interest to the prior
payment in full of certain existing and future senior indebtedness of the
Company. The Company also has the right to defer payments of interest on the
Debentures by extending the quarterly interest payment period on the Debentures
for up to 20 consecutive quarters at anytime when the Company is not in default
in the payment of interest.
In December 1997, Weatherford purchased 289,200 shares of its common stock in
the open market for approximately $11.9 million and in February 1998 purchased
an additional 1,040,300 shares of its common stock for approximately $37.4
million.
On May 27, 1998, the Company amended its credit facility to consolidate EVI's
and Weatherford's then existing credit facilities into a single facility. The
new credit facility provides for borrowings of up to an aggregate of $250.0
million, consisting of a $200.0 million U.S. credit facility and a $50.0
million Canadian credit facility and terminated both of EVI's and Weatherford's
working capital facilities. Borrowings under the new credit facility bear
interest at a variable rate based on prime or LIBOR and are unsecured. In
addition, the Company's credit facility contains customary affirmative and
negative covenants, including debt incurrence tests, interest coverage ratio,
negative pledges, acquisitions over certain levels and certain dispositions of
assets.
The Company conducts a portion of its business in currencies other than the
U.S. dollar, including the Canadian dollar, major European currencies and
certain Latin American currencies. Although most of the revenues of the
Company's international operations are denominated in the local currency, the
effects of foreign currency fluctuations are largely mitigated because local
expenses of such foreign operations also generally are denominated in the same
currency. Changes in the value of the U.S. dollar relative to these foreign
currencies affect the weighted average currency exchange rates used to
translate the statements of income of the Company's international subsidiaries
into U.S. dollars. The impact of exchange rate fluctuations during the first
quarter of 1998, the year ended 1997, 1996 and 1995 did not have a material
effect on reported amounts of revenues or net income. The increase in the
value of the U.S. dollar against most major currencies during 1997 caused the
cumulative translation adjustment, a reduction in stockholders' equity, to
increase by $27.0 million.
The Company enters into forward exchange contracts only as a hedge against
certain existing economic exposures, and not for speculative or trading
purposes. These contracts reduce exposure to currency movements affecting
existing assets and liabilities denominated in foreign currencies, such
exposure resulting primarily from trade receivables and payables and
intercompany loans. The future value of these contracts and the related
currency positions are subject to offsetting market risk resulting from foreign
currency exchange rate volatility. Settlement of forward exchange contracts
resulted in net cash inflows totaling $0.8 million and $5.2 million during the
first three months of 1998 and for the year ended December 31, 1997,
respectively.
Like most multinational oilfield service companies, the Company has
operations in certain international areas, including parts of the Middle East,
North and West Africa, Latin America, the Asia-Pacific region and the
Commonwealth of Independent States (the "CIS"), that are inherently subject to
risks of war, political disruption, civil disturbance and policies that may
disrupt oil and gas exploration and production activities, restrict the
movement of funds, lead to U.S. government or international sanctions or limit
access to markets for periods of time Historically, the economic impact of
such disruptions has been temporary and oil and gas exploration and production
activities have resumed eventually in relation to market forces. Certain
areas, including the CIS, Algeria, Nigeria, and parts of the Middle East, the
Asia Pacific region and Latin America, have been subjected to political
disruption or social unrest in the past twelve months. Generally, business
interruptions resulting from civil or political disruptions negatively impact
near-term results of operations; however, management believes that it is
unlikely that any specific business disruption caused by existing or foreseen
civil or political instability will have a materially adverse impact on the
financial condition or liquidity of the Company.
The Company's current sources of capital are its current cash, cash generated
from operations and borrowings under its working capital line of credit. The
Company believes that the current reserves of cash and short-term investments,
access to its existing credit line and internally generated cash from
operations are sufficient to finance the projected cash requirements of its
current and future operations. The Company is continually reviewing
acquisitions in its
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<PAGE> 14
markets. Depending upon the size, nature and timing of an acquisition, the
Company could require additional capital in the form of either debt, equity or
a combination of both.
Substantially all of the Company's customers are engaged in the energy
industry. This concentration of customers may impact the Company's overall
exposure to credit risk, either positively or negatively, in that customers may
be similarly affected by changes in economic and industry conditions. The
Company performs ongoing credit evaluations of its customers and does not
generally require collateral in support of its trade receivables. The Company
maintains reserves for potential credit losses, and actual losses have
historically been within the Company's expectations.
CAPITAL EXPENDITURES
Capital expenditures for property, plant and equipment by the Company during
the year ended December 31, 1997, totaled approximately $213.0 million and
primarily related to drill pipe and tubing, fishing tools, tubular service
equipment, compression rental equipment and plant expansions in Canada. In 1997,
the Company completed the expansion of the Veracruz, Mexico tool joint
manufacturing facility, and the Company recorded the obligation of $16.3 million
under its lease to reflect the terms thereof.
Capital expenditures for property, plant and equipment by the Company during
the quarter ended March 31, 1998, totaled approximately $49.4 million and was
primarily related to ongoing routine capital expenditures for 1998. Ongoing
routine capital expenditures for the remainder of 1998 are estimated to be
approximately $200.0 million. Capital expenditures are expected to be funded
with available cash, cash flow from operations and, if desirable, borrowings
under its existing line of credit and other facilities.
In 1997, the Company began modifying its computer system programming to
process transactions in the year 2000. Anticipated spending for this
modification will be expensed as incurred and is not expected to be material.
CHRISTIANA AND GULFMARK MERGERS
In December 1997, the Company entered into a merger agreement with Christiana
Companies, Inc. ("Christiana") and C2, Inc., Wisconsin corporations, pursuant
to which approximately 3.9 million shares of Common Stock will be issued to the
stockholders of Christiana in a merger of a subsidiary of the Company with and
into Christiana ("Christiana Merger"). Prior to the Christiana Merger,
Christiana is required to sell two-thirds of its interest in Total Logistic
Control ("Logistic"), a wholly owned subsidiary of Christiana, to C2, Inc. for
approximately $10.7 million. Following the Logistic sale, the remaining assets
of Christiana will consist of (i) approximately 3.9 million shares of Common
Stock, (ii) a one-third interest in Logistic and (iii) cash and other assets
with a book value of approximately $10.0 million and (iv) subject to early
payment under certain circumstances, a contingent cash payment of up to $10.0
million payable five years after the effective date of the merger to the extent
such funds are not required to satisfy contingent claims against Christiana.
It is anticipated that Christiana will have no material debt as of the
consummation of the Christiana Merger, but will have various tax liabilities
which will be paid with the remaining cash balance in Christiana after the
Christiana Merger. Because the number of shares of Common Stock issuable in
the proposed Christiana Merger approximates the number of shares of Common
Stock currently held by Christiana, the Christiana Merger is expected to have
no material effect on the outstanding number of shares of Common Stock or
equity of the Company.
The Christiana Merger is subject to various conditions, including approval by
the stockholders of the Company and Christiana. Although there can be no
assurance that the Christiana Merger will close, the Company currently
anticipates that the acquisition will be consummated shortly after receipt of
the approval of the Christiana Merger by the shareholders of the Company and
Christiana, and the approval of the Logistic sale by the stockholders of
Christiana.
On May 1, 1997, the Company acquired GulfMark International, Inc. ("GulfMark")
pursuant to a merger in which approximately 4.4 million shares of Common Stock
were issued to the stockholders of GulfMark. Prior to the merger, GulfMark
effected a spin-off to its stockholders of its marine transportation services
business. The retained assets of GulfMark that were acquired by the Company in
the transaction consisted of approximately 4.4 million shares of Common Stock,
an erosion control business and certain other miscellaneous assets. Because
the number of shares of Common Stock issued in the GulfMark acquisition
approximated the number of shares of Common Stock held by GulfMark prior to the
acquisition, the GulfMark acquisition had no material effect on the outstanding
number of shares of Common Stock or equity of the Company. The shares of
Common Stock received pursuant to this transaction are classified as "Treasury
Stock, at Cost" in the accompanying Supplemental Consolidated Balance Sheet.
14
<PAGE> 15
FORWARD-LOOKING STATEMENTS
Certain statements made herein and in other public filings and releases by
the Company contain "forward-looking" information (as defined in the Private
Securities Litigation Reform Act of 1995) that involve risk and uncertainty.
These forward-looking statements may include, but are not limited to, future
sales, earnings, margins, production levels and costs, expected savings from
acquisitions and plant expansions, demand for products, product deliveries,
market trends in the oil and gas industry and the oilfield service sector
thereof, research and development, environmental and other expenditures,
currency fluctuations and various business trends. See Market Trends.
Forward-looking statements may be made by management orally or in writing
including, but not limited to, this Management's Discussion and Analysis of
Financial Condition and Results of Operations section and other sections of the
Company's filings with the Securities and Exchange Commission under the
Securities Exchange Act of 1934 and the Securities Act of 1933.
Actual results and trends in the future may differ materially depending on a
variety of factors including, but not limited to, whether and for how long the
current pricing trend for oil will continue and the effect thereof on the
demand and price of the Company's products, changes in the price of oil and
gas, changes in the domestic and international rig count, global trade
policies, domestic and international drilling activities, the impact of the
economic downturn in Southeast Asia on the worldwide economies and associated
demand for oil, world-wide political stability and economic growth, including
currency fluctuations, government export and import policies, technological
advances involving the Company's products, the Company's successful execution
of internal operating plans and manufacturing consolidations and
restructurings, performance issues with key suppliers and subcontractors, the
ability of the Company to maintain price increases and market shares, raw
material costs changes, collective bargaining labor disputes, regulatory
uncertainties and legal proceedings. Future results will also be dependent
upon the ability of the Company to successfully integrate the operations of
Weatherford with the Company, as well as its ability to continue to identify
and complete successful acquisitions at acceptable prices, integrate those
acquisitions with the Company's other operations and penetrate existing and new
markets.
15
<PAGE> 16
EVI WEATHERFORD, INC. AND SUBSIDIARIES
SUPPLEMENTAL CONSOLIDATED CONDENSED BALANCE SHEETS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
March 31, December 31,
1998 1997
----------- -----------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and Cash Equivalents ............................. $ 42,500 $ 74,211
Accounts Receivable, Net of Allowance for Uncollectible
Accounts of $25,300 and $23,473, Respectively ...... 536,816 524,929
Inventories ........................................... 499,387 455,811
Other Current Assets .................................. 101,199 79,125
----------- -----------
1,179,902 1,134,076
----------- -----------
PROPERTY, PLANT AND EQUIPMENT, AT COST,
NET OF ACCUMULATED DEPRECIATION ....................... 886,351 866,813
GOODWILL, NET ............................................... 755,962 668,475
OTHER ASSETS ................................................ 87,230 68,546
----------- -----------
$ 2,909,445 $ 2,737,910
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Short-Term Borrowings, Primarily Under Revolving
Lines of Credit .................................... $ 133,638 $ 24,243
Current Maturities of Long-Term Debt .................. 14,405 13,178
Accounts Payable ...................................... 201,948 218,810
Accrued Salaries and Benefits ......................... 42,325 63,656
Current Tax Liabilities ............................... 59,906 44,317
Other Accrued Liabilities ............................. 151,819 138,965
----------- -----------
604,041 503,169
----------- -----------
LONG-TERM DEBT .............................................. 252,527 252,322
DEFERRED INCOME TAXES AND OTHER ............................. 138,035 121,370
5% CONVERTIBLE SUBORDINATED PREFERRED
EQUIVALENT DEBENTURES ................................. 402,500 402,500
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Common Stock, $1 Par Value, Authorized 250,000 Shares,
Issued 101,507 and 101,958, Respectively ........... 101,507 101,958
Capital in Excess of Par Value ........................ 1,052,109 1,018,024
Treasury Stock, at Cost ............................... (203,130) (165,287)
Retained Earnings ..................................... 603,491 542,348
Cumulative Foreign Currency Translation Adjustment .... (41,635) (38,494)
----------- -----------
1,512,342 1,458,549
----------- -----------
$ 2,909,445 $ 2,737,910
=========== ===========
</TABLE>
The accompanying notes are an integral part of these supplemental
consolidated condensed financial statements.
16
<PAGE> 17
EVI WEATHERFORD, INC. AND SUBSIDIARIES
SUPPLEMENTAL CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Three Months
Ended March 31,
------------------------
1998 1997
--------- ---------
<S> <C> <C>
REVENUES:
Products .......................................... $ 363,396 $ 219,979
Services and Rentals .............................. 210,064 211,274
--------- ---------
Total Revenues ................................. 573,460 431,253
COSTS AND EXPENSES:
Cost of Products .................................. 249,066 162,793
Cost of Services and Rentals ...................... 133,106 144,198
Selling, General and Administrative Attributable
to Segments .................................... 69,979 49,219
Corporate General and Administrative .............. 11,489 8,564
Equity in Earnings of Unconsolidated Affiliates.... (780) (509)
--------- ---------
OPERATING INCOME ........................................ 110,600 66,988
--------- ---------
OTHER INCOME (EXPENSE):
Interest Income ................................... 648 3,280
Interest Expense .................................. (12,011) (10,545)
Other, Net ........................................ (1,275) (1,102)
--------- ---------
INCOME BEFORE INCOME TAXES .............................. 97,962 58,621
PROVISION FOR INCOME TAXES .............................. 36,819 20,718
--------- ---------
NET INCOME .............................................. $ 61,143 $ 37,903
========= =========
EARNINGS PER SHARE:
Basic ............................................. $ 0.63 $ 0.40
========= =========
Diluted ........................................... $ 0.63 $ 0.39
========= =========
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING:
Basic ............................................. 96,761 95,302
========= =========
Diluted ........................................... 97,625 96,704
========= =========
</TABLE>
The accompanying notes are an integral part of these supplemental
consolidated condensed financial statements.
17
<PAGE> 18
EVI WEATHERFORD, INC. AND SUBSIDIARIES
SUPPLEMENTAL CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
Three Months
Ended March 31,
------------------------
1998 1997
--------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income ................................................. $ 61,143 $ 37,903
Adjustments to Reconcile Net Income to Net Cash
Used by Operating Activities:
Depreciation and Amortization ............................ 41,940 34,023
Gain on Sale of Property, Plant and Equipment ............ (3,473) (2,868)
Deferred Income Tax Provision ............................ 2,627 2,279
Change in Operating Assets and Liabilities, Net of Effects
of Businesses Acquired ................................. (81,669) (73,977)
--------- ---------
Net Cash Provided (Used) by Operating Activities ....... 20,568 (2,640)
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Income Taxes Paid on Gain on Disposal of Discontinued
Operations ............................................... -- (62,808)
Acquisition of Businesses, Net of Cash Acquired ............ (78,056) (30,179)
Capital Expenditures for Property, Plant and Equipment ..... (49,403) (30,289)
Proceeds from Sale of Property, Plant and Equipment ........ 6,715 7,595
Other, Net ................................................. 3,928 305
--------- ---------
Net Cash Used by Investing Activities .................... (116,816) (115,376)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings Under Revolving Lines of Credit, Net ............ 109,395 3,904
Repayments on Term Debt, Net ............................... (9,637) (12,834)
Proceeds from Exercise of Stock Options .................... 2,208 2,900
Acquisitions of Treasury Stock ............................. (37,686) (425)
Currency Hedging Transactions, Net ......................... 822 2,409
--------- ---------
Net Cash Provided (Used) by Financing Activities ......... 65,102 (4,046)
--------- ---------
EFFECT OF TRANSLATION ADJUSTMENT ON CASH ......................... (565) (1,190)
NET DECREASE IN CASH AND CASH EQUIVALENTS ........................ (31,711) (123,252)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD ................. 74,211 256,995
--------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD ....................... $ 42,500 $ 133,743
========= =========
SUPPLEMENTAL CASH FLOW INFORMATION:
Interest Paid .............................................. $ 7,288 $ 8,880
Income Taxes Paid, Net of Refund ........................... $ 12,922 $ 67,349
</TABLE>
The accompanying notes are an integral part of these supplemental
consolidated condensed financial statements.
18
<PAGE> 19
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(1) General
The unaudited supplemental consolidated condensed financial statements
included herein have been prepared by EVI Weatherford, Inc. (the "Company")
pursuant to the rules and regulations of the Securities and Exchange Commission.
These supplemental financial statements reflect all adjustments which the
Company considers necessary for the fair presentation of such supplemental
financial statements for the interim periods presented. Although the Company
believes that the disclosures in these financial statements are adequate to make
the interim information presented not misleading, certain information relating
to the Company's organization and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principles has been condensed or omitted. These supplemental financial
statements should be read in conjunction with the restated supplemental audited
consolidated financial statements and notes thereto included herein for the year
ended December 31, 1997. The results of operations for the three month period
ended March 31, 1998 are not necessarily indicative of the results expected for
the full year.
On May 27, 1998, EVI, Inc. ("EVI") completed a merger with Weatherford
Enterra, Inc. ("Weatherford") and changed its name to EVI Weatherford, Inc. (See
Note 4). The merger was accounted for as a pooling of interests; accordingly,
the accompanying supplemental financial statements have been restated to include
the results of Weatherford for all periods presented. Certain classifications of
prior year balances have been made to conform such amounts to corresponding 1998
classifications.
(2) Comprehensive Income
Comprehensive income as defined by Statement of Financial Accounting
Standards No. 130, Reporting Comprehensive Income, is net income plus direct
adjustments to stockholders' equity. The cumulative translation adjustment of
certain foreign entities is the only such direct adjustment recorded by the
Company.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31,
-----------------------------
1998 1997
------------ ------------
(IN THOUSANDS)
<S> <C> <C>
Comprehensive income:
Net income ................................ $ 61,143 $ 37,903
Cumulative translation adjustment ......... (3,141) (9,185)
------------ ------------
Total comprehensive income .................. $ 58,002 $ 28,718
============ ============
</TABLE>
(3) Inventories
Inventories by category are as follows:
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1998 1997
------------ ------------
(IN THOUSANDS)
<S> <C> <C>
Raw materials and components ................ $ 273,249 $ 238,349
Work in process ............................. 64,762 66,402
Finished goods .............................. 161,376 151,060
------------ ------------
$ 499,387 $ 455,811
============ ============
</TABLE>
Work in process and finished goods inventories include the cost of
material, labor and plant overhead.
19
<PAGE> 20
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(4) Acquisitions
On May 27, 1998, EVI, Inc. completed a Merger with Weatherford, merging
Weatherford with and into the Company pursuant to an expected tax free merger in
which the stockholders of Weatherford will receive 0.95 of a share of the
Company's Common Stock in exchange for each outstanding share of Weatherford
common stock. Based on the number of shares of Weatherford common stock
outstanding as of May 27, 1998, approximately 48.9 million shares will be issued
in the Merger. In addition, approximately 1.4 million shares of Common Stock
have been reserved for issuance by the Company for outstanding options under
Weatherford's compensation and benefit plans. The Merger was accounted for as a
pooling of interests; accordingly, the accompanying supplemental financial
statements have been restated to include the results of Weatherford for all
periods presented.
The separate results of EVI and Weatherford and the combined company were
as follows (in thousands):
<TABLE>
<CAPTION>
Three Months Ended March 31,
----------------------------
1998 1997
----------- -----------
(in thousands)
<S> <C> <C>
Operating Revenues
EVI ....................... $ 316,840 $ 164,640
Weatherford ............... 259,729 267,113
Merger adjustments ........ (3,109) (500)
----------- -----------
Combined ..................... $ 573,460 $ 431,253
=========== ===========
Net Income (Loss)
EVI ....................... $ 31,277 $ 14,345
Weatherford ............... 30,487 22,952
Merger adjustments ........ (621) 606
----------- -----------
Combined ..................... $ 61,143 $ 37,903
=========== ===========
</TABLE>
Merger adjustments include the elimination of intercompany revenues of $3.1
million and $0.5 million, respectively, and cost of sales of $2.2 million and
$0.5 million, respectively, for the three months ended March 31, 1998 and 1997.
Merger adjustments for the three months ended March 31, 1997 also include the
elimination of expenses of $0.9 million recorded by Weatherford on the sale of
Arrow Completion Systems, Inc. to EVI in December 1996.
On February 19, 1998, the Company acquired Ampscot Equipment Ltd., an
Alberta corporation ("Ampscot") for approximately $57.1 million in cash. Ampscot
is a Canadian-based manufacturer of pumping units.
On January 15, 1998, the Company completed the acquisition of Taro
Industries Limited ("Taro"), an Alberta corporation, in which approximately 0.8
million shares of the Company's common stock, $1.00 par value ("Common Stock"),
have been issued or are reserved for issuance to the shareholders of Taro in
exchange for their shares of Taro stock. Taro is a Canadian provider of well
automation, gas compression, and drilling equipment distribution.
On January 12, 1998, the Company completed the acquisition of the Houston
Well Screen group of companies ("Houston Well Screen") from Van der Horst
Limited, a Singapore company, for a net purchase price of approximately $27.6
million in cash. The Houston Well Screen acquisition includes the purchase of
Van der Horst USA Inc., which is the holding company of Houston Well Screen
Company and of Houston Well Screen Asia Pte Ltd. which has operations in
Singapore and Indonesia. Houston Well Screen makes wedge-wire screen products
for use in oil and gas production and other applications.
On December 3, 1997, the Company completed the acquisition of all of the
outstanding shares of BMW Monarch (Lloydminster) Ltd. ("BMW Monarch") and BMW
Pump, Inc. ("BMW Pump") for aggregate consideration of approximately $96.8
million in cash and $14.3 million in assumed debt. On December 2, 1997, the
Company completed the acquisition of all of the capital stock of Trico
Industries, Inc., ("Trico") in exchange for $105.0 million in cash and the
assumption of $8.7 million of debt.
20
<PAGE> 21
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
The acquisitions discussed above, with the exception of Weatherford, were
accounted for using the purchase method of accounting. Results of operations for
business combinations accounted for as purchases are included in the
accompanying supplemental consolidated financial statements since the date of
acquisition. With respect to business combination accounted for as a pooling of
interests, the consolidated financial statements have been restated for all
periods presented as if the companies had been combined since inception.
(5) Long-Term Debt
In February 1998, the Company entered into a new credit agreement which
provides for borrowings of up to an aggregate of $250.0 million, consisting of a
$200.0 million U.S. credit facility and a $50.0 million Canadian credit facility
and terminated its prior working capital facilities. Borrowings under the new
credit facility bear interest at a variable rate based on either prime or LIBOR
and are secured by pledges of various stock of the Company's domestic and
foreign subsidiaries. In addition, certain of the Company's domestic
subsidiaries are guarantors of the facility.
In May 1998, the Company amended the $250.0 million revolving credit
facility and terminated its $200.0 million revolving credit facility (See Note
10).
(6) Earnings Per Share
Basic earnings per share is computed by dividing net income by the weighted
average number of shares of common stock outstanding during the year. Diluted
earnings per common share is computed by dividing net income by the weighted
average number of shares of common stock outstanding during the year adjusted
for the dilutive effect of the incremental shares that would have been
outstanding under the Company's stock option plans. The effect of the Company's
5% Convertible Subordinated Preferred Equivalent Debentures due 2027 (the
"Debentures") on diluted earnings per share is anti-dilutive and, thus, has no
impact.
The following reconciles basic and diluted weighted average shares:
<TABLE>
<CAPTION>
MARCH 31,
---------------------
1998 1997
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Basic weighted average number of
shares outstanding ........................ 96,761 95,302
Dilutive effect of stock option plans ....... 864 1,402
-------- --------
Dilutive weighted average number of
shares outstanding ........................ 97,625 96,704
======== ========
</TABLE>
(7) Supplemental Cash Flow Information
The following summarizes investing activities relating to acquisitions:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
----------------------
1998 1997
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Fair value of assets, net of cash acquired .. $ 63,489 $ 20,477
Goodwill .................................... 94,430 20,109
Total liabilities ........................... (48,968) (10,407)
Common Stock issued ......................... (30,895) --
-------- --------
Cash consideration, net of cash acquired .... $ 78,056 $ 30,179
======== ========
</TABLE>
21
<PAGE> 22
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(8) Recent Accounting Pronouncements
The Company adopted Statement of Financial Accounting Standards No. 131
("SFAS No. 131"), Disclosures About Segments of an Enterprise and Related
Information, in the first quarter of 1998. SFAS No. 131 requires segment
information to be reported on a basis consistent with that used internally for
evaluating segment performance and deciding how to allocate resources to
segments. Quarterly disclosures are not required in the first year of adoption.
The adoption of SFAS No. 131 has not resulted in a change in the manner the
Company reports segment information and related disclosures.
In 1998 the FASB issued Statement of Accounting Standards No. 132 ("SFAS
No. 132"), Employers' Disclosures About Pensions and Other Postretirement
Benefits. SFAS No. 132 standardizes annual disclosure requirements for pensions
and other postretirement benefits. SFAS No. 132 is effective for years beginning
after December 15, 1997. SFAS No. 132 has no impact on the consolidated
condensed financial statements of the Company.
(9) Reclassifications and Restatements
Certain reclassifications of prior year balances have been made to conform
such amounts to corresponding 1998 classifications.
(10) Subsequent Events
In December 1997, the Company entered into a merger agreement with
Christiana Companies, Inc. ("Christiana") and C2, Inc., Wisconsin corporations,
pursuant to which approximately 3.9 million shares of Common Stock will be
issued to the stockholders of Christiana in a merger of a subsidiary of the
Company with and into Christiana.
22
<PAGE> 23
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
("Christiana Merger"). Prior to the Christiana Merger, Christiana is required to
sell two-thirds of its interest in Total Logistic Control ("Logistic"), a wholly
owned subsidiary of Christiana, to C2, Inc. for approximately $10.7 million.
Following the Logistic sale, the remaining assets of Christiana will consist of
(i) approximately 3.9 million shares of Common Stock, (ii) a one-third interest
in Logistic, (iii) cash and other assets with a book value of approximately
$10.0 million and (iv) a contingent cash payment of up to $10.0 million payable
five years after the effective date of the merger to the extent such funds are
not required to satisfy contingent claims against Christiana. It is anticipated
that Christiana will have no material debt as of the consummation of the
Christiana Merger, but will have various tax liabilities which will be paid with
the remaining cash balance in Christiana after the Christiana Merger. Because
the number of shares of Common Stock issuable in the proposed Christiana Merger
approximates the number of shares of Common Stock currently held by Christiana,
the Christiana Merger is expected to have no material effect on the outstanding
number of shares of Common Stock or equity of the Company.
The Christiana Merger is subject to various conditions, including approval
by the stockholders of the Company and Christiana and the receipt of required
regulatory approvals. Although there can be no assurance that the Christiana
Merger will close, the Company currently anticipates that the acquisition will
be consummated shortly after receipt of such regulatory approvals and the
approval of the Christiana Merger by the shareholders of the Company and
Christiana. The Company currently expects that a meeting of its stockholders to
consider the Christiana Merger will be held in the third quarter of 1998.
In May 1998, the Company amended its $250.0 million revolving credit
facility and terminated its $200.0 million revolving credit facility. Amounts
outstanding under the amended facility accrue interest at a variable rate based
on either prime or LIBOR and are secured by pledges of various stock of the
Company's domestic and foreign subsidiaries. In addition, certain of the
Company's domestic subsidiaries are guarantors of the facility. A commitment fee
ranging from 0.09% to 0.20% per annum, depending on the credit ratings assigned
to the 7 1/4% Senior Notes, is payable quarterly on the unused portion of the
facility. The facility contains customary affirmative and negative covenants
relating to working capital, earnings and net worth.
In the second quarter of 1998, the Company estimates that it will report
approximately $60.0 million, net of taxes, in unusual charges associated with
the Merger. Such costs primarily consists of transactions costs, severance and
termination payments to former officers and employees, facility closure costs
and costs associated with the closure of excess and duplicative distribution
and service locations primarily due to integrating EVI's businesses with
Weatherford's businesses and the impairment of various assets as a result of
the combination of operations and rationalization of product lines and the
elimination of certain products, services and operations as a result of the
changes in the operations of the Company following the Merger.
23
<PAGE> 24
INDEX TO SUPPLEMENTAL FINANCIAL STATEMENTS AND SUPPLEMENTAL FINANCIAL STATEMENT
SCHEDULE
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Public Accountants........................................... 25
Supplemental Consolidated Balance Sheets - December 31, 1997 and 1996.............. 26
Supplemental Consolidated Statements of Income, for each of the three years
in the period ended December 31, 1997............................................ 27
Supplemental Consolidated Statements of Stockholders' Equity, for each of
the three years in the period ended December 31, 1997............................ 28
Supplemental Consolidated Statements of Cash Flows, for each of the three
years in the period ended December 31, 1997...................................... 29
Notes to Supplemental Consolidated Financial Statements............................ 30
Supplemental Financial Statement Schedule:
II. Valuation and Qualifying Accounts and Allowances........................... 54
</TABLE>
All other schedules are omitted because they are not required or because the
required information is included in the financial statements or notes thereto.
24
<PAGE> 25
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To EVI Weatherford, Inc.:
We have audited the accompanying supplemental consolidated balance sheets
of EVI Weatherford, Inc. (formerly EVI, Inc.) (a Delaware corporation) and
subsidiaries as of December 31, 1997 and 1996, and the related supplemental
consolidated statements of income, stockholders' equity and cash flows for each
of the three years in the period ended December 31, 1997. These supplemental
consolidated financial statements and the schedule referred to below reflect a
restatement of the Company's previously reported amounts for the merger with
Weatherford Enterra, Inc. ("Weatherford"), see Note 1. These supplemental
consolidated financial statements and the schedule referred to below are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these supplemental consolidated financial statements and schedule
based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the consolidated financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
consolidated financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, the supplemental consolidated financial statements referred
to above present fairly, in all material respects, the consolidated financial
position of EVI Weatherford, Inc. and subsidiaries as of December 31, 1997 and
1996 and the results of their operations and their cash flows for each of the
three years in the period ended December 31, 1997 in conformity with generally
accepted accounting principles.
Our audits were made for the purpose of forming an opinion on the basic
supplemental consolidated financial statements taken as a whole. The
supplemental Financial Statement Schedule listed in Part II - Item 8 is
presented for purposes of complying with the Securities and Exchange
Commission's rules and is not a required part of the basic supplemental
consolidated financial statements. The supplemental Financial Statement Schedule
has been subjected to the auditing procedures applied in our audits of the basic
supplemental consolidated financial statements and, in our opinion, fairly
states in all material respects the financial data required to be set forth
therein in relation to the basic supplemental consolidated financial statements
taken as a whole.
ARTHUR ANDERSEN LLP
Houston, Texas
June 15, 1998
25
<PAGE> 26
EVI WEATHERFORD, INC. AND SUBSIDIARIES
SUPPLEMENTAL CONSOLIDATED BALANCE SHEETS
(in thousands)
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------
1997 1996
----------- -----------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and Cash Equivalents ................................................ $ 74,211 $ 256,995
Accounts Receivable, Net of Allowance for Uncollectible Accounts
of $23,473,000 in 1997 and $16,824,000 in 1996 ......................... 524,929 389,633
Inventories .............................................................. 455,811 320,933
Deferred Tax Asset ....................................................... 44,904 47,733
Other Current Assets ..................................................... 34,221 46,486
----------- -----------
1,134,076 1,061,780
----------- -----------
PROPERTY, PLANT AND EQUIPMENT, AT COST:
Land, Buildings and Other Property ....................................... 228,178 172,192
Rental and Service Equipment ............................................. 1,010,065 1,017,866
Machinery and Equipment .................................................. 393,317 283,758
----------- -----------
1,631,560 1,473,816
Less: Accumulated Depreciation .......................................... 764,747 741,804
----------- -----------
866,813 732,012
----------- -----------
GOODWILL, NET ................................................................. 668,475 390,252
OTHER ASSETS .................................................................. 68,546 59,589
----------- -----------
$ 2,737,910 $ 2,243,633
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Short-Term Borrowings .................................................... $ 24,243 $ 4,451
Current Portion of Long-Term Debt ........................................ 13,178 28,130
Accounts Payable ......................................................... 218,810 144,161
Accrued Salaries and Benefits ............................................ 63,656 41,702
Current Tax Liability .................................................... 44,317 99,343
Other Accrued Liabilities ................................................ 138,965 122,754
----------- -----------
503,169 440,541
----------- -----------
LONG-TERM DEBT ................................................................ 252,322 417,976
DEFERRED INCOME TAXES AND OTHER ............................................... 121,370 92,412
5% CONVERTIBLE SUBORDINATED PREFERRED EQUIVALENT DEBENTURES.................... 402,500 --
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Common Stock, $1 Par Value, Authorized 250,000 Shares, Issued
101,958 Shares in 1997 and 95,493 Shares in 1996 ....................... 101,958 95,493
Capital in Excess of Par Value ........................................... 1,018,024 854,055
Treasury Stock, at Cost .................................................. (165,287) (3,405)
Retained Earnings ........................................................ 542,348 355,660
Cumulative Foreign Currency Translation Adjustment ....................... (38,494) (11,480)
Unrealized Gain on Marketable Securities ................................. -- 2,381
----------- -----------
1,458,549 1,292,704
----------- -----------
$ 2,737,910 $ 2,243,633
=========== ===========
</TABLE>
The accompanying notes are an integral part of these
supplemental consolidated financial statements.
26
<PAGE> 27
EVI WEATHERFORD, INC. AND SUBSIDIARIES
SUPPLEMENTAL CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------
1997 1996 1995
----------- ----------- -----------
(in thousands, except per share amounts)
<S> <C> <C> <C>
REVENUES:
Products ................................................... $ 1,097,823 $ 704,350 $ 513,039
Service and Rentals ........................................ 871,266 762,920 612,764
----------- ----------- -----------
1,969,089 1,467,270 1,125,803
COSTS AND EXPENSES:
Cost of Products ........................................... 790,314 542,181 388,061
Cost of Service and Rentals ................................ 580,812 548,633 443,170
Selling, General and Administrative Attributable to
Segments ................................................. 226,737 170,129 172,050
Corporate General and Administrative ....................... 37,816 39,304 23,697
Equity in Earnings of Unconsolidated Affiliates ............ (2,582) (2,078) (1,477)
Merger-Related Costs and Unusual Charges ................... -- -- 88,182
----------- ----------- -----------
1,633,097 1,298,169 1,113,683
----------- ----------- -----------
OPERATING INCOME ................................................ 335,992 169,101 12,120
OTHER INCOME (EXPENSE):
Interest Income ............................................ 8,329 4,168 2,249
Interest Expense ........................................... (43,273) (39,368) (33,504)
Gain on Sale of Marketable Securities ...................... 3,352 -- --
Other, Net ................................................. 561 (1,227) 6,160
----------- ----------- -----------
INCOME BEFORE INCOME TAXES ...................................... 304,961 132,674 (12,975)
PROVISION (BENEFIT) FOR INCOME TAXES ............................ 108,188 40,513 (4,707)
----------- ----------- -----------
INCOME FROM CONTINUING OPERATIONS ............................... 196,773 92,161 (8,268)
INCOME FROM DISCONTINUED OPERATIONS,
NET OF TAXES ............................................... -- 7,468 8,709
GAIN ON DISPOSAL OF DISCONTINUED OPERATIONS,
NET OF TAXES ............................................... -- 66,924 --
EXTRAORDINARY CHARGE, NET OF TAXES .............................. (9,010) (731) --
----------- ----------- -----------
NET INCOME ...................................................... $ 187,763 $ 165,822 $ 441
=========== =========== ===========
BASIC EARNINGS PER SHARE:
Income From Continuing Operations .......................... $ 2.04 $ 1.03 $ (0.10)
Income From Discontinued Operations ........................ -- 0.08 0.11
Gain on Disposal of Discontinued Operations ................ -- 0.75 --
Extraordinary Charge ....................................... (0.09) (0.01) --
----------- ----------- -----------
Net Income Per Share ....................................... $ 1.95 $ 1.85 $ 0.01
=========== =========== ===========
Basic Weighted Average Shares Outstanding .................. 96,052 89,842 77,595
=========== =========== ===========
DILUTED EARNINGS PER SHARE:
Income From Continuing Operations .......................... $ 2.01 $ 1.01 $ (0.10)
Income From Discontinued Operations ........................ -- 0.08 0.11
Gain on Disposal of Discontinued Operations ................ -- 0.74 --
Extraordinary Charge ....................................... (0.09) (0.01) --
----------- ----------- -----------
Net Income Per Share ....................................... $ 1.92 $ 1.82 $ 0.01
=========== =========== ===========
Diluted Weighted Average Shares Outstanding ................ 97,562 90,981 77,595
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these
supplemental consolidated financial statements.
27
<PAGE> 28
EVI WEATHERFORD, INC. AND SUBSIDIARIES
SUPPLEMENTAL CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
CUMULATIVE
FOREIGN
COMMON STOCK CAPITAL IN CURRENCY
--------------------------- EXCESS OF RETAINED TRANSLATION
SHARES $1 PAR PAR EARNINGS ADJUSTMENT
----------- ----------- ----------- ----------- -----------
(in thousands)
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1994,
as Previously Reported .................. 25,508 $ 25,508 $ 42,388 $ 48,856 $ (4,536)
Adjustment for Pooling of Interests ....... 48,048 48,048 550,754 140,541 (4,168)
----------- ----------- ----------- ----------- -----------
Balance at December 31, 1994 .............. 73,556 73,556 593,142 189,397 (8,704)
Net Income ................................ -- -- -- 441 --
Shares Issued in Connection
with Acquisition ........................ 4,510 4,510 30,765 -- --
Shares Issued Under Employee
Benefit Plans ........................... 8 8 180 -- --
Options Exercised ......................... 511 511 8,485 -- --
Issuance of Common Stock .................. 6,900 6,900 65,748 -- --
Purchase of Treasury Stock,
at Cost, for Executive
Deferred Compensation Plan .............. -- -- -- -- --
Foreign Currency
Translation Adjustment .................. -- -- -- -- (4,080)
----------- ----------- ----------- ----------- -----------
Balance at December 31, 1995 .............. 85,485 85,485 698,320 189,838 (12,784)
Net Income ................................ -- -- -- 165,822 --
Shares Issued in Connection
with Acquisitions ....................... 2,339 2,339 48,395 -- --
Shares Issued Under Employee
Benefit Plans ........................... 29 29 1,342 -- --
Options Exercised ......................... 740 740 12,038 -- --
Issuance of Common Stock .................. 6,900 6,900 93,960 -- --
Purchase of Treasury Stock,
at Cost, for Executive
Deferred Compensation Plan .............. -- -- -- -- --
Foreign Currency
Translation Adjustment .................. -- -- -- -- 1,304
Unrealized Gain on
Marketable Securities ................... -- -- -- -- --
----------- ----------- ----------- ----------- -----------
Balance at December 31, 1996 .............. 95,493 95,493 854,055 355,660 (11,480)
Net Income ................................ -- -- -- 187,763 --
Effect of Immaterial Pooling .............. 946 946 (717) (1,075) --
Replacement Shares (Shares
Acquired) from GulfMark
Merger ................................. 4,471 4,471 142,788 -- --
Shares Issued Under Employee
Benefit Plans ........................... 11 11 464 -- --
Options Exercised ......................... 1,037 1,037 12,635 -- --
Tax Benefit Associated with
Options Exercised ....................... -- -- 8,799 -- --
Purchase of Treasury Stock ................ -- -- -- -- --
Purchase of Treasury Stock,
at Cost, for Executive
Deferred Compensation Plan .............. -- -- -- -- --
Foreign Currency
Translation Adjustment .................. -- -- -- -- (27,014)
Realized Gain on Sale of
Marketable Securities ................... -- -- -- -- --
----------- ----------- ----------- ----------- -----------
Balance at December 31, 1997 .............. 101,958 $ 101,958 $ 1,018,024 $ 542,348 $ (38,494)
=========== =========== =========== =========== ===========
</TABLE>
<TABLE>
<CAPTION>
UNREALIZED
TREASURY STOCK GAIN ON TOTAL
---------------------------- MARKETABLE STOCKHOLDERS'
SHARES AMOUNT SECURITIES EQUITY
----------- ----------- ----------- -----------
(in thousands)
<S> <C> <C> <C> <C>
Balance at December 31, 1994,
as Previously Reported .................. (188) $ (1,303) $ -- $ 110,913
Adjustment for Pooling of Interests ....... (48) (801) -- 734,374
----------- ----------- ----------- -----------
Balance at December 31, 1994 .............. (236) (2,104) -- 845,287
Net Income ................................ -- -- -- 441
Shares Issued in Connection
with Acquisition ........................ -- -- -- 35,275
Shares Issued Under Employee
Benefit Plans ........................... -- -- -- 188
Options Exercised ......................... 10 (60) -- 8,936
Issuance of Common Stock .................. -- -- -- 72,648
Purchase of Treasury Stock,
at Cost, for Executive
Deferred Compensation Plan .............. (39) (358) -- (358)
Foreign Currency
Translation Adjustment .................. -- -- -- (4,080)
----------- ----------- ----------- -----------
Balance at December 31, 1995 .............. (265) (2,522) -- 958,337
Net Income ................................ -- -- -- 165,822
Shares Issued in Connection
with Acquisitions ....................... -- -- -- 50,734
Shares Issued Under Employee
Benefit Plans ........................... 20 419 -- 1,790
Options Exercised ......................... (8) (394) -- 12,384
Issuance of Common Stock .................. -- -- -- 100,860
Purchase of Treasury Stock,
at Cost, for Executive
Deferred Compensation Plan .............. (44) (908) -- (908)
Foreign Currency
Translation Adjustment .................. -- -- -- 1,304
Unrealized Gain on
Marketable Securities ................... -- -- 2,381 2,381
----------- ----------- ----------- -----------
Balance at December 31, 1996 .............. (297) (3,405) 2,381 1,292,704
Net Income ................................ -- -- -- 187,763
Effect of Immaterial Pooling .............. -- -- -- (846)
Replacement Shares (Shares
Acquired) from GulfMark
Merger ................................. (4,471) (147,259) -- --
Shares Issued Under Employee
Benefit Plans ........................... -- -- -- 475
Options Exercised ......................... (5) (247) -- 13,425
Tax Benefit Associated with
Options Exercised ....................... -- -- -- 8,799
Purchase of Treasury Stock ................ (275) (11,860) -- (11,860)
Purchase of Treasury Stock,
at Cost, for Executive
Deferred Compensation Plan .............. (48) (2,516) -- (2,516)
Foreign Currency
Translation Adjustment .................. -- -- -- (27,014)
Realized Gain on Sale of
Marketable Securities ................... -- -- (2,381) (2,381)
----------- ----------- ----------- -----------
Balance at December 31, 1997 .............. (5,096) $ (165,287) $ -- $ 1,458,549
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these
supplemental consolidated financial statements.
28
<PAGE> 29
EVI WEATHERFORD, INC. AND SUBSIDIARIES
SUPPLEMENTAL CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------
1997 1996 1995
------------ ------------ -------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES: (in thousands)
Net Income......................................................... $ 187,763 $ 165,822 $ 441
Adjustments to Reconcile Net Income to Net Cash Provided
by Operating Activities:
Non-cash Portion of Acquisition-related Costs and Other
Unusual Charges................................................ -- -- 66,196
Depreciation and Amortization.................................... 142,931 121,830 108,060
Net Income from Discontinued Operations.......................... -- (7,468) (8,709)
Gain on Disposal of Discontinued Operations, Net................. -- (66,924) --
Gain on Sale of Assets, Net...................................... (20,056) (14,058) (12,503)
Extraordinary Charge on Prepayment of Debt, Net.................. 9,010 731 --
Deferred Income Tax Provision (Benefit) from Continuing
Operations..................................................... 35,459 4,138 (18,672)
Provision for Uncollectible Accounts Receivable.................. 13,248 4,608 6,751
Change in Assets and Liabilities, Net of Effects of Businesses
Acquired:
Accounts Receivable............................................ (113,009) (63,562) (6,326)
Inventories.................................................... (108,837) (24,680) (45,679)
Other Current Assets........................................... (2,742) 1,547 (11,082)
Accounts Payable............................................... 37,135 33,064 (29,262)
Payment of Deferred Loan Costs................................. -- (4,820) (892)
Accrued Salaries and Benefits and Other........................ (10,710) (10,123) (10,246)
Other Assets................................................... (5,031) (2,697) 1,661
Other, Net..................................................... (13,019) (17,437) 10,911
------------ ------------ ------------
Net Cash Provided by Continuing Operations................... 152,142 119,971 50,649
Net Cash Provided by Discontinued Operations................. -- 8,294 10,745
------------ ------------ ------------
Net Cash Provided by Operating Activities.................... 152,142 128,265 61,394
------------ ------------ ------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition of Businesses, Net of Cash Acquired.................... (321,477) (80,077) (147,331)
Capital Expenditures for Property, Plant and Equipment............. (212,992) (172,725) (120,934)
Proceeds from Sales of Businesses................................. 68,798 326,016 9,493
Proceeds from Sales of Property, Plant and Equipment............... 30,431 20,215 31,137
Acquisitions and Capital Expenditures of Discontinued Operations... -- (63,136) (22,884)
Income Taxes Paid on Disposal of Discontinued Operations........... (62,808) -- --
Proceeds From Sale of Marketable Securities........................ 23,352 -- --
Other, Net......................................................... (6,384) (15,388) (9,245)
------------ ------------ ------------
Net Cash Provided (Used) by Investing Activities............... (481,080) 14,905 (259,764)
------------ ------------ ------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of Long-term Debt, Net.................................... 390,911 197,824 --
Issuance of Common Stock, Net...................................... -- 100,860 72,648
Purchase of Treasury Stock......................................... (14,376) (908) (358)
Tender of Senior Notes............................................. (119,980) -- --
Proceeds from Stock Option Exercises............................... 16,352 14,148 6,924
Termination Costs on Retirement of Debt............................ (10,752) (1,125) --
Borrowings (Repayments) Under Revolving Lines of Credit, Net....... 21,319 (121,656) (17,616)
Borrowings (Repayments) on Term Debt, Net.......................... (126,425) (115,761) 130,462
Other Financing Activities, Net.................................... (10,111) 4,978 (713)
------------ ------------ ------------
Net Cash Provided by Financing Activities...................... 146,938 78,360 191,347
------------ ------------ ------------
Effect of Exchange Rate on Cash.................................... (784) (220) 4,347
NET INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS........................................................ (182,784) 221,310 (2,676)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR.......................... 256,995 35,685 38,361
------------ ------------ ------------
CASH AND CASH EQUIVALENTS AT END OF YEAR................................ $ 74,211 $ 256,995 $ 35,685
============ ============ ============
</TABLE>
The accompanying notes are an integral part of these
supplemental consolidated financial statements.
29
<PAGE> 30
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION
On May 27, 1998, EVI, Inc. ("EVI") completed a merger with Weatherford
Enterra, Inc. ("Weatherford") and changed its name to EVI Weatherford, Inc. (See
Note 2). The merger was accounted for as a pooling of interests; accordingly,
the accompanying financial statements have been restated to include the results
of Weatherford for all periods presented. Certain reclassifications of prior
year balances have been made to conform such amounts to corresponding 1997
classifications.
NATURE OF OPERATIONS
The Company is a leading manufacturer and supplier of oilfield equipment
and services, providing downhole tubular running services and rental tools,
artificial lift, gas compression and completion system products to the oil and
gas industry throughout the world.
PRINCIPLES OF CONSOLIDATION
The supplemental consolidated financial statements include the accounts of
EVI Weatherford, Inc. and all majority-owned subsidiaries (the "Company"). All
material intercompany accounts and transactions have been eliminated in
consolidation. The Company accounts for its 50% or less-owned affiliates using
the equity method.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from those
estimates.
INVENTORIES
Inventories are valued using the first-in, first-out ("FIFO") method and
are stated at the lower of cost or market.
MARKETABLE SECURITIES
Investments in marketable securities are accounted for in accordance with
Statement of Financial Accounting Standards No. 115 ("SFAS No. 115") and
accordingly, these investments are recorded at their fair market value with
unrealized gains or losses recorded as a separate component of stockholders'
equity. The Company has classified these investments in Other Current Assets as
available for sale with any other than temporary decline in fair value of
securities charged to earnings. In April 1997, the Company sold its marketable
securities, comprised of approximately 3.1 million shares of Parker Drilling
Company ("Parker") common stock, pursuant to a public offering effected by
Parker. As a result, the Company received net proceeds of approximately $23.4
million and recognized a pre-tax gain of approximately $3.4 million.
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment is carried at cost. Maintenance and repairs
are expensed as incurred. The costs of renewals, replacements and betterments
are capitalized. Depreciation on fixed assets is computed using the
straight-line method over the estimated useful lives for the respective
categories. The Company evaluates potential impairment of property, plant and
equipment and other long-lived assets on an ongoing basis as necessary whenever
events or circumstances indicate that carrying amounts may not be recoverable.
The useful lives of the major classes of property, plant and equipment are as
follows:
30
<PAGE> 31
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
<TABLE>
<CAPTION>
LIFE
--------------
<S> <C>
Buildings and other property....................... 5 - 45 years
Rental and service equipment....................... 3 - 15 years
Machinery and equipment............................ 3 - 20 years
</TABLE>
INTANGIBLE ASSETS AND AMORTIZATION
The Company's intangible assets are comprised primarily of goodwill and
identifiable intangible assets, principally patents and technology licenses. The
Company reviews intangible assets for impairment whenever events or changes in
circumstances indicate that the carrying amount of any applicable assets may not
be recoverable. In assessing recoverability of such assets, the Company
estimates the future cash flows expected to result from the use of the asset and
its eventual disposition. If the sum of the expected future cash flows
(undiscounted and without interest charges) is less than the carrying amount of
the asset, an impairment loss is recognized. Management believes that there have
been no events or circumstances which warrant revision to the remaining useful
life or which affect the recoverability of goodwill. The goodwill is being
amortized on a straight-line basis over the lesser of the estimated useful life
or 40 years. Other identifiable intangible assets, included as a component of
other assets, are amortized on a straight-line basis over the years expected to
be benefited, ranging from 5 to 15 years.
Amortization expense for goodwill and other intangible assets was
approximately $15.0 million, $10.8 million and $8.4 million for 1997, 1996 and
1995, respectively. Accumulated amortization for goodwill at December 31, 1997
and 1996 was $30.1 million and $17.7 million, respectively.
STOCK-BASED COMPENSATION
The intrinsic value method of accounting is used for stock-based employee
compensation whereby no compensation expense is recognized when the exercise
price of an employee stock option is equal to the market price of the Company's
common stock, $1.00 par value, (the "Common Stock") on the grant date. See Note
9 for pro forma information required under Statement of Financial Accounting
Standards No. 123 ("SFAS No. 123"), Accounting for Stock-Based Compensation.
FOREIGN CURRENCY TRANSLATION
The functional currency for most of the Company's international operations
is the applicable local currency. Results of operations for foreign subsidiaries
with functional currencies other than the U.S. dollar are translated using
average exchange rates during the period. Assets and liabilities of these
foreign subsidiaries are translated using the exchange rates in effect at the
balance sheet date and the resulting translation adjustments are included as a
separate component of stockholders' equity. Currency transaction gains and
losses are reflected in income for the period.
FOREIGN EXCHANGE CONTRACTS
The Company enters into foreign exchange contracts only as a hedge against
certain existing economic exposures, and not for speculative or trading
purposes. These contracts reduce exposure to currency movements affecting
existing assets and liabilities denominated in foreign currencies, such exposure
resulting primarily from trade receivables and payables and intercompany loans.
The future value of these contracts and the related currency positions are
subject to offsetting market risk resulting from foreign currency exchange rate
volatility. The counterparties to the Company's foreign exchange contracts are
creditworthy multinational commercial banks. Management believes that the risk
of counterparty nonperformance is immaterial. At December 31, 1997 and 1996, the
Company had contracts maturing within the next 60 days to sell $36.8 million and
$50.9 million, respectively, in Norwegian kroner, U.K. pounds sterling, Canadian
dollars and Dutch guilders. Had such respective contracts matured on December
31, 1997 and 1996, the Company's required cash outlay would have been minimal.
31
<PAGE> 32
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
ACCOUNTING FOR INCOME TAXES
Under Statement of Financial Accounting Standards No. 109 ("SFAS No. 109"),
Accounting for Income Taxes, deferred tax assets and liabilities are recognized
for the future tax consequences attributable to differences between the
financial statement carrying amounts of existing assets and liabilities and
their respective tax bases.
The Company does not provide federal income taxes on the undistributed
earnings of certain of its foreign subsidiaries because it believes these
amounts are permanently invested outside the United States. The cumulative
amount of such undistributed earnings on which federal taxes have not been
provided was $173.5 million at December 31, 1997. If these foreign earnings were
to be ultimately remitted, certain foreign withholding taxes would be payable
and U.S. federal income taxes payable at that time would be reduced by foreign
tax credits generated by the repatriation.
REVENUE RECOGNITION
The Company recognizes revenue as products are shipped or accepted by the
customer and when service and rentals are provided. Proceeds from customers for
the cost of oilfield rental equipment that is damaged or lost downhole are
reflected as revenues.
EARNINGS PER SHARE
In 1996, the Financial Accounting Standards Board ("FASB") issued SFAS No.
128 which replaces primary earnings per share with basic earnings per share and
requires dual presentation of basic and diluted earnings per share. The Company
adopted SFAS No. 128 in the fourth quarter of fiscal 1997. All historical
earnings per share data included herein has been restated to reflect the
adoption of SFAS No. 128.
Basic earnings per share is computed by dividing net income by the weighted
average number of shares of common stock outstanding during the year. Diluted
earnings per common share is computed by dividing net income by the weighted
average number of shares of common stock outstanding during the year adjusted
for the dilutive effect of the incremental shares that would have been
outstanding under the Company's stock option plans (see Note 9). The effect of
the 5% Convertible Subordinated Preferred Equivalent Debentures (the
"Debentures") on diluted earnings per share is anti-dilutive and, thus, has no
impact.
The following reconciles basic and diluted weighted average shares:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------
1997 1996 1995
------ ------ ------
(in thousands)
<S> <C> <C> <C>
Basic weighted average number of
shares outstanding ........................ 96,052 89,842 77,595
Dilutive effect of stock option plans ....... 1,510 1,139 --
------ ------ ------
Dilutive weighted average number of
shares outstanding ........................ 97,562 90,981 77,595
====== ====== ======
</TABLE>
FUTURE REPORTING REQUIREMENTS
In June 1997, the FASB issued Statement of Financial Accounting Standards
No. 130 ("SFAS No. 130"), Reporting Comprehensive Income. SFAS No. 130
establishes standards for the reporting of comprehensive income and its
components in a full set of general-purpose financial statements and is
effective for years beginning after December 15, 1997. The Company will adopt
SFAS No. 130 in the first quarter of 1998. Had SFAS No. 130 been
32
<PAGE> 33
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
adopted as of December 31, 1997, the primary adjustments and reclassifications
to reflect net income on a comprehensive income basis for the years presented
would have consisted of foreign currency translation adjustments and the effect
of unrealized and realized gains on marketable securities.
In June 1997, the FASB issued Statement of Financial Accounting Standards
No. 131 ("SFAS No. 131"), Disclosures About Segments of an Enterprise and
Related Information. SFAS No. 131, effective for years beginning after December
31, 1997, requires segment information to be reported on a basis consistent with
that used internally for evaluating segment performance and deciding how to
allocate resources to segments. The Company will adopt SFAS No. 131 in 1998 and
is reviewing its segments in light of SFAS No. 131.
In 1998 the FASB issued Statement of Accounting Standards No. 132 ("SFAS
No. 132"), Employers' Disclosures About Pensions and Other Postretirement
Benefits. SFAS No. 132 standardizes disclosure requirements for pensions and
other postretirement benefits. SFAS No. 132 will be effective for years
beginning after December 15, 1997. Had the Company adopted SFAS No. 132 as of
December 31, 1997, it would have had no impact on the consolidated financial
statements of the Company.
2. ACQUISITIONS
On May 27, 1998, EVI completed a merger with Weatherford and changed its
name to EVI Weatherford, Inc., merging Weatherford with and into EVI pursuant to
an expected tax free merger (the "Merger") in which the stockholders of
Weatherford receive 0.95 of a share of the Company's Common Stock in exchange
for each outstanding share of Weatherford common stock. Based on the number of
shares of Weatherford common stock outstanding as of May 27, 1998, approximately
48.9 million shares will be issued in the Merger. In addition, approximately 1.4
million shares of Common Stock have been reserved for issuance by the Company
for outstanding options under Weatherford's compensation and benefit plans. The
Merger was accounted for as a pooling of interests; accordingly, the
accompanying supplemental financial statements have been restated to include the
results of Weatherford for all periods presented.
The separate results of EVI and Weatherford and the combined company were
as follows (in thousands):
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------------------
1997 1996 1995
----------- ----------- -----------
(in thousands)
<S> <C> <C> <C>
Operating Revenues
EVI ............................ $ 892,264 $ 478,020 $ 271,675
Weatherford .................... 1,083,965 994,468 858,907
Merger adjustments ............. (7,140) (5,218) (4,779)
----------- ----------- -----------
Combined .......................... $ 1,969,089 $ 1,467,270 $ 1,125,803
=========== =========== ===========
Extraordinary Charge, Net of
Taxes
EVI ............................ $ 9,010 $ 731 $ --
Weatherford .................... -- -- --
----------- ----------- -----------
Combined .......................... $ 9,010 $ 731 $ --
=========== =========== ===========
Net Income (Loss)
EVI ............................ $ 74,685 $ 98,166 $ 11,311
Weatherford .................... 112,900 70,073 (10,558)
Merger adjustments ............. 178 (2,417) (312)
----------- ----------- -----------
Combined .......................... $ 187,763 $ 165,822 $ 441
=========== =========== ===========
</TABLE>
Merger adjustments include the elimination of intercompany revenues of $7.1
million, $5.2 million and $4.8 million, respectively, and cost of sales of $5.7
million, $4.2 million and $4.3 million, respectively, for the years ended
December 31, 1997, 1996 and 1995. Merger adjustments for the years ended
December 31, 1997 and 1996
33
<PAGE> 34
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
also include the elimination of expenses of $1.7 million and a gain of $2.7
million, respectively, recorded by Weatherford on the sale of Arrow Completion
Systems, Inc. to EVI in December 1996.
On December 3, 1997, the Company completed the acquisition of all of the
outstanding shares of BMW Monarch (Lloydminster) Ltd. ("BMW Monarch") and BMW
Pump, Inc. ("BMW Pump") for aggregate consideration of approximately $96.8
million in cash, including a final working capital adjustment, and $14.3 million
in assumed debt. BMW Pump is a Canadian-based manufacturer of progressing cavity
pumps and BMW Monarch is a Canadian supplier of progressing cavity pumps as well
as other production related oilfield products.
On December 2, 1997, the Company completed the acquisition of all of the
capital stock of Trico Industries, Inc., ("Trico") in exchange for $105.0
million in cash and the assumption of $8.7 million of debt. Trico is a
Texas-based manufacturer and distributor of sub-surface reciprocating pumps,
sucker rods, accessories and hydraulic lift systems.
On August 25, 1997, the Company completed the acquisition of XLS Holding,
Inc. ("XL") in a transaction accounted for as a pooling of interests. XL
designs, manufactures and markets high performance connectors for marine
applications such as conductors, risers and offshore structural components. In
connection with the acquisition, the Company issued approximately 0.9 million
shares of Common Stock in exchange for all of the equity interests of XL. As the
effect of this business combination is not significant, prior period financial
statements were not restated.
On May 1, 1997, the Company acquired GulfMark International, Inc.
("GulfMark") pursuant to a merger in which approximately 4.4 million shares of
Common Stock were issued to the stockholders of GulfMark. Prior to the merger,
GulfMark effected a spin-off to its stockholders of its marine transportation
services business. The retained assets of GulfMark that were acquired by the
Company in this transaction consisted of approximately 4.4 million shares of
Common Stock, an erosion control company and certain other miscellaneous assets.
The 4.4 million shares of Common Stock acquired are classified as "Treasury
Stock, at Cost" on the accompanying consolidated balance sheet. Because the
number of shares of Common Stock issued in the GulfMark acquisition approximated
the number of shares of Common Stock held by GulfMark prior to the acquisition,
the GulfMark acquisition had no material effect on the outstanding number of
shares of Common Stock or equity of the Company.
On April 14, 1997, the Company acquired TA Industries, Inc. ("TA"), a
manufacturer of premium couplings and premium accessories, for approximately
$44.1 million in cash and $19.7 million of assumed debt.
On May 23, 1996, the Company acquired the business and assets of Nodeco AS,
a Norwegian company, and its wholly-owned subsidiary, Aarbakke AS (collectively,
"Nodeco"). Nodeco designs, manufactures, sells and rents oil and gas well
completion products primarily consisting of liner hanger equipment and related
services, as well as pump packers. The Company paid cash of approximately $14.4
million and issued 0.7 million shares of its Common Stock.
On December 15, 1995, the Company acquired substantially all of the assets
of the natural gas compression business of Energy Industries, Inc. and Zapata
Energy Industries, L.P. (collectively, "Energy Industries") for approximately
$130.0 million in cash. Energy Industries was engaged in the business of
fabricating, selling, installing, renting and servicing natural gas compressor
units used in the oil and gas industry.
On October 5, 1995, the Company completed a merger with Enterra Corporation
("Enterra"), a worldwide provider of specialized services and products to the
oil and gas industry through its oilfield, pipeline and gas compression services
businesses. The Company issued approximately 22.5 million shares of Common Stock
in exchange for all the outstanding shares of Enterra common stock. The merger
was accounted for as a pooling of interests. In connection with the Enterra
merger, the Company recorded acquisition-related costs totaling $59.9 million.
The Company has also effected various other 1997, 1996 and 1995
acquisitions for a total consideration of approximately $82.2 million, $61.6
million and $13.2 million, respectively.
34
<PAGE> 35
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The acquisitions discussed above, with the exception of Weatherford, XL and
Enterra, were accounted for using the purchase method of accounting. The results
of operations of all such acquisitions are included in the Supplemental
Consolidated Statements of Income from their respective dates of acquisition.
The 1997 and 1996 acquisitions are not material individually nor in the
aggregate for each applicable year, therefore pro forma information is not
presented.
3. SUPPLEMENTAL CASH FLOW INFORMATION
For purposes of the Supplemental Consolidated Statements of Cash Flows, the
Company considers all highly liquid investments with original maturities of
three months or less to be cash equivalents. Other current assets at December
31, 1997 and 1996 included cash of approximately $3.4 million and $1.7 million,
respectively, which was restricted as a result of exchange controls in certain
foreign countries or cash collateral requirements for performance bonds, letters
of credit and customs bonds.
Cash paid during the years ended December 31, 1997, 1996, and 1995 for
interest and income taxes (net of refunds) was as follows:
<TABLE>
<CAPTION>
1997 1996 1995
-------- -------- --------
(in thousands)
<S> <C> <C> <C>
Interest paid .......................... $ 43,389 $ 28,068 $ 29,650
Income taxes paid, net of refunds ...... 121,302 21,367 19,270
</TABLE>
During the years ended December 31, 1997, 1996 and 1995 there were noncash
investing activities of $24.4 million, $1.7 million and $3.6 million,
respectively, relating to capital leases.
The following summarizes investing activities relating to acquisitions:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------
1997 1996 1995
--------- --------- ---------
(in thousands)
<S> <C> <C> <C>
Fair value of assets, net of cash acquired ....... $ 212,731 $ 109,565 $ 149,196
Goodwill ......................................... 306,648 95,688 71,852
Total liabilities ................................ (197,902) (74,442) (38,442)
Common Stock issued .............................. -- (50,734) (35,275)
--------- --------- ---------
Cash consideration, net of cash acquired ......... $ 321,477 $ 80,077 $ 147,331
========= ========= =========
</TABLE>
During the year ended December 31, 1997, there were noncash financing
activities of $8.8 million relating to tax benefits received from the exercise
of nonqualified stock options. These benefits were recorded as a reduction of
income taxes payable and an increase to additional paid-in capital.
4. INVENTORIES
Inventories by category are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1997 1996
-------- --------
(in thousands)
<S> <C> <C>
Raw materials, components and supplies ...... $238,349 $167,415
Work in process ............................. 66,402 47,791
Finished goods .............................. 151,060 105,727
-------- --------
$455,811 $320,933
======== ========
</TABLE>
Work in process and finished goods inventories include the cost of
materials, labor and plant overhead.
35
<PAGE> 36
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. PLANT CLOSURES
The Company adopted a plan to close its Bastrop, Texas tool joint
manufacturing facility and to combine its two packer facilities through the
closure of one facility in Arlington, Texas in the fourth quarter of 1996. In
connection with these decisions, the Company incurred a charge of $5.8 million
associated with these closures. Of this charge, $4.3 million related to the tool
joint facility closure and relocation of equipment from this facility and $1.5
million related to the consolidation of its packer facilities and the closure of
one of the plants. The Company incurred $3.8 million in 1996 for costs
associated with these actions during 1996, including costs relating to the
relocation of equipment at its Bastrop facility to other facilities. The Company
also accrued $2.0 million as part of the $5.8 million charge for exit costs that
it expected to be incurred in 1997 relating to the closure of its Bastrop and
Arlington facilities. Such costs included $0.8 million for severance and
termination costs, $0.9 million for the reduction in the carrying value of its
Bastrop facility in light of the intended plan of disposition of the facility
and $0.3 million for the termination of the Arlington lease. Approximately 400
employees were affected by these closures. The closure of both the Bastrop and
Arlington facilities had been substantially completed by June 1997.
6. ACQUISITION-RELATED AND OTHER UNUSUAL CHARGES
During the second quarter of 1995, management of Enterra made certain
strategic decisions which resulted in $28.3 million of unusual charges. Such
charges included a $10.0 million writedown to fair value, based on management's
estimation of net sales price, related to three businesses to be sold. The
remaining second quarter unusual charges of $18.2 million consisted primarily of
asset writedowns related to certain excess facilities, equipment and
inventories, as well as estimated costs in connection with the closure of
certain pipeline businesses and the consolidation of certain oilfield service
administrative and operating facilities. This restructuring resulted in
reduction of approximately 120 employees.
During the fourth quarter of 1995, the Company recorded expenses of $59.9
million related to the merger with Enterra and the financial impact of
management decisions related to the future operations of the combined company.
The acquisition-related costs primarily consisted of transaction costs,
severance and termination agreements with former officers and employees,
facility closure costs primarily to consolidate the oilfield service operations
and administrative functions (reducing approximately 600 employees), and the
reduction in recorded value of certain assets that had diminished future value
in the operations of the combined company.
A summary of the 1995 acquisition-related costs and other unusual charges
follows (in thousands):
<TABLE>
<S> <C>
Enterra merger transaction-related costs ......... $18,800
Severance and termination costs .................. 12,488
Facility closure and consolidation costs ......... 20,943
Writedowns of assets to be sold .................. 12,281
Other asset writedowns ........................... 21,972
Other ............................................ 1,698
-------
$88,182
=======
</TABLE>
7. DISCONTINUED OPERATIONS AND DISPOSITIONS
On November 11, 1996, the Company completed the sale of its contract
drilling segment which was comprised of the Mallard Bay contract drilling
division ("Mallard Division") to Parker, in exchange for cash of approximately
$306.9 million and approximately 3.1 million shares of Parker common stock
valued by the Company at approximately $20.0 million. The Company reported a net
gain on the disposal of the Mallard Division of $66.9 million, net of taxes of
$44.6 million.
36
<PAGE> 37
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The results of operations for the Mallard Division are reflected in the
accompanying Supplemental Consolidated Statements of Income as "Discontinued
Operations, Net of Taxes". Condensed results of the Mallard Division
discontinued operations were as follows:
<TABLE>
<CAPTION>
ELEVEN
MONTHS ENDED YEAR ENDED
NOVEMBER 11, DECEMBER 31,
1996 1995
------------ ------------
(in thousands)
<S> <C> <C>
Revenues ............................. $81,310 $79,912
------- -------
Income before income taxes ........... 11,490 14,029
Provision for income taxes ........... 4,022 5,320
------- -------
Net income ........................... $ 7,468 $ 8,709
======= =======
</TABLE>
During 1997, 1996 and 1995, the Company also sold certain non-core
businesses. Such businesses included CRC-Evans Pipeline International, Inc.,
Total Engineering Services Team, Inc. and several others. Cash proceeds from
these transactions totaled $68.8 million, $19.2 million and $9.5 million in
1997, 1996 and 1995, respectively, and were primarily used to repay bank debt.
8. DEBT
SHORT-TERM BORROWINGS AND REVOLVING CREDIT FACILITIES
<TABLE>
<CAPTION>
DECEMBER 31,
1997 1996
-------- --------
(in thousands)
<S> <C> <C>
Revolving credit facilities ..................................... $24,243 $ 2,924
Other ........................................................... -- 1,527
------- --------
$24,243 $ 4,451
======= ========
Weighted average interest rate on short-term borrowings
outstanding during the year ................................... 6.57% 6.98%
Average borrowings during the year .............................. $39,674 $ 69,378
Maximum borrowings outstanding during the year .................. $47,688 $120,000
</TABLE>
In June 1996, the Company entered into a $120.0 million working capital
facility and terminated the Company's prior U.S. working capital facility which
resulted in an extraordinary charge of approximately $0.7 million, net of taxes
of $0.4 million. Borrowings under this facility accrued interest at a variable
rate based on prime or LIBOR, 8.75% at December 31, 1997, and are due on demand.
At December 31, 1997, no debt was outstanding on this facility, however,
approximately $5.5 million had been used to support outstanding letters of
credit.
In October 1997, the Company amended its $200.0 million revolving credit
facility, reducing interest rates and fees and improving other terms and
conditions. Amounts outstanding under this facility accrue interest at a
variable rate, ranging from 0.25% to 0.625% above a specified Eurodollar rate,
depending on the credit ratings assigned to the Company's 7 1/4% Senior Notes.
The facility contains customary affirmative and negative covenants relating to
working capital, earnings and net worth. At December 31, 1997, no debt was
outstanding on this facility.
The Company also has various credit facilities available only for stand-by
letters of credit and bid and performance bonds, pursuant to which funds are
available to the Company to secure performance obligations and certain
retrospective premium adjustments under insurance policies. The Company had a
total of $13.1 million of such letters of credit and bid and performance bonds
outstanding at December 31, 1997.
In August 1997, the Company entered into a Canadian line of credit
agreement which provides for up to $31.5 million ($45.0 million Canadian). The
facility contains customary affirmative and negative covenants relating to
working capital, earnings and net worth. Borrowings accrued interest at a
variable rate, approximately
37
<PAGE> 38
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5.46% at December 31, 1997 and were due on demand. At December 31, 1997, the
Company had $24.2 million outstanding under this facility.
In February 1998, the Company entered into a new $250.0 million working
capital facility, consisting of a $200.0 million U.S. and a $50.0 million
Canadian credit facilities, and terminated both the $120.0 million U.S. and
$31.5 million Canadian working capital facilities.
In May 1998, the Company amended the $250.0 million revolving credit
facility and terminated its $200.0 million revolving credit facility (See Note
15).
LONG-TERM DEBT
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1997 1996
-------- --------
(in thousands)
<S> <C> <C>
Debentures with an effective interest rate of 5%, due 2027 ................ $402,500 $ --
======== ========
Senior Notes with an effective interest rate of 7.25% , due 2006 .......... $200,000 $200,000
Senior Notes with an effective interest rate of 10.25%, due 2004 .......... 20 120,000
Bank term loan ............................................................ -- 95,950
Industrial Revenue Bonds with variable interest rates, 3.85%
and 4.46% at December 31, 1997, due 2002 ................................ 10,840 2,810
Foreign bank debt, denominated in foreign currencies ...................... 8,152 11,231
Capital lease obligations under various agreements ........................ 28,376 9,256
Other ..................................................................... 18,112 6,859
-------- --------
265,500 446,106
Less: amounts due in one year ............................................. 13,178 28,130
-------- --------
Long-term debt ............................................................ $252,322 $417,976
======== ========
</TABLE>
The following is a summary of scheduled long-term debt maturities by year
(in thousands):
<TABLE>
<S> <C>
1998 ............................................................ $ 13,178
1999 ............................................................ 15,488
2000 ............................................................ 8,432
2001 ............................................................ 5,322
2002 ............................................................ 13,036
Thereafter ...................................................... 612,544
--------
$668,000
========
</TABLE>
In November 1997, the Company completed a private placement of $402.5
million principal amount of 5% Convertible Subordinated Preferred Equivalent
Debentures (the "Debentures"). The net proceeds from the Debentures were $390.9
million. The Debentures are convertible at a price of $80 per share of Common
Stock. The Debentures are redeemable by the Company at any time on or after
November 4, 2000, at redemption prices described therein, and are subordinated
in right of payment of principal and interest to the prior payment in full of
certain existing and future senior indebtedness of the Company. The Company also
has the right to defer payments of interest on the Debentures by extending the
quarterly interest payment period on the Debentures for up to 20 consecutive
quarters at anytime when the Company is not in default in the payment of
interest. As evidenced by market transactions, the estimated fair value of the
Debentures was $368.8 million as of December 31, 1997.
The Company has outstanding $200.0 million of 7 1/4% Senior Notes due May
15, 2006 (the "7 1/4% Senior Notes). The 7 1/4% Senior Notes are unsecured
obligations of the Company. Interest on the 7 1/4% Senior Notes is payable
semi-annually on May 15 and November 15 of each year. Based on the borrowing
rates available to the Company, the fair value of the 7 1/4% Senior Notes
approximates the carrying value at December 31, 1997 and 1996.
38
<PAGE> 39
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
In December 1997, the Company completed a cash tender offer and consent
solicitation (the "Tender Offer") relating to the Company's outstanding $120.0
million 10 1/4% Senior Notes due 2004 (the "Senior Notes"). An aggregate of
$119.98 million principal amount of the Senior Notes were validly tendered by
the Company pursuant to the Tender Offer. The prepayment of the Senior Notes
resulted in an extraordinary charge, net of taxes of $5.6 million, of $9.0
million, or $0.09 per basic share, for the year ended December 31, 1997. The
extraordinary charge consists of prepayment fees, other professional fees and
the write off of unamortized debt issuance costs. At December 31, 1996, the
estimated fair value of the Senior Notes was $126.0 million.
In connection with the Company's acquisition of Enterra on October 5, 1995,
and Trico on December 2, 1997, the Company assumed $3.5 million and $8.7 million
of Variable Rate Demand Industrial Development Revenue Refunding Bonds (the
"Bonds"), respectively. Contract terms require principal and interest payments
to maturity, occurring in December 2002. In connection with the Bonds, the
Company has letters of credit of $11.7 million.
Upon the completion of the expansion of the Veracruz, Mexico tool joint
manufacturing facility, the Company recorded the obligation of $16.3 million
under its lease to reflect the terms thereof.
9. STOCKHOLDERS' EQUITY
AUTHORIZED SHARES
In May 1998, the Company's Restated Certificate of Incorporation was
amended and restated to increase the authorized number of shares of Common Stock
from 80.0 million to 250.0 million.
PREFERRED STOCK
The Company is authorized to issue up to 3.0 million shares of $1.00 par
value preferred stock. As of December 31, 1997, none had been issued.
STOCK SPLIT
At the Company's annual stockholders meeting on May 6, 1997, the
stockholders approved a two-for-one split of the Common Stock, through a stock
dividend and related amendment to the Company's Restated Certificate of
Incorporation that increased the number of authorized shares of Common Stock
from 40.0 million shares to 80.0 million shares. As a result of the stock split,
all stock and per share data contained herein have been restated to reflect the
effect of the two-for-one stock split.
PUBLIC STOCK OFFERINGS
On July 25, 1996, the Company completed a public offering of 6.9 million
shares of Common Stock. The net proceeds of this offering were approximately
$100.9 million. The Company also completed a public offering early in the fourth
quarter of 1995, of 6.9 million shares of Common Stock. The net proceeds of that
offering were approximately $72.6 million.
STOCK REPURCHASE PLAN
In December 1997, the Weatherford Board of Directors instituted a stock
repurchase program under which up to $100.0 million of Weatherford common stock
could be purchased in open market transactions or in privately negotiated
transactions. Pursuant to this program, Weatherford purchased approximately 0.3
million shares of its common stock in December 1997. During 1998, Weatherford
purchased approximately 1.0 million shares of its common stock. In connection
with the Weatherford Merger, the stock repurchase program has been discontinued.
39
<PAGE> 40
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
10. STOCK-BASED COMPENSATION
STOCK OPTION PLANS
In May 1981, the Company's stockholders approved the Company's Employee
Stock Option Plan ("Option Plan"), a non-qualified stock option plan. The plan
expired in May 1991.
The Company has a number of stock option plans pursuant to which officers
and other key employees may be granted options to purchase shares of Common
Stock at fair market value on the date of grant. The Company maintains a
Non-Employee Director Stock Option Plan ("Director Plan"), a non-qualified stock
option plan. Under the Director Plan, options to purchase up to 1.0 million
shares may be granted to non-employee directors of the Company. Options to
purchase 10,000 shares of Common Stock are automatically granted to each
non-employee director on the date of their initial election and their
reelection. At December 31, 1997, approximately 0.6 million were available for
granting of such options. Weatherford had a similar plan, pursuant to which the
non-employee directors of Weatherford received options exercisable six months
after the date of grant.
The Company also has in effect a 1992 Employee Stock Option Plan ("ESO
Plan"). Under the ESO Plan, options to purchase up to an aggregate of 2.0
million shares of Common Stock may be granted to officers and key employees of
the Company (including directors who are also key employees) and its
subsidiaries. At December 31, 1997, approximately 0.3 million were available for
granting of such options.
Stock options vest after one to five years and expire after ten years from
the date of grant. Information about the above stock option plans, including
predecessor plans, for the three years ended December 31, 1997, is set forth
below:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
NUMBER RANGE OF EXERCISE
OF EXERCISE PRICE
SHARES PRICES PER SHARE
--------- ------------------- ---------
<S> <C> <C> <C> <C>
Options outstanding, December 31, 1994................ 2,265,653 $ 1.35 - $ 23.47 $ 10.74
Granted ........................................ 1,215,457 6.98 - 24.70 17.46
Exercised........................................ (419,031) 1.35 - 21.93 12.23
Terminated....................................... (403,184) 11.16 - 20.24 16.18
---------
Options outstanding, December 31, 1995................ 2,658,895 4.69 - 24.70 12.39
Granted ........................................ 882,218 13.07 - 33.73 19.19
Exercised........................................ (597,121) 5.75 - 21.92 12.41
Terminated....................................... (358,128) 17.58 - 29.98 20.83
---------
Options outstanding, December 31, 1996................ 2,585,864 4.69 - 33.73 13.61
Granted ........................................ 741,613 27.81 - 32.19 29.05
Exercised........................................ (903,898) 4.69 - 33.73 11.36
Terminated....................................... (47,908) 11.49 - 29.98 24.72
--------- --------
Options outstanding, December 31, 1997................ 2,375,671 4.69 - 32.19 $ 19.08
========= ========
Options exercisable as of December 31, 1997........... 948,906 4.69 - 14.63 $ 13.28
========= ========
</TABLE>
The 2.3 million options outstanding at December 31, 1997, have a range of
weighted average remaining contractual lives of 5.1 to 7.6 years. The 0.9
million options exercisable at December 31, 1997, have a range of weighted
average remaining contractual lives of 4.0 to 7.5 years. The range of weighted
average fair value of the options granted in 1997, 1996 and 1995 are from $12.96
to $17.49 and from $8.89 to $14.46 and from $5.24 to $8.53, respectively.
In addition to the options in the above table, the Company granted options
in 1995 and prior years to former directors, employees of acquired companies and
to a former officer of Weatherford covered by separate agreements and not
covered in an option plan. At December 31, 1997, approximately 0.1 million
shares were outstanding and exercisable at a weighted average exercise price of
$24.46. The Company also has a stock bonus plan (the "Bonus Plan"), whereby
officers and certain key employees may be granted shares of Common Stock. At
December 31,
40
<PAGE> 41
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1997, substantially all options were granted, exercised or terminated. During
1997 and 1996, the Company recognized compensation expense with respect to the
Bonus Plan of $0.1 million and $0.7 million, respectively. The Company granted
no shares under the Bonus Plan in 1995.
Prior to 1992, the Company granted stock appreciation rights ("SARs") in
connection with options. At December 31, 1997, approximately 16,000 SARs were
outstanding at an average price of $10.41. The SAR Plan was amended in 1992 to
provide that no additional grants would be made. During 1997, 1996 and 1995, the
Company recognized compensation expense of approximately $0.7 million, $0.2
million and $0.1 million, respectively.
PRO FORMA COMPENSATION EXPENSE
Pro forma information regarding net income and earnings per share is
required by SFAS No. 123 and has been determined as if the Company had accounted
for its stock options under the fair value method as provided therein. The fair
value of each option grant is estimated on the date of grant using the
Black-Scholes option pricing model with the following weighted-average
assumptions: risk-free interest rates of 5.1% to 6.9%; expected lives of four to
seven years; expected volatility of 42% to 52% and no expected dividends.
For purposes of pro forma disclosures, the estimated fair value of the
options is amortized to expense over the options' vesting period. Set forth
below is a summary of the Company's net income and earnings per share as
reported and pro forma as if the fair value-based method of accounting defined
in SFAS No. 123 had been applied. The pro forma information is not meant to be
representative of the effects on reported net income for future years, because
as provided by SFAS No. 123, only the effects of awards granted after January 1,
1995 are considered in the pro forma calculation.
<TABLE>
<CAPTION>
1997 1996 1995
---------------------- ------------------------ -----------------------
AS AS AS
REPORTED PRO FORMA REPORTED PRO FORMA REPORTED PRO FORMA
---------- --------- ---------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
Net income (in thousands)...... $ 187,763 $ 183,281 $ 165,822 $ 162,933 $ 441 $ (1,259)
Basic earnings per share....... 1.95 1.91 1.85 1.81 0.01 (0.02)
Diluted earnings per share..... 1.92 1.88 1.82 1.79 0.01 (0.02)
</TABLE>
RESTRICTED STOCK PLANS
Weatherford had a restricted stock plan for certain officers of Weatherford
(the "Restricted Plan") and a restricted stock plan for non-employee directors
of Weatherford (the "Director Restricted Plan"; collectively, the "Restricted
Stock Plans"), pursuant to which shares of Common Stock may be granted. Shares
granted under the Restricted Stock Plans are subject to certain restrictions on
ownership and transferability when granted. Restrictions applicable to shares
granted under the Restricted Plan lapse in part based on continued employment
and in part based on Company performance. Restrictions applicable to shares
granted under the Director Restricted Plan were removed in connection with the
Weatherford Merger and the Plan terminated. The compensation related to the
restricted stock grants is deferred and amortized to expense on a straight-line
basis over the period of time the restrictions are in place, and the unamortized
portion is classified as a reduction of paid-in capital in the accompanying
Supplemental Consolidated Balance Sheets.
41
<PAGE> 42
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The following table provides a summary of activity related to the Restricted
Stock Plans:
<TABLE>
<CAPTION>
NON-EMPLOYEE
EMPLOYEE DIRECTOR
SHARES SHARES
-------- --------
<S> <C> <C>
Restricted shares outstanding, December 31, 1994 ................ 51,140 --
Granted .................................................... 28,025 --
Terminated ................................................. (44,833) --
--------
Restricted shares outstanding, December 31, 1995 ................ 34,332 --
Granted .................................................... 29,450 --
Terminated ................................................. (35,848) --
--------
Restricted shares outstanding, December 31, 1996 ................ 27,934 --
Granted .................................................... 86,489 10,296
Terminated ................................................. (25,679) --
-------- --------
Restricted shares outstanding, December 31, 1997 ................ 88,744 10,296
======== ========
Shares available for future grant as of December 31, 1997 ....... 36,476 227,204
======== ========
Compensation Expense (in thousands):
1997 $ 1,146 $ 120
1996 418 --
1995 392 --
Deferred Compensation at December 31 (in thousands):
1997 $ 3,095 $ 352
1996 1,445 --
</TABLE>
EMPLOYEE STOCK PURCHASE PLAN
The Company has an employee stock purchase plan (the "ESPP"), pursuant to
which eligible employees can purchase shares of Common Stock through payroll
deductions. The Company matches a specified percentage of the employee
contributions made to the ESPP. Company matching contributions totaled
approximately $162,000, $88,000 and $48,000 during 1997, 1996 and 1995,
respectively. There were approximately 51,015 shares available for future
purchases under the ESPP at December 31, 1997.
EXECUTIVE DEFERRED COMPENSATION PLAN
In May 1992, the Company's stockholders approved the Executive Deferred
Compensation Stock Ownership Plan (the "EDC Plan"). Under the EDC Plan, a
portion of the compensation for certain key employees of the Company and its
subsidiaries, including officers and employee directors, can be deferred for
payment after retirement or termination of employment.
The Company has established a grantor trust to fund the benefits under the
EDC Plan. The funds provided to such trust are invested by a trustee independent
of the Company primarily in Common Stock of the Company which is purchased by
the trustee on the open market. The assets of the trust are available to satisfy
the claims of all general creditors of the Company in the event of bankruptcy or
insolvency. Accordingly, the Common Stock held by the trust has been
consolidated for accounting purposes and is included in the accompanying
Supplemental Consolidated Statements of Stockholders' Equity as "Treasury Stock,
at Cost" and reflected as such on the Supplemental Consolidated Balance Sheets.
42
<PAGE> 43
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
11. INCOME TAXES
The components of income (loss) before income taxes were as follows:
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
(in thousands)
<S> <C> <C> <C>
Domestic .................................... $ 202,297 $ 71,354 $ (42,029)
Foreign ..................................... 102,664 61,320 29,054
--------- --------- ---------
$ 304,961 $ 132,674 $ (12,975)
========= ========= =========
</TABLE>
The Company's income tax provision (benefit) consisted of the following:
<TABLE>
<CAPTION>
1997 1996 1995
-------- -------- --------
(in thousands)
<S> <C> <C> <C>
Current
U.S. federal and state income taxes ....... $ 39,623 $ 14,801 $ (2,791)
Foreign ................................... 33,106 21,574 16,756
-------- -------- --------
Total Current ........................... $ 72,729 $ 36,375 $ 13,965
-------- -------- --------
Deferred
U.S. federal .............................. $ 23,405 $ 2,410 $(23,836)
Foreign ................................... 12,054 1,728 5,164
-------- -------- --------
Total Deferred .......................... $ 35,459 $ 4,138 $(18,672)
-------- -------- --------
$108,188 $ 40,513 $ (4,707)
======== ======== ========
</TABLE>
Total income tax provision (benefit) was recorded as follows:
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
(in thousands)
<S> <C> <C> <C>
Income (loss) from continuing operations .... $ 108,188 $ 40,513 $ (4,707)
Discontinued operations ..................... -- 4,022 5,320
Gain on disposal of discontinued operations . -- 44,600 --
Extraordinary charge ........................ (5,640) (394) --
--------- --------- ---------
$ 102,548 $ 88,741 $ 613
========= ========= =========
</TABLE>
The difference between the tax provision at the statutory federal income
tax rate and the tax provision attributable to income from continuing operations
before income taxes for the three years ended December 31, 1997 is analyzed
below:
<TABLE>
<CAPTION>
1997 1996 1995
-------- -------- --------
<S> <C> <C> <C>
Statutory federal income tax rate ................................. 35.0% 35.0% 35.0%
Effect of state income tax (net) and Alternative Minimum Tax ...... 0.3 3.1 (8.1)
Effect of non-deductible expenses ................................. 1.4 1.6 (41.8)
Utilization of net operating loss carryforward .................... (2.7) (7.3) 128.6
Effect of foreign income tax, net ................................. 2.7 -- (63.3)
Foreign losses benefited .......................................... -- (0.4) 1.2
Foreign Sales Corporation benefit ................................. (0.3) 0.2 0.6
Research and development credit benefit ........................... -- -- 1.5
Benefit of tax dispute settlement ................................. -- (2.9) --
Other ............................................................. (0.9) 1.2 (17.4)
-------- -------- --------
35.5% 30.5% 36.3%
======== ======== ========
</TABLE>
Deferred tax assets and liabilities are recognized for the estimated future
tax effects of temporary differences between the tax basis of an asset or
liability and its reported amount in the financial statements. The measurement
of deferred tax assets and liabilities is based on enacted tax laws and rates
currently in effect in each of the jurisdictions in which the Company has
operations.
43
<PAGE> 44
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The change in the valuation allowance in 1997 and 1996 primarily relates to
the utilization of U.S. net operating losses ("NOL") and tax credit
carryforwards and management's assessment that future taxable income will be
sufficient to enable the Company to utilize remaining NOL and tax credit
carryforwards.
Deferred tax assets and liabilities are classified as current or noncurrent
according to the classification of the related asset or liability for financial
reporting. The components of the net deferred tax asset (liability) were as
follows:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
1997 1996
-------- --------
(in thousands)
<S> <C> <C>
Deferred tax assets:
Domestic and foreign operating losses ........................ $ 15,709 $ 32,495
Accrued liabilities and reserves ............................. 44,122 56,402
Foreign taxes on unremitted foreign earnings ................. 16,985 7,443
Tax benefit transfer leases acquired ......................... 3,991 4,807
Other differences between financial and tax basis ............ 1,126 --
Valuation allowance .......................................... (4,716) (12,854)
-------- --------
Total deferred tax assets ...................................... $ 77,217 $ 88,293
-------- --------
Deferred tax liabilities:
Property and equipment ....................................... $(56,747) $(40,391)
Unremitted foreign earnings .................................. (23,517) (7,971)
Differences between financial and tax basis of inventory ..... (12,010) (11,191)
Other differences between financial and tax basis ............ (4,593) (21,508)
-------- --------
Total deferred tax liability ................................... (96,867) (81,061)
-------- --------
Net deferred tax asset (liability) ............................. $(19,650) $ 7,232
======== ========
</TABLE>
At December 31, 1997, the Company had $10.5 million of U.S. net operating
losses which were generated by certain subsidiaries prior to their acquisition.
The use of these pre-acquisition operating losses is subject to limitations
imposed by the Internal Revenue Code and is also restricted to the taxable
income of the subsidiaries generating the losses. These U.S. carryforwards, if
not utilized will expire between 1999 and 2009.
On October 11, 1996, the Company entered into a $3.9 million tax settlement
plus accrued interest of $2.5 million with the United States Internal Revenue
Service ("I.R.S.") relating to a dispute regarding the tax impact to the Company
upon the dissolution of an oil and gas joint venture in 1990. The tax liability
with respect to the dissolution had been previously provided for as a deferred
tax liability in the Company's consolidated financial statements. This
settlement resulted in the Company recognizing a $4.0 million tax benefit in
1996 due to the elimination of certain previously accrued deferred taxes that
will no longer be required to be paid as a result of this settlement.
12. RETIREMENT AND EMPLOYEE BENEFIT PLANS
The Company has defined benefit pension plans covering certain U.S.
employees and international employees. Plan benefits are generally based on
years of service and average compensation levels. The Company's funding policy
is to contribute, at a minimum, the annual amount required under applicable
governmental regulations. With respect to certain international plans, the
Company has purchased irrevocable annuity contracts to settle certain benefit
obligations. Plan assets are invested primarily in equity and fixed income
mutual funds.
Pension expense related to the Company's defined benefit pension plans
included the following components:
<TABLE>
<CAPTION>
1997 1996 1995
------- ------- -------
(in thousands)
<S> <C> <C> <C>
Service cost--benefits earned during the period ................. $ 961 $ 1,248 $ 692
Interest cost on projected benefit obligation ................... 386 427 365
Actual return on plan assets .................................... (391) (466) (354)
Net amortization and deferral ................................... 48 213 115
------- ------- -------
$ 1,004 $ 1,422 $ 818
======= ======= =======
</TABLE>
44
<PAGE> 45
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The following table sets forth the funded status of the Company's defined
benefit pension plans and the assumptions used in computing such information:
<TABLE>
<CAPTION>
U.S. PLANS NON-U.S. PLANS
--------------------- ---------------------
1997 1996 1997 1996
------- ------- ------- -------
(in thousands, except percentages)
<S> <C> <C> <C> <C>
Actuarial present value of benefit obligations:
Vested benefit obligation ............................. $ 1,356 $ 1,257 $ 3,053 $ 2,933
======= ======= ======= =======
Accumulated benefit obligation ........................ $ 1,599 $ 1,902 $ 3,531 $ 3,388
======= ======= ======= =======
Projected benefit obligation .......................... $ 1,599 $ 2,026 $ 4,261 $ 4,192
Plan assets at fair value ............................. 1,487 1,383 2,553 2,194
------- ------- ------- -------
Projected benefit obligation in excess of
plan assets ......................................... (112) (643) (1,708) (1,998)
Unrecognized prior service cost ....................... (620) (637) 124 158
Unrecognized net (gain) loss .......................... 457 592 (758) (775)
Unrecognized transition obligation .................... -- -- 81 125
------- ------- ------- -------
Unfunded accrued pension cost ......................... (275) (688) (2,261) (2,490)
Adjustment for minimum liability ...................... -- (9) -- --
------- ------- ------- -------
Pension liability ..................................... $ (275) $ (697) $(2,261) $(2,490)
======= ======= ======= =======
Assumed discount rates ................................ 7.25% 7.25% 6.0%-8.0% 6.5%-8.0%
Assumed rates of increase in compensation
levels .............................................. 4.0% 4.0% 3.7%-5.0% 3.7%-5.0%
Assumed expected long-term rate of return
on plan assets ...................................... 8.0% 8.0% 8.0% 8.0%
</TABLE>
The Company also has defined contribution plans covering certain of its
employees. Expense related to these plans totaled $3.6 million, $3.7 million and
$4.7 million in 1997, 1996 and 1995, respectively.
13. DISPUTES, LITIGATION AND CONTINGENCIES
LITIGATION AND OTHER DISPUTES
The Company is aware of various disputes and potential claims and is a
party in various litigation involving claims against the Company, some of which
are covered by insurance. Based on facts currently known, the Company believes
that the ultimate liability, if any, which may result from known claims,
disputes and pending litigation would not have a material adverse effect on the
Company's consolidated financial position or its results of operations with or
without consideration of insurance coverage.
INSURANCE
The Company is partially self-insured for employee health insurance claims
and for workers' compensation claims for certain of its employees. Although the
Company believes that adequate reserves have been provided for expected
liabilities arising from its self-insured obligations, it is reasonably possible
that management's estimates of these liabilities will change over the near term
as circumstances develop.
14. COMMITMENTS
The Company is committed under various noncancelable operating leases which
primarily relate to office space and equipment. Total lease expense incurred
under noncancelable operating leases was approximately $27.9 million, $26.4
million and $22.3 million for the years ended December 31, 1997, 1996, and 1995,
respectively.
45
<PAGE> 46
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Future minimum rental commitments under these noncancelable operating
leases are as follows (in thousands):
<TABLE>
<S> <C>
1998........................................................ $ 19,260
1999........................................................ 18,543
2000........................................................ 10,595
2001........................................................ 7,707
2002........................................................ 5,829
Thereafter.................................................. 37,666
----------
$ 99,600
==========
</TABLE>
In January 1996, the Company entered into a long-term manufacturing and
sales agreement with Oil Country Tubular, Ltd. ("OCTL") pursuant to which OCTL
manufactures drill pipe and premium tubulars for the Company on an exclusive
basis at OCTL's plant in India.
15. RELATED PARTY TRANSACTIONS
The Company incurred legal fees of $2.7 million, $2.2 million and $1.2
million during 1997, 1996 and 1995, respectively, with a law firm in which a
director of the Company is a partner.
In 1997, the Company paid Lehman Brothers Inc., an affiliate of Lehman
Brothers Holdings Inc., a major stockholder of the Company, approximately $2.0
million for dealer management fees associated with the Tender Offer of the
Senior Notes and the Debenture offering. The Company incurred fees of
approximately $6.7 million associated with the Company's public offering and the
disposition of the Mallard Division in 1996, and underwriting fees of $4.0
million associated with its public offering in 1995. The fee arrangements
associated with these transactions were on terms standard in the industry.
16. SUBSEQUENT EVENTS
On December 12, 1997, the Company entered into an agreement to acquire
Christiana Companies, Inc. ("Christiana") pursuant to a tax free merger (the
"Christiana Merger"), in which approximately 3.9 million shares of the Company's
Common Stock will be issued to the stockholders of Christiana. Prior to the
Christiana Merger, Christiana will sell two-thirds of its interest (the
"Logistic Sale") in Total Logistic Control, LLC ("Logistic"), to C2, Inc. for
consideration of approximately $10.7 million. Following the Logistic Sale, the
remaining assets of Christiana will consist of (i) approximately 3.9 million
shares of the Company's Common Stock, (ii) a one-third interest in Logistic,
(iii) cash and other assets with a book value of approximately $10.0 million and
(iv) a contingent cash payment of up to $10.0 million payable no earlier than
five years after the effective date of the Christiana Merger to the extent such
funds are not required to satisfy contingent claims against Christiana. Because
the number of shares of Common Stock to be issued in the acquisition approximate
the number of shares to be acquired, the Christiana Merger will have no material
impact on the outstanding number of shares or equity of the Company.
The Christiana Merger is subject to various conditions, including approval
by the stockholders of the Company and Christiana and the receipt of 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 Christiana Merger will close, the Company currently
anticipates that the acquisition will be consummated shortly after receipt of
such regulatory approvals and the approval of the Christiana Merger by the
stockholders of the Company and Christiana, and the approval of the Logistic
Sale by the stockholders of Christiana.
On January 12, 1998, the Company completed the acquisition of the Houston
Well Screen group of companies ("HWS") from Van der Horst Limited, a Singapore
company, for a net purchase price of approximately $27.6 million in cash. The
HWS acquisition includes the purchase of Van der Horst USA Inc., which is the
holding company of Houston Well Screen Company and of Houston Well Screen Asia
Pte Ltd. which has operations in Singapore and Indonesia. HWS makes wedge-wire
screen products for use in oil and gas production and other applications.
46
<PAGE> 47
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
On January 15, 1998, the Company completed the acquisition of Taro
Industries Limited ("Taro"), an Alberta corporation in which approximately 0.8
million shares of the Company's Common Stock have been issued to the
shareholders of Taro in exchange for their shares of Taro stock. Taro is a
Canadian provider of well automation, gas compression, and drilling equipment
distribution and will be integrated into the Company's production equipment
segment.
On February 19, 1998, the Company completed the acquisition of Ampscot
Equipment Ltd., an Alberta corporation ("Ampscot") for approximately $57.1
million in cash. Ampscot is a Canadian-based manufacturer of pumping units.
In February 1998, the Company entered into a new credit agreement which
provides for borrowings of up to an aggregate of $250.0 million, consisting of a
$200.0 million U.S. credit facility and a $50.0 million Canadian credit facility
and terminated both the $120.0 million and $31.5 million Canadian working
capital facilities.
In May 1998, the Company amended its $250.0 million revolving credit
facility and terminated its $200.0 million revolving credit facility. Amounts
outstanding under the amended facility accrue interest at a variable rate based
on either prime or LIBOR and are secured by pledges of various stock of the
Company's domestic and foreign subsidiaries. In addition, certain of the
Company's domestic subsidiaries are guarantors of the facility. A commitment fee
ranging from 0.09% to 0.20% per annum, depending on the credit ratings assigned
to the 7 1/4% Senior Notes, is payable quarterly on the unused portion of the
facility. The facility contains customary affirmative and negative covenants
relating to working capital, earnings and net worth.
In the second quarter of 1998, the Company estimates that it will report
approximately $60.0 million, net of taxes, in unusual charges associated with
the Merger. Such costs primarily consists of transactions costs, severance and
termination payments to former officers and employees, facility closure costs
and costs associated with the closure of excess and duplicative distribution
and service locations primarily due to integrating EVI's businesses with
Weatherford's businesses and the impairment of various assets as a result of
the combination of operations and rationalization of product lines and the
elimination of certain products, services and operations as a result of the
changes in the operations of the Company following the Merger.
47
<PAGE> 48
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
17. SEGMENT INFORMATION
BUSINESS SEGMENTS
Financial information by industry segment for each of the three years ended
December 31, 1997, is summarized below. Identifiable assets exclude net assets
relating to the Mallard Division of approximately $95.5 million at December 31,
1995. Corporate assets principally include cash and cash equivalents and tax
assets and liabilities.
<TABLE>
<CAPTION>
COMPLETION ARTIFICIAL
AND OILFIELD DRILLING LIFT AND
SERVICES PRODUCTS COMPRESSION CORPORATE TOTAL
---------- ---------- ----------- ---------- ----------
<S> <C> <C> <C> <C> <C>
1997 (in thousands)
Sales to unaffiliated customers ...... $ 929,001 $ 611,715 $ 428,373 $ -- $1,969,089
Operating income (loss) .............. 215,412 120,830 37,566 (37,816) 335,992
Identifiable assets .................. 919,198 674,388 1,064,612 79,712 2,737,910
Depreciation and amortization ........ 84,882 23,610 30,591 3,848 142,931
Capital expenditures and other
acquisitions of property,
plant, and equipment ............. 124,402 107,071 90,351 2,970 324,794
1996
Sales to unaffiliated customers ...... $ 824,639 $ 337,312 $ 305,319 $ -- $1,467,270
Operating income (loss) .............. 146,332 42,573 19,500 (39,304) 169,101
Identifiable assets .................. 952,445 386,245 614,584 290,359 2,243,633
Depreciation and amortization ........ 80,582 11,046 29,419 783 121,830
Capital expenditures and other
acquisitions of property,
plant, and equipment ............. 121,024 62,008 55,503 68 238,603
1995
Sales to unaffiliated customers ...... $ 759,309 $ 149,462 $ 217,032 $ -- $1,125,803
Acquisition-related costs and
other unusual charges .............. 59,171 -- -- 29,011 88,182
Operating income (loss) .............. 5,116 14,425 16,276 (23,697) 12,120
Identifiable assets .................. 916,831 218,201 406,953 73,092 1,615,077
Depreciation and amortization ........ 79,381 7,170 19,690 1,819 108,060
Capital expenditures and other
acquisitions of property,
plant, and equipment ............. 93,863 25,422 24,559 160 144,004
</TABLE>
During 1996, the Company incurred a charge of $5.8 million associated with
plant closures. Of this charge, $4.3 million related to the closure of a tool
joint facility within the drilling products segment and $1.5 million related to
the closure of a packer facility within the completion and oilfield services
segment. Operating income for 1996 for the drilling products and completion and
oilfield services segments include accruals included within the $5.8 million
charge of $1.5 million and $0.5 million, respectively, for such plant closures.
48
<PAGE> 49
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
MAJOR CUSTOMERS AND CREDIT RISK
Substantially all of the Company's customers are engaged in the energy
industry. This concentration of customers may impact the Company's overall
exposure to credit risk, either positively or negatively, in that customers may
be similarly affected by changes in economic and industry conditions. The
Company performs ongoing credit evaluations of its customers and does not
generally require collateral in support of its trade receivables. The Company
maintains reserves for potential credit losses, and actual losses have
historically been within the Company's expectations. Foreign sales also present
various risks, including risks of war, civil disturbances and governmental
activities that may limit or disrupt markets, restrict the movement of funds or
result in the deprivation of contract rights or the taking of property without
fair consideration. Most of the Company's foreign sales, however, are to large
international companies or are secured by letter of credit or similar
arrangements.
In 1997, 1996 and 1995, there was no individual customer who accounted for
10% of consolidated revenues.
49
<PAGE> 50
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
FOREIGN OPERATIONS AND EXPORT SALES
The Company's equipment and services are used in approximately 84 countries
by U.S. customers operating abroad and by foreign customers. Sales of equipment
and services outside the United States accounted for 52%, 53% and 52% of total
revenues in 1997, 1996 and 1995, respectively, based upon the ultimate
destination in which equipment or services were sold, shipped or provided to the
customer by the Company.
Financial information by geographic segment for each of the three years
ended December 31, 1997, is summarized below. Intergeographic revenues are
accounted for at prices that approximate arm's length market prices. Certain
prior year balances have been restated to conform with current year
presentation.
<TABLE>
<CAPTION>
FOREIGN
------------------------------------------------------
UNITED LATIN
STATES CANADA AMERICA EUROPE AFRICA OTHER ELIMINATIONS TOTAL
----------- --------- --------- --------- --------- -------- ------------ ----------
(in thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1997
Operating revenues from
unaffiliated customers..... $ 1,205,633 $ 257,478 $ 118,762 $ 149,223 $ 70,037 $ 167,956 $ -- $1,969,089
Transfers between
geographic areas........... 46,868 11,664 52,092 19,917 5,601 1,901 (138,043) --
----------- --------- --------- --------- --------- -------- ---------- ----------
Total revenues............... 1,252,501 269,142 170,854 169,140 75,638 169,857 (138,043) 1,969,089
Operating income ............ 237,919 38,298 9,844 31,123 18,240 13,446 (12,878) 335,992
Identifiable assets.......... 1,529,432 410,475 303,118 188,133 63,677 174,835 68,240 2,737,910
Export sales of U.S.
companies.................. -- 26,293 38,280 28,414 16,229 69,923 -- 179,139
1996
Operating revenues from
unaffiliated customers..... $ 928,956 $ 143,610 $ 74,109 $ 148,094 $ 72,457 $ 100,044 $ -- $1,467,270
Transfers between.
geographic areas........... 29,856 566 12,505 9,848 5,452 1,860 (60,087) --
----------- --------- --------- --------- --------- -------- ---------- ----------
Total revenues............... 958,812 144,176 86,614 157,942 77,909 101,904 (60,087) 1,467,270
Operating income............. 102,992 19,264 11,823 18,526 17,773 6,681 (7,958) 169,101
Identifiable assets.......... 1,458,554 159,000 189,689 201,137 67,856 116,206 51,191 2,243,633
Export sales of U.S.
companies.................. -- 14,309 36,296 43,924 30,206 80,385 -- 205,120
1995
Operating revenues from
unaffiliated customers..... $ 691,983 $ 144,066 $ 49,521 $ 110,065 $ 57,450 $ 72,718 $ -- $1,125,803
Transfers between
geographic areas........... 14,631 167 14,973 6,049 -- 1,879 (37,699) --
----------- --------- --------- --------- --------- -------- ---------- ----------
Total revenues............... 706,614 144,233 64,494 116,114 57,450 74,597 (37,699) 1,125,803
Acquisition-related costs
and other unusual
charges.................. 43,276 2,850 259 4,302 624 7,860 29,011 88,182
Operating income............. 13,416 15,694 9,642 2,027 15,389 (5,836) (38,212) 12,120
Identifiable assets.......... 1,074,720 103,565 86,748 141,673 40,299 103,756 64,316 1,615,077
Export sales of U.S.
companies.................. -- 21,711 25,394 28,977 19,605 32,781 -- 128,468
</TABLE>
50
<PAGE> 51
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
18. QUARTERLY FINANCIAL DATA (UNAUDITED)
The following tabulation sets forth unaudited quarterly financial data for
1997 and 1996.
<TABLE>
<CAPTION>
1ST QTR. (1) 2ND QTR. (1) 3RD QTR. (1) 4TH QTR. TOTAL
---------- ---------- ---------- ---------- ------------
(in thousands, except per share amounts)
<S> <C> <C> <C> <C> <C>
1997
Revenues......................... $ 431,253 $ 476,999 $ 509,718 $ 551,119 $ 1,969,089
Gross Profit..................... 124,262 139,813 158,264 175,624 597,963
SG&A 57,783 64,651 66,683 75,436 264,553
Operating Income................. 66,988 75,705 92,283 101,016 335,992
Interest Expense................. (10,545) (10,603) (10,125) (12,000) (43,273)
Income from Continuing
Operations..................... 37,903 45,741 53,726 59,403 196,773
Net Income....................... 37,903 45,741 53,726 50,393 (2) 187,763
Depreciation and Amortization..... 34,023 35,744 36,203 36,961 142,931
Basic EPS:
Income from Continuing
Operations.................... $ 0.40 $ 0.48 $ 0.56 $ 0.61 $ 2.04
Net Income...................... 0.40 0.48 0.56 0.52 (2) 1.95
Diluted EPS:
Income from Continuing
Operations.................... 0.39 0.47 0.55 0.60 2.01
Net Income..................... 0.39 0.47 0.55 0.51 (2) 1.92
1996
Revenues......................... $ 308,685 $ 332,110 $ 392,060 $ 434,415 $ 1,467,270
Gross Profit..................... 79,385 85,125 104,056 107,890 376,456
SG&A 48,537 49,707 52,361 58,828 209,433
Operating Income................. 31,349 36,273 52,148 49,331 169,101
Interest Expense................. (8,900) (9,757) (10,322) (10,389) (39,368)
Income from Continuing
Operations..................... 15,182 18,017 26,586 32,376 92,161
Net Income....................... 16,782 (3) 19,034 (3)(4) 29,428 (3) 100,578 (3)(5) 165,822
Depreciation and Amortization.... 28,712 29,382 30,867 32,869 121,830
Basic EPS:
Income from Continuing
Operations................... $ 0.18 $ 0.21 $ 0.29 $ 0.34 $ 1.03
Net Income..................... 0.20 (3) 0.22 (3)(4) 0.32 (3) 1.05 (3)(5) 1.85
Diluted EPS:
Income from Continuing
Operations................... 0.18 0.21 0.28 0.34 1.01
Net Income..................... 0.20 (3) 0.22 (3)(4) 0.31 (3) 1.04 (3)(5) 1.82
</TABLE>
(1) The first, second and third quarters of 1997 quarterly financial data has
been restated from amounts previously reported in the Company's respective
Forms 10-Q to reclassify certain amounts to conform with prior periods'
presentation and to classify the Veracruz, Mexico facility as a capital
lease to reflect the current terms thereof.
(2) Includes the extraordinary charge, net of taxes, of approximately $9.0
million related to the repayment of the Senior Notes in the fourth quarter
of 1997.
51
<PAGE> 52
EVI WEATHERFORD, INC. AND SUBSIDIARIES
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(3) Includes income from discontinued operations, net of taxes, of
approximately $1.6 million, $1.7 million, $2.8 million and $1.3 million
recorded in the first, second, third and fourth quarters of 1996,
respectively.
(4) Includes the extraordinary charge, net of taxes, of approximately $0.7
million recorded in the second quarter of 1996.
(5) Includes the gain on disposal of discontinued operations, net of taxes, of
approximately $66.9 million recorded in the fourth quarter of 1996.
52
<PAGE> 53
EVI WEATHERFORD, INC. AND SUBSIDIARIES
ITEM 9. CHANGES IN AND DISAGREEMENT WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE
None.
53
<PAGE> 54
SCHEDULE II
EVI WEATHERFORD, INC. AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS AND ALLOWANCES
FOR THE THREE YEARS ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
ADDITIONS
----------------------------------------------------
BALANCE AT CHARGED TO BALANCE AT
BEGINNING COSTS AND END OF
DESCRIPTION OF PERIOD EXPENSES COLLECTIONS DEDUCTIONS PERIOD
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
YEAR ENDED DECEMBER 31, 1997:
Allowance for uncollectible accounts
receivable........................ $ 16,824 $ 13,248 $ 112 $ (6,711) $ 23,473
YEAR ENDED DECEMBER 31, 1996:
Allowance for uncollectible accounts
receivable........................ $ 16,304 $ 4,608 $ 4 $ (4,092) $ 16,824
YEAR ENDED DECEMBER 31, 1995
Allowance for uncollectible accounts
receivable........................ $ 11,791 $ 6,751 $ 92 $ (2,330) $ 16,304
</TABLE>
54
<PAGE> 55
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
4.1 - Amended and Restated Credit Agreement dated as of May 27,
1998, among EVI Weatherford, Inc., EVI Oil Tools Canada
Ltd., Chase Bank of Texas, National Association, as U.S.
Administrative Agent, The Bank of Nova Scotia, as
Documentation Agent and Canadian Agent, ABN AMRO Bank,
N.V., as Syndication Agent, and the other Lenders defined
therein, including the forms of Notes.
23.1 - Consent of Arthur Andersen LLP with respect to the
restated financial statements of EVI Weatherford, Inc.
27.1 - Financial Data Schedule
27.2 - Financial Data Schedule
55
<PAGE> 56
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.
EVI WEATHERFORD, INC.
Dated: June 15, 1998 /s/ Frances R. Powell
---------------------------------------
Frances R. Powell
Vice President, Accounting
and Controller
56
<PAGE> 57
INDEX TO EXHIBITS
Number Exhibit
------ -------
4.1 Amended and Restated Credit Agreement dated as of May 27,
1998, among EVI Weatherford, Inc., EVI Oil Tools Canada
Ltd., Chase Bank of Texas, National Association, as U.S.
Administrative Agent, The Bank of Nova Scotia, as
Documentation Agent and Canadian Agent, ABN AMRO Bank, N.V.,
as Syndication Agent, and the other Lenders defined therein,
including the forms of Notes.
23.1 Consent of Arthur Andersen LLP with respect to the restated
financial statements of EVI Weatherford, Inc.
27.1 Financial Data Schedule
27.2 Financial Data Schedule
<PAGE> 1
EXHIBIT 4.1
- --------------------------------------------------------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
- --------------------------------------------------------------------------------
$200,000,000 U.S. CREDIT FACILITY
AND
$50,000,000 CANADIAN CREDIT FACILITY
DATED AS OF MAY 27, 1998
AMONG
EVI WEATHERFORD, INC.
AS U.S. BORROWER,
EVI OIL TOOLS CANADA LTD.,
AS THE CANADIAN BORROWER,
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
AS U.S. ADMINISTRATIVE AGENT AND AS A U.S. LENDER,
THE BANK OF NOVA SCOTIA,
AS CANADIAN AGENT, AS DOCUMENTATION AGENT,
AS A U.S. LENDER AND AS A CANADIAN LENDER
ABN AMRO BANK, N.V.,
AS SYNDICATION AGENT AND AS A U.S. LENDER
AND
THE OTHER LENDERS NOW OR HEREAFTER
PARTIES HERETO
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS; ACCOUNTING TERMS; INTERPRETATION...........................................................2
SECTION 1.01. Definitions...............................................................................2
SECTION 1.02. Types of Borrowings......................................................................29
SECTION 1.03. Accounting Terms; Changes in GAAP........................................................29
SECTION 1.04. Interpretation...........................................................................29
ARTICLE II COMMITMENTS; LOANS; BA'S AND LETTERS OF CREDIT........................................................30
SECTION 2.01. Loans and BA's...........................................................................30
SECTION 2.02. Letters of Credit........................................................................32
SECTION 2.03. Certain Provisions Relating to Bankers' Acceptances......................................37
SECTION 2.04. Terminations, Reductions or Reallocations of Commitments................................39
SECTION 2.05. Commitment Fees..........................................................................41
SECTION 2.06. Several Obligations......................................................................41
SECTION 2.07. Notes....................................................................................42
SECTION 2.08. Use of Proceeds..........................................................................42
SECTION 2.09. Currency Fluctuations....................................................................42
ARTICLE III BORROWINGS, PREPAYMENTS AND INTEREST OPTIONS.........................................................43
SECTION 3.01. Borrowings...............................................................................43
SECTION 3.02. Prepayments..............................................................................44
SECTION 3.03. Interest Options.........................................................................45
ARTICLE IV PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS, ETC.......................................................50
SECTION 4.01. Payments.................................................................................50
SECTION 4.02. Pro Rata Treatment.......................................................................51
SECTION 4.03. Certain Actions, Notices, Etc............................................................52
SECTION 4.04. Non-Receipt of Funds by Either Agent.....................................................53
SECTION 4.05. Sharing of Payments, Etc.................................................................53
ARTICLE V CONDITIONS PRECEDENT...................................................................................54
SECTION 5.01. Conditions Precedent to the Initial Credit Event.........................................54
SECTION 5.02. Conditions Precedent to All Credit Events................................................56
SECTION 5.03. Delivery of Documents....................................................................57
ARTICLE VI REPRESENTATIONS AND WARRANTIES........................................................................57
SECTION 6.01. Organization and Qualification...........................................................57
SECTION 6.02. Authorization, Validity, Etc.............................................................57
SECTION 6.03. Governmental Consents, Etc...............................................................58
SECTION 6.04. Conflicting or Adverse Agreements or Restrictions........................................58
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C>
SECTION 6.05. Title to Assets..........................................................................58
SECTION 6.06. Litigation...............................................................................58
SECTION 6.07. Information; Financial Statements........................................................58
SECTION 6.08. Investment Company Act...................................................................59
SECTION 6.09. Public Utility Holding Company Act.......................................................59
SECTION 6.10. ERISA....................................................................................59
SECTION 6.11. Tax Returns and Payments.................................................................60
SECTION 6.12. Requirements of Law; Environmental Matters...............................................60
SECTION 6.13. Purpose of Loans.........................................................................60
SECTION 6.14. Designation of this Agreement and the Obligations........................................61
SECTION 6.15. Year 2000 Compliance.....................................................................61
ARTICLE VII AFFIRMATIVE COVENANTS................................................................................61
SECTION 7.01. Information Covenants....................................................................61
SECTION 7.02. Books, Records and Inspections...........................................................63
SECTION 7.03. Insurance and Maintenance of Properties..................................................63
SECTION 7.04. Payment of Taxes and other Claims........................................................63
SECTION 7.05. Existence................................................................................63
SECTION 7.06. ERISA Information and Compliance.........................................................64
SECTION 7.07. Capital Adequacy.........................................................................64
SECTION 7.08. Subsidiaries.............................................................................65
ARTICLE VIII NEGATIVE COVENANTS..................................................................................65
SECTION 8.01. Material Change in Business..............................................................65
SECTION 8.02. Consolidation, Merger, Sale or Purchase of Assets, Etc...................................65
SECTION 8.03. Liens....................................................................................66
SECTION 8.04. Indebtedness.............................................................................66
SECTION 8.05. Ownership of Canadian Borrower...........................................................66
SECTION 8.06. Financial Covenants......................................................................66
SECTION 8.07. Limitation on Transactions with Affiliates...............................................67
SECTION 8.08. Restrictions on Subsidiary Dividends.....................................................67
SECTION 8.09. Debentures...............................................................................67
SECTION 8.10. The Debenture Indenture..................................................................67
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES........................................................................68
SECTION 9.01. Events of Default and Remedies...........................................................68
SECTION 9.02. Right of Setoff..........................................................................71
SECTION 9.03. Preservation of Security for Unmatured Obligations.......................................71
SECTION 9.04. Other Remedies...........................................................................72
SECTION 9.05. Currency Conversion After Maturity.......................................................72
SECTION 9.06. Application of Moneys During Continuation of Event of Default............................72
ARTICLE X AGENTS.................................................................................................73
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
SECTION 10.01. Appointment, Powers and Immunities......................................................73
SECTION 10.02. Reliance................................................................................74
SECTION 10.03. Defaults; Events of Default.............................................................75
SECTION 10.04. Material Written Notices................................................................75
SECTION 10.05. Rights as a Lender......................................................................75
SECTION 10.06. Indemnification.........................................................................75
SECTION 10.07. Non-Reliance on Agents and Other Lenders................................................76
SECTION 10.08. Failure to Act..........................................................................76
SECTION 10.09. Resignation or Removal of an Agent......................................................77
SECTION 10.10. No Partnership..........................................................................77
ARTICLE XI U.S. BORROWER GUARANTY................................................................................78
SECTION 11.01 U.S. Borrower Guaranty..................................................................78
SECTION 11.02. Continuing Guaranty.....................................................................78
SECTION 11.03. Effect of Debtor Relief Laws............................................................81
SECTION 11.04. Waiver..................................................................................81
SECTION 11.05. Full Force and Effect...................................................................82
ARTICLE XII MISCELLANEOUS........................................................................................82
SECTION 12.01. No Waiver; Remedies.....................................................................82
SECTION 12.02. Notices.................................................................................83
SECTION 12.03. Expenses, Etc...........................................................................83
SECTION 12.04. Indemnity...............................................................................84
SECTION 12.05. Amendments, Etc.........................................................................84
SECTION 12.06. Successors and Assigns..................................................................85
SECTION 12.07. Confidentiality.........................................................................88
SECTION 12.08. Survival of Representations and Warranties..............................................88
SECTION 12.09. Governing Law...........................................................................88
SECTION 12.10. Independence of Covenants...............................................................88
SECTION 12.11. Binding Effect..........................................................................89
SECTION 12.12. Separability............................................................................89
SECTION 12.13. Tax Forms; Net Payments.................................................................89
SECTION 12.14. Interest Act (Canada)...................................................................89
SECTION 12.15. Judgment Currency.......................................................................89
SECTION 12.16. Conflicts Between This Agreement and the Other
Loan Documents..........................................................................90
SECTION 12.17. Limitation on Charges; Substitute Lenders; Non-Discrimination...........................90
SECTION 12.18. Limitation of Interest..................................................................90
SECTION 12.19. Execution in Counterparts...............................................................91
SECTION 12.20. SUBMISSION TO JURISDICTION..............................................................91
SECTION 12.21. WAIVER OF JURY TRIAL....................................................................92
SECTION 12.22. FINAL AGREEMENT OF THE PARTIES..........................................................93
</TABLE>
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<PAGE> 5
EXHIBITS
EXHIBIT 1.01A Administrative Questionnaire
EXHIBIT 1.01B Canadian Dollar Note
EXHIBIT 1.01C Canadian Note
EXHIBIT 1.01D Rate Designation Notice
EXHIBIT 1.01E-1 Request For Extension of Credit
EXHIBIT 1.01E-2 Request For Extension of Credit
EXHIBIT 1.01F U. S. Note
EXHIBIT 2.03 Form of Bankers' Acceptance Notice
EXHIBIT 7.01 Compliance Certificate
EXHIBIT 12.06 Assignment And Acceptance
SCHEDULES
SCHEDULE 1.01 Commitments
SCHEDULE 6.01 Material Subsidiaries
-iv-
<PAGE> 6
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May
27, 1998, is among:
(a) EVI Weatherford, Inc., a Delaware corporation (the
"U.S. Borrower"), formerly EVI, Inc. and successor in
interest to the merger of EVI, Inc. and Weatherford
Enterra, Inc.;
(b) EVI Oil Tools Canada Ltd., an Alberta corporation
(the "Canadian Borrower");
(c) Chase Bank of Texas, National Association,
individually as a U.S. Lender and as administrative
agent for the other U.S. Lenders (in such capacity
together with any other Person that becomes the U.S.
Administrative Agent pursuant to Section 10.09, the
"U.S. Administrative Agent");
(d) The Bank of Nova Scotia, individually as a U.S.
Lender and a Canadian Lender, as documentation agent
for the other Lenders (in such capacity, the
"Documentation Agent") and as agent for the other
Canadian Lenders (in such capacity together with any
other Person that becomes the Canadian Agent pursuant
to Section 10.09, the "Canadian Agent");
(e) ABN AMRO Bank, N.V., individually as a U.S. Lender
and as syndication agent for the other Lenders (in
such capacity, the "Syndication Agent"); and
(f) 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 13.06,
collectively, the "Lenders").
WHEREAS, EVI, Inc. and the Canadian Borrower, as borrowers,
and certain subsidiaries of EVI, Inc. as guarantors, entered into a Credit
Agreement dated as of February 17, 1998 (as amended from time to time, the "1998
Chase Credit Agreement") with the lenders named therein, the Administrative
Agent, the Documentation Agent, and the Syndication Agent.
WHEREAS, subsequent to entering into the 1998 Credit
Agreement, Weatherford Enterra, Inc. merged into and with EVI, Inc. (the
"Merger"), pursuant to the Agreement and Plan of Merger dated March 4, 1998 (as
amended from time to time, the "1998 Merger Agreement"), with EVI, Inc. being
the surviving entity and changing its name to EVI Weatherford, Inc.
WHEREAS, the parties hereto have agreed to amend and restate
the 1998 Chase Credit Agreement and hereby agree as follows;
-1-
<PAGE> 7
NOW THEREFORE, the parties hereto 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:
"Acceptance Fee" means the stamping fee payable in Canadian
Dollars to each Canadian Lender in respect of the Bankers' Acceptances
accepted by such Canadian Lender computed in accordance with Section
2.03(c).
"Additional Interest" means the aggregate of all amounts
accrued or paid pursuant to the Notes or any of the other Loan
Documents (other than interest on the Notes at the Stated Rate and any
Acceptance Fee) which, under applicable laws, are or may be deemed to
constitute interest on the indebtedness evidenced by the Notes or the
other Obligations.
"Administrative Questionnaire" means an Administrative
Questionnaire in the form of Exhibit 1.01A, which each Lender shall
complete and provide to the Agents and the U.S.
Borrower.
"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.
"Agents" means the U.S. Administrative Agent and the Canadian
Agent, collectively, and "Agent" means either the U.S. Administrative
Agent or the Canadian Agent, as applicable.
"Agreement" means this Amended and Restated Credit Agreement,
as it may from time to time be amended, modified, restated or
supplemented.
"Applicable BA Discount Rate" means, with respect to a
Bankers' Acceptance (a) being purchased by any Schedule I Canadian
Lender on any day, the percentage discount rate (expressed to two
decimal places and rounded upward, if necessary, to the nearest 1/100th
of 1%) quoted by the Canadian Agent as that at which the Canadian Agent
would, in accordance with normal practice, at or about 10:00 a.m.
(Toronto, Ontario time), on such day, be prepared to purchase Bankers'
Acceptances in an amount and having a maturity date comparable to the
amount and maturity date of such Bankers' Acceptances, and (b) being
-2-
<PAGE> 8
purchased by any Schedule II Canadian Lender on any day, the lesser of
(i) the arithmetic average of the percentage discount rates (expressed
to two decimal places and rounded upward, if necessary, to the nearest
1/100th of 1%) quoted by the two Schedule II Reference Banks as that at
which the two Schedule II Reference Banks would, in accordance with
normal practice, at or about 10:00 a.m. (Toronto, Ontario time), on
such day, be prepared to purchase Bankers' Acceptances in an amount and
having a maturity date comparable to the amount and maturity date of
such Bankers' Acceptances and (ii) the percentage discount rate quoted
by the Canadian Agent pursuant to clause (a) above, on the assumption
that such Bankers' Acceptance would be purchased by a Schedule I
Canadian Lender, plus 0.1% per annum.
"Applicable Canadian Pension Legislation" means, at any time,
any pension legislation then applicable to the Canadian Borrower,
including all regulations made thereunder, and all rules, regulations,
rulings and interpretations made or issued by any Governmental
Authority having or asserting jurisdiction in respect thereof.
"Applications" means all applications and agreements for
Letters of Credit, or similar instruments or agreements, now or
hereafter executed by any Person in connection with any Letter of
Credit now or hereafter issued or to be issued under the terms hereof
at the request of any Person. The term "Application" as used herein
shall include that certain Master Commercial & Standby Letter of Credit
Agreement executed or to be executed by and between the U.S. Borrower
and Chase.
"Assignment and Acceptance" has the meaning specified in
Section 12.06(b).
"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
-3-
<PAGE> 9
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.
"Availability Period" means, for each Lender, the period from
the Effective Date to the Termination Date.
"BA Discount Proceeds" means, in respect of any Bankers'
Acceptance being purchased by a Canadian Lender on any day under
Section 2.03, an amount (rounded to the nearest whole Canadian cent,
and with one-half of one Canadian cent being rounded up) calculated on
such day by multiplying:
(a) the face amount of such Bankers' Acceptance; by
(b) the quotient equal to one divided by the sum of one
plus the product of:
(i) the Applicable BA Discount Rate applicable
to such Bankers' Acceptance; and
(ii) a fraction, the numerator of which is the
number of days remaining in the term of such
Bankers' Acceptance and the denominator of
which is 365;
with such quotient being rounded up or down to the nearest
fifth decimal place and .000005 being rounded up.
"Bankers' Acceptance" or "BA" means a bill of exchange
denominated in Canadian Dollars drawn by the Canadian Borrower on and
accepted by a Canadian Lender pursuant to Section 2.03.
"Bankers' Acceptance Liabilities" means, at any time and in
respect of any Bankers' Acceptance, the face amount thereof if still
outstanding and unpaid or, following maturity and payment thereof, the
aggregate unpaid amount of all Reimbursement Obligations at that time
due and payable in respect of the payment of such Bankers' Acceptance
upon maturity.
"Bankers' Acceptance Notice" has the meaning specified in
Section 2.03(a).
"Bankruptcy Code" means (a) the United States Bankruptcy Code,
(b) the Bankruptcy and Insolvency Act (Canada) and (c) the Companies'
Creditors Arrangement Act (Canada), as the same may be amended and
together with any successor statutes.
"Base Rate Borrowing" means that portion of the principal
balance of the Loans at any time bearing interest at the U.S. Alternate
Base Rate, in the case of Loans advanced to
-4-
<PAGE> 10
the U.S. Borrower or at the Canadian Alternate Base Rate, in the case
of Loans denominated in Dollars advanced to the Canadian Borrower.
"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 of its (managing) general partner
or managing member, as the case may be), or any committee thereof duly
authorized to act on behalf of such Board of Directors.
"Borrowers" means the U.S. Borrower and the Canadian Borrower
collectively.
"Business Day" means any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of Texas or the Province
of Ontario or Alberta) on which banks are open for business in Houston,
Texas, Toronto, Ontario and Edmonton, Alberta; provided, however, that,
when used in connection with a LIBOR Borrowing, 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.
"Calculation Date" means the last Business Day of each month.
"Canadian Alternate Base Rate" means, for any day, the rate
per annum equal to the applicable Margin Percentage from time to time
in effect plus the greater of (a) the base rate for that day for Loans
denominated in Dollars quoted by the Canadian Agent and (b) the Federal
Funds Rate for that day plus 1/2 of 1%. The aforesaid base rate is a
reference rate and does not necessarily represent the lowest or best
rate or a favored rate and the Canadian Agent and each Canadian Lender
disclaims any statement, representation or warranty to the contrary.
The Canadian Agent or any Canadian Lender may make commercial loans or
other loans at rates of interest at, above or below the aforesaid base
rate. If for any reason the Canadian Agent shall have determined (which
determination shall be presumed correct, absent manifest error) that it
is unable to ascertain the Federal Funds Rate for any reason, the
Canadian Alternate Base Rate shall, until the circumstances giving rise
to such inability no longer exist, be the base rate in (a) above plus
the applicable Margin Percentage from time to time in effect.
"Canadian Borrower" has the meaning designated in paragraph
(b) on page one hereof.
"Canadian Borrower Guaranteed Obligations" has the meaning
specified in Section 11.01.
"Canadian Commitment" means, as to any Canadian Lender, the
obligation, if any, of such Canadian Lender to make Canadian Loans,
incur or participate in Letter of Credit
-5-
<PAGE> 11
Liabilities relating to the Canadian Letters of Credit and accept and
purchase Bankers' Acceptances in an aggregate principal amount at any
one time outstanding up to (but not exceeding) the amount, if any, set
forth on Schedule 1.01 hereto under the caption "Canadian Commitment",
or otherwise provided for in an Assignment and Acceptance (as the same
may be increased or reduced from time to time pursuant to Section
2.04).
"Canadian Dollars" or "C$" means lawful money of Canada.
"Canadian Dollar Notes" means the Notes of the Canadian
Borrower evidencing the Canadian Loans denominated in Canadian Dollars,
in the form of Exhibit 1.01B.
"Canadian Lender" means each Lender with (a) prior to the
Termination Date, a Canadian Commitment and (b) on and after the
Termination Date, any outstanding Canadian Obligations.
"Canadian Letters of Credit" has the meaning specified in
Section 2.02.
"Canadian Loan" means a Loan made pursuant to Section 2.01(b).
"Canadian Notes" means the Notes of the Canadian Borrower
evidencing the Canadian Loans denominated in Dollars, in the form of
Exhibit 1.01C.
"Canadian Obligations" means, as at any date of determination
thereof, the sum of the following (determined without duplication): (a)
the aggregate principal amount of the Canadian Loans outstanding
hereunder on such date, plus (b) the aggregate amount of the Bankers'
Acceptance Liabilities outstanding on such date, plus (c) the aggregate
amount of Letter of Credit Liabilities outstanding on such date
relating to the Canadian Letters of Credit.
"Canadian Prime Loans" means Loans made pursuant to Section
2.01(b) which are denominated in Canadian Dollars.
"Canadian Prime Rate" means, on any day, as to Loans
denominated in Canadian Dollars made to the Canadian Borrower, the
greater of (a) the annual rate of interest announced from time to time
by the Canadian Agent as its prime rate then in effect at its Principal
Office, being the reference rate used by the Canadian Agent for
determining interest rates on commercial loans denominated in Canadian
Dollars to borrowers in Canada, and (b) an annual rate of interest
equal to the sum of (i) the CDOR Rate and (ii) 1.00% per annum. The
Canadian Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate or a favored rate, the Canadian
Agent, and each Canadian Lender disclaims any statement, representation
or warranty to the contrary. The Canadian Agent or any other Canadian
Lender may make commercial loans or other loans at rates of interest
at, above or below the Canadian Prime Rate.
-6-
<PAGE> 12
"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.
"CDOR Rate" means, on any day, an annual rate of interest
equal to the average 30 day rate applicable to Canadian bankers'
acceptances appearing on the "Reuters Screen CDOR Page" (as defined in
the International Swap Dealer Association, Inc. (1991 ISDA)
definitions, as modified and amended from time to time) as of 10:00
a.m., Toronto, Ontario time on such day, or if such day is not a
Business Day, then on the immediately preceding Business Day; provided,
however, if such rate does not appear on the Reuters Screen CDOR Page
as contemplated, then the CDOR Rate on any day shall be calculated as
the arithmetic mean of the 30 day rates applicable to Canadian bankers'
acceptances quoted by the Canadian Lenders which are listed in Schedule
I to the Bank Act (Canada) as of 10:00 a.m., Toronto, Ontario time on
such day, or if such day is not a Business Day, then on the immediately
preceding Business Day.
"Ceiling Rate" means, on any day, the maximum nonusurious rate
of interest permitted for that day by whichever of applicable United
States federal or Texas laws or, in the case of advances made in Canada
by the Canadian Lenders to the Canadian Borrower, whichever of
applicable Canadian laws (or the laws of any other jurisdiction whose
usury laws are deemed to apply to the Notes or any other Loan Documents
despite the intention and desire of the express choice of law
provisions set forth herein) permits the higher interest rate, stated
as a rate per annum. On each day, if any, that Section 3.03.301 of the
Finance Code establishes the Ceiling Rate, the Ceiling Rate shall be
the weekly rate ceiling therein for that day. The U.S. Administrative
Agent may from time to time, as to current and future balances,
implement any other ceiling under the Finance Code by notice to the
Borrowers, if and to the extent permitted by the Finance Code. Without
notice to the Borrowers or any other Person, the Ceiling Rate shall
automatically fluctuate upward and downward as and in the amount by
which such maximum nonusurious rate of interest permitted by applicable
law fluctuates.
-7-
<PAGE> 13
"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 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 U.S. Borrower; (b) the U.S. Borrower 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 U.S. Borrower in a transaction
not otherwise permitted by Section 8.02; (c) the U.S. Borrower conveys,
transfers or leases all or substantially all of its assets to any
Person; (d) the stockholders of the U.S. Borrower approve any plan of
liquidation or dissolution of the U.S. Borrower; or (e) during any
period of twelve consecutive months, individuals who, at the beginning
of such period, constituted the Board of Directors of the U.S. Borrower
(together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of the
U.S. Borrower, 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 U.S.
Borrower 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 that would
result in a Change of Control if completed.
"Chase" means Chase Bank of Texas, National Association, a
national banking association.
"Code" means the Internal Revenue Code of 1986, as amended,
from time to time, and the regulations promulgated thereunder.
"Commitment Fee Percentage" means, at any time and from time
to time, a percentage per annum equal to the applicable percentage set
forth below for the Performance Level set forth below:
-8-
<PAGE> 14
<TABLE>
<CAPTION>
PERFORMANCE LEVEL COMMITMENT FEE
- ----------------- --------------
<S> <C>
I .090%
II .100%
III .150%
IV .175%
V .200%
</TABLE>
The Commitment Fee Percentage for the Commitment Fee shall be
determined by reference to the Performance Level in effect from time to
time; provided, however, the Commitment Fee Percentage for any
Commitment Fee accruing from the Effective Date until the U.S.
Borrower's Debt Rating is established shall be the percentage set forth
under Performance Level II; provided further, if the U.S. Borrower Debt
Rating has not been established within forty-five (45) days of the
Execution Date by both Moody's and S&P at the grade commensurate with
Performance Level II or if such rating is established at a level lower
than Performance Level II during this forty-five (45) day period by
either of said Persons, the Commitment Fee Percentage shall immediately
and automatically change, retroactive to the Execution Date, without
the need for action by any Person, to the lower of: (i) Performance
Level III, or (ii) the lower of the ratings established by either
Moody's or S&P in respect of the U.S. Borrower. Upon the occurrence of
either of the above, the U.S. Borrower shall immediately reimburse the
U.S. Administrative Agent and the Canadian Agent, for the benefit of
the Lenders, all sums due for the difference in such ratings since the
Execution Date.
"Commitment Percentage" means, as to any Lender, the
percentage equivalent of a fraction the numerator of which is the
amount of such Lender's U.S. Commitment or Canadian Commitment, as the
case may be, and the denominator of which is the aggregate amount of
the U.S. Commitments or the Canadian Commitments, as the case may be,
of all Lenders.
"Commitments" means collectively (a) the U.S. Commitments and
the Canadian Commitments, or (b) the U.S. Commitment and the Canadian
Commitment of any Lender, as the context requires.
"Communications" has the meaning specified in Section 12.02.
"consolidated" means any Person whose financial condition and
results of operations are required in accordance with GAAP to be shown
on a consolidated basis with the financial condition and results of
operations of the U.S. Borrower.
"Consolidated EBITDA" means, for any period, the Consolidated
Net Income of the U.S. Borrower and its consolidated Subsidiaries for
such period, increased (to the extent deducted in determining
Consolidated Net Income) by the sum of (a) all income taxes
-9-
<PAGE> 15
(including state franchise taxes based on income) of the U.S. Borrower
and its consolidated Subsidiaries paid or accrued according to GAAP for
such period; (b) Consolidated Interest Expense of the U.S. Borrower and
its consolidated Subsidiaries for such period; (c) depreciation and
amortization of the U.S. Borrower and its consolidated 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, and decreased (to the
extent added in determining Consolidated Net Income) by any non-cash
credits for such period determined in accordance with GAAP.
"Consolidated Indebtedness" means, at the date of any
determination thereof, Indebtedness of the U.S. Borrower and its
consolidated Subsidiaries (other than Interest Rate Risk Indebtedness,
Derivatives Obligations, and contingent obligations in respect of
letters of credit) determined on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" means (without duplication),
with respect to the U.S. Borrower and its consolidated 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 (i) all Indebtedness of the U.S. Borrower and
its consolidated Subsidiaries, plus (ii) the Debentures, all determined
on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" of the U.S. Borrower means, for any
period, the net income or loss of the U.S. Borrower and its
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;
(c) the net income of any Person in which the U.S.
Borrower or any consolidated Subsidiary has a joint equity
interest, except to the extent of the amount of dividends or
other distributions actually paid in cash to the U.S. Borrower
or such Subsidiary by such other Person during such period;
(d) the net income of any Person accrued prior to the
date it becomes a consolidated Subsidiary or is merged into or
consolidated with the U.S. Borrower or any consolidated
Subsidiary or prior to the date its assets are acquired by the
U.S. Borrower or any of the consolidated Subsidiaries, except
that the foregoing shall not apply to any business acquisition
accounted for as a pooling of interests;
-10-
<PAGE> 16
(e) the net income of any consolidated Subsidiary to
the extent that the declaration or payment of dividends or
similar distributions by that consolidated 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 Subsidiary;
(f) any gains or losses attributable to write-ups or
write-downs of assets other than in the ordinary course of
business;
(g) foreign currency translations or adjustments; and
(h) pooling and restructuring charges incurred as a
result of the Merger.
"Cover" means, with respect to any Letter of Credit
Liabilities or any Bankers' Acceptance Liabilities, the payment to the
U.S. Administrative Agent or the Canadian Agent, as the case may be, of
immediately available funds, to be held by the U.S. Administrative
Agent or the Canadian Agent, as the case may be, in a collateral
account maintained by the U.S. Administrative Agent or the Canadian
Agent, as the case may be, at its Principal Office and collaterally
assigned to the U.S. Administrative Agent or the Canadian Agent, as the
case may be, as security for the applicable Obligations using
documentation reasonably satisfactory to the U.S. Administrative Agent
or the Canadian Agent, as the case may be, in the amount required by
any applicable provision hereof. Such amount shall be retained by the
U.S. Administrative Agent or the Canadian Agent, as the case may be, in
such collateral account until such time as the applicable Letter of
Credit shall have expired and the Reimbursement Obligations, if any,
with respect thereto shall have been fully satisfied or the applicable
Bankers' Acceptance shall have matured and the related Bankers'
Acceptance Liabilities shall have been fully satisfied; provided,
however, that at such time if a Default or Event of Default has
occurred and is continuing, the U.S. Administrative Agent or the
Canadian Agent, as the case may be, shall not be required to release
such amount in such collateral account from the time of such collateral
assignment until such Default or Event of Default shall have been cured
or waived.
"Credit Event" means the making of any Loan, the acceptance
and purchase by a Canadian Lender of any Bankers' Acceptance or the
issuance or the extension of any Letter of Credit.
"Debenture Indenture" means the Indenture dated as of October
15, 1997, from the U.S. Borrower to The Chase Manhattan Bank, as
Trustee, as amended and supplemented to the Execution Date.
"Debentures" means the U.S. Borrower's 5% Convertible
Subordinated Preferred Equivalent Debentures due 2027 issued pursuant
to the Debenture Indenture.
-11-
<PAGE> 17
"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.
"Derivatives Obligations" means, as to any Person all
obligations of such Person in respect of any swap transaction, forward
rate transaction, commodity swap, commodity option, interest rate
option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of
foregoing transactions) or any combination of the foregoing
transactions, entered into in the ordinary course of business of such
Person for the purpose of hedging and not for speculative purposes.
"Dollars," "US$" and "$" means lawful money of the United
States of America.
"Dual Lender" means any Lender that has both a U.S. Commitment
and a Canadian Commitment, or that has a U.S. Commitment and an
Affiliate that has a Canadian Commitment; provided that each Canadian
Lender shall comply with Section 13.13.
"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 Agents and
the U.S.
Borrower.
"Environmental Law" means all federal, state, provincial or
local laws, statutes, rules, regulations, ordinances and codes,
together with all final administrative orders, licenses, authorizations
and permits of, and written agreements with, any Governmental
Authorities, in each case relating to the protection of the environment
or the disposal of hazardous waste.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and all rules, regulations, rulings
and interpretations adopted by the U.S. Department of Labor thereunder
and, as the context may require, Applicable Canadian Pension
Legislation.
"ERISA Affiliate" means (a) all members of a controlled group
of corporations and all trades or businesses (whether or not
incorporated) under common control which, together
-12-
<PAGE> 18
with any Borrower, are treated as a single employer under Section 414
of the Code or under Applicable Canadian Pension Legislation and (b)
any Subsidiary of any Obligor.
"Eurodollar Rate" means for any day during an Interest Period
for a LIBOR Borrowing a rate per annum equal to the lesser of (a) the
sum of (i) the LIBOR in effect on the first day of such Interest Period
plus (ii) the applicable Margin Percentage from time to time in effect
and (b) the Ceiling Rate. Each Eurodollar Rate is subject to
adjustments for reserves, insurance assessments and other matters as
provided for in Section 3.03 hereof.
"Eurodollar Reserve Requirement" means, on any day, that
percentage (expressed as a decimal fraction and rounded, if necessary,
to the next highest one ten-thousandth [.0001]) which is in effect on
such day for determining all reserve requirements (including, without
limitation, basic, supplemental, marginal and emergency reserves)
applicable to "Eurocurrency liabilities," as currently defined in
Regulation D. Each determination of the Eurodollar Reserve Requirement
by either Agent shall be presumed correct, absent manifest error, and
may be computed using any reasonable averaging and attribution method.
"Event of Default" shall have the meaning specified in Article
IX hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Rate" means, on any Business Day, (a) with respect
to Canadian Dollars in relation to Dollars, the spot rate as quoted by
the Bank of Canada as its noon spot rate at which Dollars are offered
on such Business Day for Canadian Dollars, and (b) with respect to
Dollars in relation to Canadian Dollars, the spot rate as quoted by the
Bank of Canada as its noon spot rate at which Canadian Dollars are
offered on such day for Dollars, and (c) with respect to all other
currencies in relation to Dollars, the spot rate quoted by the U.S.
Administrative Agent, or if not quoted by the U.S. Administrative
Agent, then as quoted in a foreign currency market of recognized
national standing, as the noon spot rate at which Dollars are offered
on such Business Day for such other currency.
"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 Obligors and each Lender listed on the
signature pages hereof and the Agents shall have received counterparts
hereof which taken together, bear the signature of the Obligors, each
Lender and each Agent.
"FDIC" means the Federal Deposit Insurance Corporation (or any
successor).
"Federal Funds Rate" means, for any day, a fluctuating
interest rate per annum equal for such day to the weighted average of
the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any
-13-
<PAGE> 19
such day which is a Business Day, the average of the quotations for
such day on such transactions received by the U.S. Administrative Agent
from three Federal funds brokers of recognized standing selected by the
U.S. Administrative Agent in its sole and absolute discretion.
"Finance Code" means the Texas Finance Code, 1998, as amended.
"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.
"Funding Loss" means, with respect to (a) either Borrower's
payment of principal of a LIBOR Borrowing on a day other than the last
day of the applicable Interest Period; (b) either Borrower's failure to
borrow a LIBOR Borrowing or to borrow funds by way of Bankers'
Acceptances on the date specified by such Borrower; (c) either
Borrower's failure to make any prepayment of the Loans (other than Base
Rate Borrowings and Canadian Prime Loans) on the date specified by such
Borrower, or (d) any cessation of a Eurodollar Rate to apply to the
Loans or any part thereof pursuant to Section 3.03, in each case
whether voluntary or involuntary, any loss, expense, penalty, premium
or liability actually incurred by any Lender (including but not limited
to any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund
or maintain a Loan).
"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 Canadian Borrower, 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
Canadian Borrower.
"Governmental Authority" means any governmental authority of
the United States of America, Canada, any State of the United States,
any Province of Canada, or of any other foreign jurisdiction and any
political subdivision of any of the foregoing, and any central bank,
agency, department, commission, board, bureau, court or other tribunal
having or lawfully asserting jurisdiction over either Agent, any
Lender, any Obligor or their respective properties.
"Indebtedness" means (without duplication), with respect to
any Person, (a) any liability (other than the Debentures) 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
-14-
<PAGE> 20
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 of any Derivatives Obligations; (d) all Assurances of such
Person of the Indebtedness of any other Person of the type referred to
in clause (a) or (c); (e) Interest Rate Risk Indebtedness of such
Person; and (f) 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 12.04.
"Interest Coverage Ratio" means, at March 31, 1998, on a pro
forma basis, and at the end of each fiscal quarter thereafter, the
ratio of (a) Consolidated EBITDA for the fiscal quarter then ended and
for the immediately preceding three fiscal quarters to (b) Consolidated
Interest Expense (excluding interest accrued in respect of the
Debentures but not actually paid in cash) for such four fiscal
quarters.
"Interest Options" means the Canadian Alternate Base Rate, the
U.S. Alternate Base Rate, each Eurodollar Rate and, as to the Canadian
Dollar Notes only, the Canadian Prime Rate, and "Interest Option" means
any of them.
"Interest Payment Dates" means (a) for Base Rate Borrowings
and for Canadian Prime Loans, June 30, 1998 and the last day of each
June, September, December and March thereafter prior to the Maturity
Date, and the Maturity Date; and (b) for LIBOR Borrowings, the end of
the applicable Interest Period (and if such Interest Period exceeds
three months' duration, the day that would have been the last day of
such Interest Period had it had a duration of three months), and the
Maturity Date.
"Interest Period" means, for each LIBOR Borrowing, a period
commencing on the date such LIBOR Borrowing began and ending on the
numerically corresponding day which is, subject to availability as set
forth in Section 3.03(c)(iii), one, two, three or six months
thereafter, as either Borrower shall elect in accordance herewith;
provided, (a) unless the Agents shall otherwise consent, no Interest
Period with respect to a LIBOR Borrowing shall commence on a date
earlier than three (3) Business Days after this Agreement shall have
been fully executed; (b) any Interest Period with respect to a LIBOR
Borrowing which would otherwise end on a day which is not a Business
Day shall be extended to the next succeeding Business Day, unless such
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day; (c) any
Interest Period with respect to a LIBOR Borrowing which begins on the
last Business Day of a calendar month
-15-
<PAGE> 21
(or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Business Day of the appropriate calendar month; (d) no Interest
Period for a Loan shall ever extend beyond the Maturity Date, and (e)
Interest Periods shall be selected by each Borrower in such a manner
that the Interest Period with respect to any portion of the Loans which
shall become due shall not extend beyond such due date.
"Interest Rate Risk Indebtedness" means all obligations and
Indebtedness of the Borrowers with respect to the program for the
hedging of interest rate risk provided for in any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement
or similar arrangement entered into by either Borrower for the purpose
of reducing such Borrower's exposure to interest rate fluctuations and
not for speculative purposes, approved in writing by the U.S.
Administrative Agent (such approval not to be unreasonably withheld),
as it may from time to time be amended, modified, restated or
supplemented.
"ISDA" means the International Swaps and Derivatives
Association, Inc.
"Issuer" means the issuer (or, where applicable, each issuer)
of a Letter of Credit under this Agreement.
"Lender" has the meaning specified in the introduction to this
Agreement.
"Letter of Credit Liabilities" means, at any time and in
respect of any Letter of Credit, the sum of (a) the amount available
for drawings under such Letter of Credit plus (b) the aggregate unpaid
amount of all Reimbursement Obligations at the time due and payable in
respect of previous drawings made under such Letter of Credit. For the
purpose of determining at any time the amount described in clause (a),
in the case of any Letter of Credit payable in a currency other than
Dollars or Canadian Dollars, such amount shall be converted by the
applicable Agent to Dollars by using the Exchange Rate in effect on
such day, and such converted amount shall be presumed correct, absent
manifest error.
"Letters of Credit" means the U.S. Letters of Credit and the
Canadian Letters of Credit.
"LIBOR" means, with respect to any Interest Period for any
applicable LIBOR Borrowing, the rate of interest per annum, rounded
upwards, if necessary, to the nearest 1/16th of 1%, quoted by the U.S.
Administrative Agent at or before 11:00 a.m., Houston, Texas time (in
respect of a LIBOR Borrowing relating to the U.S. Loans) or 12:00 noon,
Toronto, Ontario time (in respect of a LIBOR Borrowing relating to the
Canadian Loans) (or, in either case, as soon thereafter as
practicable), on the date two Business Days before the first day of
such Interest Period, to be the arithmetic average of the prevailing
rates per annum at the time of determination and in accordance with the
then existing practice in the applicable market, for the offering to
the U.S. Administrative Agent or the Canadian Agent,
-16-
<PAGE> 22
as the case may be, by one or more prime banks selected by such Agent
in its sole discretion, in the London interbank market, of deposits in
Dollars for delivery on the first day of such Interest Period and
having a maturity equal (or as nearly equal as may be) to the length of
such Interest Period and in an amount equal (or as nearly equal as may
be) to the LIBOR Borrowing to which such Interest Period relates. If
such rate shall be for any reason unavailable, then "LIBOR" means, for
each Interest Period for any LIBOR Borrowing, the rate per annum
(rounded upwards, if necessary, to the nearest 1/16th of 1%) equal to
the average of the offered quotations appearing on Dow Jones Market
Service (formerly Telerate) Page 3750 (or if such Page shall not be
available, any successor or similar service as may be selected by the
Agents and the Borrowers) as of 11:00 a.m., Houston, Texas time (in
respect of a LIBOR Borrowing relating to the U.S. Loans) or 12:00 noon,
Toronto, Ontario time (in respect of a LIBOR Borrowing relating to the
Canadian Loans) (or, in either case, as soon thereafter as practicable)
on the day two Business Days prior to the first day of such Interest
Period for deposits in Dollars having a term comparable to such
Interest Period and in an amount comparable to the principal amount of
the LIBOR Borrowing to which such Interest Period relates. Each
determination by either Agent of LIBOR shall be presumed correct,
absent manifest error, and may be computed using any reasonable
averaging and attribution method.
"LIBOR Borrowing" means each portion of the principal balance
of the Loans at any time bearing interest at a Eurodollar Rate.
"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; provided, however, that "Lien" shall not
include or cover (i) setoff rights and other standard arrangements for
netting payment obligations in the settlement of obligations, arising
under ISDA standard documents or otherwise customary in swap or hedging
transactions; and (ii) setoff rights of banks party to Derivative
Obligations which rights arise in the ordinary course of customary
banking relationships.
"Loan Documents" means, collectively, this Agreement, the
Notes, the Bankers' Acceptances, the Bankers' Acceptance Notices, the
U.S. Borrower Guaranty, the Applications, all instruments, certificates
and agreements now or hereafter executed or delivered by any Obligor to
either Agent or any Lender pursuant to any of the foregoing or in
connection with the Obligations or any commitment regarding the
Obligations, and all amendments, modifications, renewals, extensions,
increases and rearrangements of, and substitutions for, any of the
foregoing.
-17-
<PAGE> 23
"Loans" means the loans provided for by Section 2.01(a) and
(b).
"Majority Lenders" means, at any time while the Commitments
are outstanding, Lenders having at least 66-2/3% of the aggregate
amount of Commitments, and at any other time, Lenders having at least
66-2/3% of the aggregate amount of outstanding Obligations.
"Margin Percentage" means at any time and from time to time, a
percentage per annum equal to the applicable percentage set forth below
for the Performance Level set forth below:
<TABLE>
<CAPTION>
CANADIAN PRIME LOANS/
PERFORMANCE LIBOR BORROWINGS BASE RATE BORROWING
LEVEL MARGIN PERCENTAGE MARGIN PERCENTAGE
----------- ----------------- ---------------------
<S> <C> <C>
I .250% 0
II .275% 0
III .300% 0
IV .375% 0
V .625% 0
</TABLE>
The Margin Percentage for each LIBOR Borrowing made pursuant to Section
2.02 and for purposes of calculating (a) Acceptance Fees pursuant to
Section 2.03(c) and (b) certain fees in respect of Letters of Credit
pursuant to Section 2.02(b)(v) shall be determined by reference to the
Performance Level in effect from time to time; provided, however, the
Margin Percentage applicable to any Interest Period for any LIBOR
Borrowing made from the Effective Date until the U.S. Borrower Debt
Rating is established shall be the percentage set forth under
Performance Level II; provided further, if the U.S. Borrower Debt
Rating has not been established within forty-five (45) days of the
Execution Date by both Moody's and S&P at the grade commensurate with
Performance Level II or if such rating is established at a level lower
than Performance Level II during this forty-five (45) day period by
either of said Persons, the Margin Percentage shall immediately and
automatically change, retroactive to the Execution Date, without the
need for action by any Person, to the lower of: (i) Performance Level
III, or (ii) the lower of the ratings established by either Moody's or
S&P in respect of the U.S. Borrower. Upon the occurrence of either of
the above, the U.S. Borrower shall immediately reimburse the U.S.
Administrative Agent and the Canadian Agent, for the benefit of the
Lenders, all sums due for the difference in such ratings since the
Execution Date.
"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 U.S.
Borrower and its consolidated
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<PAGE> 24
Subsidiaries taken as a whole, (b) the impairment of (i) the ability of
the Obligors to collectively perform their payment or other material
obligations hereunder or under the Notes and other Loan Documents or
(ii) the ability of either Agent or the Lenders to realize the material
benefits intended to be provided by the Obligors under the Loan
Documents or (c) the subjection of either Agent or any Lender to any
civil or criminal liability arising in connection with the Loan
Documents.
"Material Subsidiary" means, at any date, (a) a consolidated
Subsidiary the Capital Stock of which is owned by the U.S. Borrower
and/or one or more Subsidiaries and that either (i) has total assets in
excess of 5% of the total assets of the U.S. Borrower and its
consolidated Subsidiaries, in each case as determined in accordance
with GAAP or (ii) has gross net revenues in excess of 5% of the
consolidated gross revenues of the U.S. Borrower and its consolidated
Subsidiaries based, in each case, on the most recent audited
consolidated financial statements of the U.S. Borrower and (b) the
Canadian Borrower.
"Maturity Date" means the date of maturity of the Notes and
the other Obligations, which is May 27, 2003.
"Maximum Canadian Available Amount" means $50,000,000. In
connection with the application of any provision hereof using the term
"Maximum Canadian Available Amount", any amounts denominated in
Canadian Dollars shall be converted to Dollars using the then current
Exchange Rate. The Maximum Canadian Available Amount is subject to
change pursuant to Section 2.04(c) hereof.
"Maximum U.S. Available Amount" means $200,000,000. The
Maximum U.S. Available Amount is subject to change pursuant to Section
2.04(c) hereof.
"Merger" has the meaning specified in the introduction to this
Agreement.
"Merger Agreement" has the meaning specified in the
introduction to this Agreement.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means any plan which is a "multiemployer
plan" (as such term is defined in Section 4001(a)(3) of ERISA).
"Net Worth" means, as to the U.S. Borrower and the
Subsidiaries, on a consolidated basis, at any date of determination
thereof, the sum of (a) the par value or stated value of its Capital
Stock, plus (b) capital in excess of par or stated value of shares of
its Capital Stock, plus (or minus in the case of a deficit), (c)
retained earnings or accumulated deficit, as the case may be, plus (d)
and any other account which, in accordance with GAAP, constitutes
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<PAGE> 25
stockholders' equity, excluding (e) any treasury stock, and (f) the
effects upon net worth resulting from the translation of foreign
currency denominated assets into Dollars.
"1996 Chase Credit Agreement" means that certain Amended and
Restated Credit Agreement dated December 6, 1996, as amended, from time
to time, among the U.S. Borrower, certain subsidiaries of the U.S.
Borrower as guarantors, the lenders named therein and The Chase
Manhattan Bank, as agent.
"1998 Chase Credit Agreement" has the meaning designated in
the second paragraph on page one hereof.
"Notes" has the meaning specified in Section 2.07 hereof.
"Notice of Default" has the meaning specified in Section
10.03.
"Obligations" means, as at any date of determination thereof,
the sum of the following: (a) the aggregate principal amount of Loans
outstanding hereunder on such date, plus (b) the aggregate amount of
the outstanding Letter of Credit Liabilities on such date, plus (c) the
aggregate amount of outstanding Bankers' Acceptance Liabilities on such
date, plus (d) all other outstanding liabilities, obligations and
indebtedness of any Obligor under any Loan Document on such date.
"Obligors" means each Borrower and the U.S. Borrower as
guarantor of the Canadian Borrower Guaranteed Obligations.
"OECD" means the Organization for Economic Cooperation and
Development (or any successor thereto).
"Past Due Rate" means, on any day, a rate per annum equal to
the applicable Base Rate or Canadian Prime Rate, as the case may be,
plus two percent (2%).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA and any
pension commission or similar body constituted under any Applicable
Canadian Pension Legislation.
"Performance Level" means a reference to one of Performance
Level I, Performance Level II, Performance Level III, Performance Level
IV or Performance Level V.
"Performance Level I" means, at any date of determination, the
U.S. Borrower shall have a U.S. Borrower Debt Rating in effect on such
date of at least A- by S&P and at least A3 by Moody's.
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<PAGE> 26
"Performance Level II" means, at any date of determination,
(a) the Performance Level does not meet the requirements of Performance
Level I and (b) the U.S. Borrower shall have a U.S. Borrower Debt
Rating in effect on such date of at least BBB+ by S&P and at least Baa1
by Moody's.
"Performance Level III" means, at any date of determination,
(a) the Performance Level does not meet the requirements of Performance
Level I or Performance Level II and (b) the U.S. Borrower shall have a
U.S. Borrower Debt Rating in effect on such date of at least BBB by S&P
and at least Baa2 by Moody's.
"Performance Level IV" means, at any date of determination,
(a) the Performance Level does not meet the requirements of Performance
Level I, Performance Level II or Performance Level III and (b) the U.S.
Borrower shall have a U.S. Borrower Debt Rating in effect on such date
of at least BBB- by S&P and at least Baa3 by Moody's.
"Performance Level V" means, at any date of determination, the
Performance Level does not meet the requirements of Performance Level
I, Performance Level II, Performance Level III or Performance Level IV.
"Permitted Liens" means, without duplication,
(a) Liens, not otherwise permitted under any other
provision of this definition, securing Indebtedness permitted
under this Agreement in an aggregate principal amount at any
time outstanding which does not exceed 12% of Net Worth;
(b) Liens for taxes or unpaid utilities 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 U.S.
Borrower or the Subsidiaries, as the case may be, in
conformity with GAAP;
(c) 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;
(d) pledges or deposits or deemed trusts in
connection with workers' compensation, unemployment insurance,
pension, employment or other social security legislation;
(e) easements, rights-of-way, use restrictions, minor
defects or irregularities in title, reservations (including
reservations in any original grant from any government of any
land or interests therein and statutory exceptions to title)
and other similar encumbrances incurred in the ordinary course
of business which, in the
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<PAGE> 27
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 U.S. Borrower or any
Subsidiary;
(f) 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;
(g) Liens on the assets of any entity or asset
existing at the time such asset or entity is acquired by the
U.S. Borrower or any 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
U.S. Borrower or any Subsidiary; (ii) do not extend to any
other assets of the U.S. Borrower or any Subsidiary; and (iii)
the Indebtedness secured by such Lien is permitted pursuant to
this Agreement;
(h) Liens securing Indebtedness of the U.S. Borrower
or its Subsidiaries not prohibited by Section 8.04 incurred to
finance the acquisition of fixed or capital assets, provided
that (A) such Liens shall be created not more than 90 days
after the acquisition of such fixed or capital assets, (B)
such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and (C) the Liens
are not modified to secure other Indebtedness and the amount
of Indebtedness secured thereby is not increased;
(i) 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);
(j) leases or subleases granted to others not
interfering in any material respect with the business of the
U.S. Borrower or any Subsidiary;
(k) Liens to secure obligations arising from
statutory or regulatory requirements;
(l) 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;
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<PAGE> 28
(m) 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 U.S. Borrower or
any Subsidiary on deposit with or in possession of such bank;
(n) any renewal or refinancing of or substitution
for, or any extension or modification of any maturity date for
any Indebtedness secured by, 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; and
(o) Liens granted or Letters of Credit issued in
connection with the obligations of Grant Prideco, Inc.
incurred in connection with the TBT Leases.
"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 any Governmental Authority.
"Plan" means an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code or any Applicable Canadian Pension Legislation
and is either (a) maintained by either Borrower or any ERISA Affiliate
for employees of either Borrower or any ERISA Affiliate or (b)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and
to which either Borrower or any ERISA Affiliate is then making or
accruing an obligation to make contributions or has within the
preceding five plan years made contributions.
"Principal Office" means (a) as to Obligations of the U.S.
Borrower, the principal office of the U.S. Administrative Agent,
presently located at 712 Main Street, Houston, Texas 77002, and (b) as
to Obligations of the Canadian Borrower, the principal office of the
Canadian Agent, presently located at 44 King Street West, 17th Floor,
Toronto, Ontario, Canada M5H 1H1.
"Pro Rata Share" has the meaning specified in Section 12.05.
"Quarterly Dates" means the last day of each March, June,
September and December, provided that if any such date is not a
Business Day, then the relevant Quarterly Date shall be the next
succeeding Business Day.
"Rate Designation Date" means that Business Day which is (a)
in the case of Base Rate Borrowings by the U.S. Borrower, 11:00
a.m.,Houston, Texas time and, in the case of Base Rate Borrowings by
the Canadian Borrower, 12:00 noon, Toronto, Ontario time, in each case
on the date of such borrowing, and (b) in the case of LIBOR Borrowings
by the U.S. Borrower, 11:00 a.m., Houston, Texas time, and, in the case
of LIBOR Borrowings by
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the Canadian Borrower, 12:00 noon, Toronto, Ontario time, in each case,
on the date three Business Days preceding the first day of any proposed
Interest Period.
"Rate Designation Notice" means a written notice substantially
in the form of Exhibit 1.01D.
"Refunding Bankers' Acceptance" has the meaning specified in
Section 2.03(b).
"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 G" means Regulation G of the Board (respecting
margin credit extended by certain lenders) 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.
"Regulatory Change" means with respect to any Lender, any
change on or after the date of this Agreement in any Requirement of Law
(including, without limitation, Regulation D) or the adoption or making
on or after such date of any interpretation, directive or request
applying to a class of lenders including such Lender under any
Requirement of Laws (whether or not having the force of law) by any
Governmental Authority.
"Reimbursement Obligations" means, as at any date, (a) the
obligations of either Borrower then outstanding in respect of Letters
of Credit under this Agreement, to reimburse the applicable Issuers for
the amount paid by such Issuers in respect of any drawing under such
Letters of Credit and (b) the obligations of the Canadian Borrower then
outstanding in respect of any Bankers' Acceptance paid by any Canadian
Lender on maturity thereof. Except for the Canadian Letters of Credit
denominated in Canadian Dollars, Reimbursement Obligations in respect
of any Letter of Credit shall at all times be payable in Dollars
notwithstanding any such Letter of Credit being payable in a currency
other than Dollars.
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<PAGE> 30
"Reportable Event" means an event described in Section 4043(c)
of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
"Request for Extension of Credit" means a request for
extension of credit duly executed by the chief executive officer, chief
financial officer or treasurer of the U.S. Borrower or the Canadian
Borrower, as the case may be, or any other Person duly authorized by
one of such officers, appropriately completed and substantially in the
form of Exhibit 1.01E-1 (U.S. Borrower) or Exhibit 1.01E-2 (Canadian
Borrower), as the case may be.
"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.
"Reset Date" has the meaning specified in Section 2.09(a).
"Responsible Officer" means, with respect to any Obligor, the
President, the chief financial officer, the controller or any vice
president of such Obligor, or an individual specifically authorized by
the Board of Directors of such Obligor to sign on behalf of such
Obligor.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Schedule I Canadian Lenders" means Canadian Lenders which are
listed in Schedule I to the Bank Act (Canada).
"Schedule II Canadian Lenders" means Canadian Lenders which
are listed in Schedule II to the Bank Act (Canada).
"Schedule II Reference Banks" means The Chase Manhattan Bank
of Canada and ABN AMRO Bank Canada, or such two other Schedule II
Canadian Lenders as may be selected by the Canadian Agent in
consultation with the Canadian Borrower.
"Stated Rate" means the effective weighted per annum rate of
interest applicable to the Obligations; provided, that if on any day
such rate shall exceed the Ceiling Rate for that day, the Stated Rate
shall be fixed at the Ceiling Rate on that day and on each day
thereafter until the total amount of interest accrued at the Stated
Rate on the unpaid principal balances of the Notes and the other
Obligations plus the Additional Interest equals the total amount of
interest which would have accrued if there had been no Ceiling Rate. If
the Obligations mature (or are prepaid) before such equality is
achieved, then, in addition to the unpaid principal and accrued
interest then owing pursuant to the other provisions of the Loan
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<PAGE> 31
Documents, the applicable Borrower promises to pay on demand to the
order of the holder of the applicable Obligations interest in an amount
equal to the excess (if any) of (a) the lesser of (i) the total
interest which would have accrued on such Obligations if the Stated
Rate had been defined as equal to the Ceiling Rate from time to time in
effect and (ii) the total interest which would have accrued on such
Obligations if the Stated Rate were not so prohibited from exceeding
the Ceiling Rate, over (b) the total interest actually accrued on such
Obligations to such maturity (or prepayment) date. Without notice to
any Borrower or any other Person, the Stated Rate shall automatically
fluctuate upward and downward in accordance with the provisions of this
definition.
"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. Unless the context otherwise clearly
requires, references in this Agreement to a "Subsidiary" or the
"Subsidiaries" refer to a Subsidiary or the Subsidiaries of the U.S.
Borrower.
"Taxes" shall have the meaning ascribed to it in Section
4.01(d).
"TBT Leases" means (i) tax transfer lease Agreement dated
November 30, 1982, between The Scott Fetzer Company and the U.S.
Borrower 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
U.S. Borrower with related Escrow Agreement.
"Termination Date" means the earlier of (a) the Maturity Date
or (b) the earlier date of the acceleration of the maturity of the
Obligations pursuant to Section 9.01.
"Total Canadian Exposure" means, at any time and without
duplication, the sum of the aggregate principal amounts of the then
outstanding Canadian Loans, then outstanding Bankers' Acceptance
Liabilities and then outstanding Letter of Credit Liabilities in
respect of the Canadian Letters of Credit, in each case expressed in
Dollars using, where applicable, the then current Exchange Rate.
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<PAGE> 32
"Total Capitalization" means, at any date, the sum of
Consolidated Indebtedness and Net Worth and the outstanding principal
amount of the Debentures at such date.
"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 Issuer).
"U.S. Alternate Base Rate" means, for any day, the rate per
annum equal to the applicable Margin Percentage from time to time in
effect plus the greater of (a) the prime rate for that day for Loans
denominated in Dollars quoted by the U.S. Administrative Agent and (b)
the Federal Funds Rate for that day plus 1/2 of 1%. The aforesaid prime
rate is a reference rate and does not necessarily represent the lowest
or best rate or a favored rate and the U.S. Administrative Agent and
each U.S. Lender disclaims any statement, representation or warranty to
the contrary. The U.S. Administrative Agent or any U.S. Lender may make
commercial loans or other loans at rates of interest at, above or below
the aforesaid prime rate. If for any reason the U.S. Administrative
Agent shall have determined (which determination shall be presumed
correct, absent manifest error) that it is unable to ascertain the
Federal Funds Rate for any reason, the U.S. Alternate Base Rate shall,
until the circumstances giving rise to such inability no longer exist,
be the prime rate in (a) above plus the applicable Margin Percentage
from time to time in effect.
"U.S. Borrower" has the meaning specified in the introduction
to this Agreement.
"U.S. Borrower Debt Rating" means, with respect to the U.S.
Borrower as of any date of determination, the rating that has been most
recently announced by either S&P or Moody's, as the case may be, for
any non-credit enhanced long-term senior debt issued or to be issued by
the U.S. Borrower. For purposes of the foregoing:
(a) if only one of S&P and Moody's shall have in
effect a U.S. Borrower Debt Rating, the Margin Percentage and
the Commitment Fee Percentage shall be determined by reference
to the available rating;
(b) if, at any time, neither S&P nor Moody's shall
have in effect a U.S. Borrower Debt Rating, the Margin
Percentage and the Commitment Fee Percentage shall be set in
accordance with Performance Level V under the definition of
"Margin Percentage" or "Commitment Fee Percentage," as the
case may be;
(c) if the ratings established by S&P and Moody's
shall fall within different Performance Levels, the Margin
Percentage and the Commitment Fee Percentage shall be based
upon the lower rating; provided, however, that, if the higher
of such ratings is two or more Performance Levels above the
lower of such
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<PAGE> 33
ratings, the Margin Percentage and the Commitment Fee
Percentage shall be based upon the rating that is one
Performance Level above the lower rating;
(d) if any rating established by S&P or Moody's shall
be changed, such change shall be effective as of the date on
which such change is announced publicly by the rating agency
making such change; and
(e) if S&P or Moody's shall change the basis on which
ratings are established by it, each reference to the U.S.
Borrower Debt Rating announced by S&P or Moody's shall refer
to the then equivalent rating by S&P or Moody's, as the case
may be.
"U.S. Borrower Guaranty" means the guaranty contained in
Article XI.
"U.S. Commitment" means, as to any U.S. Lender, the
obligation, if any, of such U.S. Lender to make U.S. Loans and incur or
participate in Letter of Credit Liabilities relating to U.S. Letters of
Credit in an aggregate principal amount at any one time outstanding up
to (but not exceeding) the amount, if any, set forth on Schedule 1.01
hereto under the caption "U.S. Commitment", or otherwise provided for
in an Assignment and Acceptance Agreement (as the same may be increased
or reduced from time to time pursuant to Section 2.04 hereof).
"U.S. Lender" means each lender signatory hereto with (a)
prior to the Termination Date, a U.S. Commitment and (b) on and after
the Termination Date, any outstanding U.S. Obligations.
"U.S. Letter of Credit" shall have the meaning assigned to
such term in Section 2.02.
"U.S. Loan" means a Loan made pursuant to Section 2.01(a).
"U.S. Notes" means the Notes of the U.S. Borrower evidencing
the U.S. Loans, in the form of Exhibit 1.01F.
"U.S. Obligations" means, as at any date of determination
thereof, the sum of the following (determined without duplication): (a)
the aggregate principal amount of the U.S. Loans outstanding hereunder
on such date plus (b) the aggregate amount of the Letter of Credit
Liabilities outstanding on such date relating to the U.S. Letters of
Credit.
"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.
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<PAGE> 34
"Wholly-Owned Subsidiary" means a Subsidiary of which all
issued and outstanding Capital Stock (excluding directors' qualifying
shares) is directly or indirectly owned by the U.S. Borrower.
SECTION 1.02. Types of Borrowings. Borrowings hereunder are
distinguished by "Type." The "Type" of a Loan refers to the determination
whether such Loan is a part of a LIBOR Borrowing, part of a Base Rate Borrowing,
or is a Canadian Prime 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 U.S. Borrower
or the Canadian Borrower, as the case may be, 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 Borrowers 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 Borrowers 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 Borrowers would have
been in compliance therewith under GAAP as in effect immediately prior to such
change.
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;
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<PAGE> 35
(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";
(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; and
(x) the term "annualized" as used herein shall mean the
multiplication of the applicable amount for any given period by a
fraction, the numerator of which is 365 or 366 (whichever may be the
number of days in the applicable year) and the denominator of which is
the number of days elapsed in such year.
(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.
ARTICLE II
COMMITMENTS; LOANS; BA'S AND LETTERS OF CREDIT
SECTION 2.01. Loans and BA's. Each Lender severally agrees,
subject to all of the terms and conditions of this Agreement to make Loans and,
in the case of the Canadian Lenders, to accept and purchase Bankers'
Acceptances, as follows:
(a) U.S. Loans. From time to time on or after the Effective
Date and during the Availability Period, each U.S. Lender shall make loans under
this Section 2.01(a) to the U.S. Borrower in an aggregate principal amount at
any one time outstanding (including its Commitment Percentage of all Letter of
Credit Liabilities relating to the U.S. Letters of Credit at such time) up
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to but not exceeding such U.S. Lender's Commitment Percentage of the Maximum
U.S. Available Amount. Subject to the conditions in this Agreement, any such
U.S. Loan repaid prior to the Termination Date may be reborrowed pursuant to the
terms of this Agreement; provided, that any and all such U.S. Loans shall be due
and payable in full on the Termination Date. Loans made under this Section
2.01(a) shall be made and denominated in Dollars. The aggregate of all U.S.
Loans to be made by the U.S. Lenders in connection with a particular borrowing
shall be equal to the lesser of (i) the unutilized portion of the U.S.
Commitments and (ii) $3,000,000 or any integral multiple of $100,000 in excess
thereof.
(b) Canadian Loans. From time to time on or after the
Effective Date and during the Availability Period, each Canadian Lender shall
make loans under this Section 2.01(b) to the Canadian Borrower in an aggregate
principal amount at any one time outstanding (including such Canadian Lender's
Commitment Percentage of all Bankers' Acceptance Liabilities and all Letter of
Credit Liabilities relating to the Canadian Letters of Credit at such time) up
to but not exceeding such Canadian Lender's Commitment Percentage of the Maximum
Canadian Available Amount. Subject to the conditions in this Agreement, any such
Canadian Loan repaid prior to the Termination Date may be reborrowed pursuant to
the terms of this Agreement; provided, that any and all such Canadian Loans
shall be due and payable in full on the Termination Date. Loans made under this
Section 2.01(b) may, at the option of the Canadian Borrower, be made and
denominated either in Dollars or in Canadian Dollars (but all Loans to be made
under a particular borrowing must be made and denominated in the same currency).
The aggregate of all Canadian Loans to be made by the Canadian Lenders in
connection with a particular borrowing shall be equal to the lesser of (i) the
unutilized portion of the Canadian Commitments or (ii) $1,000,000 or any
integral multiple of $100,000 in excess thereof (if the Loans are denominated in
Dollars) or C$1,000,000 or any integral multiple of C$100,000 in excess thereof
(if the Loans are denominated in Canadian Dollars). LIBOR Loans to the Canadian
Borrower shall be available only in Dollars.
(c) Bankers' Acceptances. From time to time on or after the
Effective Date and during the Availability Period, each Canadian Lender shall
accept and purchase Bankers' Acceptances drawn on it under Section 2.03 by the
Canadian Borrower in an aggregate principal amount at any one time outstanding
(including such Canadian Lender's Commitment Percentage of all Canadian Loans
outstanding at such time and all Letter of Credit Liabilities relating to the
Canadian Letters of Credit at such time) up to but not exceeding such Canadian
Lender's Commitment Percentage of the Maximum Canadian Available Amount. No
Bankers' Acceptance may be made or accepted on or after the Termination Date and
all outstanding Bankers' Acceptances shall mature no later than the end of the
Availability Period. Loans made by way of Bankers' Acceptances shall be made and
denominated in Canadian Dollars.
(d) Chapter 15. The Borrowers, the Agents and the Lenders
agree that Chapter 15 of the Texas Credit Code shall not apply to this
Agreement, the Notes or any other Obligation.
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SECTION 2.02. Letters of Credit. (a) Letters of Credit.
Subject to the terms and conditions of this Agreement, and on the condition that
aggregate Letter of Credit Liabilities relating to the U.S. Letters of Credit
shall never exceed $50,000,000 and that aggregate Letter of Credit Liabilities
relating to the Canadian Letters of Credit shall never exceed the Maximum
Canadian Available Amount, (i) the U.S. Borrower shall have the right, in
addition to the U.S. Loans provided for in Section 2.01(a), to utilize the U.S.
Commitments from time to time during the Availability Period by obtaining the
issuance of standby letters of credit for the account of the U.S. Borrower if
the U.S. Borrower shall so request in the notice referred to in Section
2.02(b)(i) (such standby letters of credit as any of them may be amended,
supplemented, extended or confirmed from time to time, being herein collectively
called the "U.S. Letters of Credit") and the Canadian Borrower shall have the
right, in addition to the Canadian Loans provided for in Section 2.01(b) and
Bankers' Acceptances provided for in Section 2.01(c), to utilize the Canadian
Commitments from time to time during the Availability Period by obtaining the
issuance of standby letters of credit for the account of the Canadian Borrower
if the Canadian Borrower shall so request in the notice referred to in Section
2.02(b)(i) (such standby letters of credit as any of them may be amended,
supplemented, extended or confirmed from time to time, being herein collectively
called the "Canadian Letters of Credit") and (ii) the U. S. Administrative Agent
agrees to issue the U.S. Letters of Credit and the Canadian Agent agrees to
issue the Canadian Letters of Credit. The Letters of Credit will, at the request
of the applicable Borrower, be issued in currencies other than those expressly
provided for in this Agreement so long as the applicable Agent is reasonably
satisfied that such currency is readily available in the required amounts and
that such currency selection is not otherwise disadvantageous to either Agent or
any Lender. Upon the date of the issuance of a Letter of Credit, the applicable
Issuer shall be deemed, without further action by any party hereto, to have sold
to each U.S. Lender or each Canadian Lender, as the case may be, and each such
U.S. Lender or each such Canadian Lender, as the case may be, shall be deemed,
without further action by any party hereto, to have purchased from the
applicable Issuer, a participation, to the extent of such Lender's Commitment
Percentage, in such Letter of Credit and the related Letter of Credit
Liabilities, which participation shall terminate on the earlier of the
expiration date of such Letter of Credit or 10 days prior to the Maturity Date.
Any Letter of Credit that shall have an expiration date after the date that is
10 days prior to the Maturity Date shall be subject to Cover (due and payable on
the tenth day prior to the Maturity Date) or backed by a standby letter of
credit in form and substance, and issued by a Person, acceptable to the
applicable Agent in its sole discretion. The U. S. Administrative Agent or, with
the prior approval of the U.S. Borrower, the U.S. Administrative Agent and the
applicable U.S. Lender, another U.S. Lender shall be the Issuer of each U.S.
Letter of Credit and the Canadian Agent or, with the prior approval of the
Canadian Borrower, the Canadian Agent and the applicable Canadian Lender,
another Canadian Lender shall be the Issuer of each Canadian Letter of Credit.
Except as provided above, all U.S. Letters of Credit shall be denominated in
Dollars and all Canadian Letters of Credit shall, at the option of the Canadian
Borrower, be denominated in either Dollars or Canadian Dollars. Fees due in
respect of a U.S. Letter of Credit shall be payable in Dollars and fees due in
respect of a Canadian Letter of Credit shall be payable (i) in Dollars, if such
Letter of Credit is denominated in Dollars and (ii) in Canadian Dollars if such
Letter of Credit is denominated in Canadian Dollars or any other currency.
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(b) Additional Provisions. The following additional provisions
shall apply to each Letter of Credit:
(i) The U.S. Borrower or the Canadian Borrower, as the case
may be, shall give the appropriate Agent notice requesting each
issuance of a Letter of Credit hereunder as provided in Section 4.03
and shall furnish such additional information regarding such
transaction as such Agent may reasonably request. Upon receipt of such
notice, such Agent shall promptly notify each U.S. Lender or the
Canadian Lender, as the case may be, of the contents thereof and of
such Lender's Commitment Percentage of the amount of such proposed
Letter of Credit.
(ii) No U.S. Letter of Credit may be issued if after giving
effect thereto the sum of (A) the aggregate outstanding principal
amount of the U.S. Loans plus (B) the aggregate Letter of Credit
Liabilities relating to the U.S. Letters of Credit would exceed the
Maximum U.S. Available Amount. No Canadian Letter of Credit may be
issued if after giving effect thereto the sum of (A) the aggregate
outstanding principal amount of the Canadian Loans plus (B) the
aggregate Letter of Credit Liabilities relating to the Canadian Letters
of Credit plus (C) the aggregate Bankers' Acceptance Liabilities would
exceed the Maximum Canadian Available Amount. On each day during the
period commencing with the issuance of any Letter of Credit and until
such Letter of Credit shall have expired or been terminated, the U. S.
Commitment or the Canadian Commitment, as the case may be, of each
applicable Lender shall be deemed to be utilized for all purposes
hereof in an amount equal to such Lender's Commitment Percentage of the
amount then available for drawings under such Letter of Credit (and any
unreimbursed drawings under such Letter of Credit).
(iii) Upon receipt from the beneficiary of any Letter of
Credit of any demand for payment thereunder, the applicable Issuer
shall notify the Agents and thereafter the U.S. Administrative Agent or
the Canadian Agent, as the case may be, shall promptly notify the
applicable Borrower and each applicable Lender as to the amount to be
paid as a result of such demand and the payment date therefor. If at
any time prior to the expiration date of a Letter of Credit any
applicable Issuer shall have made a payment to a beneficiary of a
Letter of Credit in respect of a drawing under such Letter of Credit,
each applicable Lender will pay to the U.S. Administrative Agent or the
Canadian Agent, as the case may be, immediately upon demand by such
Issuer at any time during the period commencing after such payment
until reimbursement thereof in full by the applicable Borrower, an
amount equal to such Lender's U.S. Commitment Percentage or Canadian
Commitment Percentage, as the case may be, of such payment, together
with interest on such amount for each day from the date of demand for
such payment (or, if such demand is made after 11:00 a.m., Houston,
Texas time (in the case of a U.S. Letter of Credit), or 12:00 noon,
Toronto, Ontario time (in the case of a Canadian Letter of Credit), on
such date, from the next succeeding Business Day) to the date of
payment by such Lender of such amount at a rate of interest per annum
equal to (A) in respect of the U.S. Letters of Credit, the Federal
Funds Rate, (B) in respect of the Canadian Letters of Credit which are
denominated in Dollars, the Base Rate plus 2% and (C)
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in respect of the Canadian Letters of Credit which are denominated in
Canadian Dollars, the CDOR Rate. For purposes of determining the amount
of each Lender's payment obligation to the Issuer, the amount of each
drawing paid by either Issuer under a Letter of Credit issued in a
currency other than Dollars or Canadian Dollars shall be converted into
Dollars by the applicable Agent at the Exchange Rate on the date of
such drawing. To the extent that it is ultimately determined that the
applicable Borrower is relieved of its obligation to reimburse the
applicable Issuer because of such Issuer's gross negligence, willful
misconduct or unlawful conduct in determining that documents received
under any applicable Letter of Credit comply with the terms thereof,
the applicable Issuer shall be obligated to refund to the paying
Lenders all amounts paid to such Issuer to reimburse Issuer for the
applicable drawing under such Letter of Credit.
(iv) The U.S. Borrower or the Canadian Borrower, as the case
may be, shall be irrevocably and unconditionally obligated forthwith to
reimburse the appropriate Agent, on the date on which such Agent
notifies the U.S. Borrower or the Canadian Borrower, as the case may
be, of the date and amount of any payment by the applicable Issuer of
any drawing under a Letter of Credit, for the amount paid by such
Issuer upon such drawing, without presentment, demand, protest or other
formalities of any kind, all of which are hereby waived. Such
reimbursement may, subject to satisfaction of the conditions in Article
V and to the Maximum U.S. Available Amount or Maximum Canadian
Available Amount, as the case may be (after adjustment in the same to
reflect the elimination of the corresponding Letter of Credit
Liability), be made by a borrowing comprised of Loans or, in the case
of the Canadian Borrower, by the issuance, acceptance and purchase of
Bankers' Acceptances. The applicable Agent will pay to each Lender such
Lender's Commitment Percentage of all amounts received from the U.S.
Borrower or the Canadian Borrower, as the case may be, for application
in payment, in whole or in part, of the Reimbursement Obligation in
respect of any Letter of Credit, but only to the extent such Lender has
made payment to the applicable Agent in respect of such Letter of
Credit pursuant to clause (iii) above.
(v) The U.S. Borrower or the Canadian Borrower, as the case
may be, will pay to the appropriate Agent at the Principal Office of
such Agent for the account of each applicable Lender a letter of credit
fee with respect to each Letter of Credit equal to the greater of (x)
$500 or (y) the Margin Percentage applicable to LIBOR Borrowings
multiplied by the daily average amount available for drawings under
each Letter of Credit (and computed on the basis of the actual number
of days elapsed in a year composed of 360 days), in each case for the
period from and including the date of issuance of such Letter of Credit
to and including the date of expiration or termination thereof, such
fee to be due and payable quarterly in advance. In the event any Letter
of Credit is drawn, that portion of the applicable letter of credit fee
provided for in the preceding sentence relating to the period beyond
the date of such drawing shall be credited to the applicable Borrower's
Reimbursement Obligations relating thereto. The applicable Agent will
pay to each applicable Lender, promptly after receiving any payment in
respect of letter of credit fees referred to in this clause (v), an
amount equal to the product of such Lender's U.S.
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Commitment Percentage or Canadian Commitment Percentage, as the case
may be, times the amount of such fees. In addition to and cumulative of
the above described fees, the U.S. Borrower or the Canadian Borrower,
as the case may be, shall pay to the appropriate Agent, for the account
of the applicable Issuer, in advance on the date of the issuance of the
applicable Letter of Credit, a fee in an amount equal to 1/8% of the
face amount of the applicable Letter of Credit (such fee to be retained
by the applicable Issuer for its own account).
(vi) The issuance by the applicable Issuer of each Letter of
Credit shall, in addition to the conditions precedent set forth in
Article V, be subject to the conditions precedent (A) that such Letter
of Credit shall be in such form and contain such terms as shall be
reasonably satisfactory to the applicable Agent, and (B) that the U.S.
Borrower or the Canadian Borrower, as the case may be, shall have
executed and delivered such Applications and other instruments and
agreements relating to such Letter of Credit as the applicable Agent
shall have reasonably requested and are not inconsistent with the terms
of this Agreement. In the event of a conflict between the terms of this
Agreement and the terms of any Application, the terms of this Agreement
shall control.
(vii) Each Issuer will send to the U.S. Borrower or the
Canadian Borrower, as the case may be, and each applicable Lender,
immediately upon issuance of any Letter of Credit issued by such Issuer
or any amendment thereto, a true and correct copy of such Letter of
Credit or amendment.
(viii) If either Borrower shall fail to reimburse the
appropriate Agent, or to provide Cover, for any Letter of Credit, the
amount of such reimbursement or Cover shall bear interest from the date
due at the Past Due Rate until the date such reimbursement is made or
such Cover is provided.
(c) Indemnification. The U.S. Borrower or the Canadian
Borrower, as the case may be, hereby indemnifies and holds harmless each Agent,
each Lender and each Issuer from and against any and all claims and damages,
losses, liabilities, costs or expenses which such Agent, such Lender or such
Issuer may incur (or which may be claimed against such Agent, such Lender or
such Issuer by any Person whatsoever), REGARDLESS OF WHETHER CAUSED IN WHOLE OR
IN PART BY THE NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES, in connection with
the execution and delivery of any Letter of Credit or transfer of or payment or
failure to pay under any Letter of Credit; provided that the U.S. Borrower or
the Canadian Borrower, as the case may be, shall not be required to indemnify
any party seeking indemnification for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, caused by (i) the
willful misconduct, gross negligence or unlawful conduct of the party seeking
indemnification, or (ii) the failure by the party seeking indemnification to pay
under any Letter of Credit after the presentation to it of a request required to
be paid under applicable law.
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(d) Additional Costs in Respect of Letters of Credit. (i) If
as a result of any Regulatory Change there shall be imposed, modified or deemed
applicable any Tax, reserve, special deposit or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder or participations in such Letters of Credit, and the result
shall be to increase the cost to any Lender of issuing or maintaining any Letter
of Credit or any participation therein, or materially reduce any amount
receivable by any Lender hereunder in respect of any Letter of Credit or any
participation therein (which increase in cost, or reduction in amount
receivable, shall be the result of such Lender's reasonable allocation of the
aggregate of such increases or reductions resulting from such event), then such
Lender shall notify the U.S. Borrower or the Canadian Borrower, as the case may
be, through the appropriate Agent (which notice shall be accompanied by a
statement setting forth in reasonable detail the basis for the determination of
the amount due), and within 15 Business Days after demand therefor by such
Lender through such Agent, the U.S. Borrower or the Canadian Borrower, as the
case may be, shall pay to such Lender, from time to time as specified by such
Lender, such additional amounts as shall be sufficient to compensate such Lender
for such increased costs or reductions in amount. Such statement as to such
increased costs or reductions in amount incurred by such Lender, submitted by
such Lender to the U.S. Borrower or the Canadian Borrower, as the case may be,
shall be conclusive as to the amount thereof, absent manifest error, and may be
computed using any reasonable averaging and attribution method. Each Lender will
notify the U.S. Borrower or the Canadian Borrower, as the case may be, through
the appropriate Agent of any event occurring after the date of this Agreement
that will entitle such Lender to compensation pursuant to this Section as
promptly as practicable, and in any event within 120 days after it becomes aware
thereof, and determines to request such compensation, and (if so requested by
the U.S. Borrower or the Canadian Borrower, as the case may be, through the
appropriate Agent) will designate a different lending office of such Lender for
the issuance or maintenance of the Letters of Credit by such Lender or will take
such other action as the U.S. Borrower or the Canadian Borrower, as the case may
be, may reasonably request if such designation or action is consistent with
legal and regulatory restrictions, can be undertaken at no additional cost, will
avoid the need for, or reduce the amount of, such compensation and will not, in
the sole opinion of such Lender, be disadvantageous to such Lender (provided
that no such U.S. Lender shall have any obligation so to designate a different
lending office which is not located in the United States of America and no such
Canadian Lender shall have any obligation so to designate a different lending
office which is not located in Canada).
(ii) Anything in this Section 2.02(d) notwithstanding, if any
Lender elects to require payment by either Borrower of any amount under this
Section 2.02(d), the applicable Borrower may, within 60 days after the date of
receiving notice thereof and so long as no Default shall have occurred and be
continuing, elect to terminate such Lender as a party to this Agreement;
provided that, concurrently with such termination the applicable Borrower shall
have arranged for an Eligible Assignee as of such date, to become a substitute
Lender for all purposes under this Agreement in the manner provided in Section
11.06; provided further that, prior to substitution for any Lender, the
applicable Borrower shall have given written notice to the Agents of such
intention and the remaining Lenders shall have the option, but no obligation,
for a period of 10 days after
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receipt of such notice, to increase their Commitments in order to replace the
affected Lender in lieu of such substitution.
SECTION 2.03. Certain Provisions Relating to Bankers'
Acceptances. (a) Subject to the terms and conditions hereof, each Canadian
Lender severally agrees to accept and purchase Bankers' Acceptances drawn upon
it by the Canadian Borrower denominated in Canadian Dollars. The Canadian
Borrower shall notify the Canadian Agent by irrevocable written notice (each a
"Bankers' Acceptance Notice") by 12:00 noon, Toronto, Ontario time two Business
Days prior to the proposed date of any borrowing by way of Bankers' Acceptances.
Each borrowing by way of Bankers' Acceptances shall be in a minimum aggregate
face amount of C$1,500,000 and integral multiples of C$100,000 in excess
thereof. The face amount of each Bankers' Acceptance shall be C$100,000 or any
integral multiple of $100,000 in excess thereof. Each Bankers' Acceptance Notice
shall be in the form of Exhibit 2.03.
(i) Bankers' Acceptances shall be issued and shall mature on
a Business Day. Subject to availability, each Bankers' Acceptance shall
have a term of not less than 28 days and not more than 182 days
excluding days of grace and shall mature on or before the Maturity Date
and shall be in form and substance reasonably satisfactory to each
Canadian Lender.
(ii) The Canadian Borrower hereby appoints each Canadian
Lender as its attorney to sign and endorse on its behalf, in
handwriting or by facsimile or mechanical signature as and when
requested by the Canadian Borrower, blank forms of Bankers'
Acceptances. The Canadian Borrower recognizes and agrees that all
Bankers' Acceptances signed or endorsed or both on its behalf by a
Canadian Lender shall bind the Canadian Borrower as fully and
effectually as if signed in the handwriting of and duly issued by the
proper signing officer of the Canadian Borrower. Each Canadian Lender
is hereby authorized to issue such Bankers' Acceptances endorsed in
blank in such face amounts as may be determined by such Canadian Lender
provided that the aggregate amount thereof is equal to the aggregate
amount of Bankers' Acceptances required to be accepted by such Canadian
Lender. No Canadian Lender shall be responsible or liable for its
failure to accept a Bankers' Acceptance if the cause of such failure
is, in whole or in part, due to the failure of the Canadian Borrower to
provide duly executed and endorsed drafts to the Canadian Agent on a
timely basis nor shall any Canadian Lender be liable for any damage,
loss or other claim arising by reason of any loss or improper use of
any such instrument except loss or improper use arising by reason of
the gross negligence, willful misconduct or unlawful conduct of such
Canadian Lender, its officers, employees, agents or representatives.
Each Canadian Lender shall maintain a record with respect to Bankers'
Acceptances (A) received by it from the Canadian Agent in blank
hereunder, (B) voided by it for any reason, (C) accepted by it
hereunder, (D) purchased by it hereunder and (E) canceled at their
respective maturities. Each Canadian Lender further agrees to retain
such records in the manner and for the statutory periods provided in
the various Canadian provincial or federal statutes and regulations
which apply to such Canadian Lender.
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(iii) Promptly following receipt of a Bankers' Acceptance
Notice, the Canadian Agent shall so advise the Canadian Lenders and
shall advise each Canadian Lender of the Canadian Borrower of, and the
face amount of, each Bankers' Acceptance to be accepted by it and the
term thereof. The aggregate face amount of Bankers' Acceptances to be
accepted by a Canadian Lender shall be determined by the Canadian Agent
by reference to the respective Canadian Commitments of the Canadian
Lenders, except that, if the face amount of a Bankers' Acceptance, that
would otherwise be accepted by a Canadian Lender, would not be
C$100,000 or an integral multiple thereof, such face amount shall be
increased or reduced by the Canadian Agent in its sole and unfettered
discretion to the nearest integral multiple of C$100,000.
(iv) Each Bankers' Acceptance to be accepted by a Canadian
Lender shall be accepted at such Canadian Lender's office shown on the
signature pages hereof or as otherwise designated by such Canadian
Lender from time to time.
(v) On the relevant borrowing date, each Canadian Lender
severally agrees to purchase from the Canadian Borrower, at the face
amount thereof discounted by the Applicable BA Discount Rate, any
Bankers' Acceptance accepted by it and provide to the Canadian Agent,
for the account of the Canadian Borrower, the BA Discount Proceeds in
respect thereof after deducting therefrom the amount of the Acceptance
Fee payable by the Canadian Borrower to such Canadian Lender under
Section 2.03(c) in respect of such Bankers' Acceptance.
(vi) Without any further charge or cost to the Canadian
Borrower, each Canadian Lender may at any time and from time to time
hold, sell, rediscount or otherwise dispose of any or all Bankers'
Acceptances accepted and purchased by it.
(vii) The Canadian Borrower waives presentment for payment
and any other defense to payment of any amounts due to a Canadian
Lender in respect of a Bankers' Acceptance accepted by it pursuant to
this Agreement which might exist solely by reason of such Bankers'
Acceptance being held, at the maturity thereof, by such Canadian Lender
in its own right and the Canadian Borrower agrees not to claim any days
of grace if such Canadian Lender as holder sues the Canadian Borrower
on the Bankers' Acceptances for payment of the amount payable by the
Canadian Borrower thereunder.
(viii) No more than six borrowings by way of Bankers'
Acceptances shall be in effect at any time.
(b) With respect to each Bankers' Acceptance, the Canadian
Borrower, prior to the occurrence and continuation of a Default, may give
irrevocable telephone or written notice (or such other method of notification as
may be agreed upon between the Canadian Agent and the Canadian Borrower) to the
Canadian Agent at or before 12:00 noon, Toronto, Ontario time, two (2) Business
Days prior to the maturity date of such Bankers' Acceptances followed by written
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confirmation electronically transmitted to the Canadian Agent on the same day,
of the Canadian Borrower's intention to issue one or more Bankers' Acceptances
on such maturity date (each a "Refunding Bankers' Acceptance") to provide for
the payment of such maturing Bankers' Acceptance (it being understood that
payments by the Canadian Borrower and fundings by the Canadian Lenders in
respect of each maturing Bankers' Acceptance and each related Refunding Bankers'
Acceptance shall be made on a net basis reflecting the difference between the
face amount of such maturing Bankers' Acceptance and the BA Discount Proceeds
(net of the applicable Acceptance Fee) of such Refunding Bankers' Acceptance).
Any funding on account of any maturing Bankers' Acceptance must be made at or
before 12:00 noon, Toronto, Ontario time, on the maturity date of such Bankers'
Acceptance. If the Canadian Borrower fails to give such notice, then subject to
satisfaction of the conditions in Article V and to the Maximum Canadian
Available Amount, the Canadian Borrower shall be irrevocably deemed to have
requested and to have been advanced a Canadian Prime Loan in the face amount of
such maturing Bankers' Acceptance on the maturity date of such Bankers'
Acceptance from the Canadian Lender which accepted such maturing Bankers'
Acceptance, which Canadian Prime Loan shall thereafter bear interest as such in
accordance with the provisions hereof until paid in full.
(c) An Acceptance Fee shall be payable by the Canadian
Borrower to each Canadian Lender in advance (in the manner specified in Section
2.03(a)(v)) in respect of a Bankers' Acceptance to be accepted by such Canadian
Lender calculated at the rate per annum equal to the Margin Percentage
applicable to LIBOR Borrowings, calculated on the face amount of such Bankers'
Acceptance and computed on the basis of the number of days in the term of such
Bankers' Acceptance and a year of 365 days.
(d) If the Canadian Borrower fails to provide Cover for any
Bankers' Acceptance Liabilities, the amount of such Cover shall bear interest at
the Past Due Rate until the date such Cover is provided.
SECTION 2.04. Terminations, Reductions or Reallocations of
Commitments.
(a) Mandatory. On the Termination Date, all Commitments shall
be terminated in their entirety.
(b) Optional. The U.S. Borrower or the Canadian Borrower, as
the case may be, shall have the right to terminate or reduce the unused portion
of the U.S. Commitments or the Canadian Commitments, as the case may be, at any
time or from time to time, provided that (i) the U.S. Borrower or the Canadian
Borrower, as the case may be, shall give notice of each such termination or
reduction to the appropriate Agent as provided in Section 4.03 and (ii) each
such partial reduction shall be in an integral multiple of $5,000,000.
Notwithstanding the foregoing, the U.S. Borrower may not reduce the U.S.
Commitments below the then outstanding principal balance of the U.S. Obligations
and the Canadian Borrower may not reduce the Canadian Commitments below the then
outstanding principal balance of the Canadian Obligations. No termination or
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reduction of the Commitments pursuant to this provision may be reinstated
without the prior written approval of both Agents and all the Lenders.
(c) Reallocations. Any Dual Lender may agree with the
Borrowers to reallocate its existing U.S. Commitment and Canadian Commitment, so
long as the sum of such U.S. Commitment and Canadian Commitment remains
unchanged. In addition, with the prior written consent of all of the Dual
Lenders, any U.S. Lender may agree with the Borrowers to convert a portion of
its U.S. Commitment into a Canadian Commitment, thereby becoming a Dual Lender,
and any Canadian Lender may agree with the Borrowers to convert a portion of its
Canadian Commitment into a U.S. Commitment, in each case so long as, after
giving effect thereto (i) such Lender or an Affiliate of such Lender shall be a
U.S. Lender with a U.S. Commitment of at least $1,000,000, and (ii) the sum of
such Lender's (and such Affiliate's, if applicable) U.S. Commitment and Canadian
Commitment remains equal to the aggregate amount of such Lender's (and such
Affiliate's, if applicable) U.S. Commitment and Canadian Commitment prior to
such reallocation. The Borrowers shall give written notice to the Agents of any
reallocation pursuant to this provision at least ten Business Days prior to the
effective date of any such reallocation. No Lender shall be required to agree to
any such reallocation, but may do so at its option, in its sole discretion. The
following conditions precedent must be satisfied prior to any such reallocation
becoming effective:
(i) no Default or Event of Default shall have occurred and
be continuing;
(ii) the Borrowers shall execute and deliver new Notes to
the Agents evidencing the reallocated Commitments, and if the Dual
Lender has delivered the replaced Notes to the Agents, the Agents shall
deliver such replaced Notes to the Borrowers.
(iii) if, as a result of any such reallocation, the aggregate
U.S. Obligations would exceed the aggregate of all of the U.S.
Commitments, then the U.S. Borrower shall, on the effective date of
such reallocation, repay or prepay the U.S. Loans (or provide Cover for
Letter of Credit Liabilities relating to the U.S. Letters of Credit) in
accordance with this Agreement in an aggregate principal amount such
that, after giving effect thereto, the aggregate U.S. Obligations shall
not exceed the aggregate of all of the U.S. Commitments;
(iv) if, as a result of any such reallocation, the Total
Canadian Exposure would exceed the aggregate of all of the Canadian
Commitments (expressed in Dollars), then the Canadian Borrower shall,
on the effective date of such reallocation, repay or prepay the
Canadian Loans (or provide Cover for Letter of Credit Liabilities
relating to the Canadian Letters of Credit or for Bankers' Acceptance
Liabilities) in accordance with this Agreement in an aggregate
principal amount such that, after giving effect thereto, the Total
Canadian Exposure shall not exceed the aggregate of all of the Canadian
Commitments (expressed in Dollars);
(v) the Borrowers shall have paid any amounts (or shall
have provided Cover) due under Sections 2.09(c) or (d) hereof on the
date of such reallocation;
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(vi) the Maximum Canadian Available Amount shall be adjusted
to equal the sum of all of the Canadian Commitments after giving effect
to such reallocation and the Maximum U.S. Available Amount shall be
adjusted to equal the sum of all of the U.S.
Commitments after giving effect to such reallocation;
(vii) participations by the Lenders in the outstanding
Letters of Credit and the Letter of Credit Liabilities and the
outstanding Loans of the Lenders shall be adjusted to give effect to
such reallocation; provided, however, that in lieu of requiring any
prepayment of any Bankers' Acceptances in order to make appropriate
adjustments to give effect to such reallocations, the Canadian Borrower
shall be required to provide additional Cover for any applicable
portion of the Bankers' Acceptance Liabilities;
(viii) each Lender whose U.S. Commitment or Canadian
Commitment shall be the subject of any reallocation shall have received
from the Borrowers a fee equal to the greater of $3,000.00 or 1/16 of
1% of the amount of the increase or decrease, as the case be, in its
Canadian Commitment.
SECTION 2.05. Commitment Fees. (a) The U.S. Borrower shall pay
to the U.S. Administrative Agent for the account of each U.S. Lender, and the
Canadian Borrower shall pay to the Canadian Agent for the account of each
Canadian Lender, commitment fees for the period from the Effective Date to and
including the Termination Date at a rate per annum equal to the Commitment Fee
Percentage. Such commitment fees shall be computed (on the basis of the actual
number of days elapsed in a year composed of 360 days) on each day and shall be
based on the excess of (x) the aggregate amount of each Lender's Commitment for
such day over (y) the sum of (i) the aggregate unpaid principal balance (in
Dollars) of such Lender's Note or Notes on such day plus (ii) the aggregate
Letter of Credit Liabilities as to such Lender for such day plus, in the case of
the Canadian Lenders only, (iii) the aggregate Bankers' Acceptance Liabilities
outstanding on such day. Accrued commitment fees shall be payable in arrears on
the Quarterly Dates prior to the Termination Date and on the Termination Date,
with any Canadian Obligations converted to Dollars at the Exchange Rate on each
such date for the purposes of each such calculation.
(b) All past due fees payable under this Section 2.05 shall
bear interest at the Past Due Rate.
SECTION 2.06. Several Obligations. The failure of any Lender
to make any Loan to be made by it or to accept and purchase any Bankers'
Acceptance required to be so accepted and purchased by it on the date specified
therefor shall not relieve any other Lender of its obligation to make its Loan
or to accept and purchase its Bankers' Acceptance on such date, but neither
Agent nor any Lender shall be responsible or liable for the failure of any other
Lender to make a Loan or to accept and purchase any Bankers' Acceptance or to
participate in, or co-issue, any Letter of Credit. Notwithstanding anything
contained herein to the contrary, (a) if a U.S. Lender fails to make a U.S. Loan
or participate in, or co-issue, any Letter of Credit as and when required
hereunder, then upon each subsequent event which would otherwise result in
payments of principal being made to the
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defaulting U.S. Lender, the amount which would have been paid to the defaulting
U.S. Lender shall be divided among the non-defaulting U.S. Lenders ratably
according to their respective Commitment Percentages until the Obligations of
each U.S. Lender (including the defaulting U.S. Lender) are equal to such U.S.
Lender's Commitment Percentage of the total U.S. Obligations and (b) if a
Canadian Lender fails to make a Canadian Loan or accept and purchase any
Bankers' Acceptance or participate in, or co-issue any Letter of Credit as and
when required hereunder, then upon each subsequent event which would otherwise
result in payments of principal being made to the defaulting Canadian Lender,
the amount which would have been paid to the defaulting Canadian Lender shall be
divided among the non-defaulting Canadian Lenders ratably according to their
respective Commitment Percentages until the Obligations of each Canadian Lender
(including the defaulting Canadian Lender) are equal to such Canadian Lender's
Commitment Percentage of the total Canadian Obligations.
SECTION 2.07. Notes. The U.S. Loans made by each U.S. Lender
shall be evidenced by a single U.S. Note of the U.S. Borrower in substantially
the form of Exhibit 1.01F payable to the order of such U.S. Lender in a
principal amount equal to the U.S. Commitment of such U.S. Lender, and otherwise
duly completed. The Canadian Loans made by each Canadian Lender that are
denominated in Dollars shall be evidenced by a single Canadian Note of the
Canadian Borrower in substantially the form of Exhibit 1.01B payable to the
order of such Canadian Lender in a principal amount equal to the Canadian
Commitment of such Canadian Lender, and otherwise duly completed, if requested
by such Lender. The Canadian Prime Loans made by each Canadian Lender shall be
evidenced by a single Canadian Dollar Note of the Canadian Borrower in
substantially the form of Exhibit 1.01C payable to the order of such Canadian
Lender in a principal amount equal to the Canadian Commitment of such Canadian
Lender, and otherwise duly completed, if requested by such Lender. The
promissory notes described in this Section 2.07 are each, together with all
renewals, extensions, modifications and replacements thereof and substitutions
therefor, called a "Note" and collectively called the "Notes". Each Lender is
hereby authorized by each Borrower to note in such Lender's records or endorse
on the schedule (or a continuation thereof) that may be attached to each Note of
such Lender, to the extent applicable, the date, amount, type of and the
applicable period of interest for each Loan made by such Lender to the
applicable Borrower hereunder, and the amount of each payment or prepayment of
principal of such Loan received by such Lender, provided, that any failure by
such Lender to make any such endorsement shall not affect the obligations of
either Borrower under such Note or hereunder in respect of such Loan.
SECTION 2.08. Use of Proceeds. The proceeds of the Loans and
of the acceptance and purchase of Bankers' Acceptances shall be used by the
Borrowers for (i) working capital and general corporate purposes, including
business acquisitions, working capital and capital expenditures and (ii) as
backup financing for commercial paper facilities. Neither Agent nor any Lender
shall have any responsibility as to the use of any proceeds of the Loans or of
the acceptance and purchase of Bankers' Acceptances.
SECTION 2.09. Currency Fluctuations. (a) Not later than
1:00 p.m., Houston, Texas time, on each Calculation Date, the U.S.
Administrative Agent shall determine the Exchange Rate
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as of such Calculation Date. The Exchange Rate so determined shall become
effective on the first Business Day immediately following the relevant
Calculation Date (a "Reset Date") and shall remain effective until the next
succeeding Calculation Date.
(b) Not later than 3:00 p.m., Houston, Texas time, on each
Reset Date, the U.S. Administrative Agent shall consult with the Canadian Agent
and the Agents shall determine the Total Canadian Exposure and the aggregate
U.S. Obligations.
(c) If, on any Reset Date or on the date of any reallocation
of the U.S. Commitments and the Canadian Commitments pursuant to Section 2.04(c)
hereof, the sum of the aggregate U.S. Obligations and the Total Canadian
Exposure exceeds the aggregate of all of the U.S. Commitments and the Canadian
Commitments (expressed in Dollars) by five percent (5%) or more, then (i) the
Agents shall give notice thereof to the Lenders and the Borrowers and (ii) the
Borrowers shall within two (2) Business Days thereafter, repay or prepay Loans
(or provide Cover for Letter of Credit Liabilities or Bankers' Acceptance
Liabilities) in accordance with this Agreement in an aggregate principal amount
sufficient to reduce the sum of the aggregate U.S. Obligations and the Total
Canadian Exposure to the aggregate of all of the U.S. Commitments and the
Canadian Commitments (expressed in Dollars).
(d) If, on any day prior to the Termination Date, the Total
Canadian Exposure exceeds the aggregate of all of the Canadian Commitments
(expressed in Dollars) by five percent (5%) or more, then (i) the Canadian Agent
shall give notice thereof to the Canadian Borrower and the Canadian Lenders and
(ii) within two Business Days thereafter, the Canadian Borrower shall repay or
prepay the Canadian Loans (or provide Cover for Letter of Credit Liabilities
relating to the Canadian Letters of Credit or Bankers' Acceptance Liabilities)
in accordance with this Agreement in an aggregate principal amount such that,
after giving effect thereto, the Total Canadian Exposure shall not exceed the
aggregate of all of the Canadian Commitments (expressed in Dollars).
ARTICLE III
BORROWINGS, PREPAYMENTS AND INTEREST OPTIONS
SECTION 3.01. Borrowings. The applicable Borrower shall give
the applicable Agent notice of each borrowing to be made hereunder as provided
in Section 4.03 (or Section 2.03 in case of Bankers' Acceptances), and the
applicable Agent shall promptly notify each applicable Lender of such request.
Not later than 12:00 noon, Houston, Texas time (in the case of the U.S. Loans)
or 1:00 p.m. Toronto, Ontario time (in the case of the Canadian Loans which are
not same-day fundings and Bankers' Acceptances), or 12:00 noon Toronto, Ontario
time (in the case of the Canadian Loans which are same day fundings), on the
date specified for each such borrowing hereunder, each applicable Lender shall
make available the amount of the Loan, if any, to be made by it on such date
and/or the proceeds of the acceptance and purchase of any Bankers' Acceptances,
if any, to be so accepted and purchased by it on such date to the applicable
Agent at its Principal Office, in immediately available funds, for the account
of the applicable Borrower. Such amounts
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received by the applicable Agent will be held in an account maintained by the
applicable Borrower with the applicable Agent. The amounts so received by the
applicable Agent shall, subject to the terms and conditions of this Agreement,
be made available to the applicable Borrower by wiring or otherwise
transferring, in immediately available funds, such amount to an account
designated by the applicable Borrower and approved by the applicable Agent.
SECTION 3.02. Prepayments.
(a) Optional Prepayments. Except as provided in Section 3.03,
each Borrower shall have the right to prepay, on any Business Day, in whole or
in part, without the payment of any penalty or fee, any of the Obligations
(other than Obligations relating to Bankers' Acceptances) at any time or from
time to time, provided that the applicable Borrower shall give the applicable
Agent notice of each such prepayment as provided in Section 4.03. Each optional
prepayment on a Loan shall be in an amount equal to an integral multiple of
$3,000,000 (in respect of U. S. Loans) or C$1,000,000 (in respect of Canadian
Loans denominated in Canadian Dollars) or $1,000,000 (in respect of Canadian
Loans denominated in Dollars). Bankers' Acceptances may not be prepaid. For
greater certainty, but subject to the foregoing minimum amounts, it is hereby
agreed that any portion of a borrowing by way of Bankers' Acceptances may be
used to prepay any outstanding Canadian Prime Loan.
(b) Interest Payments. Accrued and unpaid interest on the
unpaid principal balance of the Notes shall be due and payable in arrears on the
Interest Payment Dates.
(c) Payments and Interest on Reimbursement Obligations. Each
Borrower will pay to the applicable Agent for the account of each applicable
Lender the amount of each Reimbursement Obligation with respect to such Borrower
on the date on which the applicable Agent notifies the applicable Borrower of
the date and amount of the applicable payment by the Issuer of any drawing under
a Letter of Credit or payment of any Bankers' Acceptance on maturity. The amount
of any Reimbursement Obligation may, if the applicable conditions precedent
specified in Sections 5.01 and 5.02 have been satisfied, be paid with the
proceeds of Loans or, in the case of the Canadian Obligations, of the acceptance
and purchase of Bankers' Acceptances. Subject to Section 12.18, each Borrower
will pay to the applicable Agent for the account of each applicable Lender
interest on any Reimbursement Obligation at (i) at either the Canadian Alternate
Base Rate or the U.S. Alternate Base Rate, as the case may be (with respect to
Reimbursement Obligations denominated in Dollars), or at the Canadian Prime Rate
(with respect to Reimbursement Obligations denominated in Canadian Dollars) plus
the applicable Margin Percentage from the date such Reimbursement Obligation
arises until the date five Business Days thereafter and (ii) at the applicable
Past Due Rate thereafter until the same is paid in full.
(d) Mandatory Prepayments. 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 Borrowers shall prepay the outstanding principal amount
of the Loans and shall provide Cover with respect to Letter of Credit
Liabilities
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and Bankers' Acceptance Liabilities (i) with respect to Letters of Credit
denominated in Dollars, in Dollars in immediately available funds in an amount
equal to the aggregate Letter of Credit Liabilities for such Letters of Credit
and (ii) with respect to Bankers' Acceptances and Letters of Credit denominated
in Canadian Dollars, in Canadian Dollars in immediately available funds in an
amount equal to the Letter of Credit Liabilities and the Bankers' Acceptance
Liabilities for such Canadian Letters of Credit and Bankers' Acceptances.
SECTION 3.03. Interest Options.
(a) Options Available. The outstanding principal balance of
the Canadian Dollar Notes shall bear interest at the Canadian Prime Rate and the
outstanding principal balance of the other Notes shall bear interest at either
the U.S. Alternate Base Rate, in the case of Notes issued by the U.S. Borrower,
or the Canadian Alternate Base Rate, in the case of Notes issued by the Canadian
Borrower; provided, that (i) all past due amounts, both principal and accrued
interest, shall bear interest at the Past Due Rate, and (ii) subject to the
provisions hereof, each Borrower shall have the option of having all or any
portion of the principal balances of its Notes (other than the Canadian Dollar
Notes) from time to time outstanding bear interest at a Eurodollar Rate. The
records of the Agents and each of the Lenders with respect to Interest Options,
Interest Periods and the amounts of the Loans to which they are applicable shall
be binding and conclusive, absent manifest error. Interest on the amount of each
advance against the Notes shall be computed on the amount of that advance and
from the date it is made. Notwithstanding anything in this Agreement to the
contrary, for the full term of the Notes the interest rate produced by the
aggregate of all sums paid or agreed to be paid to the holders of the Notes for
the use, forbearance or detention of the debt evidenced thereby (including all
interest on the Notes at the Stated Rate plus the Additional Interest) shall not
exceed the Ceiling Rate.
(b) Designation and Conversion. Each Borrower shall have the
right to designate or convert its Interest Options in accordance with the
provisions hereof. Provided no Default or Event of Default has occurred and is
continuing and subject to the last sentence of Section 3.03(a) and the
provisions of Section 3.03(c), each Borrower may elect to have a Eurodollar Rate
apply or continue to apply to all or any portion of the principal balance of its
Notes (other than the Canadian Dollar Notes). Each change in Interest Options
shall be a conversion of the rate of interest applicable to the specified
portion of the Loans, but such conversion shall not change the respective
outstanding principal balances of the applicable Notes. The Interest Options
shall be designated or converted in the manner provided below:
(i) The applicable Borrower shall give the applicable Agent a
written Rate Designation Notice (and the applicable Agent shall
promptly inform each applicable Lender thereof). Each such written
notice shall specify the amount of the Loan which is the subject of the
designation, if any; the amount of borrowings into which such
borrowings are to be converted or for which an Interest Option is
designated; the proposed date for the designation or conversion and the
Interest Period or Periods, if any, selected by the applicable
Borrower.
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Such notice shall be irrevocable and shall be given to the applicable
Agent no later than the applicable Rate Designation Date.
(ii) No more than five LIBOR Borrowings shall be in effect
with respect to the U.S. Loans at any time and no more than three LIBOR
Borrowings shall be in effect with respect to the Canadian Loans at any
time. No single LIBOR Borrowing may include both U.S. Loans and
Canadian Loans.
(iii) Each designation or conversion of a LIBOR Borrowing
shall occur on a Business Day.
(iv) Except as provided in Section 3.03(c), no LIBOR
Borrowing shall be converted to a Base Rate Borrowing or another LIBOR
Borrowing on any day other than the last day of the applicable Interest
Period.
(v) Each request for a LIBOR Borrowing shall be in the
amount equal to an integral multiple of $100,000.
(vi) Each designation of an Interest Option with respect to
the U.S. Notes shall apply to all of the U.S. Notes ratably in
accordance with their respective outstanding principal balances. Each
designation of an Interest Option with respect to the Canadian Notes
shall apply to all of the Canadian Notes ratably in accordance with
their respective outstanding principal balances. If any Lender assigns
an interest in any of its Notes when any LIBOR Borrowing is outstanding
with respect thereto, then such assignee shall have its ratable
interest in such LIBOR Borrowing.
(vii) The entire outstanding principal balance of the
Canadian Dollar Notes shall bear interest at the Canadian Prime Rate.
(c) Special Provisions Applicable to LIBOR Borrowings.
i) Options Unlawful. If the adoption of any applicable
Requirement of Law after the Effective Date or any change after the
Effective Date in any applicable Requirement of Law or in the
interpretation or administration thereof by any Governmental Authority
or compliance by any Lender with any request or directive (whether or
not having the force of law) issued after the Effective Date by any
central bank or other Governmental Authority shall at any time make it
unlawful or impossible for any Lender to permit the establishment of or
to maintain any LIBOR Borrowing, the commitment of such Lender to
establish or maintain such LIBOR Borrowing shall forthwith be canceled
and the applicable Borrower shall forthwith, upon demand by the
applicable Agent to such Borrower, (A) convert the LIBOR Borrowing of
such Lender with respect to which such demand was made to a Base Rate
Borrowing; (B) pay all accrued and unpaid interest to date on the
amount so converted; and (C) pay any amounts required to compensate
each Lender for any additional cost or
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expense which any Lender may incur as a result of such adoption of or
change in such Requirement of Law or in the interpretation or
administration thereof and any Funding Loss which any Lender may incur
as a result of such conversion; provided, however, all such amounts
shall be for the account of such Lender. If, when either Agent so
notifies the Borrower, such Borrower has given a Rate Designation
Notice specifying a LIBOR Borrowing but the selected Interest Period
has not yet begun, as to the applicable Lender such Rate Designation
Notice shall be deemed to be of no force and effect, as if never made,
and the balance of the Loans made by such Lender specified in such Rate
Designation Notice shall bear interest at the Base Rate until a
different available Interest Option shall be designated in accordance
herewith.
ii) Increased Cost of Borrowings. If the adoption after the
Effective Date of any applicable Requirement of Law or any change after
the Effective Date in any applicable Requirement of Law or in the
interpretation or administration thereof by any Governmental Authority
or compliance by any Lender with any request or directive (whether or
not having the force of law) issued after the Effective Date by any
central bank or Governmental Authority shall at any time as a result of
any portion of the principal balances of the Notes being maintained on
the basis of a Eurodollar Rate:
(A) subject any Lender to any Taxes, or any deduction or
withholding for any Taxes, on or from any payment due under
any LIBOR Borrowing; or
(B) impose, modify, increase or deem applicable any
reserve requirement (excluding that portion of any reserve
requirement included in the calculation of the applicable
Eurodollar Rate), special deposit requirement or similar
requirement (including, but not limited to, state law
requirements and Regulation D) against assets of any Lender,
or against deposits with any Lender, or against loans made by
any Lender, or against any other funds, obligations or other
property owned or held by any Lender; or
(C) impose on any Lender any other condition regarding
any LIBOR Borrowing;
and the result of any of the foregoing is to increase the cost to any
Lender of agreeing to make or of making, renewing or maintaining such
LIBOR Borrowing, or reduce the amount of principal or interest received
by any Lender, then, within 15 Business Days after demand by either
Agent (accompanied by a statement setting forth in reasonable detail
the applicable Lender's basis therefor), the applicable Borrower shall
pay to the applicable Agent additional amounts which shall compensate
each Lender for such increased cost or reduced amount. The
determination by any Lender of the amount of any such increased cost,
increased reserve requirement or reduced amount shall be presumed
correct, absent manifest error. Each Borrower shall have the right, if
it receives from either Agent any notice referred to in this paragraph,
upon three Business Days' notice to the applicable Agent (which shall
notify each
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affected Lender), either (1) to repay in full (but not in part) any
borrowing with respect to which such notice was given, together with
any accrued interest thereon, or (2) to convert the LIBOR Borrowing
which is the subject of the notice to a Base Rate Borrowing; provided,
that any such repayment or conversion shall be accompanied by payment
of (I) the amount required to compensate each Lender for the increased
cost or reduced amount referred to in the preceding paragraph, (II) all
accrued and unpaid interest to date on the amount so repaid or
converted, and (III) any Funding Loss which any Lender may incur as a
result of such repayment or conversion; and further provided that all
such amounts shall be for such Lender's account. Each Lender will
notify the applicable Borrower through the applicable Agent of any
event occurring after the date of this Agreement which will entitle
such Lender to compensation pursuant to this Section as promptly as
practicable after it obtains knowledge thereof and determines to
request such compensation, and (if so requested by the applicable
Borrower through the applicable Agent) will designate a different
lending office of such Lender for the applicable LIBOR Borrowing or
will take such other action as the applicable Borrower may reasonably
request if such designation or action is consistent with legal and
regulatory restrictions, will avoid the need for, or reduce the amount
of, such compensation and will not, in the sole opinion of such Lender,
be disadvantageous to such Lender; (provided that no such U.S. Lender
shall have any obligation so to designate a different lending office
that is not located in the United States of America and no such
Canadian Lender shall have any obligation so to designate a different
lending office that is not located in Canada).
iii) Inadequacy of Pricing and Rate Determination. If, for
any reason with respect to any Interest Period, either Agent (or, in
the case of clause (B) below, the applicable Lender) shall have
determined (which determination shall be presumed correct with respect
to each Borrower, absent manifest error) that:
(A) either Agent is unable through its customary general
practices to determine any applicable Eurodollar Rate, or
(B) any applicable Eurodollar Rate will not adequately
and fairly reflect the cost to any Lender of making and
maintaining such LIBOR Borrowing hereunder for any proposed
Interest Period,
then the applicable Agent shall give the applicable Borrower notice
thereof and thereupon, (1) any Rate Designation Notice previously given
by such Borrower designating the applicable LIBOR Borrowing which has
not commenced as of the date of such notice from either Agent shall be
deemed for all purposes hereof to be of no force and effect, as if
never given, and (2) until the applicable Agent shall notify such
Borrower that the circumstances giving rise to such notice from such
Agent no longer exist, each Rate Designation Notice requesting the
applicable Eurodollar Rate shall be deemed a request for a Base Rate
Borrowing, and any applicable LIBOR Borrowing then outstanding shall be
converted,
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without any notice to or from either Borrower, upon the termination of
the Interest Period then in effect with respect to it, to a Base Rate
Borrowing.
iv) Funding Losses. Each Borrower shall indemnify each
applicable Lender against and hold each applicable Lender harmless from
any Funding Loss relating to Loans to such Borrower or relating to
Bankers' Acceptances requested by such Borrower. This indemnity shall
survive the payment of the Notes. A certificate of any Lender
(explaining in reasonable detail the amount and calculation of the
amount claimed) as to any additional amounts payable pursuant to this
paragraph submitted to the applicable Borrower shall be presumed
correct with respect to such Borrower, absent manifest error.
(d) Funding Offices; Adjustments Automatic; Calculation
Year. Any Lender may, if it so elects, fulfill its obligation as to any LIBOR
Borrowing by causing a branch or affiliate of such Lender to make such Loan and
may transfer and carry such Loan at, to or for the account of any branch office
or affiliate of such Lender; provided, that in such event for the purposes of
this Agreement such Loan shall be deemed to have been made by such Lender and
the obligation of the applicable Borrower to repay such Loan shall nevertheless
be to such Lender and shall be deemed held by it for the account of such branch
or affiliate. Without notice to either Borrower or any other Person, each rate
required to be calculated or determined under this Agreement shall automatically
fluctuate upward and downward in accordance with the provisions of this
Agreement. Interest at the Canadian Prime Rate and the U.S. Alternate Base Rate
that is based on the prime rate announced by the U.S. Administrative Agent shall
be computed on the basis of the actual number of days elapsed in a year
consisting of 365 or 366 days, as the case may be. All other interest required
to be calculated or determined under this Agreement shall be computed on the
basis of the actual number of days elapsed in a year consisting of 360 days,
unless the Ceiling Rate would thereby be exceeded, in which event, to the extent
necessary to avoid exceeding the Ceiling Rate, the applicable interest shall be
computed on the basis of the actual number of days elapsed in the applicable
calendar year in which such interest accrued.
(e) Funding Sources. Notwithstanding any provision of this
Agreement to the contrary, each Lender shall be entitled to fund and maintain
its funding of all or any part of the Loans in any manner it sees fit, it being
understood, however, that for the purposes of this Agreement all determinations
hereunder shall be made as if each Lender had actually funded and maintained
each LIBOR Borrowing during each Interest Period through the purchase of
deposits having a maturity corresponding to such Interest Period and bearing an
interest rate equal to the Eurodollar Rate for such Interest Period.
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ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS, ETC.
SECTION 4.01. Payments. (a) Except to the extent otherwise
provided herein, all payments of principal, interest, Reimbursement Obligations
and other amounts to be made by either Borrower hereunder, under the Notes and
under the other Loan Documents shall be made (i) with respect to Bankers'
Acceptance Liabilities, Canadian Prime Loans and Reimbursement Obligations with
respect to Letters of Credit denominated in Canadian Dollars, in Canadian
Dollars, and (ii) in all other cases, in Dollars, in immediately available
funds, to the applicable Agent at its Principal Office (or in the case of a
successor U.S. Administrative Agent, at the principal office of such successor
U.S. Administrative Agent in the United States or in the case of a successor
Canadian Agent, at the principal office of such successor Canadian Agent in
Canada), not later than 11:00 a.m., Houston, Texas time (in the case of any
payment by the U.S. Borrower), or 12:00 noon, Toronto, Ontario time (in the case
of any payment by the Canadian Borrower), on the date on which such payment
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day).
(b) Each Borrower shall, at the time of making each payment
hereunder, under any Note or under any other Loan Document, specify to the
applicable Agent the Obligations payable by such Borrower hereunder or
thereunder to which such payment is to be applied. Each payment received by
either Agent hereunder, under any Note or under any other Loan Document for the
account of a Lender shall be paid promptly to such Lender, in immediately
available funds. If either Agent fails to send to any Lender the applicable
amount by the close of business on the date any such payment is received by such
Agent if such payment is received prior to 11:00 a.m., Houston, Texas time (in
the case of any payment to a U.S. Lender), or 12:00 noon, Toronto, Ontario time
(in the case of any payment to a Canadian Lender), (or on the next succeeding
Business Day with respect to payments which are received after such time), such
Agent shall pay to the applicable Lender interest on such amount from such date
at a rate of interest per annum equal to (i) in respect of Obligations which are
denominated in Dollars, the Federal Funds Rate and (ii) in respect of the
Canadian Obligations which are denominated in Canadian Dollars, the CDOR Rate.
(c) If the due date of any payment hereunder or under any
other Loan Document falls on a day which is not a Business Day, the due date for
such payments (except as otherwise provided in the definition of "Interest
Period" set forth in Section 1.01) shall be extended to the next succeeding
Business Day and interest shall be payable for any principal so extended for the
period of such extension.
(d) All payments (whether of principal, interest, fees,
reimbursements or otherwise) by the Borrowers hereunder and under the other Loan
Documents shall be made without set off or counterclaim and shall be made free
and clear of and without deduction for or on account of any present or future
income, stamp, or other taxes, fees, duties, withholding or other charges of any
nature whatsoever imposed by any taxing authority excluding in the case of each
Lender taxes imposed on or measured by its net income or franchise taxes imposed
by the United States or its
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political subdivisions or the jurisdiction in which it is organized or has its
principal office or applicable lending office (such non-excluded items being
hereinafter referred to as "Taxes"). If as a result of any change in law (or the
interpretation thereof) after the date that the applicable Lender became a
"Lender" under this Agreement any withholding or deduction from any payment to
be made to, or for the account of, a Lender by either Borrower hereunder or
under any other Loan Document is required in respect of any Taxes pursuant to
any applicable law, rule, or regulation, then such Borrower will (i) pay to the
relevant authority the full amount required to be so withheld or deducted; (ii)
to the extent available, promptly forward to the applicable Agent an official
receipt or other documentation reasonably satisfactory to such Agent evidencing
such payment to such authority; and (iii) pay to the applicable Agent, for the
account of each affected Lender, such additional amount or amounts as are
necessary to ensure that the net amount actually received by such Lender will
equal the full amount such Lender would have received had no such withholding or
deduction been required. Each Lender shall determine such additional amount or
amounts payable to it (which determination shall, in the absence of manifest
error, be presumed correct with respect to each Borrower). If a Lender becomes
aware that any such withholding or deduction from any payment to be made by
either Borrower hereunder or under any other Loan Document is required, then
such Lender shall promptly notify the applicable Agent and the applicable
Borrower thereof stating the reasons therefor and the additional amount required
to be paid under this Section. Each Lender shall execute and deliver to the
applicable Agent and the applicable Borrower such forms as it may be required to
execute and deliver pursuant to Section 12.13. To the extent that any such
withholding or deduction results from the failure or delay of a Lender to
provide a form required by Section 12.13 (unless such failure or delay is due to
some prohibition under applicable Requirement of Laws), the applicable Borrower
shall have no obligation to pay the additional amount required by clause (iii)
above. Anything in this Section 4.01 notwithstanding, if any Lender elects to
require payment by either Borrower of any material amount under this Section,
the applicable Borrower may, within 60 days after the date of receiving notice
thereof and so long as no Default shall have occurred and be continuing, elect
to terminate such Lender as a party to this Agreement; provided that,
concurrently with such termination the applicable Borrower shall (i) if the
Agents and each of the other Lenders shall consent, pay that Lender all
principal, interest and fees and other amounts owed to such Lender through such
date of termination or (ii) have arranged for an Eligible Assignee to become a
substitute Lender for all purposes under this Agreement in the manner provided
in Section 12.06; provided further that, prior to substitution for any Lender,
the applicable Borrower shall have given written notice to the Agents of such
intention and the Lenders shall have the option, but no obligation, for a period
of sixty (60) days after receipt of such notice, to increase their Commitments
in order to replace the affected Lender in lieu of such substitution.
(e) Notwithstanding the foregoing, in no event shall the
compensation payable under this Section (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 and the
other Loan Documents exceed the Ceiling Rate.
SECTION 4.02. Pro Rata Treatment. Except to the extent
otherwise provided herein: (a) each borrowing from the Lenders under Section
2.01 shall be made (i) in the case of the Canadian
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Loans, ratably from the Canadian Lenders in accordance with their respective
Canadian Commitments and (ii) in the case of the U.S. Loans, ratably from the
U.S. Lenders in accordance with their respective U.S. Commitments; (b) each
payment of commitment fees shall be made for the account of the Lenders, and
each termination or reduction of the Commitments under Section 2.03 shall be
applied, pro rata, according to the Lenders' respective Commitments; (c) each
payment by either Borrower of principal of or interest on the Loans or any
Bankers' Acceptance shall be made to the applicable Agent for the account of the
applicable Lenders pro rata in accordance with the respective unpaid principal
amounts of the Loans held by or Bankers' Acceptances accepted by such Lenders;
and (d) the applicable Lenders (other than the applicable Issuer) shall purchase
from the applicable Issuer participations in each Letter of Credit to the extent
of their respective U.S. Commitment Percentages or Canadian Commitment
Percentages, as the case may be.
SECTION 4.03. Certain Actions, Notices, Etc. Notices to the
applicable Agent of any termination or reduction of Commitments and of
borrowings and optional prepayments of Loans and requests for issuances of
Letters of Credit shall be irrevocable and shall be effective only if received
by the applicable Agent not later than 11:00 a.m., Houston, Texas time (in the
case of the U.S. Loans and the U.S. Letters of Credit), 11:00 a.m., Toronto,
Ontario time (in the case of Canadian Loans that are same day fundings) or 12:00
noon, Toronto, Ontario time (in the case of the Canadian Loans that are not same
day fundings and the Canadian Letters of Credit), on the number of Business Days
prior to the date of the relevant termination, reduction, borrowing and/or
prepayment specified below:
<TABLE>
<CAPTION>
Number of Business
Days Prior Notice
------------------
<S> <C>
Termination or Reduction of Commitments 5
Loan repayment 1
Base Rate Borrowings and Canadian Prime Loans same day
Bankers' Acceptances 2
Letter of Credit issuance 3
Selection of a Eurodollar Rate 3
</TABLE>
Each such notice of termination or reduction shall specify the amount of the
applicable Commitment to be terminated or reduced. Each such notice of borrowing
or prepayment shall specify the amount of the Loans to be borrowed or prepaid
and the date of borrowing or prepayment (which shall be a Business Day). The
applicable Agent shall promptly notify the affected Lenders of the contents of
each such notice.
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SECTION 4.04. Non-Receipt of Funds by Either Agent. Unless the
applicable Agent shall have been notified by a Lender or a Borrower prior to the
date on which such Lender is to make payment to such Agent of the proceeds of a
Loan (or funding of a drawing under a Letter of Credit or reimbursement with
respect to any drawing under a Letter of Credit or funding of a payment under a
Bankers' Acceptance or reimbursement with respect to any payment under a
Bankers' Acceptance) to be made by it hereunder or the applicable Borrower is to
make a payment to such Agent for the account of one or more of the Lenders, as
the case may be, which notice shall be effective upon receipt, that such payor
does not intend to make such required payment to such Agent, the applicable
Agent may assume that such required payment has been made and may, in reliance
upon such assumption (but shall not be required to), make the amount thereof
available to the intended recipient on such date and, if such payor has not in
fact made such required payment to such Agent, the recipient of such payment
(or, if such recipient is the beneficiary of a Letter of Credit, the applicable
Borrower and, if such Borrower fails to pay the amount thereof to the applicable
Agent forthwith upon demand, the applicable Lenders ratably in proportion to
their respective Commitment Percentages) shall, on demand, pay to such Agent the
amount made available by such Agent, together with interest thereon in respect
of the period commencing on the date such amount was so made available by such
Agent until the date Agent recovers such amount at a rate of interest per annum
equal to (a) in respect of Obligations which are denominated in Dollars, the
Federal Funds Rate and (b) in respect of Canadian Obligations which are
denominated in Canadian Dollars, the CDOR Rate.
SECTION 4.05. Sharing of Payments, Etc. If a Lender shall
obtain payment of any principal of or interest on any Loan made by it under this
Agreement, on any Reimbursement Obligation or on any other Obligation then due
to such Lender hereunder, through the exercise of any right of set-off
(including, any right of setoff or Lien granted under Section 9.02), banker's
Lien, counterclaim or similar right, or otherwise (other than a setoff right in
connection with any credit extended by such Lender outside this Agreement)), it
shall promptly purchase from the other Lenders participations in the Loans made,
or Reimbursement Obligations or other Obligations held, by the other Lenders in
such amounts, and make such other adjustments from time to time as shall be
equitable to the end that all the Lenders shall share the benefit of such
payment (net of any expenses which may be incurred by such Lender in obtaining
or preserving such benefit) pro rata in accordance with the unpaid Obligations
then due to each of them. To such end all the Lenders shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise)
if such payment is rescinded or must otherwise be restored. Each Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any Lender so purchasing a participation in the Loans made, or
Reimbursement Obligations or other Obligations held, by other Lenders may
exercise all rights of set-off, bankers' Lien, counterclaim or similar rights
with respect to such participation as fully as if such Lender were a direct
holder of Loans, Reimbursement Obligations or other Obligations in the amount of
such participation. Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of either Borrower.
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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 to accept and
purchase any Bankers' Acceptance or either Issuer to issue the initial Letter of
Credit for the account of the U.S. Borrower or the Canadian Borrower is subject
to the following conditions:
(a) The Agents shall have received the following:
(i) this Agreement executed by each party hereto;
(ii) the appropriate Note or Notes of each of the U.S.
Borrower and the Canadian Borrower for each Lender, duly completed and
executed and dated the Execution Date;
(iii) a certificate of a Responsible Officer and of the
secretary or an assistant secretary of each Obligor or of its
(managing) general partner or managing member, as the case may be,
dated the date of the initial Credit Event and certifying, inter alia,
(A) true and complete copies of the bylaws, as amended and in effect,
of such Person and the resolutions adopted by the Board of Directors of
such Person (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 the Loans to be made and the Letters of
Credit to be issued hereunder and, in the case of the Canadian
Borrower, the sale of the Bankers' Acceptances to be accepted and
purchased 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 date
of the initial Credit Event and (3) authorizing officers of such Person
or of its (managing) general partner or managing member, as the case
may be, 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 or of its (managing) general
partner or managing member, as the case may be, executing any documents
on its behalf and (C) (1) that the representations and warranties made
by such Obligor 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
Credit Event 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;
(iv) favorable, signed opinions addressed to the Agents and
the Lenders dated the date of the initial Credit Event from (A)
Fulbright & Jaworski L.L.P., counsel to the Obligors and (B) Milner
Fenerty, special Canadian counsel to the Obligors, each given upon the
express instruction of the Obligors;
(v) letters from CT Corporation System, Inc. in form and
substance satisfactory to the Agents and the Lenders evidencing the
obligation of CT Corporation System, Inc. to
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accept service of process in the State of Texas on behalf of each
Obligor that is not authorized to do business as a foreign corporation
in the State of Texas; and
(vi) copies of the articles or certificates of incorporation
or other similar organizational documents of each Obligor certified as
of a recent date by the appropriate Governmental Authority (except that
any such documents of the Canadian Borrower may be notarized rather
than certified by such Governmental Authority) and certificates of
appropriate public officials as to the existence, good standing and
qualification to do business as a foreign corporation or other foreign
entity, as applicable, of each Obligor in each jurisdiction in which
the ownership of its properties or the conduct of its business requires
such qualification and where the failure to so qualify would,
individually or collectively, have a Material Adverse Effect.
(b) The Agents shall have received evidence satisfactory to
them that all material consents of each Governmental Authority and of each other
Person, if any, reasonably required in connection with (a) the Loans, the
Letters of Credit and the Bankers' Acceptances and (b) the execution, delivery
and performance of this Agreement and the other Loan Documents have been
satisfactorily obtained.
(c) The Agents shall be satisfied that coincident with the
initial Credit Event (a) the U.S. Borrower shall have terminated, and paid in
full using the proceeds hereof all indebtedness outstanding under the 1998 Chase
Credit Agreement and (b) the U.S. Borrower shall have terminated and paid in
full all indebtedness under that certain Credit Agreement dated as of October
24, 1997, as amended, among Weatherford Enterra, Inc., Bank of America National
Trust and Savings Association, as documentation agent, the U.S. Administrative
Agent, as the administrative agent, and the lenders named therein.
(d) the U.S. Administrative Agent shall have received
evidence satisfactory to it that the U.S. Borrower's Certificate of Merger
evidencing the Merger has been accepted for filing by the Secretary of State of
the State of Delaware;
(e) A certificate signed by a Responsible Officer of the
U.S. Borrower, in form and substance reasonably satisfactory to the U. S.
Administrative Agent representing and warranting that (i) the Merger has been
consummated in accordance with the terms and conditions set forth in the Merger
Agreement (including any necessary consents to the Merger) and in compliance
with all material Requirements of Law and attaching thereto a copy of any and
all amendments to the Merger Agreement; (ii) all shareholder approvals required
for consummation of the Merger have been obtained; (iii) all material
third-party approvals required for consummation of the Merger have been
obtained; (iv) all necessary material consents and approvals of and filings and
registration with all Governmental Authorities required for consummation of the
Merger have been obtained, given, filed or taken and are in full effect and all
waiting periods relating thereto have expired without any action being taken by
any competent authority which restrains, prevents or imposes materially adverse
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conditions upon consummation of the Merger; and (v) the Merger Agreement has not
been amended in any manner which is prejudicial to any Lender, except as
consented to by the Lenders.
(f) The U.S. Borrower shall provide each Lender a pro forma
balance sheet of the U.S. Borrower and its consolidated Subsidiaries dated as of
March 31, 1998, certified by a Responsible Officer of the U.S. Borrower.
(g) The U.S. Borrower shall have paid (i) to the Agents and
the Lenders, as applicable, all fees and expenses agreed upon by such parties to
be paid on or prior to the Execution Date, and (ii) to Andrews & Kurth L.L.P.
pursuant to Section 12.03 all fees and disbursements invoiced by said firm to
the U.S. Borrower at least five days prior to the date of the initial Credit
Event.
SECTION 5.02. Conditions Precedent to All Credit Events. The
obligation of the Lenders to make any Loan or to accept and purchase any
Bankers' Acceptance or either Issuer to issue or extend any Letter of Credit
(including any Loan made, Letter of Credit issued or Bankers' Acceptance
accepted and purchased on the date of the initial Credit Event) 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, Letter of Credit or Bankers' Acceptance, as the case
may be (unless such representation and warranty expressly relates to an earlier
date), and the Obligors shall be deemed to have certified to the Agents and the
Lenders that such representations and warranties are true and correct in all
material respects by either Borrower's delivery of a Request for Extension of
Credit or the Canadian Borrower's delivery of a Bankers' Acceptance Notice, as
the case may be.
(c) The applicable Agent shall have received the following,
all of which shall be duly executed: (i) a Request for Extension of Credit as to
the Loan, Letter of Credit or Bankers' Acceptance, as the case may be, by the
time and on the Business Day specified under Section 4.03 and (ii) in the case
of a Letter of Credit, an Application.
(d) No Default or Event of Default shall have occurred and
be continuing or would result from such Credit Event.
(e) The Agents and the Lenders shall have received such
other approvals, opinions or documents as either Agent or the Majority Lenders
may reasonably request.
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The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each of the Obligors 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. 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 Agents 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 Agents.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit and accept and
purchase Bankers' Acceptances, each Obligor represents and warrants as to itself
and the U.S. Borrower represents and warrants as to itself and the other
Obligors (such representations and warranties to survive any investigation and
the making of the Loans and the issuance of any Letters of Credit and the
acceptance and purchase of any Bankers' Acceptances) to the Lenders and the
Agents as follows:
SECTION 6.01. Organization and Qualification. The U.S.
Borrower and each Material Subsidiary (a) is a corporation or partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, (b) has the corporate,
partnership or other power and authority 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 jurisdiction in which the failure
to be so qualified would, together with all such other failures of the Obligors
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
Material Subsidiaries of the U.S. Borrower, 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 each Obligor, and (y) 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 Obligor has
the corporate, partnership or other 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 each Borrower, to obtain the Loans, the issuance
of Letters of Credit and the acceptance and purchase of Bankers' Acceptances
hereunder, and all such action has been duly authorized by all necessary
corporate, partnership or other proceedings on its part or on its behalf. This
Agreement has been duly and validly executed and delivered by or on behalf of
each Obligor party hereto and constitutes valid and legally binding agreements
of such Obligor enforceable against such Obligor in accordance with the
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terms hereof, and the Notes and the other Loan Documents to which such Obligor
is a party, when duly executed and delivered by or on behalf of such Obligor,
will constitute valid and legally binding obligations of such Obligor
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 Obligor 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 execution, delivery and performance by any Obligor of
the Loan Documents to which it is a party, nor compliance with the terms and
provisions thereof, nor the extensions of 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
consolidated Subsidiaries is party or by which any property or asset of it or
any of its consolidated Subsidiaries is bound or to which it is subject, except
for breaches, violations and defaults under clauses (a) and (b) that
collectively for all Obligors will not have a Material Adverse Effect or (c)
will violate any provision of the organic documents of any Obligor.
SECTION 6.05. Title to Assets. The U.S. Borrower and each
consolidated Subsidiary has good and indefeasible title to its assets, except
for such defects in title as would not in the aggregate have a Material Adverse
Effect. As of the Effective Date, the property of the U.S. Borrower and the
Subsidiaries is subject to no Liens, except Permitted Liens and immaterial
Liens.
SECTION 6.06. Litigation. Except for actions, suits or
proceedings described in the filings made by the U.S. Borrower with the
Securities and Exchange Commission pursuant to the Exchange Act, as of the
Effective Date there are no actions, suits or proceedings pending for which
service of process has been accomplished or, to the best knowledge of any
Obligor, threatened with respect to any Obligor, 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; Financial Statements. All
information heretofore furnished by the U.S. Borrower to the Agents or any
Lender in connection with this Agreement, as
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affected by the disclosures made herein, in the other Loan Documents and in the
filings made by the U.S. Borrower with the Securities and Exchange Commission
pursuant to the Exchange Act, did not as of the date thereof and will not as of
the date of the initial Credit Event hereunder, when read together and taken as
a whole, 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, 1997 there has been no
material adverse change in the financial condition, business or operations of
the U.S. Borrower and the Subsidiaries taken as a whole which could reasonably
be expected to have a Material Adverse Effect.
SECTION 6.08. Investment Company Act. Neither the U.S.
Borrower nor any of the Subsidiaries is, or is regulated as an "investment
company," as such term is defined in the Investment Company Act of 1940, as
amended.
SECTION 6.09. Public Utility Holding Company Act. Neither the
U.S. Borrower nor any of the Subsidiaries is a non-exempt "holding company," or
subject to regulation as such, or, to the knowledge of any Obligor'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 6.10. ERISA. (a) The U.S. Borrower, and each ERISA
Affiliate has maintained and administered each 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 U.S. Borrower 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
U.S. Borrower or any ERISA Affiliate, or in the imposition of any Lien on any of
the rights, properties or assets of the U.S. Borrower or any ERISA Affiliate
pursuant to Title I or IV of ERISA Sections 401(a)(29) or 412 of the Code, other
than such liabilities or Liens as would 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 $25,000,000, whether or
not waived, exists or is expected to be incurred with respect to any Plan.
(c) The U.S. Borrower 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 in the aggregate would reasonably be expected to have a Material
Adverse Effect.
(d) All contributions have been timely made to all employee
benefit plans, as defined in Section 3 of ERISA, except for such failures as
would not reasonably be expected to have a Material Adverse Effect.
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SECTION 6.11. Tax Returns and Payments. The U.S. Borrower and
the Material 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 (collectively for the U.S. Borrower and the Material Subsidiaries)
would not have a Material Adverse Effect. No material income tax liability of
the U.S. Borrower or the Material 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 U.S.
Borrower and the Subsidiaries.
SECTION 6.12. Requirements of Law; Environmental Matters. (a)
The U.S. Borrower and each consolidated 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, in the aggregate for the U.S. Borrower and all such
consolidated Subsidiaries, would not have a Material Adverse Effect.
(b) The U.S. Borrower monitors, in the ordinary course of
its business, the effect of existing Environmental Laws, and each claim asserted
against it or any Subsidiary by any Governmental Authority alleging potential
liability or responsibility for violation of any Environmental Law, on its
business operations and properties. As a result thereof, the U.S. Borrower has
reasonably concluded that such Environmental Laws and any such claims would not,
in the aggregate, for the U.S. Borrower and its consolidated Subsidiaries have a
Material Adverse Effect.
SECTION 6.13. Purpose of Loans. (a) All proceeds of the Loans
and Bankers' Acceptances will be used by a Borrower for the purposes set forth
in Section 2.08.
(b) None of the proceeds of the Loans under the 1998 Chase
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 G or 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 1998 Chase 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 G or Regulation U. Neither any Obligor 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 G, T, U or X, or any other regulation
of the Board or to violate the Exchange Act. Margin stock did not on the
Execution Date, and does not constitute more than 25% of the assets of the U.S.
Borrower or any other Obligor.
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SECTION 6.14. Designation of this Agreement and the
Obligations. The Indebtedness evidenced by this Agreement constitutes a
refinancing of the 1996 Chase Credit Agreement which was subsequently refinanced
by the 1998 Chase Credit Agreement. This Agreement constitutes the "principal
bank credit agreement" of the U.S. Borrower, and the Obligations hereunder and
under the other Loan Documents constitute "Designated Senior Indebtedness" as
such phrases are used in the Debenture Indenture.
SECTION 6.15. Year 2000 Compliance. The U.S. Borrower has
developed a plan to ensure that the systems of the U.S. Borrower and its
Material Subsidiaries are compliant with the requirements to process
transactions in the year 2000. The U.S. Borrower and its Material Subsidiaries
plan to achieve year 2000 compliance through a combination of upgrading to new
releases of existing software and replacement of existing software with new
fully compliant systems by mid-1999. The expenses and capital expenditures of
the U.S. Borrower and its Material Subsidiaries associated with achieving year
2000 compliance would not reasonably be expected to have a Material Adverse
Effect. The U.S. Borrower and its Material Subsidiaries are currently gathering
information from their key suppliers, vendors and financial institutions
regarding year 2000 compliance.
ARTICLE VII
AFFIRMATIVE COVENANTS
Each Obligor covenants and agrees for itself, and the U.S.
Borrower covenants and agrees with respect to the Canadian Borrower and each of
the other Obligors, that prior to the termination of this Agreement it will duly
and faithfully perform, and cause its respective Subsidiaries to perform, each
and all of the following covenants:
SECTION 7.01. Information Covenants. The U.S. Borrower will
furnish or cause to be furnished to the Agents 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 the Form 10-Q, or its equivalent, of the U.S. Borrower.
(b) As soon as available, and in any event within 120 days
after the close of each fiscal year, the Form 10-K, or its equivalent, of the
U.S. Borrower for such fiscal year and certified by Arthur Andersen LLP or other
independent certified public accountants of recognized national standing
reasonably acceptable to the Agents and the Majority Lenders, whose
certification shall be without qualification or limitation.
(c) As soon as available, and in any event within 120 days
after the close of each fiscal year, the consolidated balance sheet of the
Canadian Borrower and its consolidated Subsidiaries as at the end of such fiscal
year and the related consolidated unaudited statement of
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income, retained earnings and cash flows for such fiscal year, and setting
forth, in each case, comparative consolidated figures for the prior fiscal year,
all of which shall be certified by a Responsible Officer of the Canadian
Borrower.
(d) Promptly upon the mailing thereof to the shareholders
of the U.S. Borrower generally, copies of all financial statements, reports and
proxy statements so mailed and copies of all press releases.
(e) Promptly, and in any event within ten Business Days
after any Responsible Officer of any Obligor obtains knowledge of
(i) any event or condition which would reasonably be
expected to have a Material Adverse Effect; or
(ii) any event or condition which constitutes a
Default or an Event of Default; or
(iii) the occurrence of a Change of Control or Change
of Control Event;
a notice of such event or condition, specifying the nature thereof.
(f) At the time of the delivery of the financial statements
provided for (i) in Sections 7.01(a) and (b), a certificate of a Responsible
Officer of the U.S. Borrower in the form of Exhibit 7.01 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, which certificate shall also
set forth calculations required to establish whether the U.S. Borrower was in
compliance with the provisions of Article VIII as at the end of such fiscal
quarter or fiscal year, as the case may be and (ii) in Section 7.01(b), to the
extent there has been any change in the information previously furnished to the
Agents and the Lenders on Schedule 6.01, a revised Schedule 6.01.
(g) At the time of the delivery of the financial statements
provided for in Section 7.01(c), a certificate of a Responsible Officer of the
Canadian Borrower to the effect that no Default or Event of Default exists with
respect to the Canadian Borrower or, if any such 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.
(h) Promptly, and in any event within 30 days after any
Responsible Officer of any Obligor obtains knowledge thereof, notice:
(i) of the occurrence or expected occurrence of any
material Reportable Event with respect to any Plan, a failure to make
any material required contribution to a Plan, any Lien in favor of the
PBGC or a Plan, or any withdrawal from, or the termination,
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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 U.S. Borrower 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 which termination,
reorganization or insolvency would reasonably be expected to have a
Material Adverse Effect, 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.
(i) From time to time and with reasonable promptness, such
other information or documents (financial or otherwise) with respect to the U.S.
Borrower or any Subsidiary as either Agent or any Lender through the applicable
Agent may reasonably request.
SECTION 7.02. Books, Records and Inspections. Each Obligor
will permit, or cause to be permitted, any Lender, upon written notice, to visit
and inspect any of the properties of the U.S. Borrower and the Subsidiaries, to
examine the corporate books and financial records of the U.S. Borrower and the
Subsidiaries and to discuss the affairs, finances and accounts of any such
corporations with a Responsible Officer of the U.S. Borrower and such
Subsidiaries, all at such reasonable times and as often as such Lender(s),
through the applicable Agent, may reasonably request.
SECTION 7.03. Insurance and Maintenance of Properties. The
Obligors 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.
SECTION 7.04. Payment of Taxes and other Claims. The U.S.
Borrower will, and will cause each of the Material Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, all taxes, assessments and governmental charges levied or imposed
upon the U.S. Borrower or such Material Subsidiary or upon the income, profits
or property of the U.S. Borrower or such Material Subsidiary except for (i) such
taxes, assessments as would not, individually or in the aggregate, have a
Material Adverse Effect and (ii) any such tax, assessment or governmental charge
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which adequate reserves have been established in
accordance with GAAP.
SECTION 7.05. Existence. Except as expressly permitted
pursuant to Section 8.02, each Obligor 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 Obligor.
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SECTION 7.06. ERISA Information and Compliance. Except with
respect to matters described in clauses (a), (c) and (d) below which would not
reasonably be expected to have a Material Adverse Effect, promptly furnish to
Agents: (a) immediately upon receipt, a copy of any notice of complete or
partial withdrawal liability under ERISA and any notice from the PBGC under
ERISA of an intent to terminate or appoint a trustee to administer any Plan, (b)
if requested by either Agent, promptly after the filing thereof with the United
States Secretary of Labor or the PBGC or the Internal Revenue Service or any
Governmental Authority having jurisdiction under Canadian Pension Legislation,
copies of each annual and other report with respect to each Plan or any trust
created thereunder, (c) immediately upon becoming aware of the occurrence of any
Reportable Event, or of any "prohibited transaction", as such term is defined in
Section 4975 of the Code, in connection with any Plan or any trust created
thereunder, a written notice signed by a Responsible Officer of the applicable
Borrower or the applicable ERISA Affiliate specifying the nature thereof, what
action the applicable Borrower or the applicable ERISA Affiliate is taking or
proposes to take with respect thereto, and, when known, any action taken by the
PBGC, the Internal Revenue Service, the Department of Labor or any other
applicable Governmental Authority with respect thereto, (d) promptly after the
filing or receiving thereof by either Borrower or any ERISA Affiliate, any
notice of the institution of any proceedings or other actions which may result
in the termination of any Plan, and (e) each request for waiver of the funding
standards or extension of the amortization periods required by ERISA or Section
412 of the Code or Canadian Pension Legislation promptly after the request is
submitted by Borrower or any ERISA Affiliate to the Secretary of the Treasury,
the Department of Labor, the Internal Revenue Service or any other applicable
Governmental Authority. Each Borrower covenants that it shall and shall cause
each ERISA Affiliate to comply, with respect to each Plan and Multiemployer
Plan, with all applicable provisions of ERISA, the Code and Canadian Pension
Legislation, except to the extent that any failure to comply would not
reasonably be expected to have a Material Adverse Effect.
SECTION 7.07. Capital Adequacy. If any Lender shall have
determined that the adoption after the Effective Date or effectiveness after the
Effective Date (whether or not previously announced) of any applicable law,
rule, regulation or treaty regarding capital adequacy, or any change therein
after the Effective Date, or any change in the interpretation or administration
thereof after the Effective Date by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender with any request or directive after the Effective Date
regarding capital adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency has or would have the
effect of reducing the rate of return on such Lender's capital as a consequence
of its obligations hereunder, under the Letters of Credit, the Notes or other
Obligations held by it to a level below that which such Lender could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, upon satisfaction of the
conditions precedent set forth in this Section, after demand by such Lender
(with a copy to the appropriate Agent) as provided below, pay (subject to
Section 12.18) to such Lender such additional amount or amounts as will
compensate such Lender for such reduction. The certificate of any Lender setting
forth such amount or amounts as shall be necessary to compensate it and the
basis thereof and reasons therefor shall be
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delivered as soon as practicable to the U.S. Borrower or the Canadian Borrower,
as the case may be, and shall be presumed correct, absent manifest error. The
U.S. Borrower or the Canadian Borrower, as the case may be, shall pay the amount
shown as due on any such certificate within forty-five (45) Business Days after
the delivery of such certificate. In preparing such certificate, a Lender may
employ such assumptions and allocations of costs and expenses as it shall in
good faith deem reasonable and may use any reasonable averaging and attribution
method.
SECTION 7.08. Subsidiaries. The U.S. Borrower covenants that
the Subsidiaries identified on Schedule 6.01 are the only Material Subsidiaries
as of the Execution Date. Should any Subsidiary, subsequent to the date hereof,
become a Material Subsidiary, the U.S. Borrower shall deliver to the Agents and
the Lenders a revised Schedule 6.01 as provided in Section 7.01(f).
ARTICLE VIII
NEGATIVE COVENANTS
The U.S. Borrower and the Canadian Borrower each covenants and
agrees with the Agents and the Lenders that prior to the termination of this
Agreement it will duly and faithfully perform, and cause its respective
Subsidiaries to perform, each and all of the following covenants:
SECTION 8.01. Material Change in Business. Neither the U.S.
Borrower and the Material Subsidiaries nor the Canadian Borrower, taken as a
whole, will engage in any material business substantially different from those
carried on by the U.S. Borrower and its consolidated Subsidiaries taken as a
whole on the date hereof.
SECTION 8.02. Consolidation, Merger, Sale or Purchase of
Assets, Etc. The U.S. Borrower will not, and will not permit any other Obligor
to, wind up, liquidate or dissolve its affairs, or effect any merger or
consolidation, and the U.S. Borrower will not, and will not permit any
consolidated Subsidiary to, sell, lease or otherwise dispose of all or
substantially all of its property or assets (other than sales of inventory in
the ordinary course of business) except that this Section 8.02 shall not
prohibit any of the following transactions, or any agreement to effect the same:
(a) if, at the time thereof and immediately after giving
effect thereto, no Event of Default or Default shall have occurred and be
continuing, the merger of any other Person with and into the U.S. Borrower, the
Canadian Borrower or a Subsidiary, if,(i) in any transaction involving the U.S.
Borrower, the U.S. Borrower is the surviving Person; (ii) in any transaction
involving the Canadian Borrower, the Canadian Borrower is the surviving entity,
or (iii) in any other transaction, a Wholly-Owned Subsidiary is the surviving
entity and the U.S. Borrower and the Subsidiaries shall be in compliance, on a
pro forma basis after giving effect to such transaction, with the covenants
contained in this Article VIII recomputed as of the last day of the most
recently ended fiscal quarter of the U.S. Borrower and the Subsidiaries as if
such transaction had occurred on the first day of each relevant period for
testing such compliance, and the U.S. Borrower (with respect to any merger with
a Person not a consolidated Subsidiary of the U.S. Borrower) shall have
delivered to the Agents an
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officer's certificate to such effect, together with all relevant financial
information and calculations demonstrating such compliance;
(b) transactions and transfers of assets among or between
Obligors and/or Wholly-Owned Subsidiaries or among and between Wholly-Owned
Subsidiaries, in each case, not prohibited by Section 8.07; and
(c) dispositions not otherwise permitted hereunder which are
made for fair market value; provided that (i) at the time of any disposition, no
Default or Event of Default shall exist or shall result from such disposition,
(ii) the aggregate sales price from such disposition shall be paid in cash or
otherwise on payment terms satisfactory to the applicable Borrower or
Subsidiary, and (iii) the aggregate book value of all assets of the U.S.
Borrower, the Canadian Borrower and the Subsidiaries, taken as a whole, shall
not be reduced at any time to an amount which is less than 80% of the aggregate
book value of all assets of the U.S. Borrower, the Canadian Borrower and the
Subsidiaries, taken as a whole, on March 31, 1998, as reflected on the U.S.
Borrower's pro forma balance sheet dated March 31, 1998.
SECTION 8.03. Liens. The Borrower will not, and will not
permit any of their respective 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 either Borrower or any such
Subsidiary whether now owned or hereafter acquired, except Permitted Liens.
SECTION 8.04. Indebtedness. (a) The Borrowers will not create,
incur or assume, or permit any of their respective Subsidiaries to create, incur
or assume any Indebtedness, unless the U.S. Borrower and the Subsidiaries shall
be in compliance, on a pro forma basis after giving effect to such transactions,
with the covenants contained in this Article VIII recomputed as of the last day
of the most recently ended fiscal quarter of the U.S. Borrower and the
Subsidiaries as if the transaction in question had occurred on the first day of
each relevant period for testing such compliance.
(b) Notwithstanding Section 8.04(a), the aggregate principal
amount of all Indebtedness of all foreign Subsidiaries (other than the Canadian
Borrower) at any time outstanding to any Person other than the U. S. Borrower
and the Subsidiaries shall not exceed 12% of Net Worth at such time.
SECTION 8.05. Ownership of Canadian Borrower. The U.S.
Borrower 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 the Canadian Borrower.
SECTION 8.06. Financial Covenants. (a) The U.S. Borrower will
not permit Consolidated Indebtedness to exceed 50% of the Total Capitalization
at the end of any fiscal quarter.
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(b) The U.S. Borrower will not permit the Interest Coverage
Ratio at the end of any fiscal quarter to be less than 3.0 to 1.0.
SECTION 8.07. Limitation on Transactions with Affiliates. The
U.S. Borrower will not, and will not permit any consolidated 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 Person who is not either (i) a Borrower or one of the U.S. Borrower's
consolidated Subsidiaries or (ii) Weatherford\Al-Rushaid Limited or Weatherford
Saudi Arabia Limited, on terms that are less favorable to the U.S. Borrower or
such consolidated Subsidiary, as the case may be, than would be available in a
comparable arm's length transaction. 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 U.S. Borrower who are
not employees of the U.S. Borrower; (ii) loans and advances to officers,
directors and employees of the U.S. Borrower and the Subsidiaries for travel,
entertainment and moving and other relocation expenses made in direct
furtherance and in the ordinary course of business of the U.S. Borrower and the
Subsidiaries; (iii) any other transaction with any employee, officer or director
of the U.S. Borrower or any of the 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 U.S. Borrower or the Board of
Directors of such Subsidiary permitted by this Agreement; and (iv) customary
underwriting or similar transactions with an investment banking Affiliate.
SECTION 8.08. Restrictions on Subsidiary Dividends. The U.S.
Borrower will not and will not permit any consolidated Subsidiary to enter into
any agreement or contract which limits or restricts in any way the payment of
any dividends or distributions by any consolidated Subsidiary of either Borrower
to such Borrower or to another consolidated Subsidiary of such Borrower.
SECTION 8.09. Debentures. Except as expressly permitted in
writing by the Majority Lenders, the Borrowers will not amend, modify or obtain
or grant a waiver of any provision of the Debentures or the Debenture Indenture
with respect to the Debentures if such amendment, modification or waiver would
be adverse to the Lenders.
SECTION 8.10. The Debenture Indenture. The U.S. Borrower will
not take any action that could result in this Agreement failing to be the U.S.
Borrower's "principal bank credit agreement" (as such phrase is used in the
Debenture Indenture).
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
SECTION 9.01. Events of Default and Remedies. If any of the
following events ("Events of Default") shall occur and be continuing:
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(a) (i) any installment of principal on any Note or any
Reimbursement Obligation shall not be paid on the date on which such payment is
due, or (ii) any payment of interest on any such Note or Reimbursement
Obligation 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
of interest or such other amount is due; or
(b) any representation or warranty made or, for purposes of
Article V, deemed made by or on behalf of any Obligor herein, at the direction
of any Obligor or by any Obligor 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 Obligor shall fail to perform or observe any covenant
contained in Article VIII or fails to give any notice required by Section
7.01(e); or
(d) any Obligor shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement (other than those specified in
Section 9.01(a), Section 9.01(b) or Section 9.01(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 U.S. Borrower by either
Agent or any Lender or, (ii) a Responsible Officer of any Obligor becomes aware
of such failure; or
(e) the U.S. Borrower or any Material 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 or the Debentures
(other than the Obligations) 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 $25,000,000, 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
$25,000,000; or
(f) the entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the U.S. Borrower or any Material
Subsidiary in an involuntary case or proceeding under any applicable federal,
state or foreign bankruptcy, insolvency, reorganization or other similar law or
(ii) a decree or order adjudging the U.S. Borrower or any Material Subsidiary
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
U.S. Borrower or any Material Subsidiary under any applicable federal, state or
foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the U.S. Borrower or any Material
Subsidiary of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, the continuance of any such decree or order for
relief or any such other decree or order that shall be unstayed and in effect
for a period of 60 consecutive days; or
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(g) the commencement by the U.S. Borrower or any Material
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 U.S. Borrower or any Material Subsidiary to the entry of a decree
or order for relief in respect of the U.S. Borrower or such Material 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 U.S. Borrower or any Material 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 U.S. Borrower or any Material
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 U.S. Borrower or such Material Subsidiary or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the consent to, approval of or the admission by the
U.S. Borrower or any Material Subsidiary in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the
U.S. Borrower or any Material Subsidiary in furtherance of any such action; or
(h) there shall be commenced against the U.S. Borrower or any
Material Subsidiary any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against the
assets of the U.S. Borrower or any Material Subsidiaries which equals or exceeds
$25,000,000 in value and 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) any Loan Document shall (other than with the consent of the
Agents 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 the validity or enforceability thereof
shall be contested by any Obligor or any Obligor shall deny that it has any or
further liability or obligation thereunder; or
(j) 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 $25,000,000, 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 U.S. Borrower, any consolidated
Subsidiary or an ERISA Affiliate which (individually or collectively) exceeds
$25,000,000; any required contribution to a Plan or Multiemployer Plan in excess
of $25,000,000 shall not have been made within 15 days of the date such
contribution is due; or the U.S. Borrower, any consolidated 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
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assets of the U.S. Borrower, any consolidated Subsidiary and/or an ERISA
Affiliate securing an amount(s) equal to or exceeding $25,000,000, or (ii) the
U.S. Borrower, any consolidated Subsidiary and/or an ERISA Affiliate incurring a
liability(ies) or obligation(s) with respect thereto equal to or exceeding
$25,000,000; or
(k) a judgment or order shall be entered against the U.S.
Borrower or any Material Subsidiary, which with other outstanding judgments and
orders entered against the U.S. Borrower and the Material Subsidiaries equals or
exceeds $25,000,000 in the aggregate (to the extent not covered by insurance as
to which the respective insurer has acknowledged coverage), and (i) within 60
days after entry thereof such judgment shall not have been discharged or
execution thereof stayed pending appeal or, within 60 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;
then, in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the U.S. Administrative Agent (or in the case of
clause (iii) below, the Canadian Agent) may (and at the direction of the
Majority Lenders, shall) do any or all of the following:
(i) without notice to the U.S. Borrower, the Canadian
Borrower or any other Person, declare the U.S. Commitments and the
Canadian Commitments terminated (whereupon the U.S. Commitments and the
Canadian Commitments shall be terminated) and/or accelerate the
Termination Date to a date as early as the date of termination of the
Commitments;
(ii) terminate any Letter of Credit allowing for such
termination, by sending a notice of termination as provided therein and
require the applicable Borrower to provide Cover for outstanding Letters
of Credit, and each Borrower agrees to provide such Cover;
(iii) require the Canadian Borrower to provide Cover for all
outstanding Bankers Acceptance Liabilities, and the Canadian Borrower
agrees to provide such Cover;
(iv) declare the principal amount then outstanding of and the
unpaid accrued interest on the Loans and Reimbursement Obligations and
all fees and all other amounts payable hereunder, under the Notes and
under the other Loan Documents to be forthwith due and payable, whereupon
such amounts shall be and become immediately due and payable, without
notice (including notice of acceleration and notice of intent to
accelerate), presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by the U.S. Borrower and
the Canadian Borrower; provided, that in the case of the occurrence of an
Event of Default with respect to any Obligor referred to in Section
9.01(f) or Section 9.01(g), the Commitments shall be automatically
terminated the principal amount then outstanding of and unpaid accrued
interest on the Loans and the Reimbursement Obligations and all fees and
all other amounts payable hereunder, under the Notes and under the other
Loan Documents shall be and become automatically and immediately due and
payable, without notice (including notice of acceleration and notice of
intent to accelerate), presentment,
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demand, protest or other formalities of any kind, all of which are hereby
expressly waived by the U.S. Borrower and the Canadian Borrower;
(v) increase the interest rate on all amounts then outstanding
and the rate of all fees due in respect of Letters of Credit to the Past
Due Rate; and
(vi) exercise any or all other rights and remedies available to
either Agent or any Lenders under the Loan Documents, at law or in
equity.
SECTION 9.02. Right of Setoff. Upon the occurrence and during
the continuance of any Event of Default, each Lender is hereby authorized at any
time and from time to time, without notice to any Obligor (any such notice being
expressly waived by each Obligor), to setoff and apply any and all deposits
(general or special, time or demand, provisional or final but excluding the
funds held in accounts clearly designated as escrow or trust accounts held by
any Obligor for the benefit of Persons which are not Affiliates of any Obligor),
whether or not such setoff results in any loss of interest or other penalty, and
including without limitation all certificates of deposit, at any time held, and
any other funds or property at any time held, and other indebtedness at any time
owing by such Lender to or for the credit or the account of any Obligor against
any and all of the Obligations irrespective of whether or not such Lender or
either Agent will have made any demand under this Agreement, the Notes or any
other Loan Document. Should the right of any Lender to realize funds in any
manner set forth hereinabove be challenged and any application of such funds be
reversed, whether by court order or otherwise, the Lenders shall make
restitution or refund to the applicable Obligor, as the case may be, pro rata in
accordance with their U.S. Commitments or the Canadian Commitments, as the case
may be. Each Lender agrees to promptly notify the U.S. Borrower, the Canadian
Borrower and the Agents after any such setoff and application, provided that the
failure to give such notice will not affect the validity of such setoff and
application. The rights of Agents and the Lenders under this Section are in
addition to other rights and remedies (including without limitation other rights
of setoff) which the Agents or the Lenders may have. This Section is subject to
the terms and provisions of Section 4.05 and Section 12.18. Any amounts realized
under this Section 9.02 which constitute an asset of the Canadian Borrower shall
only be applied to the payment of the Canadian Obligations.
SECTION 9.03. Preservation of Security for Unmatured
Obligations. In the event that, following (a) the occurrence of an Event of
Default and the exercise of any rights available to either Agent or any Lender
under the Loan Documents, and (b) payment in full of the principal amount then
outstanding of and the accrued interest on the Loans and Reimbursement
Obligations and fees and all other amounts payable hereunder and under the Loan
Documents and any Letters of Credit or Bankers' Acceptances shall remain
outstanding and undrawn upon, the applicable Agent shall be entitled to hold
(and each Borrower and each other Obligor hereby grants and conveys to each
Agent a security interest in and to) all cash or other proceeds realized or
arising out of the exercise of any rights available under the Loan Documents, at
law or in equity, including, without limitation, the proceeds of any
foreclosure, as collateral for the payment of any amounts due or to become due
under or in respect of such Letters of Credit and/or such Bankers' Acceptances.
Such proceeds shall
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be held for the ratable benefit of the U.S. Lenders or the Canadian Lenders, as
the case may be. The rights, titles, benefits, privileges, duties and
obligations of the applicable Agent with respect thereto shall be governed by
the terms and provisions of this Agreement. The applicable Agent may, but shall
have no obligation to, invest any such proceeds in such manner as such Agent, in
the exercise of its sole discretion, deems appropriate. Such proceeds shall be
applied to Reimbursement Obligations arising in respect of any such Letters of
Credit, the payment of any Lender's obligations under any such Letter of Credit
and/or the Obligations relating to any such Bankers' Acceptance when such Letter
of Credit is drawn upon or such Bankers' Acceptance matures, as the case may be.
Nothing in this Section shall cause or permit an increase in the maximum amount
of the Obligations permitted to be outstanding from time to time under this
Agreement. Any amounts realized under this Section 9.03 which constitute an
asset of the Canadian Borrower shall only be applied to the payment of the
Canadian Obligations.
SECTION 9.04. Other Remedies. 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.
SECTION 9.05. Currency Conversion After Maturity. At any time
following the occurrence of an Event of Default and the acceleration of the
maturity of the Obligations owed to the Canadian Lenders hereunder, the Canadian
Lenders shall be entitled to convert, with two (2) Business Days' prior notice
to the Canadian Borrower, any and all or any part of the then unpaid and
outstanding LIBOR Borrowings and Base Rate Borrowings of the Canadian Borrower
to Canadian Prime Loans. Any such conversion shall be calculated so that the
resulting Canadian Prime Loans shall be the equivalent on the date of conversion
of the amount of Dollars so converted. Any accrued and unpaid interest
denominated in Dollars at the time of any such conversion shall be similarly
converted to Canadian Dollars, and such Canadian Prime Loans and accrued and
unpaid interest thereon shall thereafter bear interest in accordance with the
terms hereof.
SECTION 9.06. 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 Obligor under the Loan Documents shall, except as otherwise required by
law, be distributed by the Agent on the dates selected by the Agent as follows:
first, to payment of the unreimbursed expenses for which either
Agent or any Lender is to be reimbursed pursuant to Section
13.03 and to any unpaid fees owing to the Agents;
second, to the ratable payment of accrued but unpaid interest on
the Obligations;
third, to the ratable payment of unpaid principal of the
Obligations;
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fourth, to the ratable payment of all other amounts payable by
the Obligors 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 Obligors, 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 9.06 shall mean
all Obligations outstanding as of any such distribution date (including any
amounts unpaid under clause (v) of the last sentence of Section 9.01) as to
which prior distributions have not been made, after giving effect to any
adjustments which are made pursuant to Section 9.02 of which the Agents shall
have been notified.
ARTICLE X
AGENTS
SECTION 10.01. Appointment, Powers and Immunities. Each U.S.
Lender hereby irrevocably appoints and authorizes the U.S. Administrative Agent
to act as its agent hereunder, under the U.S. Letters of Credit and under the
other Loan Documents with such powers as are specifically delegated to the U.S.
Administrative Agent by the terms hereof and thereof, together with such other
powers as are reasonably incidental thereto. Each Canadian Lender hereby
irrevocably appoints and authorizes the Canadian Agent to act as its agent
hereunder, under the Canadian Letters of Credit and under the other Loan
Documents with such powers as are specifically delegated to the Canadian Agent
by the terms hereof and thereof, together with such other powers as are
reasonably incidental thereto. Any Loan Documents executed in favor of any Agent
shall be held by such Agent for the ratable benefit of the applicable Lenders.
Neither of the Agents ("Agents" as used in this Article IX shall include
reference to their Affiliates and their own and their Affiliates' respective
officers, shareholders, directors, employees and agents) (a) shall have any
duties or responsibilities except those expressly set forth in this Agreement,
the Letters of Credit, and the other Loan Documents, and shall not by reason of
this Agreement or any other Loan Document be a trustee or fiduciary for any
Lender; (b) shall be responsible to any Lender for any recitals, statements,
representations or warranties contained in this Agreement, the Letters of Credit
or any other Loan Document, or in any certificate or other document referred to
or provided for in, or received by any of them under, this Agreement, the
Letters of Credit or any other Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability, execution, filing, registration,
collectibility, recording, perfection, existence or sufficiency of this
Agreement, the Letters of Credit, or any other Loan Document or any other
document referred to or provided for herein or therein or any property covered
thereby or for any failure by any Obligor or any other Person to perform any of
its obligations hereunder or thereunder, or shall have any duty to inquire into
or pass upon any of the foregoing matters; (c) shall be required to initiate or
conduct any litigation or collection
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proceedings hereunder or under the Letters of Credit or any other Loan Document
except to the extent requested and adequately indemnified by the Majority
Lenders; (d) shall be responsible for any mistake of law or fact or any action
taken or omitted to be taken by it hereunder or under the Letters or Credit or
any other Loan Document or any other document or instrument referred to or
provided for herein or therein or in connection herewith or therewith,
including, without limitation, pursuant to its own negligence, except for its
own gross negligence, willful misconduct or unlawful conduct; (e) shall be bound
by or obliged to recognize any agreement among or between either Borrower and
any Lender to which such Agent is not a party, regardless of whether such Agent
has knowledge of the existence of any such agreement or the terms and provisions
thereof; (f) shall be charged with notice or knowledge of any fact or
information not herein set out or provided to such Agent in accordance with the
terms of this Agreement or any other Loan Document; (g) shall be responsible for
any delay, error, omission or default of any mail, telegraph, cable or wireless
agency or operator, and (h) shall be responsible for the acts or edicts of any
Governmental Authority. Either Agent may employ agents and attorneys-in-fact and
neither of the Agents shall be responsible for the negligence or misconduct of
any such agents or attorneys-in-fact selected by it with reasonable care.
Without in any way limiting any of the foregoing, each Lender acknowledges that
none of the Agents (nor any Issuer) shall have greater responsibility in the
operation of the Letters of Credit than is specified in the UCP.
SECTION 10.02. Reliance. Each Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it in good faith to be genuine
and correct and to have been signed or sent by or on behalf of the proper Person
or Persons, and upon advice and statements of legal counsel (which may be
counsel for either Borrower), independent accountants and other experts selected
by such Agent. Neither of the Agents shall be required in any way to determine
the identity or authority of any Person delivering or executing the same;
provided, however neither Agent is entitled to rely on any telephonic notice
from either Borrower with respect to the transfer of funds. As to any matters
not expressly provided for by this Agreement, the Letters of Credit, or any
other Loan Document, each Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder and thereunder in accordance with
instructions of the Majority Lenders, and any action taken or failure to act by
the U.S. Administrative Agent pursuant thereto shall be binding on all of the
U.S. Lenders and any action taken or failure to act by the Canadian Agent
pursuant thereto shall be binding on all of the Canadian Lenders. If any order,
writ, judgment or decree shall be made or entered by any court affecting the
rights, duties and obligations of any Agent under this Agreement or any other
Loan Document, then and in any of such events such Agent is authorized, in its
sole discretion, to rely upon and comply with such order, writ, judgment or
decree which it is advised by legal counsel of its own choosing is binding upon
it under the terms of this Agreement, the relevant Loan Document or otherwise;
and if such Agent complies with any such order, writ, judgment or decree, then
it shall not be liable to any Lender or to any other Person by reason of such
compliance even though such order, writ, judgment or decree may be subsequently
reversed, modified, annulled, set aside or vacated.
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SECTION 10.03. Defaults; Events of Default. None of the Agents
shall be deemed to have knowledge of the occurrence of a Default or and Event of
Default (other than the non-payment of principal of or interest on Loans or
Reimbursement Obligations) unless such Agent has received notice from a Lender
or a Borrower specifying such Default or Event of Default and stating that such
notice is a "Notice of Default." In the event that either Agent receives such a
Notice of Default, such Agent shall give prompt notice thereof to the other
Agent and the Lenders (and shall give the other Agent and each Lender prompt
notice of each such non-payment). Each Agent shall (subject to Section 10.07)
take such action with respect to such Notice of Default as shall be directed by
the Majority Lenders and within its rights under the Loan Documents and at law
or in equity, provided that, unless and until an Agent shall have received such
directions, such Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, permitted hereby with respect to such Notice of
Default as it shall deem advisable in the best interests of the Lenders and
within its rights under the Loan Documents, at law or in equity.
SECTION 10.04. Material Written Notices. In the event that
either Agent receives any written notice of a material nature from either
Borrower or any other Obligor under the Loan Documents, such Agent shall
promptly inform the other Agent and each of the Lenders thereof.
SECTION 10.05. Rights as a Lender. With respect to its U.S.
Commitment or Canadian Commitment and the Obligations, each of Chase and The
Bank of Nova Scotia, in its capacity as a Lender hereunder, shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting in its agency capacity, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include each Agent in
its individual capacity. Each Agent may (without having to account therefor to
any Lender) accept deposits from, lend money to and generally engage in any kind
of banking, trust, letter of credit, agency or other business with either
Borrower (and any of their Affiliates) as if it were not acting as an Agent, and
each Agent may accept fees and other consideration from either Borrower (in
addition to the fees heretofore agreed to between either Borrower and any Agent)
for services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
SECTION 10.06. Indemnification. Neither Agent shall 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
applicable Agent's satisfaction by the U.S. Lenders or the Canadian Lenders, as
the case may be, against loss, cost, liability and expense. If any indemnity
furnished to the Agents shall become impaired, it may call for additional
indemnity and cease to do the acts indemnified against until such additional
indemnity is given. The Canadian Lenders and the U.S. Lenders, respectively,
agree to indemnify the Canadian Agent and the U.S. Administrative Agent,
respectively (to the extent not reimbursed under Section 2.02(c), Section 12.03
or Section 12.04, but without limiting the obligations of either Borrower under
said Sections 2.02(c), 12.03 and 12.04), ratably in accordance with the sum of
the applicable Lenders' respective U.S. Commitments or Canadian Commitments, as
the case may be, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever, REGARDLESS OF WHETHER CAUSED IN WHOLE OR IN PART
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BY THE NEGLIGENCE OF ANY INDEMNIFIED PARTIES, which may be imposed on,
incurred by or asserted against the applicable Agent in any way relating to or
arising out of this Agreement, the Letters of Credit or any other Loan Document
or any other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (including, without limitation, the
costs and expenses which either Borrower is obligated to pay under Sections
2.02(c), 12.03 and 12.04, interest, penalties, attorneys' fees and amounts paid
in settlement, but excluding, unless a Default or an Event of Default has
occurred and is continuing, normal administrative costs and expenses incident to
the performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or of any such other documents; provided that no Lender
shall be liable for any of the foregoing to the extent they arise from the gross
negligence, willful misconduct or unlawful conduct of the party to be
indemnified. The obligations of the Lenders under this Section 10.06 shall
survive the termination of this Agreement, the repayment of the Obligations and
the expiration of the Letter of Credit.
SECTION 10.07. Non-Reliance on Agents and Other Lenders. Each
Lender agrees that it has received current financial information with respect to
each Borrower and each other Obligor and that it has, independently and without
reliance on either Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis of each
Borrower and each other Obligor and decision to enter into this Agreement and
that it will, independently and without reliance upon either 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 analysis and decisions in taking or not
taking action under this Agreement or any of the other Loan Documents. Neither
of the Agents shall be required to keep itself informed as to the performance or
observance by any Obligor of this Agreement, the Letters of Credit or any of the
other Loan Documents or any other document referred to or provided for herein or
therein or to inspect the properties or books of any Obligor. Except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by either Agent hereunder, under the Letters of Credit
or the other Loan Documents, neither of the Agents shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of any Obligor (or any
of their affiliates) which may come into the possession of either Agent.
SECTION 10.08. Failure to Act. Except for action expressly
required of either Agent hereunder, under the Letters of Credit or under the
other Loan Documents, each Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it shall receive
further assurances to its satisfaction by the Lenders of their indemnification
obligations under Section 10.06 against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
SECTION 10.09. Resignation or Removal of an Agent. Subject to
the appointment and acceptance of a successor U.S. Administrative Agent or
Canadian Agent, as the case may be, as provided below, the U.S. Administrative
Agent and the Canadian Agent, respectively, may resign at any time by giving
notice thereof to the U.S. Lenders and the Canadian Lenders,
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respectively, and to the U.S. Borrower and the Canadian Borrower, respectively.
Either Agent may be removed at any time with or without cause by the Majority
Lenders; provided, that such Agent shall continue as the U.S. Administrative
Agent or the Canadian Agent, as the case may be, until such time as any
successor shall have accepted appointment hereunder as the U.S. Administrative
Agent or the Canadian Agent, as the case may be. Upon any such resignation or
removal, (a) the Majority Lenders without the consent of any Obligor shall have
the right to appoint a successor U.S. Administrative Agent or Canadian Agent, as
the case may be, so long as such successor U.S. Administrative Agent or the
Canadian Agent, as the case may be, is also a Lender at the time of such
appointment and (b) the Majority Lenders shall have the right to appoint a
successor U.S. Administrative Agent or Canadian Agent, as the case may be, that
is not a Lender at the time of such appointment so long as the Borrowers consent
to such appointment (which consent shall not be unreasonably withheld). If no
successor U.S. Administrative Agent or Canadian Agent, as the case may be, shall
have been so appointed by the Majority Lenders and accepted such appointment
within thirty (30) days after the retiring U.S. Administrative Agent's or
Canadian Agent's, as the case may be, giving of notice of resignation or the
Majority Lenders' removal of the retiring U.S. Administrative Agent or Canadian
Agent, as the case may be, then the retiring Agent may, on behalf of the
applicable Lenders, appoint a successor U.S. Administrative Agent or Canadian
Agent, as the case may be, without the necessity of any consent on the part of
either Borrower or any Lender. Any successor U.S. Administrative Agent shall be
a bank which has an office in the United States and a combined capital and
surplus of at least $250,000,000 and any successor Canadian Agent shall be a
bank which has an office in Canada and a combined capital and surplus of at
least C$250,000,000. Upon the acceptance of any appointment as the U.S.
Administrative Agent or the Canadian Agent, as the case may be, hereunder 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
hereunder and under any other Loan Documents. Such successor Agent shall
promptly specify by notice to Borrowers the location of its Principal Office.
After any retiring Agent's resignation or removal hereunder as an Agent, the
provisions of this Article X shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as Agent.
SECTION 10.10. No Partnership. Neither the execution and
delivery of this Agreement nor any of the other Loan Documents nor any interest
the Lenders, the Agents or any of them may now or hereafter have in all or any
part of the Obligations shall create or be construed as creating a partnership,
joint venture or other joint enterprise between the Lenders or among the Lenders
and either Agent. The relationship between the Lenders, on the one hand, and
either Agent, on the other, is and shall be that of principals and agent only,
and nothing in this Agreement or any of the other Loan Documents shall be
construed to constitute either Agent as trustee or other fiduciary for any
Lender or to impose on either Agent any duty, responsibility or obligation other
than those expressly provided for herein and therein.
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ARTICLE XI
U.S. BORROWER GUARANTY
SECTION 11.01 U.S. Borrower Guaranty. (a) In consideration of,
and in order to induce the (i) Canadian Lenders to make Canadian Loans to, and
to accept and purchase Bankers' Acceptances from, the Canadian Borrower and (ii)
the issuance of Canadian Letters of Credit for the account of the Canadian
Borrower, the U.S. Borrower hereby absolutely, unconditionally and irrevocably
guarantees in favor of all of the Canadian Lenders, the punctual payment and
performance when due, whether at stated maturity, by acceleration or otherwise,
of the Canadian Obligations and all covenants of the Canadian Borrower, now or
hereafter existing under this Agreement and the other Loan Documents to which
the Canadian Borrower 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 Canadian Borrower
under any applicable Bankruptcy Code, fees, commissions, expenses (including
reasonable attorneys' fees and expenses) or otherwise (all such obligations
being the "Canadian Borrower Guaranteed Obligations"). The U.S. Borrower agrees
to pay any and all expenses incurred by each Canadian Lender and the Canadian
Agent in enforcing this U.S. Borrower Guaranty against the U.S. Borrower.
(b) This U.S. Borrower 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
Canadian Borrower or any other Obligor or any other action, occurrence or
circumstance whatsoever.
SECTION 11.02. Continuing Guaranty. (a) The U.S. Borrower
guarantees that the Canadian Borrower Guaranteed Obligations will be paid
strictly in accordance with the terms of this Agreement and the other Loan
Documents. The U.S. Borrower agrees that, to the maximum extent permitted by
applicable law, the Canadian Borrower Guaranteed Obligations and Loan Documents
to which the Canadian Borrower is a party may be extended or renewed, and
indebtedness thereunder repaid and reborrowed in whole or in part, without
notice to or assent by the U.S. Borrower, and that it will remain bound upon
this U.S. Borrower Guaranty notwithstanding any extension, renewal or other
alteration of the Canadian Borrower Guaranteed Obligations or such Loan
Documents, or any repayment and reborrowing of the Canadian Loans, or the
expiration of the Canadian Letters of Credit. To the maximum extent permitted by
applicable law, except as otherwise expressly provided in this Agreement or any
other Loan Document to which the U.S. Borrower is a party, the obligations of
the U.S. Borrower under this U.S. Borrower 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 Canadian Borrower Guaranteed Obligations, or of
this Agreement or any other Loan Document executed in connection
herewith, or any contract or understanding among the U.S. Borrower, the
Canadian
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Borrower, any Subsidiary Guarantor, either Agent and/or the Lenders, or
any other Person, pertaining to the Canadian Borrower Guaranteed
Obligations;
(ii) any adjustment, indulgence, forbearance or compromise
that might be granted or given by the Lenders to the U.S. Borrower or any
other Person liable on the Canadian Borrower Guaranteed Obligations;
(iii) the insolvency, bankruptcy, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of power of the
U.S. Borrower, the Canadian Borrower or any other Person at any time
liable for the payment of all or part of the Canadian Borrower Guaranteed
Obligations; or any dissolution of the U.S. Borrower or the Canadian
Borrower or any sale, lease or transfer of any or all of the assets of
the U.S. Borrower or the Canadian Borrower, or any changes in the
shareholders of the U.S. Borrower, the Canadian Borrower, or any
reorganization of the U.S. Borrower or the Canadian Borrower;
(iv) the invalidity, illegality or unenforceability of all or
any part of the Canadian Borrower Guaranteed Obligations, or any document
or agreement executed in connection with the Canadian Borrower Guaranteed
Obligations, for any reason whatsoever, including the fact that (A) the
Canadian Borrower Guaranteed Obligations, or any part thereof, exceeds
the amount permitted by law, (B) the act of creating the Canadian
Borrower Guaranteed Obligations or any part thereof is ultra vires, (C)
the officers or representatives executing the documents or otherwise
creating the Canadian Borrower Guaranteed Obligations acted in excess of
their authority, (D) the Canadian Borrower Guaranteed Obligations or any
part thereof violate applicable usury laws, (E) the U.S. Borrower or the
Canadian Borrower has valid defenses, claims and offsets (whether at law
or in equity, by agreement or by statute) which render the Canadian
Borrower Guaranteed Obligations wholly or partially uncollectible from
the U.S. Borrower or the Canadian Borrower, (F) the creation, performance
or repayment of the Canadian Borrower Guaranteed Obligations (or
execution, delivery and performance of any document or instrument
representing part of the Canadian Borrower Guaranteed Obligations or
executed in connection with the Canadian Borrower Guaranteed Obligations,
or given to secure the repayment of the Canadian Borrower 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 Canadian Borrower
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 U.S.
Borrower or the Canadian Borrower on the Canadian Borrower 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
Canadian Borrower Guaranteed Obligations or any part thereof; it being
recognized, acknowledged and agreed by the U.S. Borrower that the U.S.
Borrower may be required to pay the Canadian Borrower Guaranteed
Obligations in full without assistance or support of any other Person,
and the U.S. Borrower has not been induced to enter into this U.S.
Borrower Guaranty on the basis of a
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contemplation, belief, understanding or agreement that any other Person
will be liable to perform the Canadian Borrower Guaranteed Obligations,
or that the Canadian Administrative Agent or any Canadian Lender will
look to any other Person to perform the Canadian Borrower 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
Canadian Borrower 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 Canadian Borrower Guaranteed
Obligations;
(viii) the failure of either 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 Canadian Borrower 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 the U.S.
Borrower that the U.S. Borrower is not entering into this U.S. Borrower
Guaranty in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectibility or value of any of the
collateral for the Canadian Borrower Guaranteed Obligations;
(x) any payment by the Canadian Borrower or the U.S. Borrower
to the Canadian Agent or any Lender is held to constitute a preference
under bankruptcy laws, or for any other reason either the Canadian Agent
or any Canadian Lender is required to refund such payment or pay such
amount to the Canadian Borrower 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 Canadian Borrower
Guaranteed Obligations, or the security and collateral therefor, whether
or not such action or omission prejudices the U.S. Borrower or increases
the likelihood that the U.S. Borrower will be required to pay the
Canadian Borrower Guaranteed Obligations pursuant to the terms hereof;
it being the unambiguous and unequivocal intention of the U.S. Borrower that the
U.S. Borrower shall be obligated to pay the Canadian Borrower Guaranteed
Obligations when 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 Canadian Borrower Guaranteed
Obligations after the termination of all of the Canadian Commitments and the
expiration or termination of the Canadian Letter of Credit.
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(b) The U.S. Borrower further agrees that, to the fullest extent
permitted by law, as between the U.S. Borrower, on the one hand, and the Lenders
and the Agents, on the other hand, (i) the maturity of the Canadian Borrower
Guaranteed Obligations may be accelerated as provided in Article IX for the
purposes of this U.S. Borrower Guaranty, notwithstanding any stay, injunction or
other prohibition preventing such acceleration of the Canadian Borrower
Guaranteed Obligations, and (ii) in the event of any acceleration of the
Canadian Borrower Guaranteed Obligations as provided in Article IX, the Canadian
Borrower Guaranteed Obligations (whether or not due and payable) shall forthwith
become due and payable by the U.S. Borrower for the purpose of this U.S.
Borrower Guaranty.
SECTION 11.03. 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 Canadian Borrower Guaranteed
Obligations, either Agent, the applicable Issuer 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 Canadian Agent, the applicable Issuer, any Canadian
Lender or any of their respective properties or (ii) any settlement or
compromise of any such claim effected by the Canadian Agent, the Issuer of the
Canadian Letters of Credit or any Canadian Lender with any such claimant
(including the Canadian Borrower), then the Canadian Borrower Guaranteed
Obligations or part thereof intended to be satisfied shall be reinstated and
continue, and this U.S. Borrower 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 instrument evidencing any of the Canadian
Borrower Guaranteed Obligations or otherwise; and the U.S. Borrower shall be
liable to pay the Agents, the Issuer of the Canadian Letters of Credit and the
Lenders, and hereby do indemnify the Agents, the Issuer of the Canadian Letters
of Credit 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
either Agent, such Issuer or any such Lender in the defense of any claim made
against it that any payment or proceeds received by the such Agent, such Issuer
or any such Lender in respect of all or part of the Canadian Borrower Guaranteed
Obligations must be surrendered. The provisions of this paragraph shall survive
the termination of this U.S. Borrower Guaranty, and any satisfaction and
discharge of the Canadian Borrower by virtue of any payment, court order or any
law.
SECTION 11.04. Waiver. The U.S. Borrower hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Canadian Borrower Guaranteed Obligations and this U.S. Borrower
Guaranty and waives presentment, demand for payment, notice of intent to
accelerate, notice of dishonor or nonpayment and any requirement that either
Agent or any Canadian Lender institute suit, collection proceedings or take any
other action to collect the Canadian Borrower Guaranteed Obligations, including
any requirement that either Agent or any Lender protect, secure, perfect or
insure any Lien against any property subject thereto or exhaust any
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right or take any action against the Canadian Borrower or any other Person or
any collateral (it being the intention of the Canadian Agent, the Canadian
Lenders and the U.S. Borrower that this U.S. Borrower Guaranty is to be a
guaranty of payment and not of collection). It shall not be necessary for either
Agent or any Canadian Lender, in order to enforce any payment by the U.S.
Borrower hereunder, to institute suit or exhaust its rights and remedies against
the Canadian Borrower or any other Person, including others liable to pay the
Canadian Borrower Guaranteed Obligations, or to enforce its rights against any
security ever given to secure payment thereof. The U.S. Borrower 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 Texas 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. The U.S. Borrower hereby waives marshaling
of assets and liabilities, notice by either 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 Canadian Borrower
Guaranteed Obligations. The U.S. Borrower 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 11.05. Full Force and Effect. This U.S. Borrower
Guaranty is a continuing guaranty and shall remain in full force and effect
until all of the Canadian Borrower Guaranteed Obligations under this Agreement
and the other Loan Documents to which the Canadian Borrower is a party and all
other amounts payable under this U.S. Borrower Guaranty have been paid in full
(after the termination of the Canadian Commitments and the termination or
expiration of the Canadian Letters of Credit). All rights, remedies and powers
provided in this U.S. Borrower Guaranty may be exercised, and all waivers
contained in this U.S. Borrower 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 XII
MISCELLANEOUS
SECTION 12.01. 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 Obligor in any case shall entitle such Obligor to any
other or further notice or demand in similar or other circumstances. The
remedies provided herein and the in the other Loan Documents are cumulative and
not exclusive of any remedies provided by law.
SECTION 12.02. Notices. All notices and other communications
provided for herein, including any modifications of, or waivers or consents
under, this Agreement (collectively,
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"Communications") shall be given or made on a Business Day by telecopy
(confirmed by mail) or other writing and telecopied or mailed or delivered to
the intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof (or provided for in an Assignment and Acceptance);
or, as to any party hereto, at such other address as shall be designated by such
party in a notice (given in accordance with this Section 12.02) (i) as to either
Borrower, to the Agents, (ii) as to the U.S. Administrative Agent, to the U.S.
Borrower and to each U.S. Lender, (iii) as to the Canadian Agent, to the
Canadian Borrower and to each Canadian Lender, (iv) as to any U.S. Lender, to
the U.S. Borrower and the Agents and (v) as to any Canadian Lender, to the
Canadian Borrower and the Agents. Except as otherwise provided in this
Agreement, all such Communications shall be deemed to have been duly given when
(a) transmitted by telecopier, (b) personally delivered (c) one Business Day
after deposit with an overnight mail or delivery service, postage prepaid or (d)
five Business Days' after deposit in a receptacle maintained by the United
States Postal Service or Canada Post, as the case may be, postage prepaid,
registered or certified mail, return receipt requested, in each case given or
addressed as aforesaid. Notwithstanding the foregoing, Communications to either
Agent pursuant to Article II, Article III, Article IV or Article X shall not be
effective until received by such Agent.
SECTION 12.03. Expenses, Etc. Whether or not any Loan is ever
made or any Bankers' Acceptances ever accepted and purchased or any Letter of
Credit ever issued, the Borrowers shall pay or reimburse within 10 days after
written demand (a) either Agent for paying the reasonable fees and expenses of
legal counsel to such Agent, together with the reasonable fees and expenses of
each local counsel to the Agents, in connection with the preparation,
negotiation, execution and delivery of this Agreement (including the exhibits
and schedules hereto), the other Loan Documents and the making of the Loans and
the acceptance and purchase of Bankers' Acceptances and the issuance of Letters
of Credit hereunder, and any modification, supplement or waiver of any of the
terms of this Agreement, the Letters of Credit or any other Loan Document; (b)
either Agent for any Lien search fees, collateral audit fees, appraisal fees,
survey fees, environmental study fees, and title insurance costs and premiums;
(c) either Agent for reasonable out-of-pocket expenses incurred in connection
with the preparation, documentation, administration and syndication of any of
the Loan Documents (including, without limitation, the advertising, marketing,
printing, publicity, duplicating, mailing and similar expenses) or any of the
Obligations; (d) either Agent or any Lender for paying all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement, any Letter of
Credit or any other Loan Document or any other document referred to herein or
therein; (e) any Agent for paying all costs, expenses, taxes, assessments and
other charges incurred in connection with any filing, registration, recording or
perfection of any security interest contemplated by this Agreement or any
document referred to herein, and (f) following the occurrence and during the
continuation of an Event of Default, any Lender or either Agent for paying all
amounts reasonably expended, advanced or incurred by such Lender or such Agent
to collect the Obligations or to enforce, protect, preserve or defend the rights
of the Lenders or the Agents under this Agreement or any other Loan Document,
together with interest thereon at the Past Due Rate applicable to the U.S. Loans
on each such amount from the due date of payment until the date of reimbursement
to such Lender or such Agent.
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SECTION 12.04. Indemnity. (a) The U.S. Borrower 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 arise out of or result from (i) any
investigation, litigation or other proceeding (including any threatened
investigation or proceeding) relating to this Agreement, any Loan, any Letter of
Credit or any Bankers' Acceptance, or any other Loan Document or (ii) any actual
or proposed use by the U.S. Borrower or any Subsidiary of the proceeds of any
extension of credit by any Lender hereunder and the U.S. Borrower 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, willful misconduct or unlawful conduct 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 ORDINARY
NEGLIGENCE OF SUCH INDEMNITEE. Without prejudice to the survival of any other
obligations of each Borrower hereunder and under the other Loan Documents to
which it is a party, the obligations of each Borrower under this Section 12.04
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 12.05. Amendments, Etc. No amendment or modification of
this Agreement, the Notes or any other Loan Document shall in any event be
effective against either Borrower unless the same shall be agreed or consented
to in writing by the applicable Borrower. No amendment, modification or waiver
of any provision of this Agreement, the Notes or any other Loan Document, nor
any consent to any departure by either Borrower therefrom, shall in any event be
effective against the Lenders unless the same shall be agreed or consented to in
writing by the Majority Lenders, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, that no amendment, modification, waiver or consent shall,
unless in writing and signed by each Lender affected thereby, do any of the
following: (a) increase the U.S. Commitment or the Canadian Commitment of any of
the Lenders (or reinstate any termination or reduction of the U. S. Commitment
or the Canadian Commitment) or subject any of the Lenders to any additional
obligations; (b) reduce the principal of, or interest on, any Loan,
Reimbursement Obligation, fee or other amount due hereunder; (c) postpone or
extend the Maturity Date, the Termination Date, the Availability Period or any
scheduled date fixed for any payment of principal of, or interest on, any Loan,
Reimbursement Obligation, fee or other sum to be paid hereunder or waive any
Event of Default described in Section 9.01(a); (d) change the percentage of any
of the U.S. Commitment or the Canadian Commitment or of the aggregate unpaid
principal amount of Obligations, or the percentage of Lenders, which shall be
required for the Lenders or any of them to take any action under this Agreement
(including, to change the definition of "Majority Lenders"); (e) change any
provision contained in Sections 2.02(c), 7.11, 12.03 or 12.04 or this
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Section 12.05, or (f) release any Person from liability under a guaranty.
Notwithstanding anything in this Section 12.05 to the contrary, no amendment,
modification, waiver or consent shall be made with respect to Article X without
the consent of the U.S. Administrative Agent to the extent it affects the U.S.
Administrative Agent, as the U.S. Administrative Agent or the Canadian Agent to
the extent it affects the Canadian Agent, as the Canadian Agent. Subject to the
foregoing, the amendment or waiver of any provisions of Article VI, VII, VIII or
IX may be effected with the consent of the Majority Lenders.
SECTION 12.06. Successors and Assigns. (a) This Agreement shall
be binding upon and inure to the benefit of the Borrowers, the Agents and the
Lenders and their respective successors and assigns; provided, however, that
neither Borrower may assign or transfer any of its rights or obligations
hereunder without the prior written consent of all of the Lenders, and any such
assignment or transfer without such consent shall be null and void. Each Lender
may sell participations to any Person in all or part of any Loan or Bankers'
Acceptance, or all or part of its Notes, U.S. Commitment or Canadian Commitment
or interests in Letters of Credit or Bankers' Acceptances, in which event,
without limiting the foregoing, the provisions of the Loan Documents shall inure
to the benefit of each purchaser of a participation; provided, however, the pro
rata treatment of payments, as described in Section 4.02, shall be determined as
if such Lender had not sold such participation. No Lender that sells one or more
participations to any Person shall be relieved by virtue of such participation
from any of its obligations to the Borrowers under this Agreement. In the event
any Lender shall sell any participation, such Lender shall retain the sole right
and responsibility to enforce the obligations of the Borrowers hereunder and
under the other Loan Documents, including the right to approve any amendment,
modification or waiver of any provision of this Agreement or any other Loan
Document other than amendments, modifications or waivers with respect to (i) any
fees payable hereunder to the Lenders and (ii) the amount of principal or the
rate of interest payable on, or the dates fixed for the scheduled repayment of
principal of, any of the Obligations.
(b) Each U.S. Lender may assign to one or more U.S. Lenders or
any other Person all or a portion of its interests, rights and obligations under
this Agreement; provided, however, that (i) the aggregate amount of the U.S.
Commitment of the assigning U.S. Lender subject to each such assignment shall in
no event be less than $10,000,000; provided that such assigning Lender shall
retain at least $5,000,000 of its U.S. Commitment unless such Lender is
assigning all of its U.S. Commitment and (ii) other than in the case of an
assignment to another U.S. Lender (that is, at the time of the assignment, a
party hereto) or to an Affiliate of such U.S. Lender, Agents and, so long as no
Event of Default shall have occurred and be continuing, the U.S. Borrower must
each give its prior written consent, which consents shall not be unreasonably
withheld. Each Canadian Lender may assign to one or more Canadian Lenders or any
other Person all or a portion of its interests, rights and obligations under
this Agreement; provided, however, that (i) the aggregate amount of the Canadian
Commitment of the assigning Canadian Lender subject to each such assignment
shall in no event be less than $10,000,000; provided that such assigning Lender
shall retain at least $5,000,000 of such Canadian Commitment unless such Lender
is assigning all of its Canadian Commitment and (ii) other than in the case of
an assignment to another Canadian Lender (that is,
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at the time of the assignment, a party hereto) or to an Affiliate of such
Canadian Lender, the Agents and, so long as no Event of Default shall have
occurred and be continuing, the Canadian Borrower must each give its prior
written consent, which consents shall not be unreasonably withheld. As a
condition precedent to any such assignment, the parties to each such assignment
shall execute and deliver to the applicable Agent, for its acceptance an
Assignment and Acceptance in the form of Exhibit 12.06 hereto (each an
"Assignment and Acceptance") with blanks appropriately completed, together with
any Note or Notes subject to such assignment and a processing and recording fee
of $3,000 paid by the assignee (for which the Borrowers will have no liability).
Upon such execution, delivery and acceptance, from and after the effective date
specified in each Assignment and Acceptance, (A) the assignee thereunder shall
be a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder and (B) the Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto except in respect of provisions of this Agreement which
survive payment of the Obligations and termination of the U.S. Commitment and
the Canadian Commitment).
(c) By executing and delivering an Assignment and Acceptance,
the assignor and assignee thereunder 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, the applicable 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 any of the other Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any of the other Loan Documents or any other instrument or document furnished
pursuant thereto; (ii) the applicable assignor makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of either Borrower or the performance or observance by either Borrower of any of
its obligations under this Agreement or any of the other Loan Documents or any
other instrument or document furnished pursuant hereto; (iii) the applicable
assignee confirms that it has received a copy of this Agreement and the other
Loan Documents, together with copies of the financial statements referred to in
Section 6.07 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) the applicable assignee will, independently and
without reliance upon either Agent, the applicable 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) the applicable assignee
appoints and authorizes the U.S. Administrative Agent or the Canadian Agent, as
the case may be, to take such action as agent on its behalf and to exercise such
powers under this Agreement and the other Loan Documents as are delegated to
such Agent by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vi) the applicable assignee agrees that it will perform
in accordance with their terms all obligations that by the terms of this
Agreement and the other Loan Documents are required to be performed by it as a
Lender.
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(d) The entries in the records of each applicable Agent as to
each Assignment and Acceptance delivered to it and the names and addresses of
the Lenders and the U. S. Commitment and the Canadian Commitment, as the case
may be of, and principal amount of the Obligations owing to, each Lender from
time to time shall be conclusive, in the absence of manifest error, and the
Borrowers, Agents and the Lenders may treat each Person the name of which is
recorded in the books and records of the applicable Agent as a Lender hereunder
for all purposes of this Agreement and the other Loan Documents.
(e) Upon the applicable Agent's receipt of an Assignment and
Acceptance executed by an assigning Lender and the assignee thereunder, together
with any Note or Notes subject to such assignment and the written consent to
such assignment (to the extent consent is required), such Agent shall, if such
Assignment and Acceptance has been completed with blanks appropriately filled,
(i) accept such Assignment and Acceptance, (ii) record the information contained
therein in its records and (iii) give prompt notice thereof to the applicable
Borrower. Within five Business Days after receipt of notice, the applicable
Borrower, at its own expense, shall execute and deliver to the applicable Agent
new Notes payable to the order of such assignee in the appropriate amounts and,
if the assigning Lender has retained Commitments hereunder, new Notes to the
order of the assigning Lender in the appropriate amounts. Such new Notes shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in the forms required hereunder.
(f) Notwithstanding any other provision herein, any Lender may,
in connection with any assignment or participation or proposed assignment or
participation pursuant to this Section 12.06 disclose to the assignee or
participant or proposed assignee or participant, any information relating to the
Obligors furnished to such Lender by or on behalf of any Obligor subject,
however to the provisions of Section 12.07.
(g) Anything in this Section 12.06 to the contrary
notwithstanding, any Lender may at any time, without the consent of either
Agent, either Borrower or any other Person, assign and pledge all or any portion
of its U.S. Commitment or Canadian Commitment and the Obligation 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.
(h) 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 12.06 be construed as a
"purchase" or "sale" of a "security" within the meaning of any applicable
federal or state securities laws.
SECTION 12.07. Confidentiality. Each Lender agrees to exercise
its best efforts to keep any information delivered or made available by any
Obligor 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
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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 Obligor 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 12.07. Each
Lender will promptly notify the U.S. Borrower and the Canadian Borrower of any
information that it is required or requested to deliver pursuant to clause (b)
or (c) of this Section 12.07 and, if no Obligor is a party to any such
litigation, clause (e) of this Section 12.07.
SECTION 12.08. Survival of Representations and Warranties. All
representations, warranties and covenants contained herein or made in writing by
the Obligors 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 U.S. Commitment and the Canadian Commitment 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 applicable Borrower and the
undertaking of the Issuers to issue Letters of Credit shall not inure to the
benefit of any successor or assign of such Borrower, except a successor or
assign that becomes such in accordance with, as provided in Section 8.02.
SECTION 12.09. Governing Law. 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 Obligor, the
Agents and the Lenders under the laws of the State of Texas 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.
SECTION 12.10. 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 12.11. Binding Effect. This Agreement shall become
effective on the Effective Date.
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<PAGE> 94
SECTION 12.12. 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 12.13. Tax Forms; Net Payments. (a) Each U.S. Lender
which is organized under the laws of a jurisdiction outside the United States
shall, on the day of the initial borrowing from each such U.S. Lender hereunder
and from time to time thereafter if requested by the U.S. Borrower or the U.S.
Administrative Agent, provide the U.S. Administrative Agent and the U.S.
Borrower with the forms prescribed by the Internal Revenue Service of the United
States certifying as to such U.S. Lender's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to such U.S. Lender hereunder and under the other Loan Documents or
other documents satisfactory to such U.S. Lender, the U.S. Borrower and the U.S.
Administrative Agent indicating that all payments to be made to such U.S. Lender
hereunder and under the other Loan Documents are not subject to United States
withholding tax. Unless the U.S. Borrower and the U.S. Administrative Agent
shall have received such forms or such documents indicating that payments to
such U.S. Lender hereunder and under the other Loan Documents are not subject to
United States withholding tax, the U.S. Borrower and the U.S. Administrative
Agent shall be entitled to withhold taxes from such payments at the applicable
statutory rate.
(b) Each Canadian Lender shall be a resident of Canada for
purposes of the Income Tax Act (Canada).
SECTION 12.14. Interest Act (Canada). Whenever interest is
calculated on the basis of a year of 360 or 365 days, for the purposes of the
Interest Act (Canada), the yearly rate of interest which is equivalent to the
rate payable hereunder is the rate payable multiplied by the actual number of
days in the year and divided by 360 or 365, as the case may be. All interest
will be calculated using the nominal rate method and not the effective rate
method and the deemed reinvestment principle shall not apply to such
calculations.
SECTION 12.15. Judgment Currency. The obligation of each
Borrower to make payments on any Obligation to the Lenders or to any Agent
hereunder in any currency (the "first currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any other currency (the "second currency") except to the extent
to which such tender or recovery shall result in the effective receipt by the
applicable Lender or the applicable Agent of the full amount of the first
currency payable, and accordingly the primary obligation of each Borrower shall
be enforceable as an alternative or additional cause of action for the purpose
of recovery in the second currency of the amount (if any) by which such
effective receipt shall fall short of the full amount of the full currency
payable and shall not be affected by a judgment being obtained for any other sum
due hereunder.
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<PAGE> 95
SECTION 12.16. Conflicts Between This Agreement and the Other
Loan Documents. In the event of any conflict between, or inconsistency with, the
terms of this Agreement and the terms of any of the other Loan Documents, the
terms of this Agreement shall control.
SECTION 12.17. Limitation on Charges; Substitute Lenders;
Non-Discrimination. Anything in Sections 3.03(c) or 7.08 notwithstanding:
(a) no Borrower shall be required to pay to any Lender
reimbursement with regard to any costs or expenses described in such
Sections, unless such Lender notifies the applicable Borrower of such
costs or expenses within 90 days after the date paid or incurred;
(b) none of the Lenders shall be permitted to pass through to
either Borrower charges and costs under such Sections on a discriminatory
basis (i.e., which are not also passed through by such Lender to other
customers of such Lender similarly situated where such customer is
subject to documents providing for such pass through); and
(c) if any Lender elects to pass through to either Borrower any
material charge or cost under such Sections or elects to terminate the
availability of LIBOR Borrowings for any material period of time, the
applicable Borrower may, within 60 days after the date of such event and
so long as no Default or Event of Default shall have occurred and be
continuing, elect to terminate such Lender as a party to this Agreement;
provided that, concurrently with such termination such Borrower shall (i)
if Agents and each of the other Lenders shall consent, pay that Lender
all principal, interest and fees and other amounts owed to such Lender
through such date of termination (including all amounts that would be due
to such Lender if such Lender's Loans were prepaid) or (ii) have arranged
for an Eligible Assignee as of such date, to become a substitute Lender
for all purposes under this Agreement in the manner provided in Section
12.06; provided further that, prior to substitution for any Lender, the
applicable Borrower shall have given written notice to the Agents of such
intention and the Lenders shall have the option, but no obligation, for a
period of 10 days after receipt of such notice, to increase their U.S.
Commitment or Canadian Commitment, as the case may be, in order to
replace the affected Lender in lieu of such substitution.
SECTION 12.18. Limitation of Interest. The Borrowers and the
Lenders intend to strictly comply with all applicable federal and Texas laws,
including applicable usury laws (or the usury laws of any jurisdiction,
including Canada, whose usury laws are deemed to apply to the Notes or any other
Loan Documents despite the intention and desire of the parties to apply the
usury laws of the State of Texas). Accordingly, the provisions of this Section
12.18 shall govern and control over every other provision of this Agreement or
any other Loan Document which conflicts or is inconsistent with this Section,
even if such provision declares that it controls. As used in this Section, the
term "interest" includes the aggregate of all charges, fees, benefits or other
compensation which constitute interest under applicable law, provided that, to
the maximum extent permitted by applicable law, (a) any non-principal payment
shall be characterized as an expense or as compensation for something other than
the use, forbearance or detention of money and not as
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<PAGE> 96
interest, and (b) all interest at any time contracted for, reserved, charged or
received shall be amortized, prorated, allocated and spread, in equal parts
during the full term of the Obligations. In no event shall the Borrowers or any
other Person be obligated to pay, or any Lender have any right or privilege to
reserve, receive or retain, (a) any interest in excess of the maximum amount of
nonusurious interest permitted under the laws of the State of Texas or the
applicable laws (if any) of the United States or of any other applicable
jurisdiction, or (b) total interest in excess of the amount which such Lender
could lawfully have contracted for, reserved, received, retained or charged had
the interest been calculated for the full term of the Obligations at the Ceiling
Rate. The daily interest rates to be used in calculating interest at the Ceiling
Rate shall be determined by dividing the applicable Ceiling Rate per annum by
the number of days in the calendar year for which such calculation is being
made. None of the terms and provisions contained in this Agreement or in any
other Loan Document (including Section 9.01 hereof) which directly or indirectly
relate to interest shall ever be construed without reference to this Section
12.18, or be construed to create a contract to pay for the use, forbearance or
detention of money at an interest rate in excess of the Ceiling Rate. If the
term of any Obligation is shortened by reason of acceleration of maturity as a
result of any Event of Default or by any other cause, or by reason of any
required or permitted prepayment, and if for that (or any other) reason any
Lender at any time, including but not limited to, the stated maturity, is owed
or receives (and/or has received) interest in excess of interest calculated at
the Ceiling Rate, then and in any such event all of any such excess interest
shall be canceled automatically as of the date of such acceleration, prepayment
or other event which produces the excess, and, if such excess interest has been
paid to such Lender, it shall be credited pro tanto against the then-outstanding
principal balance of the applicable Borrower's obligations to such Lender,
effective as of the date or dates when the event occurs which causes it to be
excess interest, until such excess is exhausted or all of such principal has
been fully paid and satisfied, whichever occurs first, and any remaining balance
of such excess shall be promptly refunded to its payor.
SECTION 12.19. 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 12.20. SUBMISSION TO JURISDICTION. (A) ANY LEGAL ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF TEXAS OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF TEXAS AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OBLIGOR, EACH AGENT, EACH LENDER AND THE ISSUER 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 OBLIGOR, TO THE EXTENT IT IS NOT QUALIFIED TO DO BUSINESS IN
TEXAS, HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION
SYSTEM, INC., WITH OFFICES ON THE DATE HEREOF AT 811 DALLAS STREET, HOUSTON,
TEXAS 77002, AS ITS
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<PAGE> 97
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 OBLIGOR AGREES TO DESIGNATE A NEW
DESIGNEE, APPOINTEE AND AGENT IN TEXAS ON THE TERMS AND FOR THE PURPOSES OF THIS
PROVISION SATISFACTORY TO THE AGENTS. EACH OBLIGOR 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 OBLIGORS IN ANY OTHER JURISDICTION.
(b) EACH OF THE OBLIGORS 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 12.21. WAIVER OF JURY TRIAL. EACH OBLIGOR, EACH AGENT,
EACH LENDER AND EACH ISSUER (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 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
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<PAGE> 98
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION.
SECTION 12.22. FINAL AGREEMENT OF THE PARTIES. THIS AGREEMENT
(INCLUDING THE SCHEDULES AND EXHIBITS HERETO), THE NOTES AND THE OTHER LOAN
DOCUMENTS CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN SECTION 26.02(a) OF THE
TEXAS BUSINESS AND COMMERCE CODE, AND REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF, AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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<PAGE> 99
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
U.S. Borrower:
EVI WEATHERFORD, INC., a Delaware
corporation
By: /s/ James G. Kiley
----------------------------------
Name: James G. Kiley
--------------------------------
Title: Vice President
-------------------------------
Canadian Borrower:
EVI OIL TOOLS CANADA LTD.,
an Alberta corporation
By: /s/ James G. Kiley
----------------------------------
Name: James G. Kiley
--------------------------------
Title: Vice President
-------------------------------
<PAGE> 100
U.S. Administrative Agent:
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
By: /s/ Mona M. Foch
----------------------------------
Name: Mona M. Foch
--------------------------------
Title: Managing Director
-------------------------------
<PAGE> 101
Syndication Agent:
ABN AMRO BANK, N.V., HOUSTON AGENCY,
AS SYNDICATION AGENT
By: /s/ Charles W. Randall
----------------------------------
Name: Charles W. Randall
--------------------------------
Title: Senior Vice President
-------------------------------
By: /s/ Belinda Rowell
----------------------------------
Name: Belinda Rowell
--------------------------------
Title: Assistant Vice President
-------------------------------
<PAGE> 102
Canadian Agent:
THE BANK OF NOVA SCOTIA,
AS CANADIAN AGENT
By: /s/ Doug Foster
----------------------------------
Name: Doug Foster
--------------------------------
Title: Relationship Manager
-------------------------------
Documentation Agent:
THE BANK OF NOVA SCOTIA,
AS DOCUMENTATION AGENT
By:/s/ F.C.H. Ashby
----------------------------------
Name: F.C.H. Ashby
--------------------------------
Title: Senior Manager-Loan Operations
-------------------------------
<PAGE> 103
Lenders:
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ Mona M. Foch
----------------------------------
Name: Mona M. Foch
--------------------------------
Title: Managing Director
-------------------------------
707 Travis Street
Houston, Texas 77002
Telecopy No.: (713) 216-4913
Domestic Lending Office
707 Travis Street
Houston, Texas 77002
Eurodollar Lending Office
707 Travis Street
Houston, Texas 77002
<PAGE> 104
THE CHASE MANHATTAN BANK OF CANADA
By: /s/ Scott Richardson
----------------------------------
Name: Scott Richardson
--------------------------------
Title: Vice President
-------------------------------
First Canadian Place
100 King Street West, Suite 6900
Toronto, Ontario M5X1A4
Canada
Attention: Ms. Christine Chan
Telecopy No.: (416) 216-4161
<PAGE> 105
ABN AMRO BANK, N.V.
By: /s/ Charles W. Randall
----------------------------------
Name: Charles W. Randall
--------------------------------
Title: Senior Vice President
-------------------------------
By: /s/ Belinda Rowell
----------------------------------
Name: Belinda Rowell
--------------------------------
Title: Assistant Vice President
-------------------------------
Three Riverway, Suite 1700
Houston, Texas 77056
Telecopy No.: (713) 621-5801
<PAGE> 106
ABN AMRO BANK CANADA
By: /s/ Gilbert Fick
----------------------------------
Name: Gilbert Fick
--------------------------------
Title: Group Vice President
-------------------------------
By: /s/ P. K. Chan
----------------------------------
Name: P. K. Chan
--------------------------------
Title: Vice President
-------------------------------
2500-65- West Georgia Street
P O Box 11587, Vancouver, BC V6B 4NB
Telecopy No.: (604) 682-2936
<PAGE> 107
THE BANK OF NOVA SCOTIA,
AS U.S. LENDER
By: /s/ F. C. H. Ashby
-----------------------------------
Name: F. C. H. Ashby
---------------------------------
Title: Senior Manager Loan Operations
--------------------------------
1100 Louisiana, Suite 3000
Houston, Texas 77002
Telecopy No.: (713) 752-2425
THE BANK OF NOVA SCOTIA,
AS CANADIAN LENDER
By: /s/ J. Doug Foster
-----------------------------------
Name: J. Doug Foster
---------------------------------
Title: Relationship Manager
--------------------------------
3820 Scotia Centre
700-2nd Street S.W.
Calgary, Alberta T2P 2N7
Telecopy No.: (403) 221-6497
<PAGE> 108
WELLS FARGO BANK (TEXAS), N.A.
By: /s/ Frank Schageman
-------------------------------------------
Name: Frank Schageman
-----------------------------------------
Title: Vice President & Sr. Relationship Mgr.
----------------------------------------
1000 Louisiana, 3rd Floor
Houston, Texas 77002
Telecopy No.: (713) 250-7912
<PAGE> 109
THE BANK OF TOKYO-MITSUBISHI, LTD.
HOUSTON AGENCY
By: /s/ John W. McGhee
-------------------------------------------
Name: John W. McGhee
-----------------------------------------
Title: Vice President & Manager
----------------------------------------
1100 Louisiana, Suite 2800
Houston, Texas 77002
Telecopy No.: (713) 658-0116
<PAGE> 110
FIRST UNION NATIONAL BANK
By: /s/ Robert R. Wetteroff
-------------------------------------------
Name: Robert R. Wetteroff
-----------------------------------------
Title: Senior Vice President
----------------------------------------
1001 Fannin, Suite 2255
Houston, Texas 77002-6709
Telecopy No.: (713) 650-6354
<PAGE> 111
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Helen A. Carr
-------------------------------------------
Name: Helen A. Carr
-----------------------------------------
Title: Vice President
----------------------------------------
FIRST CHICAGO NBD BANK, CANADA
By: /s/ Helen A. Carr
-------------------------------------------
Name: Helen A. Carr
-----------------------------------------
Title: Attorney In Fact
----------------------------------------
1100 Louisiana, Suite 3200
Houston, Texas 77002
Telecopy No.: (713) 654-7370
<PAGE> 112
STANDARD CHARTERED BANK
By: /s/ Christopher R. Knight
-------------------------------------------
Name: Christopher R. Knight
-----------------------------------------
Title: Vice President
----------------------------------------
By: /s/ Jacob H. Yahiayan
-------------------------------------------
Name: Jacob H. Yahiayan
----------------------------------------
Title: Vice President
----------------------------------------
7 World Trade Center
New York, New York 10048-2627
Telecopy No.: (212) 667-0225
<PAGE> 113
THE BANK OF NEW YORK
By: /s/ Alan F. Lyster, Jr.
-------------------------------------------
Name: Alan F. Lyster, Jr.
-----------------------------------------
Title: Vice President
-----------------------------------------
One Wall Street, 22nd Floor
New York, New York 100286
Telecopy No.: (212) 635-6434
<PAGE> 114
FORM OF CANADIAN DOLLAR NOTE
Cdn.$ , 199
---------------- -------------------- ----
FOR VALUE RECEIVED, EVI OIL TOOLS CANADA LTD., an Alberta corporation
("Maker"), promises to pay to the order of ____________________________________
_____________________________ ("Payee"), at the principal office of The Bank of
Nova Scotia, ______________________________________________________________, in
immediately available funds and in lawful money of Canada, the principal sum of
________________________ Canadian Dollars (Cdn.$__________) (or the unpaid
balance of all principal advanced against this note, if that amount is less),
together with interest on the unpaid principal of this note from time to time
outstanding at a rate or rates provided in that certain Amended and Restated
Credit Agreement (as it may be amended, supplemented or restated from time to
time, the "Credit Agreement") dated as of May 27, 1998, by and among EVI
Weatherford, Inc., a Delaware corporation, as the U.S. Borrower, Maker, as the
Canadian Borrower, the Lenders named therein, Chase Bank of Texas, National
Association, as the U.S. Administrative Agent and The Bank of Nova Scotia, as
the Canadian Agent. Any term defined in the Credit Agreement which is used in
this note and not otherwise defined herein shall have the same meaning ascribed
to it in the Credit Agreement.
1. Credit Agreement; Advances; Security. This note has been issued
pursuant to the terms of the Credit Agreement, and is one of the Canadian Dollar
Notes referred to in the Credit Agreement. Advances against this note by Payee
or other holder hereof shall be governed by the terms and provisions of the
Credit Agreement. Reference is hereby made to the Credit Agreement for all
purposes. The unpaid principal balance of this note at any time shall be the
total of all amounts lent or advanced against this note less the amount of all
payments or prepayments made on this note and by or for the account of Maker.
All Loans and advances and all payments and prepayments made hereon may be
endorsed by the holder of this note on a schedule which may be attached hereto
(and thereby made a part hereof for all purposes) or otherwise recorded in the
holder's records; provided, that any failure to make notation of (a) any Loan or
advance shall not cancel, limit or otherwise affect Maker's obligations or any
holder's rights with respect to that Loan or advance, or (b) any payment or
prepayment of principal shall not cancel, limit or otherwise affect Maker's
entitlement to credit for that payment as of the date received by the holder.
2. Mandatory Payments of Principal and Interest. (a) Accrued and
unpaid interest on the unpaid principal balance of this note shall be due and
payable on the Interest Payment Dates.
(b) On the Termination Date, the entire unpaid principal balance of
this note and all accrued and unpaid interest on the unpaid principal balance of
this note shall be finally due and payable.
(c) All payments hereon made pursuant to this Paragraph shall be
applied first to accrued interest, the balance to principal.
(d) The Credit Agreement provides for required prepayments of the
indebtedness evidenced hereby upon terms and conditions specified therein.
<PAGE> 115
3. No Usury Intended; Spreading. Notwithstanding any provision to the
contrary contained in this note or any other Loan Documents, it is expressly
provided that in no case or event shall the aggregate of (a) all interest on the
unpaid balance of this note, accrued or paid from the date hereof and (b) the
aggregate of any Additional Interest, ever exceed the Ceiling Rate. In this
connection, Maker and Payee stipulate and agree that it is their common and
overriding intent to contract in strict compliance with applicable federal and
Texas usury laws (and the usury laws of any other jurisdiction whose usury laws
are deemed to apply to this note or any of the other Loan Documents despite the
intention and desire of the parties to apply the usury laws of the State of
Texas). In furtherance hereof, none of the terms of this note or any of the
other Loan Documents shall ever be construed to create a contract to pay, as
consideration for the use, forbearance or detention of money, interest at a rate
in excess of the Ceiling Rate. Maker or other parties now or hereafter becoming
liable for payment of the indebtedness evidenced by this note shall never be
liable for interest in excess of the Ceiling Rate. If, for any reason whatever,
the interest paid or received on this note during its full term produces a rate
which exceeds the Ceiling Rate, the holder of this note shall credit against the
principal of this note (or, if such indebtedness shall have been paid in full,
shall refund to the payor of such interest) such portion of said interest as
shall be necessary to cause the interest paid on this note to produce a rate
equal to the Ceiling Rate. All sums paid or agreed to be paid to the holder of
this note for the use, forbearance or detention of the indebtedness evidenced
hereby shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note. The
provisions of this Paragraph shall control all agreements, whether now or
hereafter existing and whether written or oral, between Maker and Payee.
4. Default. The Credit Agreement provides for the acceleration of the
maturity of this note and other rights and remedies upon the occurrence of
certain events specified therein.
5. Waivers by Maker and Others. Except to the extent, if any, that
notice of default is expressly required herein or in the other Loan Documents,
Maker and any and all co-makers, endorsers, guarantors and sureties severally
waive notice (including, but not limited to, notice of intent to accelerate and
notice of acceleration, notice of protest and notice of dishonor), demand,
presentment for payment, protest, diligence in collecting and the filing of suit
for the purpose of fixing liability and consent that the time of payment hereof
may be extended and re-extended from time to time without notice to any of them.
Each such Person agrees that its liability on or with respect to this note shall
not be affected by any release of or change in any guaranty or security at any
time existing or by any failure to perfect or to maintain perfection of any lien
against or security interest in any such security or the partial or complete
enforceability of any guaranty or other surety obligation, in each case in whole
or in part, with or without notice and before or after maturity.
6. Paragraph Headings. Paragraph headings appearing in this note are
for convenient reference only and shall not be used to interpret or limit the
meaning of any provision of this note.
7. Choice of Law. THIS NOTE SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE APPLICABLE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES
OF AMERICA FROM TIME TO TIME IN EFFECT; PROVIDED, HOWEVER, THAT, EXCEPT AS MAY
BE REQUIRED UNDER APPLICABLE LAWS, THE USURY LAWS OF THE STATE OF TEXAS OR THE
UNITED STATES OF AMERICA SHALL NOT APPLY TO ADVANCES MADE IN CANADA BY CANADIAN
<PAGE> 116
LENDERS TO CANADIAN BORROWER, BUT RATHER THE USURY LAWS OF CANADA SHALL GOVERN
IN SUCH CONTEXT.
8. Successors and Assigns. This note and all the covenants and
agreements contained herein shall be binding upon, and shall inure to the
benefit of, the respective legal representatives, heirs, successors and assigns
of Maker and Payee.
9. Records of Payments. The records of Payee shall be prima facie
evidence of the amounts owing on this note.
10. Severability. If any provision of this note is held to be illegal,
invalid or unenforceable under present or future laws, the legality, validity
and enforceability of the remaining provisions of this note shall not be
affected thereby, and this note shall be liberally construed so as to carry out
the intent of the parties to it.
11. Revolving Loans. Subject to the terms and provisions of the Credit
Agreement, Maker may use all or any part of the credit provided to be evidenced
by this note at any time before the Termination Date. Maker may borrow, repay
and reborrow hereunder, and except as set forth in the Credit Agreement there is
no limitation on the number of advances made hereunder. Pursuant to Article
15.10(b) of Chapter 15 ("Chapter 15") of Title 79, Texas Revised Civil Statutes,
1925, as amended, Maker and Payee expressly agree that Chapter 15 shall not
apply to this note or to any Loan evidenced by this note and that neither this
note nor any such Loan shall be governed by or subject to the provisions of
Chapter 15 in any manner whatsoever.
12. Business Loans. Maker warrants and represents to Payee and all
other holders of this note that all loans evidenced by this note are and will be
for business, commercial, investment or other similar purpose and not primarily
for personal, family, household or agricultural use, as such terms are used in
Chapter One.
EVI OIL TOOLS CANADA LTD., an Alberta corporation
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
<PAGE> 117
FORM OF CANADIAN NOTE
$ , 199
-------------------- ------------------- -----
FOR VALUE RECEIVED, EVI OIL TOOLS CANADA LTD., an Alberta corporation
("Maker"), promises to pay to the order of ____________________________________
________________________________ ("Payee"), at the principal office of The Bank
of Nova Scotia, __________________________________________________________, in
immediately available funds and in lawful money of the United States of America,
the principal sum of _____________________________________ DOLLARS ($__________)
(or the unpaid balance of all principal advanced against this note, if that
amount is less), together with interest on the unpaid principal of this note
from time to time outstanding at a rate or rates provided in that certain
Amended and Restated Credit Agreement (as it may be amended, supplemented or
restated from time to time, the "Credit Agreement") dated as of May 27, 1998, by
and among EVI Weatherford, Inc., a Delaware corporation, as the U.S. Borrower,
Maker, as the Canadian Borrower, the Lenders named therein, Chase Bank of Texas,
National Association, as the U.S. Administrative Agent and The Bank of Nova
Scotia, as the Canadian Agent. Any term defined in the Credit Agreement which is
used herein and not otherwise defined in this note shall have the same meaning
ascribed to it in the Credit Agreement.
1. Credit Agreement; Advances; Security. This note has been issued
pursuant to the terms of the Credit Agreement, and is one of the Canadian Notes
referred to in the Credit Agreement. Advances against this note by Payee or
other holder hereof shall be governed by the terms and provisions of the Credit
Agreement. Reference is hereby made to the Credit Agreement for all purposes.
The unpaid principal balance of this note at any time shall be the total of all
amounts lent or advanced against this note less the amount of all payments or
prepayments made on this note and by or for the account of Maker. All Loans and
advances and all payments and prepayments made hereon may be endorsed by the
holder of this note on a schedule which may be attached hereto (and thereby made
a part hereof for all purposes) or otherwise recorded in the holder's records;
provided, that any failure to make notation of (a) any Loan or advance shall not
cancel, limit or otherwise affect Maker's obligations or any holder's rights
with respect to that Loan or advance, or (b) any payment or prepayment of
principal shall not cancel, limit or otherwise affect Maker's entitlement to
credit for that payment as of the date received by the holder.
2. Mandatory Payments of Principal and Interest. (a) Accrued and
unpaid interest on the unpaid principal balance of this note shall be due and
payable on the Interest Payment Dates.
(b) On the Termination Date, the entire unpaid principal balance of
this note and all accrued and unpaid interest on the unpaid principal balance of
this note shall be finally due and payable.
(c) All payments hereon made pursuant to this Paragraph shall be
applied first to accrued interest, the balance to principal.
(d) The Credit Agreement provides for required prepayments of the
indebtedness evidenced hereby upon terms and conditions specified therein.
<PAGE> 118
3. No Usury Intended; Spreading. Notwithstanding any provision to the
contrary contained in this note or any other Loan Documents, it is expressly
provided that in no case or event shall the aggregate of (a) all interest on the
unpaid balance of this note, accrued or paid from the date hereof and (b) the
aggregate of any Additional Interest, ever exceed the Ceiling Rate. In this
connection, Maker and Payee stipulate and agree that it is their common and
overriding intent to contract in strict compliance with applicable federal and
Texas usury laws (and the usury laws of any other jurisdiction whose usury laws
are deemed to apply to this note or any of the other Loan Documents despite the
intention and desire of the parties to apply the usury laws of the State of
Texas). In furtherance hereof, none of the terms of this note or any of the
other Loan Documents shall ever be construed to create a contract to pay, as
consideration for the use, forbearance or detention of money, interest at a rate
in excess of the Ceiling Rate. Maker or other parties now or hereafter becoming
liable for payment of the indebtedness evidenced by this note shall never be
liable for interest in excess of the Ceiling Rate. If, for any reason whatever,
the interest paid or received on this note during its full term produces a rate
which exceeds the Ceiling Rate, the holder of this note shall credit against the
principal of this note (or, if such indebtedness shall have been paid in full,
shall refund to the payor of such interest) such portion of said interest as
shall be necessary to cause the interest paid on this note to produce a rate
equal to the Ceiling Rate. All sums paid or agreed to be paid to the holder of
this note for the use, forbearance or detention of the indebtedness evidenced
hereby shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note. The
provisions of this Paragraph shall control all agreements, whether now or
hereafter existing and whether written or oral, between Maker and Payee.
4. Default. The Credit Agreement provides for the acceleration of the
maturity of this note and other rights and remedies upon the occurrence of
certain events specified therein.
5. Waivers by Maker and Others. Except to the extent, if any, that
notice of default is expressly required herein or in the other Loan Documents,
Maker and any and all co-makers, endorsers, guarantors and sureties severally
waive notice (including, but not limited to, notice of intent to accelerate and
notice of acceleration, notice of protest and notice of dishonor), demand,
presentment for payment, protest, diligence in collecting and the filing of suit
for the purpose of fixing liability and consent that the time of payment hereof
may be extended and re-extended from time to time without notice to any of them.
Each such Person agrees that its liability on or with respect to this note shall
not be affected by any release of or change in any guaranty or security at any
time existing or by any failure to perfect or to maintain perfection of any lien
against or security interest in any such security or the partial or complete
enforceability of any guaranty or other surety obligation, in each case in whole
or in part, with or without notice and before or after maturity.
6. Paragraph Headings. Paragraph headings appearing in this note are
for convenient reference only and shall not be used to interpret or limit the
meaning of any provision of this note.
7. Choice of Law. THIS NOTE SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE APPLICABLE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES
OF AMERICA; PROVIDED, HOWEVER, THAT, EXCEPT AS MAY BE REQUIRED UNDER APPLICABLE
LAWS, THE USURY LAWS OF THE STATE OF TEXAS OR THE UNITED STATES OF AMERICA SHALL
NOT APPLY TO ADVANCES
<PAGE> 119
MADE IN CANADA BY CANADIAN LENDERS TO CANADIAN BORROWER, BUT RATHER THE USURY
LAWS OF CANADA SHALL GOVERN IN SUCH CONTEXT.
8. Successors and Assigns. This note and all the covenants and
agreements contained herein shall be binding upon, and shall inure to the
benefit of, the respective legal representatives, heirs, successors and assigns
of Maker and Payee.
9. Records of Payments. The records of Payee shall be prima facie
evidence of the amounts owing on this note.
10. Severability. If any provision of this note is held to be illegal,
invalid or unenforceable under present or future laws, the legality, validity
and enforceability of the remaining provisions of this note shall not be
affected thereby, and this note shall be liberally construed so as to carry out
the intent of the parties to it.
11. Revolving Loans. Subject to the terms and provisions of the Credit
Agreement, Maker may use all or any part of the credit provided to be evidenced
by this note at any time before the Termination Date. Maker may borrow, repay
and reborrow hereunder, and except as set forth in the Credit Agreement there is
no limitation on the number of advances made hereunder. Pursuant to Article
15.10(b) of Chapter 15 ("Chapter 15") of Title 79, Texas Revised Civil Statutes,
1925, as amended, Maker and Payee expressly agree that Chapter 15 shall not
apply to this note or to any Loan evidenced by this note and that neither this
note nor any such Loan shall be governed by or subject to the provisions of
Chapter 15 in any manner whatsoever.
12. Business Loans. Maker warrants and represents to Payee and all
other holders of this note that all loans evidenced by this note are and will be
for business, commercial, investment or other similar purpose and not primarily
for personal, family, household or agricultural use, as such terms are used in
Chapter One.
EVI OIL TOOLS CANADA LTD., an Alberta corporation
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
<PAGE> 120
FORM OF U.S. NOTE
$ , 199
-------------------------- ------------------- ----
FOR VALUE RECEIVED, EVI WEATHERFORD, INC., a Delaware corporation,
("Maker"), promises to pay to the order of ____________________
_________________________ ("Payee"), at the principal office of Chase Bank of
Texas, National Association, 712 Main Street, Houston, Texas 77002, in
immediately available funds and in lawful money of the United States of America,
the principal sum of _____________________________________ DOLLARS ($__________)
(or the unpaid balance of all principal advanced against this note, if that
amount is less), together with interest on the unpaid principal of this note
from time to time outstanding at a rate or rates provided in that certain
Amended and Restated Credit Agreement (as it may be amended, supplemented or
restated from time to time, the "Credit Agreement") dated as of May 27, 1998, by
and among Maker, as the U.S. Borrower, EVI Oil Tools Canada Ltd., an Alberta
corporation, as the Canadian Borrower, the Lenders named therein, Chase Bank of
Texas, National Association, as the U.S. Administrative Agent and The Bank of
Nova Scotia, as the Canadian Agent. Any term defined in the Credit Agreement
which is used herein and not otherwise defined in this note shall have the same
meaning ascribed to it in the Credit Agreement.
1. Credit Agreement; Advances; Security. This note has been issued
pursuant to the terms of the Credit Agreement, and is one of the U.S. Notes
referred to in the Credit Agreement. Advances against this note by Payee or
other holder hereof shall be governed by the terms and provisions of the Credit
Agreement. Reference is hereby made to the Credit Agreement for all purposes.
The unpaid principal balance of this note at any time shall be the total of all
amounts lent or advanced against this note less the amount of all payments or
prepayments made on this note and by or for the account of Maker. All Loans and
advances and all payments and prepayments made hereon may be endorsed by the
holder of this note on a schedule which may be attached hereto (and thereby made
a part hereof for all purposes) or otherwise recorded in the holder's records;
provided, that any failure to make notation of (a) any Loan or advance shall not
cancel, limit or otherwise affect Maker's obligations or any holder's rights
with respect to that Loan or advance, or (b) any payment or prepayment of
principal shall not cancel, limit or otherwise affect Maker's entitlement to
credit for that payment as of the date received by the holder.
2. Mandatory Payments of Principal and Interest. (a) Accrued and
unpaid interest on the unpaid principal balance of this note shall be due and
payable on the Interest Payment Dates.
(b) On the Termination Date, the entire unpaid principal balance of
this note and all accrued and unpaid interest on the unpaid principal balance of
this note shall be finally due and payable.
(c) All payments hereon made pursuant to this Paragraph shall be
applied first to accrued interest, the balance to principal.
(d) The Credit Agreement provides for required prepayments of the
indebtedness evidenced hereby upon terms and conditions specified therein.
<PAGE> 121
3. No Usury Intended; Spreading. Notwithstanding any provision to the
contrary contained in this note or any other Loan Documents, it is expressly
provided that in no case or event shall the aggregate of (a) all interest on the
unpaid balance of this note, accrued or paid from the date hereof and (b) the
aggregate of any Additional Interest, ever exceed the Ceiling Rate. In this
connection, Maker and Payee stipulate and agree that it is their common and
overriding intent to contract in strict compliance with applicable federal and
Texas usury laws (and the usury laws of any other jurisdiction whose usury laws
are deemed to apply to this note or any of the other Loan Documents despite the
intention and desire of the parties to apply the usury laws of the State of
Texas). In furtherance hereof, none of the terms of this note or any of the
other Loan Documents shall ever be construed to create a contract to pay, as
consideration for the use, forbearance or detention of money, interest at a rate
in excess of the Ceiling Rate. Maker or other parties now or hereafter becoming
liable for payment of the indebtedness evidenced by this note shall never be
liable for interest in excess of the Ceiling Rate. If, for any reason whatever,
the interest paid or received on this note during its full term produces a rate
which exceeds the Ceiling Rate, the holder of this note shall credit against the
principal of this note (or, if such indebtedness shall have been paid in full,
shall refund to the payor of such interest) such portion of said interest as
shall be necessary to cause the interest paid on this note to produce a rate
equal to the Ceiling Rate. All sums paid or agreed to be paid to the holder of
this note for the use, forbearance or detention of the indebtedness evidenced
hereby shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note. The
provisions of this Paragraph shall control all agreements, whether now or
hereafter existing and whether written or oral, between Maker and Payee.
4. Default. The Credit Agreement provides for the acceleration of the
maturity of this note and other rights and remedies upon the occurrence of
certain events specified therein.
5. Waivers by Maker and Others. Except to the extent, if any, that
notice of default is expressly required herein or in the other Loan Documents,
Maker and any and all co-makers, endorsers, guarantors and sureties severally
waive notice (including, but not limited to, notice of intent to accelerate and
notice of acceleration, notice of protest and notice of dishonor), demand,
presentment for payment, protest, diligence in collecting and the filing of suit
for the purpose of fixing liability and consent that the time of payment hereof
may be extended and re-extended from time to time without notice to any of them.
Each such Person agrees that its liability on or with respect to this note shall
not be affected by any release of or change in any guaranty or security at any
time existing or by any failure to perfect or to maintain perfection of any lien
against or security interest in any such security or the partial or complete
unenforceability of any guaranty or other surety obligation, in each case in
whole or in part, with or without notice and before or after maturity.
6. Paragraph Headings. Paragraph headings appearing in this note are
for convenient reference only and shall not be used to interpret or limit the
meaning of any provision of this note.
7. Choice of Law. THIS NOTE SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE APPLICABLE LAWS OF THE STATE OF TEXAS AND THE
UNITED STATES OF AMERICA.
<PAGE> 122
8. Successors and Assigns. This note and all the covenants and
agreements contained herein shall be binding upon, and shall inure to the
benefit of, the respective legal representatives, heirs, successors and assigns
of Maker and Payee.
9. Records of Payments. The records of Payee shall be prima facie
evidence of the amounts owing on this note.
10. Severability. If any provision of this note is held to be illegal,
invalid or unenforceable under present or future laws, the legality, validity
and enforceability of the remaining provisions of this note shall not be
affected thereby, and this note shall be liberally construed so as to carry out
the intent of the parties to it.
11. Revolving Loans. Subject to the terms and provisions of the Credit
Agreement, Maker may use all or any part of the credit provided to be evidenced
by this note at any time before the Termination Date. Maker may borrow, repay
and reborrow hereunder, and except as set forth in the Credit Agreement there is
no limitation on the number of advances made hereunder. Pursuant to Article
15.10(b) of Chapter 15 ("Chapter 15") of Title 79, Texas Revised Civil Statutes,
1925, as amended, Maker and Payee expressly agree that Chapter 15 shall not
apply to this note or to any Loan evidenced by this note and that neither this
note nor any such Loan shall be governed by or subject to the provisions of
Chapter 15 in any manner whatsoever.
12. Business Loans. Maker warrants and represents to Payee and all
other holders of this note that all loans evidenced by this note are and will be
for business, commercial, investment or other similar purpose and not primarily
for personal, family, household or agricultural use, as such terms are used in
Chapter One.
EVI WEATHERFORD, INC., a Delaware
corporation
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
<PAGE> 123
As permitted by Item 601(b)(2) of Regulation S-K, the Company has not
filed certain schedules and exhibits with this Exhibit No. 4.1. Listed below is
a brief description of the omitted schedules and exhibits. The Company agrees to
furnish supplementally a copy of any such omitted schedules and exhibits to the
Commission upon request.
SCHEDULES
1.01 Commitments
6.01 Material Subsidiaries
EXHIBITS
1.01A Administrative Questionnaire
1.01D Rate Designation Notice
1.01E-1 Request For Extension of Credit
1.01E-2 Request For Extension of Credit
2.03 Form of Bankers' Acceptance Notice
7.01 Compliance Certificate
12.06 Assignment And Acceptance
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the inclusion in this
Current Report on Form 8-K of EVI Weatherford, Inc. (formerly EVI, Inc.) of our
report dated June 15, 1998 on the supplemental consolidated financial statements
of EVI Weatherford, Inc. as of December 31, 1997 and 1996 and for each of the
three years in the period ended December 31, 1997, and to the incorporation by
reference of such report into EVI Weatherford, Inc.'s previously filed
Registration Statement File Nos. 33-31662, 33-56384, 33-56386, 33-65790,
33-64349, 333-13531, 333-24133, 333-39587, 333-44345, 333-45207, 333-49527 and
333-53633.
ARTHUR ANDERSEN LLP
Houston, Texas
June 15, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED
FROM THE SUPPLEMENTAL CONSOLIDATED CONDENSED BALANCE SHEETS AND SUPPLEMENTAL
CONSOLIDATED CONDENSED STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C> <C> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS 9-MOS 12-MOS
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1997 DEC-31-1997 DEC-31-1997
<PERIOD-START> JAN-01-1997 JAN-01-1997 JAN-01-1997 JAN-01-1997
<PERIOD-END> MAR-31-1997 JUN-30-1997 SEP-30-1997 DEC-31-1997
<CASH> 133,743 88,205 53,221 74,211
<SECURITIES> 0 0 0 0
<RECEIVABLES> 455,680 442,480 485,879 548,402
<ALLOWANCES> 18,835 18,956 19,772 23,473
<INVENTORY> 346,535 393,029 402,987 455,811
<CURRENT-ASSETS> 1,018,852 976,517 1,003,250 1,134,076
<PP&E> 1,470,354 1,493,339 1,577,282 1,631,560
<DEPRECIATION> 0<F1> 0<F1> 0<F1> 764,747<F1>
<TOTAL-ASSETS> 2,204,684 2,236,197 2,365,313 2,737,910
<CURRENT-LIABILITIES> 388,612 398,258 451,502 503,169
<BONDS> 400,257 367,208 378,857 252,322
0 0 0 0
0 0 0 0
<COMMON> 95,634 100,447 101,892 101,958
<OTHER-SE> 1,227,968 1,267,613 1,319,495 1,356,591
<TOTAL-LIABILITY-AND-EQUITY> 2,204,684 2,236,197 2,365,313 2,737,910
<SALES> 219,979 480,177 770,973 1,097,823
<TOTAL-REVENUES> 431,253 908,252 1,417,970 1,969,089
<CGS> 162,793 353,653 560,025 790,314
<TOTAL-COSTS> 306,991 644,177 995,631 1,371,126
<OTHER-EXPENSES> 0 0 0 0
<LOSS-PROVISION> 0 0 0 0
<INTEREST-EXPENSE> 10,545 21,148 31,273 43,273
<INCOME-PRETAX> 58,621 128,983 211,767 304,961
<INCOME-TAX> 20,718 45,339 74,397 108,188
<INCOME-CONTINUING> 37,903 83,644 137,370 196,773
<DISCONTINUED> 0 0 0 0
<EXTRAORDINARY> 0 0 0 (9,010)
<CHANGES> 0 0 0 0
<NET-INCOME> 37,903 83,644 137,370 187,763
<EPS-PRIMARY> 0.40 0.88 1.43 1.95
<EPS-DILUTED> 0.39 0.86 1.41 1.92
<FN>
<F1>This amount is not disclosed in the financial statement and thus a value of
zero has been shown for purposes of this financial data schedule.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED
FROM THE SUPPLEMENTAL CONSOLIDATED CONDENSED BALANCE SHEETS AND SUPPLEMENTAL
CONSOLIDATED CONDENSED STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C> <C> <C> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS 9-MOS 12-MOS 12-MOS
<FISCAL-YEAR-END> DEC-31-1996 DEC-31-1996 DEC-31-1996 DEC-31-1996 DEC-31-1995
<PERIOD-START> JAN-01-1996 JAN-01-1996 JAN-01-1996 JAN-01-1996 JAN-01-1995
<PERIOD-END> MAR-31-1996 JUN-30-1996 SEP-30-1996 DEC-31-1996 DEC-31-1995
<CASH> 27,444 30,720 48,449 256,995 35,685
<SECURITIES> 0 0 0 0 0
<RECEIVABLES> 352,234 380,463 409,692 406,457 323,308
<ALLOWANCES> 16,387 16,579 16,624 16,824 16,304
<INVENTORY> 294,849 323,767 339,426 320,933 290,155
<CURRENT-ASSETS> 704,969 765,767 821,114 1,061,780 772,009
<PP&E> 1,437,757 1,482,864 1,587,304 1,473,816 1,318,113
<DEPRECIATION> 0<F1> 0<F1> 0<F1> 741,804<F1> 704,288
<TOTAL-ASSETS> 1,735,313 1,877,898 2,050,656 2,243,633 1,710,568
<CURRENT-LIABILITIES> 267,888 334,379 370,815 440,541 273,428
<BONDS> 409,168 439,588 436,686 417,976 416,473
0 0 0 0 0
0 0 0 0 0
<COMMON> 67,243 68,379 72,462 95,493 66,963
<OTHER-SE> 915,179 970,184 1,112,026 1,197,211 891,374
<TOTAL-LIABILITY-AND-EQUITY> 1,735,313 1,877,898 2,050,656 2,243,633 1,710,568
<SALES> 142,425 295,412 492,129 704,350 513,039
<TOTAL-REVENUES> 308,685 640,795 1,032,855 1,467,270 1,125,803
<CGS> 109,493 226,861 373,026 542,181 388,061
<TOTAL-COSTS> 229,300 476,285 764,289 1,090,814 831,231
<OTHER-EXPENSES> 0 0 0 0 0
<LOSS-PROVISION> 0<F1> 0<F1> 0<F1> 0<F1> 0
<INTEREST-EXPENSE> 8,900 18,657 28,979 39,368 33,504
<INCOME-PRETAX> 21,902 48,594 89,144 132,674 (12,975)
<INCOME-TAX> 6,720 15,395 29,359 40,513 (4,707)
<INCOME-CONTINUING> 15,182 33,199 59,785 92,161 (8,268)
<DISCONTINUED> 1,600 3,348 6,190 7,468 8,709
<EXTRAORDINARY> 0 (731) (731) (731) 0
<CHANGES> 0 0 0 0 0
<NET-INCOME> 16,782 35,816 65,244 165,822 441
<EPS-PRIMARY> 0.20 0.42 0.74 1.85 0.01
<EPS-DILUTED> 0.19 0.41 0.73 1.82 0.01
<FN>
<F1>This amount is not disclosed in the financial statements and thus a value of
zero has been shown for purposes of this financial data schedule.
</FN>
</TABLE>
