<PAGE> 1
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM 10-Q
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 0-18437
-------------------
POOL ENERGY SERVICES CO.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
TEXAS 76-0263755
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
10375 RICHMOND AVENUE
HOUSTON, TEXAS 77042
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (713) 954-3000
NOT APPLICABLE
(FORMER NAME, FORMER ADDRESS AND FORMER FISCAL YEAR,
IF CHANGED SINCE LAST REPORT)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities and Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES X NO
---- ----
The number of shares outstanding of each of the issuer's classes of common
stock, as of September 30, 1997: Common Stock, no par value - 19,403,074 shares
===============================================================================
<PAGE> 2
PART I
ITEM 1. FINANCIAL STATEMENTS
POOL ENERGY SERVICES CO.
CONDENSED STATEMENTS OF CONSOLIDATED OPERATIONS
(UNAUDITED)
(IN THOUSANDS EXCEPT NUMBER OF SHARES AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SEPTEMBER 30
-------------------------------
1997 1996
------------- --------------
<S> <C> <C>
Revenues ....................................................................... $ 118,636 $ 83,978
Earnings Attributable to Unconsolidated Affiliates ............................. 629 728
------------- --------------
Total ................................................................. 119,265 84,706
------------- --------------
Costs and Expenses:
Operating expenses ........................................................ 87,283 64,796
Selling, general and administrative expenses .............................. 13,299 11,800
Depreciation and amortization ............................................. 6,207 4,512
------------- --------------
Total ................................................................. 106,789 81,108
------------- --------------
Other Income (Expense) - Net ................................................... 2,448 996
Interest Expense ............................................................... 1,052 602
------------- --------------
Income Before Income Taxes and Minority Interest ............................... 13,872 3,992
Income Tax Provision ........................................................... 5,626 1,450
Minority Interest in Loss of Consolidated Subsidiary ........................... (123) (44)
------------- --------------
Net Income ..................................................................... $ 8,369 $ 2,586
============= ==============
Earnings Per Share of Common Stock ............................................. $ .43 $ .14
============= ==============
Average Common Shares Outstanding .............................................. 19,280,888 18,735,661
============= ==============
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
2
<PAGE> 3
POOL ENERGY SERVICES CO.
CONDENSED STATEMENTS OF CONSOLIDATED OPERATIONS
(UNAUDITED)
(IN THOUSANDS EXCEPT NUMBER OF SHARES AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30
-------------------------------
1997 1996
------------- --------------
<S> <C> <C>
Revenues ....................................................................... $ 326,775 $ 248,648
Earnings Attributable to Unconsolidated Affiliates ............................. 2,267 1,910
------------- --------------
Total ................................................................. 329,042 250,558
------------- --------------
Costs and Expenses:
Operating expenses ........................................................ 243,798 192,898
Selling, general and administrative expenses .............................. 39,492 34,080
Depreciation and amortization ............................................. 17,784 13,025
------------- --------------
Total ................................................................. 301,074 240,003
------------- --------------
Other Income (Expense) - Net ................................................... 4,431 1,527
Interest Expense ............................................................... 2,609 1,986
------------- --------------
Income Before Income Taxes and Minority Interest ............................... 29,790 10,096
Income Tax Provision ........................................................... 11,651 4,298
Minority Interest in Earnings (Loss) of Consolidated Subsidiary ................ 13 (44)
------------- --------------
Net Income ..................................................................... $ 18,126 $ 5,842
============= ==============
Earnings Per Share of Common Stock ............................................. $ .94 $ .37
============= ==============
Average Common Shares Outstanding .............................................. 19,194,928 15,668,601
============= ==============
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
3
<PAGE> 4
POOL ENERGY SERVICES CO.
CONDENSED STATEMENTS OF CONSOLIDATED CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30
-------------------------------
1997 1996
----------- -----------
<S> <C> <C>
Operating Activities:
Net Income ................................................................ $ 18,126 $ 5,842
Noncash items included above:
Depreciation and amortization ......................................... 17,784 13,025
Deferred income taxes ................................................. 9,959 1,383
Undistributed earnings of unconsolidated affiliates ................... (2,216) (1,872)
Other - net ........................................................... (936) (277)
Payment for lease of manufacturing facility ............................... (1,611) (1,611)
Cash dividends received from unconsolidated affiliates .................... 51 101
Other - net ............................................................... (1,100) (276)
Net effect of changes in operating working capital ........................ (19,239) (8,189)
----------- -----------
Net Cash Flows Provided by Operating Activities .................. 20,818 8,126
----------- -----------
Investing Activities:
Property additions ........................................................ (33,037) (24,275)
Expenditures for acquisitions, including acquisition
costs, less cash acquired ............................................... (431) (13,437)
Proceeds from disposition of property, plant and equipment ................ 6,561 1,792
Other - net ............................................................... 1,371 507
----------- -----------
Net Cash Flows Used for Investing Activities ..................... (25,536) (35,413)
----------- -----------
Financing Activities:
Proceeds from exercise of stock options ................................... 2,849 1,570
Proceeds from issuance of common stock, net ............................... - 47,469
Retirement of debt assumed in acquisition ................................. (775) -
Payments for debt financing costs ......................................... (1,393) (199)
Proceeds from long-term debt .............................................. - 6,500
Principal payments on long-term debt ...................................... (8,766) (5,412)
----------- -----------
Net Cash Flows Provided by (Used for) Financing Activities ....... (8,085) 49,928
----------- -----------
Net Increase (Decrease) in Cash and Cash Equivalents ........................... (12,803) 22,641
Cash and Cash Equivalents at January 1, ........................................ 21,837 5,492
----------- -----------
Cash and Cash Equivalents at September 30, ..................................... $ 9,034 $ 28,133
=========== ===========
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
4
<PAGE> 5
POOL ENERGY SERVICES CO.
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS EXCEPT NUMBER OF SHARES)
<TABLE>
<CAPTION>
SEPTEMBER 30 DECEMBER 31
1997 1996
---------- -----------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents .............................................. $ 9,034 $ 21,837
Restricted cash ........................................................ 10 183
Accounts and notes receivable (net of allowance for doubtful accounts of
$1,098 and $1,235) ................................................... 89,865 69,614
Inventories ............................................................ 17,757 14,726
Deferred income tax asset ............................................. 4,551 3,807
Other current assets ................................................... 12,076 4,213
---------- -----------
Total current assets ................................................. 133,293 114,380
Property, Plant and Equipment - Net ....................................... 215,179 189,125
Investment in and Noncurrent Receivables from Unconsolidated Affiliates 21,269 19,104
Goodwill, net ............................................................. 18,625 12,880
Noncurrent Deferred Income Tax Asset ..................................... - 1,506
Noncurrent Receivables (net of allowance for doubtful accounts of $998
and $1,219) and Other Assets ........................................... 3,984 3,421
Noncurrent Restricted Cash ................................................ - 801
---------- -----------
Total ................................................................ $ 392,350 $ 341,217
========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Current portion of long-term debt ...................................... $ 9,057 $ 10,627
Accounts payable ....................................................... 33,130 22,022
Other current liabilities .............................................. 42,843 34,095
---------- -----------
Total current liabilities ............................................ 85,030 66,744
Long-Term Debt ............................................................ 21,944 23,068
Deferred Income Taxes ..................................................... 11,692 4,199
Other Liabilities ......................................................... 45,524 46,036
Minority Interest ......................................................... 4,060 4,047
Shareholders' Equity :
Common stock, no par value:
40,000,000 shares authorized; 19,403,074 and 19,094,824 shares
issued and outstanding ............................................. 195,572 186,785
Retained earnings ...................................................... 29,677 11,551
Unearned compensation - restricted stock ............................... (827) (891)
Cumulative foreign currency translation adjustments .................... (322) (322)
---------- -----------
Total shareholders' equity ........................................... 224,100 197,123
---------- -----------
Total ................................................................ $ 392,350 $ 341,217
========== ===========
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
5
<PAGE> 6
POOL ENERGY SERVICES CO.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The condensed consolidated financial statements included in this report are
unaudited but in the opinion of management include all adjustments, consisting
only of normal recurring adjustments, necessary for a fair presentation of the
financial information for the periods indicated. All dollar amounts in the
tabulations in the notes to the financial statements are stated in thousands
unless otherwise indicated. Certain reclassifications have been made in the 1996
financial statements to conform with the 1997 presentation. Certain information
and footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been condensed or
omitted.
2. UNCONSOLIDATED AFFILIATES
The following table sets forth certain summarized financial information of
the Company's unconsolidated affiliates as derived from the unaudited condensed
financial statements of the affiliates.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30
----------------------
1997 1996
--------- --------
<S> <C> <C>
Revenues:
Pool Arabia, Ltd. ........................ $ 26,129 $ 21,086
Antah Drilling Sdn. Bhd. (b) ............. - 4,363
Pool Santana, Limited (c) ................ - 960
Intairdril Oman L.L.C. ................... 174 285
--------- --------
Total .............................. $ 26,303 $ 26,694
========= ========
Gross Profit (a):
Pool Arabia, Ltd. ........................ $ 9,220 $ 6,969
Antah Drilling Sdn. Bhd. (b) ............. - 2,442
Pool Santana, Limited (c) ................ - 333
Intairdril Oman L.L.C. ................... 146 113
--------- --------
Total .............................. $ 9,366 $ 9,857
========= ========
Net Income (Loss):
Pool Arabia, Ltd. ........................ $ 760 $ (962)
Antah Drilling Sdn. Bhd. (b) ............. - (50)
Pool Santana, Limited (c) ................ - 89
Intairdril Oman L.L.C. ................... (34) (92)
--------- --------
Total .............................. $ 726 $ (1,015)
========= ========
</TABLE>
(a) Gross profit is computed as revenues less operating expenses (which
excludes depreciation and amortization and selling, general and
administrative expenses).
(b) In October 1996, the Company acquired the 51% interest that it did not
already own in Antah Drilling Sdn. Bhd. ("Antah Drilling"). Antah
Drilling's results have been consolidated in the accompanying financial
statements since the date of such acquisition.
(c) In April 1996, the Company acquired the 51% interest that it did not
already own in Pool Santana, Limited, a Trinidad corporation, the assets of
which consisted primarily of a platform workover rig and related equipment
which were subsequently transferred to the Company's Gulf of Mexico
operation.
6
<PAGE> 7
POOL ENERGY SERVICES CO.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(UNAUDITED)
Earnings attributable to unconsolidated affiliates is summarized below:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30
------------------
1997 1996
-------- ---------
<S> <C> <C>
The Company's portion of net income (loss) .................................. $ 371 $ (516)
Adjustment to reconcile differences between affiliates' bases and
Company's carrying value ............................................... 1,845 2,388
-------- ---------
Equity in income ............................................................ 2,216 1,872
Other income (expense) - net ................................................ 51 38
-------- ---------
Total .................................................................. $ 2,267 $ 1,910
========= =========
</TABLE>
3. LONG-TERM DEBT
$130 Million Revolving Line of Credit
On September 30, 1997, the Company entered into a new three-year $130
million syndicated bank revolving line of credit agreement (the "Line of
Credit") to replace its existing $40 million revolving bank line of credit and
$15.6 million of long-term debt and to provide financing for future growth
opportunities. The maximum availability under the Line of Credit is $130
million, including up to $15 million that may be used to support letters of
credit. Notes issued under the Line of Credit are prepayable at any time and are
due at expiration on October 2, 2000. The notes bear interest, at the Company's
option, at either (i) a base rate, defined as the higher of the agent bank's
prime lending rate or 1/2 of 1% in excess of the federal funds rate, plus a
margin ranging from zero to .50% (the amount of which depends on the Company's
leverage ratio), or (ii) a Eurodollar rate plus a margin ranging from 1% to
1.75% (the amount of which depends on the Company's leverage ratio); however,
through September 1998, the applicable Eurodollar rate margin shall not be less
than 1.50%. A commitment fee of 1/2 of 1% per annum is payable on the average
daily unused portion of the $130 million commitment. There are also letter of
credit fees that range from 1.25% to 2% per annum (depending on the Company's
leverage ratio) for letters of credit outstanding; however, through September
1998, such fees shall not be less than 1.75%. Advances under the Line of Credit
are secured by a pledge of 66% of the capital stock of certain of the Company's
foreign subsidiaries.
The Line of Credit agreement imposes certain financial covenants, including
ones requiring the maintenance of a minimum net worth, a minimum interest
coverage ratio, a minimum fixed charge coverage ratio, a maximum leverage ratio
and a maximum debt-to-equity ratio. It also imposes certain other restrictions,
including ones relating to liens, other indebtedness, asset sales, investments,
acquisitions or mergers and payment of dividends. In addition to customary
default provisions, an event of default will occur under the Line of Credit upon
a change of control of the Company, as defined in the agreement.
Reduction of 10% Notes
The outstanding principal amount of certain 10% notes, originally issued in
connection with the 1995 purchase of Golden Pacific Corp. ("GPC"), was reduced
as a result of an August 20, 1997 agreement between the sellers of GPC and the
Company. Such agreement resolved certain issues that had arisen in connection
with the GPC purchase agreement, resulting in a reduction of $4.0 million as of
August 31, 1997 and a further reduction of $0.9 million effective at November
30, 1997 to the last maturing principal installments on the notes.
7
<PAGE> 8
POOL ENERGY SERVICES CO.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(UNAUDITED)
Issuance of 9% Notes
In June 1997, as partial consideration for the acquisition of D A & S Oil
Well Servicing, Incorporated ("DA&S"), the Company issued 9% notes aggregating
$10.1 million which are due in 2003. Required principal payments on these notes
are as follows: $0.4 million in 1998, $2.0 million in 2000, $3.6 million in 2001
and $4.1 million thereafter. These notes are collateralized by security
interests in (i) the well-servicing rigs and related equipment of the acquired
business, which had an aggregate net book value of $4.3 million at September 30,
1997 and (ii) certain real property of the acquired business which had a
carrying value of $0.7 million at September 30, 1997.
4. BUSINESS ACQUISITIONS
D A & S Oil Well Servicing, Incorporated
In June 1997, the Company acquired all of the outstanding capital stock of
DA&S, a privately owned well-servicing company with a fleet of 37 land
well-servicing rigs, for $10.5 million, consisting of long-term notes in the
amount of $10.1 million and $0.4 million in cash.
The acquisition was accounted for under the purchase method, and
accordingly the results of DA&S have been included in the accompanying condensed
consolidated financial statements since the date of acquisition. The purchase
price was allocated on the basis of the estimated fair market value of the
assets acquired and liabilities assumed as of the date of acquisition. This
allocation resulted in goodwill of approximately $6.3 million, which is being
amortized over 25 years.
Expenditures for the acquisition, including acquisition costs, less cash
acquired were as follows:
<TABLE>
<S> <C>
Fair value of assets acquired (including goodwill)....... $ 15,107
Long-term notes issued .................................. (10,050)
Liabilities assumed ..................................... (4,507)
---------
Cash paid, including acquisition related expenditures ... 550
Less cash acquired ...................................... 132
---------
Net cash used for the acquisition ....................... $ 418
=========
</TABLE>
Trey Services, Inc.
In October 1997, the Company acquired all of the outstanding capital stock
of Trey Services, Inc. ("Trey") and certain associated operating assets for cash
of $31.3 million. Prior to the acquisition, Trey, through its wholly-owned
subsidiary R & H Well Service, Inc. ("R&H"), operated a fleet of approximately
67 land well-servicing rigs, 104 oilfield trucks, 430 fluid storage tanks, and
five brine and disposal wells in the Permian Basin of West Texas. This
acquisition was financed through the Company's revolving line of credit.
The acquisition will be accounted for under the purchase method, and Trey's
results will be included in the Company's consolidated financial statements from
the effective date of the acquisition. The Company has not completed its
assessment of the fair values of assets acquired and liabilities assumed for
purposes of allocating the purchase price.
8
<PAGE> 9
POOL ENERGY SERVICES CO.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(UNAUDITED)
5. LETTER OF INTENT
In October 1997, the Company entered into a letter of intent to acquire the
capital stock of privately owned A.A. Oilfield Service, Inc. ("A.A.") for $4.1
million in cash. Based in Hobbs, New Mexico, A.A. has a fleet of 18 oilfield
trucks, one salt-water disposal well and related equipment. This acquisition is
subject to negotiation of a definitive agreement and lender and regulatory
approvals, and there can be no assurance that the transaction will be
consummated. This acquisition will be financed by internally generated funds and
borrowings under the Company's revolving line of credit.
6. NEW ACCOUNTING PRONOUNCEMENTS
In February 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No.128, "Earnings Per Share," which
establishes new standards for computing and presenting earnings per share. This
statement is effective for financial statements issued for periods ending after
December 15, 1997; earlier application is not permitted. However, if this
statement had been applied in the third quarter of 1997, there would have been
no material effect on the Company's computation of earnings per share for the
periods presented.
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive Income" ("SFAS
130") and Statement of Financial Accounting Standards No. 131, "Disclosures
About Segments of an Enterprise and Related Information" ("SFAS 131"), which are
effective for periods beginning after December 15, 1997. SFAS 130 establishes
standards for reporting and displaying comprehensive income and its components.
SFAS 131 establishes standards for the way that public business enterprises
report information about operating segments in interim and annual financial
statements. These two statements will have no effect on the Company's 1997
financial statements, and management is currently evaluating what, if any,
additional disclosures may be required when these two statements are adopted in
the first quarter of 1998.
9
<PAGE> 10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
1997 ACQUISITIONS AND LETTER OF INTENT
Trey Services, Inc. In October 1997, the Company completed the acquisition
of Trey and certain associated operating assets for approximately $31.3 million
in cash. Prior to the acquisition, Trey, through its wholly-owned subsidiary
R&H, operated a fleet of approximately 67 land well-servicing rigs, 104 oilfield
trucks, 430 fluid storage tanks and five brine and disposal wells in the Permian
Basin of West Texas. This acquisition was financed with borrowings under the
Company's revolving line of credit.
D A & S Oil Well Servicing, Incorporated. In June 1997, the Company
acquired all of the outstanding capital stock of DA&S. Prior to the acquisition,
DA&S operated a fleet of 37 land well-servicing rigs from yards in Hobbs and
Eunice, New Mexico and Andrews, Texas. See Note 4 of Notes to Condensed
Consolidated Financial Statements for a discussion of this acquisition.
Letter of Intent - A.A. Oilfield Service, Inc. In October 1997, the Company
entered into a letter of intent to acquire the capital stock of privately owned
A.A. for $4.1 million in cash. Based in Hobbs, New Mexico, A.A. has a fleet of
18 oilfield trucks, one salt-water disposal well and related equipment. This
acquisition is subject to negotiation of a definitive agreement and lender and
regulatory approvals, and there can be no assurance that the transaction will be
consummated. This acquisition will be financed by internally generated funds and
borrowings under the Company's revolving line of credit.
1996 ACQUISITIONS
Antah Drilling Acquisition. In October 1996, the Company acquired the 51%
interest that it did not already own in Antah Drilling, and in March 1997 such
entity's name was changed to Pool International (Malaysia) Sdn. Bhd. ("Pool
Malaysia"). Pool Malaysia's assets include Rig 489, a new state-of-the-art 2,000
horsepower offshore platform drilling rig, which commenced a three-year contract
in August 1996 for Esso Australia, Ltd. in Australia, and an offshore platform
workover rig currently operating under a term contract in Malaysia.
Argentina Acquisition. In August 1996, the Company acquired a 51%
controlling interest in Pool International Argentina S. A. ("PIASA"), a newly
formed Argentina corporation which provides well-servicing, workover and
drilling services in Argentina. PIASA owns nine land drilling rigs and 11 land
workover rigs, all of which are located in Argentina.
Acquisition of Operating Assets of Western Oil. In June 1996, the Company
purchased the operating assets, including approximately 23 land well-servicing
rigs, of Western Oil Well Service Co. ("Western Oil") in the Williston Basin.
RESULTS OF OPERATIONS - QUARTERS ENDED SEPTEMBER 30, 1997 AND 1996
The Company had net income of $8.4 million for the third quarter of 1997
compared to $2.6 million for the third quarter of 1996. The average price of
crude oil was approximately 12% lower in the third quarter of 1997 than in the
third quarter of 1996 and average domestic natural gas prices increased
approximately 19% comparing the same periods. Results from the Company's
domestic operations improved primarily due to (i) increased activity and rates
for the jackup and platform rigs in the Gulf of Mexico, including the operation
of Rig 18, a previously idle platform drilling rig which was refurbished and
placed in service in the Gulf of Mexico for Shell Offshore in mid-September
1996, (ii) increased rig activity in California and the Austin Chalk and the
lower Gulf coast areas of Texas, (iii) increased production services activity in
Texas and (iv) inclusion of results from the land well-servicing rigs acquired
in the June 1997 acquisition of DA&S. The Company's domestic onshore operation
reported rig hours 17% higher for the third quarter of 1997 than in the
corresponding quarter of 1996. The
10
<PAGE> 11
Company's offshore operation in the Gulf of Mexico experienced rig utilization
of 84% in the third quarter of 1997 compared to 73% during the comparable period
of 1996, and average rig rates were 42% higher in the 1997 period. Net income
from the Company's international operations increased primarily due to the
operation of Rig 489 in Australia and the operation of a land drilling rig in
Guatemala.
Revenues. Revenues were $118.6 million in the third quarter of 1997, a 41%
increase over revenues of $84.0 million in the third quarter of 1996. Strong
demand in the third quarter of 1997 resulted in increased revenues in all
business markets. Domestic onshore well-servicing and production services
revenues increased $13.3 million or 24% in the third quarter of 1997 from the
corresponding quarter of 1996 as a result of (i) higher activity and rates for
the Company's well-servicing rigs in California and the Austin Chalk and lower
Gulf coast areas of Texas, (ii) operation of the 37 land well-servicing rigs
acquired from DA&S in 1997 and (iii) increased production services activity in
Texas. Domestic onshore well-servicing rig utilization was 57% in the third
quarter of 1997 compared to 50% in the third quarter of 1996. Domestic onshore
well-servicing rig hours increased from approximately 279,000 hours in the third
quarter of 1996 to approximately 326,000 hours in the third quarter of 1997.
Gulf of Mexico offshore workover and drilling revenues increased $8.5 million or
58% as a result of higher activity and rates for the Company's jackup and
platform rigs, including the operation of Rig 18 for the entire period in 1997.
International operations revenues increased $9.8 million or 99% due to (i) the
operation of Rig 489 in Australia, (ii) the inclusion of revenue from the
offshore workover rig located in Malaysia, the results of which were included in
earnings attributable to unconsolidated affiliates in the third quarter of 1996,
(iii) revenues for the entire period in 1997 from the Argentina rigs owned by
PIASA and (iv) the operation of a land drilling rig in Guatemala. Alaska
operations experienced higher activity in the Cook Inlet during the third
quarter of 1997 resulting in a $2.2 million or 48% increase in revenues over the
same period in 1996.
Earnings Attributable to Unconsolidated Affiliates. Earnings attributable
to unconsolidated affiliates were $0.6 million in the third quarter of 1997
compared to $0.7 million in the third quarter of 1996. Earnings attributable to
Pool Arabia, Ltd., the Company's Saudi Arabia affiliate, increased $0.1 million
from the third quarter of 1996 partly as a result of higher rig utilization
during the third quarter of 1997 and a higher day rate for a drilling rig in
1997. Earnings from Antah Drilling (now Pool Malaysia) ceased to be included in
earnings attributable to unconsolidated affiliates immediately following the
Company's purchase of its partner's interest in October 1996.
Costs and Expenses. The Company's costs and expenses were $106.8 million in
the third quarter of 1997, a 32% increase compared to costs and expenses of
$81.1 million in the corresponding quarter of 1996. The increase was primarily
due to (i) the inclusion, after the Company's acquisition of its partner's
interest in October 1996, of costs and expenses related to the operation of two
offshore platform rigs owned by Pool Malaysia, (ii) the operation of 20 land
rigs in Argentina owned by PIASA acquired in late August 1996, (iii) increased
domestic onshore rig and production services activity, including operation of
the land well-servicing rigs acquired in the June 1997 DA&S acquisition, (iv)
the operation of Rig 18 and increased jackup and platform rig activity in the
Gulf of Mexico, (v) increased labor contract activity in the Cook Inlet and (vi)
increased rig activity in Guatemala.
Other Income - Net. Other income - net was $1.5 million higher in the third
quarter of 1997 than in the corresponding quarter of 1996 due primarily to a
$0.7 million pre-tax gain from the sale of an obsolete platform drilling rig in
the Gulf of Mexico which had been idle for several years and a $0.9 million
pre-tax gain from an insurance settlement.
Interest Expense. Interest expense was $0.4 million higher in the third
quarter of 1997 than in the corresponding period of 1996 primarily due to
interest expense on a term loan assumed in the Antah Drilling acquisition and
the $10.1 million in long-term notes issued in connection with the DA&S
acquisition in June 1997.
Income Taxes. The Company recorded income tax expense of $5.6 million
(which included $4.8 million of deferred taxes) on income before income taxes
and minority interest of $13.9 million in the third quarter of 1997 compared to
income tax expense of $1.5 million on income before income taxes of $4.0 million
in the third quarter of 1996. The increase in income tax expense in the third
quarter of 1997 compared to the third quarter
11
<PAGE> 12
of 1996 was primarily due to stronger operating results in the third quarter of
1997, as a result of the factors described above. The Company's interim period
tax expense is determined by utilizing the aggregate of estimated annual
effective tax rates for each of the Company's domestic and foreign
jurisdictions.
RESULTS OF OPERATIONS - NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
The Company had net income of $18.1 million for the first nine months of
1997 compared to $5.8 million for the first nine months of 1996. Results from
the Company's domestic operations improved primarily due to (i) increased
activity and rates for the jackup and platform rigs in the Gulf of Mexico,
including Rig 18 which began operations in mid-September 1996, (ii) increased
land rig activity in California and the Austin Chalk and lower Gulf coast areas
of Texas, (iii) inclusion of results from the land well-servicing rigs acquired
from Western Oil in June 1996 and in the June 1997 DA&S acquisition and (iv)
increased production services activity in Texas. The Company's domestic onshore
operation reported rig hours 9% higher in the first nine months of 1997 than in
the corresponding period of 1996. The Company's offshore operation in the Gulf
of Mexico experienced rig utilization of 77% in the first nine months of 1997
compared to 69% during the comparable period of 1996, and average rig rates were
37% higher in the 1997 period. Net income from the Company's international
operations increased primarily due to the operation of Rig 489 in Australia,
higher rig activity in Oman and Saudi Arabia, and the operation of a land
drilling rig in Guatemala, partially offset by lower land rig activity in
Ecuador and Pakistan.
Revenues. Revenues were $326.8 million in the first nine months of 1997, a
31% increase over revenues of $248.6 million in the first nine months of 1996.
This increase was attributable to (i) higher activity and rates for the
Company's jackup and platform rigs in the Gulf of Mexico, including the
operation of Rig 18 for the entire 1997 period, (ii) higher domestic land
well-servicing activity and rates in California and the Austin Chalk and lower
Gulf coast areas of Texas, (iii) higher production services activity in Texas,
(iv) revenues from the 23 land well-servicing rigs purchased from Western Oil in
June 1996 and the 37 land well-servicing rigs acquired in the June 1997 DA&S
acquisition, (v) the operation of Rig 489 in Australia, (vi) the inclusion of
revenue from the offshore rig owned by Pool Malaysia, the results of which were
included in earnings attributable to unconsolidated affiliates in the first nine
months of 1996, (vii) revenues from the Argentina rigs owned by PIASA and (viii)
higher rig activity in Oman and Guatemala. These revenue increases were offset
partly by lower revenues from operations in Alaska, Ecuador, Pakistan and
Tunisia, where land rig activity declined. Domestic onshore well-servicing and
production services revenues increased $27.3 million or 17% in the first nine
months of 1997 from the corresponding period of 1996. Domestic onshore
well-servicing rig utilization was 56% in the first nine months of 1997 compared
to 52% in the first nine months of 1996. Domestic onshore well-servicing rig
hours increased from approximately 841,000 hours in the first nine months of
1996 to approximately 914,000 hours in the first nine months of 1997. Gulf of
Mexico offshore workover and drilling revenues increased $19.0 million or 48%,
international operations revenues increased $29.8 million or 111%, and Alaska
operations revenues decreased $0.6 million or 3% from the first nine months of
1996.
Earnings Attributable to Unconsolidated Affiliates. Earnings attributable
to unconsolidated affiliates were $2.3 million in the first nine months of 1997
compared to $1.9 million in the first nine months of 1996. Earnings attributable
to Pool Arabia, Ltd., the Company's Saudi Arabia affiliate, increased $0.9
million from the first nine months of 1996 partly as a result of higher rig
utilization during the first nine months of 1997 and a higher day rate for a
drilling rig in 1997. Earnings from Antah Drilling (now Pool Malaysia) ceased to
be included in earnings attributable to unconsolidated affiliates immediately
following the Company's purchase of its partner's interest in October 1996.
Costs and Expenses. The Company's costs and expenses were $301.1 million in
the first nine months of 1997, a 25% increase compared to costs and expenses of
$240.0 million in the corresponding period of 1996. The increase was primarily
due to the inclusion of costs and expenses related to (i) the operation of Rig
18 and increased jackup and platform rig activity in the Gulf of Mexico, (ii)
increased domestic onshore rig and production services activity, including
operation of the land well-servicing rigs acquired from Western Oil and in
12
<PAGE> 13
the June 1997 acquisition of DA&S, (iii) the inclusion, after the Company's
acquisition of its partner's interest in October 1996, of costs and expenses
associated with the operation of two offshore platform rigs owned by Pool
Malaysia, (iv) the operation of PIASA's 20 land rigs in Argentina and (v)
increased rig activity in Oman and Guatemala. The increase was partly offset by
decreased costs and expenses in Alaska, Ecuador, Pakistan and Tunisia due to
lower land rig activity during the first nine months of 1997.
Other Income - Net. Other income - net was $2.9 million higher in the first
nine months of 1997 than in the corresponding period of 1996 primarily due to
higher gains on dispositions of equipment, including a $0.7 million pre-tax gain
on the sale of an obsolete drilling rig in the Gulf of Mexico which had been
idle for several years and $1.9 million in pre-tax gains from insurance
settlements in the first nine months of 1997.
Interest Expense. Interest expense was $0.6 million higher in the first
nine months of 1997 than in the corresponding period of 1996 primarily due to
interest expense on the term loans assumed in the Antah Drilling acquisition and
the $10.1 million in long-term notes issued in connection with the DA&S
acquisition in June 1997, partially offset by a reduction in interest expense
due to the scheduled principal payments made on the Company's other debt and
lower average borrowings in 1997 under the Company's syndicated revolving line
of credit.
Income Taxes. The Company recorded income tax expense of $11.7 million
(which included $10.0 million of deferred taxes) on income before income taxes
and minority interest of $29.8 million in the first nine months of 1997 compared
to income tax expense of $4.3 million on income before income taxes of $10.1
million in the first nine months of 1996. The increase in income tax expense in
the first nine months of 1997 compared to the first nine months of 1996 was
primarily due to stronger operating results in the first nine months of 1997, as
a result of the factors described above. The Company's interim period tax
expense is determined by utilizing the aggregate of estimated annual effective
tax rates for each of the Company's domestic and foreign jurisdictions.
FINANCIAL CONDITION AND LIQUIDITY
Cash Flows. The Company had cash and cash equivalents of $9.0 million at
September 30, 1997 compared to $21.8 million at December 31, 1996. Working
capital was $48.3 million and $47.6 million at September 30, 1997 and December
31, 1996, respectively. The Company used a net $25.5 million for investing
activities in the first nine months of 1997, primarily for capital expenditures
of $33.0 million. Cash used for investing activities for this period also
included $0.4 million, net of cash acquired, for the purchase of DA&S, offset by
$6.6 million of proceeds from dispositions of equipment and the return of $1.0
million of cash that had been placed in escrow as collateral in connection with
a leaseback arrangement. The Company used a net $35.4 million for investing
activities in the first nine months of 1996, primarily for capital expenditures
of $24.3 million. Cash used for investing activities for this period also
included $8.7 million for the acquisition of a 51% controlling interest in
PIASA, $4.0 million for the purchase of the operating assets of Western Oil and
$0.6 million, net of cash acquired, for the purchase of 51% of Pool Santana,
Limited, offset partly by $1.8 million of proceeds from dispositions of
equipment.
Credit Facilities and Long-Term Debt. On September 30, 1997, the Company
entered into a new three-year $130 million syndicated bank revolving line of
credit agreement (the "Line of Credit") to replace its existing $40 million
revolving bank line of credit and $15.6 million of long-term debt and to provide
financing for future growth opportunities. The maximum availability under the
Line of Credit is $130 million, including up to $15 million that may be used to
support letters of credit. Notes issued under the Line of Credit are prepayable
at any time and are due at expiration on October 2, 2000. The Line of Credit
agreement imposes certain financial covenants, including ones requiring the
maintenance of a minimum net worth, a minimum interest coverage ratio, a minimum
fixed charged coverage ratio, a maximum leverage ratio and a maximum
debt-to-equity ratio. It also imposes certain other restrictions, including ones
relating to liens, other indebtedness, asset sales, investments, acquisitions or
mergers and the payment of dividends. See Note 3 of Notes to Condensed
Consolidated Financial Statements for a further discussion of the Line of
Credit.
13
<PAGE> 14
At October 15, 1997, the Company had drawn $60.8 million in cash under its
revolving line of credit, and an additional $12.3 million was being utilized to
support the issuance of letters of credit, primarily related to insurance
obligations.
During the first nine months of 1997, the Company made scheduled principal
payments of $8.8 million on long-term debt compared to $5.4 million in the
corresponding period of 1996.
DA&S Acquisition Debt. In June 1997, the Company acquired all of the
outstanding capital stock of DA&S for $10.5 million, consisting of $10.1 million
of 9% long-term notes due in 2003 and $0.4 million in cash. See Notes 3 and 4 of
Notes to Condensed Consolidated Financial Statements for further discussion.
Immediately following the acquisition of DA&S, the Company retired $0.8
million of DA&S debt.
Reduction of 10% Notes. The outstanding principal amount of certain 10%
notes, originally issued in connection with the 1995 acquisition of GPC, was
reduced as a result of an August 20, 1997 agreement between the sellers of GPC
and the Company. Such agreement resolved certain issues that had arisen in
connection with the GPC purchase agreement, resulting in a $4.0 million
reduction as of August 31, 1997 and a further reduction of $0.9 million
effective at November 30, 1997 to the last maturing principal installments on
the notes.
Acquisition of Trey Services, Inc. In October 1997, the Company acquired
all of the outstanding capital stock of Trey and certain associated operating
assets for approximately $31.3 million in cash. At the time the transaction was
consummated, $2.4 million of R&H debt was retired and $6.4 million was paid to
certain key employees of R&H in connection with existing incentive compensation
arrangements. These transactions were financed in part by the Company's
revolving line of credit.
Capital Expenditures. The Company anticipates that 1997 capital
expenditures, excluding the DA&S and Trey acquisitions, will consist of (i)
approximately $36 million for improvements and upgrades to its existing rig
fleet, (ii) $13.0 million for the construction of a new offshore platform
drilling rig for a two-year contract in the Gulf of Mexico, (iii) $9.2 million
for the purchase and refurbishment of a jack-up rig for operation in the Gulf of
Mexico, (iv) $0.7 million for the electrification of a platform workover rig
currently working in the Gulf of Mexico, (v) $5.2 million to upgrade Rig 122, a
land drilling rig, pursuant to a letter of intent for a five-year contract with
BP Exploration Inc. in Alaska, (vi) $3.5 million of a $15 million project to
upgrade Rig 6, a land drilling rig, pursuant to a letter of intent for a
three-year contract with Arco Alaska Inc., (vii) $2.7 million for the purchase
of the operating assets of Anchor Cementing Service in California, (viii) $1.2
million for the purchase of the operating assets of Dean's Well Servicing, Inc.
in Oklahoma, (ix) $0.6 million for the mobilization of Rig 232 from Saudi Arabia
to south Texas, (x) $9.1 million to upgrade a 1,500 horsepower rig currently
located in the U. S. to be leased to Pool Arabia, Ltd. for operation under a
three-year contract with Saudi Aramco and (xi) $1.6 million to upgrade Rig 222
for a one-year contract in Ecuador. It is anticipated that these expenditures
will be financed through both internally generated funds and borrowings under
the Company's Line of Credit or, to the extent permitted by the Line of Credit
agreement, under discrete term loans and/or leasing arrangements. Acquisitions
of additional assets and businesses are expected to continue to be an important
part of the Company's strategy for growth. The Company would, under certain
circumstances, need to obtain additional debt and/or equity financing to fund
such acquisitions.
14
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OTHER MATTERS
In February 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 128, "Earnings Per Share," which
establishes new standards for computing and presenting earnings per share. This
statement is effective for financial statements issued for periods ending after
December 15, 1997; earlier application is not permitted. However, if this
statement had been applied in the third quarter of 1997, there would have been
no material effect on the Company's computation of earnings per share for the
periods presented.
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive Income" ("SFAS
130") and Statement of Financial Accounting Standards No. 131, "Disclosures
About Segments of an Enterprise and Related Information" ("SFAS 131"), which are
effective for periods beginning after December 15, 1997. SFAS 130 establishes
standards for reporting and displaying comprehensive income and its components.
SFAS 131 establishes standards for the way that public business enterprises
report information about operating segments in interim and annual financial
statements. These two statements will have no effect on the Company's 1997
financial statements, and management is currently evaluating what, if any,
additional disclosures may be required when these two statements are adopted in
the first quarter of 1998.
15
<PAGE> 16
PART II
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
EXHIBIT NO. DOCUMENT
10.1(*) - U.S. $130,000,000 Credit Agreement between Pool Energy Services
Co., Pool Energy Holding, Inc., Pool Company, various banks, SBC
Warburg Dillon Read Inc., as Arranger, Credit Lyonnais New York
Branch, as Administrative Agent, and Swiss Bank Corporation, New
York Branch, as Documentation Agent, dated as of September 30,
1997
10.2(*) - Purchase Agreement by and among Pool Company, R&H Well Service,
Inc., Trey Services, Inc. and Steve L. Holifield dated as of
October 10, 1997
10.3(*) - Pool Energy Services Co. 1997 Employee SAR/Phantom Stock Plan
27(*) - Financial Data Schedule
- ------
(*) Filed herewith
(b) Reports on Form 8-K - There were no reports on Form 8-K filed during
the quarter ended September 30, 1997.
16
<PAGE> 17
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, thereunto duly authorized.
POOL ENERGY SERVICES CO.
(Registrant)
NOVEMBER 7, 1997 /s/ E. J. SPILLARD
- --------------------------- ----------------------------------
(Date) E. J. Spillard
Senior Vice President, Finance
(principal financial officer)
NOVEMBER 7, 1997 /s/ B. G. GORDON
- --------------------------- ----------------------------------
B. G. Gordon
Controller
(principal accounting officer)
17
<PAGE> 18
POOL ENERGY SERVICES CO.
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DOCUMENT
<C> <C>
10.1(*) - U.S. $130,000,000 Credit Agreement between Pool Energy Services
Co., Pool Energy Holding, Inc., Pool Company, various banks, SBC
Warburg Dillon Read Inc., as Arranger, Credit Lyonnais New York
Branch, as Administrative Agent, and Swiss Bank Corporation, New
York Branch, as Documentation Agent, dated as of September 30,
1997
10.2(*) - Purchase Agreement by and among Pool Company, R&H Well Service,
Inc., Trey Services, Inc. and Steve L. Holifield dated as of
October 10, 1997
10.3(*) - Pool Energy Services Co. 1997 Employee SAR/Phantom Stock Plan
27(*) - Financial Data Schedule
- ------
(*) Filed herewith
</TABLE>
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<PAGE> 1
EXHIBIT 10.1
[Conformed Copy with
Exhibits G and H
conformed as executed]
================================================================================
U.S. $130,000,000
CREDIT AGREEMENT
among
POOL ENERGY SERVICES CO.,
POOL ENERGY HOLDING, INC.,
POOL COMPANY,
VARIOUS BANKS,
SBC WARBURG DILLON READ INC., as ARRANGER
CREDIT LYONNAIS NEW YORK BRANCH, as ADMINISTRATIVE AGENT
and
SWISS BANK CORPORATION, NEW YORK BRANCH, as
DOCUMENTATION AGENT
Dated as of September 30, 1997
----------------------------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.01 The Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.02 Minimum Amount of Each Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.03 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.04 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.06 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.09 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.10 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.11 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.12 Replacement of Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.13 Extension of Final Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.02 Maximum Letter of Credit Outstandings; Final Maturities . . . . . . . . . . . . . . . . . . . . . . .
2.03 Letter of Credit Requests; Minimum Stated Amount . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.04 Letter of Credit Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.05 Agreement to Repay Letter of Credit Drawings . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.06 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3. Commitment Commission; Fees; Reductions of Commitment . . . . . . . . . . . . . . . . . . . . . . . . . .
3.01 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.02 Voluntary Termination of Unutilized Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.03 Mandatory Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4. Prepayments; Payments; Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.01 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.02 Mandatory Repayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.03 Method and Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.04 Net Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 5. Conditions Precedent to the Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.01 Execution of Agreement; Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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5.02 Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.03 Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.04 Corporate Documents; Proceedings; etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.05 Refinancing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.06 Lien Searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.07 Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.08 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.09 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.10 Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.11 Subsidiaries Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.12 Financial Statements; Pro Forma Balance Sheet; Projections; Business Plan . . . . . . . . . . . . . .
5.13 Fees, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.14 Existing Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.15 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 6. Conditions Precedent to All Credit Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.01 Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.02 No Default; Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.03 Notice of Borrowing; Letter of Credit Request . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.04 Absence of Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.05 Post-Closing Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7. Representations, Warranties and Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.01 Corporate Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.02 Corporate and Other Power and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.03 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.04 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. . . . . . . . .
7.06 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.07 True and Complete Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.09 Tax Returns and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.10 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.11 The Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.12 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.13 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.14 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.15 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.16 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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7.17 Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.18 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.19 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.20 Patents, Licenses, Franchises and Formulas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.21 Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.22 Inactive Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.23 No Tax Sharing Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 8. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.01 Information Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) Quarterly Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Annual Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) Budgets and Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) Officer's Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) Notice of Default or Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) Other Reports and Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(h) Annual Meetings with Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.02 Books, Records and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.03 Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.04 Corporate Franchises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.05 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.06 Compliance with Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.07 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.08 End of Fiscal Years; Fiscal Quarters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.09 Performance of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.10 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.11 Foreign Subsidiaries Guaranty, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.12 Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.13 Post-Closing Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 9. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.01 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. . . . . . . . . . . . . . . . . . . . . . . .
9.03 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.04 Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.05 Advances, Investments and Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.06 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.07 Consolidated Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.08 Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
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9.09 Maximum Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.10 Maximum Debt-to-Total Capital Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.11 Minimum Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.12 Limitation on Modifications of Certificate of Incorporation and By-Laws; Limitation on Voluntary
Payments and Modifications of Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.13 Limitation on Certain Restrictions on Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . .
9.14 Limitation on Issuance of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.15 Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.16 Limitation on Creation of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.17 Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 10. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.02 Representations, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.04 Default Under Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.05 Bankruptcy, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.07 Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.08 Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.09 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.10 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 11. Definitions and Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11.01 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 12. The Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12.02 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12.03 Lack of Reliance on the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12.04 Certain Rights of the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12.05 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12.06 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12.07 The Administrative Agent in its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . .
12.08 Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12.09 Resignation by the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 13. The Arranger; The Documentation Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13.01 The Arranger; Documentation Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13.02 Liability of the Arranger and the Documentation Agent . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
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13.03 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13.04 Arranger and Documentation Agent in their Individual Capacities . . . . . . . . . . . . . . . . . . .
13.05 Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 14. Parents Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14.01 The Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14.02 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14.03 Nature of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14.04 Independent Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14.05 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14.06 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14.07 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14.08 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14.09 Nature of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 15. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.01 Payment of Expenses, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.02 Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.04 Benefit of Agreement; Assignments; Participations . . . . . . . . . . . . . . . . . . . . . . . . . .
15.05 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.06 Payments Pro Rata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.07 Calculations; Computations; Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL . . . . . . . . . . . . . . .
15.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.10 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.11 Headings Descriptive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.12 Amendment or Waiver; etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.14 Domicile of Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.15 Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.17 Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.18 Credit Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.19 Inactive Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
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SCHEDULE I Revolving Loan Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Subsidiaries
SCHEDULE IV Existing Funded Debt
SCHEDULE V Existing Liens
SCHEDULE VI Existing Investments; Existing Intercompany Loans
SCHEDULE VII Indebtedness to be Refinanced
EXHIBIT A Notice of Borrowing
EXHIBIT B Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Opinion of Gardere Wynne Sewell & Riggs, L.L.P. Special Counsel to the Credit Parties
EXHIBIT E-2 Opinion of Geoffrey Arms, Esq, General Counsel to the Borrower
EXHIBIT F Officers' Certificate
EXHIBIT G Pledge Agreement
EXHIBIT H Subsidiaries Guaranty
EXHIBIT I Assignment and Assumption Agreement
EXHIBIT J Intercompany Note
EXHIBIT K Form of Compliance Certificate
EXHIBIT L Form of Permitted Acquisition Certificate
</TABLE>
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CREDIT AGREEMENT, dated as of September 30, 1997, among POOL
ENERGY SERVICES CO., a Texas corporation ("PESCO"), POOL ENERGY HOLDING, INC.,
a Delaware corporation ("Holding"), POOL COMPANY, a Texas corporation (the
"Borrower"), the Banks party hereto from time to time, SBC WARBURG DILLON READ
INC., as Arranger (the "Arranger"), CREDIT LYONNAIS NEW YORK BRANCH, as
Administrative Agent, SWISS BANK CORPORATION, NEW YORK BRANCH, as Documentation
Agent (the "Documentation Agent") and BANK ONE, TEXAS, N.A., and THE HONGKONG
AND SHANGHAI BANKING CORPORATION LIMITED, as Co-Agents (all capitalized terms
used herein and defined in Section 11 are used herein as therein defined).
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set
forth herein, the Banks are willing to make available to the Borrower the
respective credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. Subject to and upon the terms and
conditions set forth herein, each Bank severally agrees to make, at any time
and from time to time on and after the Effective Date and prior to the Final
Maturity Date, a revolving loan or revolving loans (each a "Revolving Loan"
and, collectively, the "Revolving Loans") to the Borrower, which Revolving
Loans (i) shall, at the option of the Borrower, be incurred and maintained as,
and/or converted into, Base Rate Loans or Eurodollar Loans, provided that
except as otherwise specifically provided in Section 1.10(b), all Revolving
Loans comprising the same Borrowing shall at all times be of the same Type,
(ii) may be repaid and reborrowed in accordance with the provisions hereof,
(iii) shall not exceed for any Bank at any time outstanding that aggregate
principal amount which, when added to the product of (x) such Bank's RL
Percentage and (y) the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) at such time, equals the Revolving Loan Commitment of such Bank at such
time and (iv) shall not exceed for all Banks at any time outstanding that
aggregate principal amount which, when added to the aggregate amount of all
Letter of Credit
<PAGE> 9
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time, equals the Total Revolving Loan Commitment at
such time.
1.02 Minimum Amount of Each Borrowing. The aggregate
principal amount of each Borrowing of Base Rate Loans or Eurodollar Loans shall
not be less than the Minimum Borrowing Amount applicable thereto. More than
one Borrowing may occur on the same date, but at no time shall there be
outstanding more than thirteen Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires
to incur (x) Eurodollar Loans hereunder, the Borrower shall give the
Administrative Agent at the Notice Office at least three Business Days' prior
notice of each Eurodollar Loan to be incurred hereunder and (y) Base Rate Loans
hereunder, the Borrower shall give the Administrative Agent at the Notice
Office at least one Business Day's prior notice of each Base Rate Loan to be
incurred hereunder, provided that (in each case) any such notice shall be
deemed to have been given on a certain day only if given before 11:30 A.M. (New
York time) on such day. Each such notice (each a "Notice of Borrowing"),
except as otherwise expressly provided in Section 1.10, shall be irrevocable
and shall be given by the Borrower in writing, or by telephone promptly
confirmed in writing, in the form of Exhibit A, appropriately completed to
specify the aggregate principal amount of the Revolving Loans to be incurred
pursuant to such Borrowing, the date of such Borrowing (which shall be a
Business Day), whether the Revolving Loans being incurred pursuant to such
Borrowing are to be initially maintained as Base Rate Loans or, to the extent
permitted hereunder, Eurodollar Loans and, if Eurodollar Loans, the initial
Interest Period to be applicable thereto. The Administrative Agent shall
promptly give each Bank notice of such proposed Borrowing, of such Bank's
proportionate share thereof and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.
(b) Without in any way limiting the obligation of the
Borrower to confirm in writing any telephonic notice of any Borrowing or
prepayment of Revolving Loans, the Administrative Agent may act without
liability upon the basis of telephonic notice of such Borrowing or prepayment,
as the case may be, believed by the Administrative Agent in good faith to be
from the Chairman of the Board, the Chief Executive Officer, the President, the
Chief Financial Officer, the Treasurer or any Assistant Treasurer of the
Borrower, or from any other person designated in writing by any of the
foregoing officers of the Borrower to the Administrative Agent as being
authorized to give such notices, prior to receipt of written confirmation. In
each such case, the Borrower hereby waives the right to dispute the
Administrative Agent's record of the terms of such telephonic notice of such
Borrowing or prepayment of Revolving Loans, as the case may be, absent manifest
error.
1.04 Disbursement of Funds. No later than 12:00 Noon (New
York time) on the date specified in any relevant Notice of Borrowing, each
Bank will make available its pro rata portion (determined in accordance with
Section 1.07) of each such Borrowing
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requested to be made on such date. All such amounts will be made available in
Dollars and in immediately available funds at the Payment Office of the
Administrative Agent, and the Administrative Agent will make available to the
Borrower at the Payment Office the aggregate of the amounts so made available
by the Banks. Unless the Administrative Agent shall have been notified by any
Bank prior to the date of Borrowing that such Bank does not intend to make
available to the Administrative Agent such Bank's portion of any Borrowing to
be made on such date, the Administrative Agent may assume that such Bank has
made such amount available to the Administrative Agent on such date of
Borrowing and the Administrative Agent may (but shall not be obligated to), in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the
Administrative Agent by such Bank, the Administrative Agent shall be entitled
to recover such corresponding amount on demand from such Bank. If such Bank
does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent shall promptly notify the
Borrower and the Borrower shall immediately pay such corresponding amount to
the Administrative Agent. The Administrative Agent also shall be entitled to
recover on demand from such Bank or the Borrower, as the case may be, interest
on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the
Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such
Bank, at the overnight Federal Funds Rate and (ii) if recovered from the
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Bank from its obligation to make Revolving Loans
hereunder or to prejudice any rights which the Borrower may have against any
Bank as a result of any failure by such Bank to make Revolving Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the
principal of, and interest on, the Revolving Loans made by each Bank shall be
evidenced by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B, with blanks appropriately completed in
conformity herewith (each a "Note" and, collectively, the "Notes").
(b) The Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to such Bank or its registered assigns and be dated
the Effective Date (or, if issued after the Effective Date, be dated the date
of the issuance thereof), (iii) be in a stated principal amount equal to the
Revolving Loan Commitment of such Bank (or, if issued after the termination
thereof, be in a stated principal amount equal to the outstanding Revolving
Loans of such Bank at such time) and be payable in the outstanding principal
amount of the Revolving Loans evidenced thereby, (iv) mature on the Final
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the
case may be, evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in Section 4.02,
and (vii) be entitled to the benefits of this Agreement and the other Credit
Documents.
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(c) Each Bank will note on its internal records the amount of
each Revolving Loan made by it and each payment in respect thereof and will
prior to any transfer of any of its Notes endorse on the reverse side thereof
the outstanding principal amount of Revolving Loans evidenced thereby. Failure
to make any such notation or any error in such notation shall not affect the
Borrower's obligations in respect of such Revolving Loans.
1.06 Conversions. The Borrower shall have the option to
convert all or a portion equal to at least the Minimum Borrowing Amount of the
outstanding principal amount of Revolving Loans made pursuant to one or more
Borrowings of one or more Types of Revolving Loans into a Borrowing of another
Type of Revolving Loan, provided that, (i) except as otherwise provided in
Section 1.10(b), Eurodollar Loans may be converted into Base Rate Loans only on
the last day of an Interest Period applicable to the Revolving Loans being
converted and no such partial conversion of Eurodollar Loans shall reduce the
outstanding principal amount of such Eurodollar Loans made pursuant to a single
Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii)
Base Rate Loans may only be converted into Eurodollar Loans if no Default or
Event of Default is in existence on the date of such conversion, and (iii) no
conversion pursuant to this Section 1.06 shall result in a greater number of
Borrowings of Eurodollar Loans than is permitted under Section 1.02. Each such
conversion shall be effected by the Borrower by giving the Administrative Agent
at its Notice Office prior to 11:30 A.M. (New York time) at least three
Business Days' prior notice (each a "Notice of Conversion") specifying the
Revolving Loans to be so converted, the Borrowing or Borrowings pursuant to
which such Revolving Loans were made and, if to be converted into Eurodollar
Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Bank prompt notice of any such proposed
conversion affecting any of its Revolving Loans. Upon any such conversion the
proceeds thereof will be deemed to be applied directly on the day of such
conversion to prepay the outstanding principal amount of the Revolving Loans
being converted.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans
under this Agreement shall be incurred from the Banks pro rata on the basis of
their Revolving Loan Commitments. It is understood that no Bank shall be
responsible for any default by any other Bank of its obligation to make
Revolving Loans hereunder and that each Bank shall be obligated to make the
Revolving Loans provided to be made by it hereunder, regardless of the failure
of any other Bank to make its Revolving Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date of
Borrowing thereof until the maturity thereof (whether by acceleration or
otherwise) at a rate per annum which shall be equal to the sum of the Base Rate
plus the Applicable Base Rate Margin, each as in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date of Borrowing
thereof until the maturity thereof
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(whether by acceleration or otherwise) at a rate per annum which shall, during
each Interest Period applicable thereto, be equal to the sum of the Eurodollar
Rate for such Interest Period plus the Applicable Eurodollar Rate Margin as in
effect on the first day of such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Revolving Loan and any other overdue amount
payable hereunder shall, in each case, bear interest at a rate per annum equal
to the rate which is 2% in excess of the rate otherwise applicable to Base Rate
Loans from time to time. Interest which accrues under this Section 1.08(c)
shall be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan, in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Revolving
Loan, on any repayment or prepayment (on the amount repaid or prepaid), at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the Eurodollar Rate for each Interest Period applicable
to Eurodollar Loans and shall promptly notify the Borrower and the Banks
thereof. Each such determination shall, absent manifest error, be final and
conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time the Borrower gives any
Notice of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, any Eurodollar Loan (in the case of the initial Interest
Period applicable thereto) or on the third Business Day prior to the expiration
of an Interest Period applicable to such Eurodollar Loan (in the case of any
subsequent Interest Period), the Borrower shall have the right to elect, by
giving the Administrative Agent notice thereof, the interest period (each an
"Interest Period") applicable to such Eurodollar Loan, which Interest Period
shall, at the option of the Borrower, be a one, two, three or six-month period,
provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at
all times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan
shall commence on the date of Borrowing of such Eurodollar Loan
(including the date of any conversion thereto from a Base Rate) and
each Interest Period occurring thereafter in respect of such
Eurodollar Loan shall commence on the day on which the next preceding
Interest Period applicable thereto expires;
(iii) if any Interest Period for a Eurodollar Loan begins
on a day for which there is no numerically corresponding day in the
calendar month at the end of such
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Interest Period, such Interest Period shall end on the last Business
Day of such calendar month;
(iv) if any Interest Period for a Eurodollar Loan would
otherwise expire on a day which is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day; provided,
however, that if any Interest Period for a Eurodollar Loan would
otherwise expire on a day which is not a Business Day but is a day of
the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(v) no Interest Period may be selected at any time when a
Default or an Event of Default is then in existence; and
(vi) no Interest Period in respect of any Borrowing of
Eurodollar Loans shall be selected which extends beyond the Final
Maturity Date.
If upon the expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans, the Borrower has failed to elect, or is not permitted to
elect, a new Interest Period to be applicable to such Eurodollar Loans as
provided above, the Borrower shall be deemed to have elected to convert such
Eurodollar Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event
that any Bank shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto but, with
respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of
any changes arising after the date of this Agreement affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased
costs or reductions in the amounts received or receivable hereunder
with respect to any Eurodollar Loan because of (x) any change since
the date of this Agreement in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the
force of law) or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule,
regulation, order, guideline or request, such as, for example, but not
limited to: (A) a change in the basis of taxation of payment to any
Bank of the principal of or interest on the Notes or any other amounts
payable hereunder (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of such Bank
pursuant to the laws of the jurisdiction in which it is organized or
in which its principal office or applicable lending
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office is located or any subdivision thereof or therein) or (B) a
change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate and/or (y) other circumstances
since the date of this Agreement affecting the position of such Bank
in the interbank Eurodollar market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, (y) impossible by compliance by any Bank in
good faith with any governmental request (whether or not having force
of law) or (z) impracticable as a result of a contingency occurring
after the date of this Agreement which materially and adversely
affects the position of such Bank in the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone promptly
confirmed in writing) to the Borrower and, except in the case of clause (i)
above, to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Banks).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no
longer be available until such time as the Administrative Agent notifies the
Borrower and the Banks that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion given by the Borrower with respect to Eurodollar Loans which have
not yet been incurred (including by way of conversion) shall be deemed
rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower
shall pay to such Bank, upon such Bank's written request therefor, such
additional amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Bank in its sole discretion shall
determine) as shall be required to compensate such Bank for such increased
costs or reductions in amounts received or receivable hereunder (a written
notice as to the additional amounts owed to such Bank, showing in reasonable
detail the basis for the calculation thereof, submitted to the Borrower by such
Bank shall, absent manifest error, be final and conclusive and binding on all
the parties hereto) and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in Section 1.10(b) as promptly as
possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar
Loan is then being made initially or pursuant to a conversion, cancel such
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) prior to the time of funding of such Eurodollar Loan or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business
Days' written notice to the Administrative Agent, require the affected Bank to
convert such Eurodollar Loan into a Base Rate Loan, provided that, if more than
one Bank is affected at any time, then all affected Banks must be treated the
same pursuant to this Section 1.10(b).
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<PAGE> 15
(c) If any Bank determines that after the date of this
Agreement the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by the NAIC or any governmental
authority, central bank or comparable agency, will have the effect of
increasing the amount of capital required or expected to be maintained by such
Bank or any corporation controlling such Bank based on the existence of such
Bank's Revolving Loan Commitment hereunder or its obligations hereunder, then
the Borrower shall pay to such Bank, upon its written demand therefor, such
additional amounts as shall be required to compensate such Bank or such other
corporation for the increased cost to such Bank or such other corporation or
the reduction in the rate of return to such Bank or such other corporation as a
result of such increase of capital. In determining such additional amounts,
each Bank will act reasonably and in good faith and will use averaging and
attribution methods which are reasonable, provided that such Bank's
determination of compensation owing under this Section 1.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties hereto.
Each Bank, upon determining that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to
the Borrower, which notice shall show in reasonable detail the basis for
calculation of such additional amounts.
1.11 Compensation. The Borrower shall compensate each Bank,
upon its written request (which request shall set forth in reasonable detail
the basis for requesting such compensation (including the calculation
thereof)), for all losses, expenses and liabilities (including, without
limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurodollar Loans but excluding loss of anticipated profits) which such
Bank may actually incur: (i) if for any reason (other than a default by such
Bank or the Administrative Agent) a Borrowing of, or conversion from or into,
Eurodollar Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion (whether or not withdrawn by the Borrower or
deemed withdrawn pursuant to Section 1.10(a)); (ii) if any repayment (including
any repayment made pursuant to Section 4.01, Section 4.02 or as a result of an
acceleration of the Revolving Loans pursuant to Section 10) or conversion of
any of its Eurodollar Loans occurs on a date which is not the last day of an
Interest Period with respect thereto; (iii) if any prepayment of any of its
Eurodollar Loans is not made on any date specified in a notice of prepayment
given by the Borrower; or (iv) as a consequence of (x) any other default by the
Borrower to repay its Eurodollar Loans when required by the terms of this
Agreement or any Note held by such Bank or (y) any election made pursuant to
Section 1.10(b).
1.12 Replacement of Banks. (x) If any Bank becomes a
Defaulting Bank or otherwise defaults in its obligations to make Revolving
Loans, or (y) upon the occurrence of an event giving rise to the operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.06 or Section 4.04
with respect to any Bank which results in such Bank charging, or giving notice
that it is entitled to charge, to the Borrower increased costs in excess of
those being generally charged by the other Banks, the Borrower shall have the
right, if no Default or Event of
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Default then exists to replace such Bank (the "Replaced Bank") with one or more
other Eligible Transferees, none of whom shall constitute a Defaulting Bank at
the time of such replacement (collectively, the "Replacement Bank") and each of
whom shall be required to be reasonably acceptable to the Agents, provided that
(i) at the time of any replacement pursuant to this Section 1.12, the
Replacement Bank shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 15.04(b) (and with all fees payable pursuant to
said Section 15.04(b) (other than fees incurred by or for the account of the
Defaulting Bank in any capacity hereunder) to be paid by the Replacement Bank)
pursuant to which the Replacement Bank shall acquire the entire Revolving Loan
Commitment and outstanding Revolving Loans of, and participations in Letters of
Credit by, the Replaced Bank and, in connection therewith, shall pay to (x) the
Replaced Bank in respect thereof an amount equal to the sum of (I) an amount
equal to the principal of, and all accrued interest on, all outstanding
Revolving Loans of the Replaced Bank, (II) an amount equal to all Unpaid
Drawings that have been funded by (and not reimbursed to) such Replaced Bank,
together with all then unpaid interest with respect thereto at such time and
(III) an amount equal to all accrued, but theretofore unpaid, Fees owing to the
Replaced Bank pursuant to Section 3.01, and (y) each Issuing Bank an amount
equal to such Replaced Bank's RL Percentage of any Unpaid Drawing (which at
such time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Bank to such Issuing Bank and (ii) all
obligations of the Borrower due and owing to the Replaced Bank at such time
(other than those specifically described in clause (i) above in respect of
which the assignment purchase price has been, or is concurrently being, paid)
shall be paid in full to such Replaced Bank concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption Agreement, the
payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Bank, delivery to the Replacement Bank of the
appropriate Note executed by the Borrower, the Replacement Bank shall become a
Bank hereunder and the Replaced Bank shall cease to constitute a Bank
hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2.06, 4.04,
12.06, 13.03 and 15.01), which shall survive as to such Replaced Bank.
1.13 Extension of Final Maturity Date. At any time prior to
the 90th day preceding any anniversary of the Effective Date, the Borrower may
make a written request to the Administrative Agent, who shall forward a copy of
such request to each of the Banks, that the Final Maturity Date be extended by
one year. The Banks may, but shall not be obligated to, agree to extend the
Final Maturity Date. In any event, the Administrative Agent shall be obligated
to respond in writing, affirmatively or negatively, to such request within
sixty (60) days after the date of such request of extension of the Final
Maturity Date made by the Borrower.
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SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms
and conditions set forth herein, the Borrower may request that an Issuing Bank
issue, at any time and from time to time on and after the Effective Date and
prior to the 30th day prior to the Final Maturity Date, (x) for the account of
the Borrower and for the benefit of any holder (or any trustee, agent or other
similar representative for any such holders) of L/C Supportable Obligations of
PESCO or any of its Subsidiaries, an irrevocable standby letter of credit, in a
form customarily used by such Issuing Bank or in such other form as has been
approved by such Issuing Bank and (y) for the account of the Borrower and for
the benefit of sellers of goods to PESCO or any of its Subsidiaries, an
irrevocable trade letter of credit, in a form customarily used by such Issuing
Bank or in such other form as has been approved by such Issuing Bank (each such
letter of credit issued pursuant to this Section 2.01, a "Letter of Credit").
All Letters of Credit shall be denominated in Dollars.
(b) Subject to and upon the terms and conditions set forth
herein, each Issuing Bank agrees that it will, at any time and from time to
time on and after the Effective Date and prior to the 30th day prior to the
Final Maturity Date, following its receipt of the respective Letter of Credit
Request, issue for the account of the Borrower, one or more Letters of Credit
as are permitted to remain outstanding without giving rise to a Default or an
Event of Default, provided that no Issuing Bank shall be under any obligation
to issue any Letter of Credit of the types described above if at the time of
such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain such Issuing Bank from issuing such Letter of Credit or any
requirement of law applicable to such Issuing Bank or any request or
directive (whether or not having the force of law) from any
governmental authority with jurisdiction over such Issuing Bank shall
prohibit, or request that such Issuing Bank refrain from, the issuance
of letters of credit generally or such Letter of Credit in particular
or shall impose upon such Issuing Bank with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which
such Issuing Bank is not otherwise compensated) not in effect on the
date hereof, or any unreimbursed loss, cost or expense which was not
applicable or in effect with respect to such Issuing Bank as of the
date hereof and which such Issuing Bank reasonably and in good faith
deems material to it; or
(ii) such Issuing Bank shall have received notice from the
Borrower or the Required Banks prior to the issuance of such Letter of
Credit of the type described in the second sentence of Section
2.03(b).
(c) Each Issuing Bank agrees to provide to the Administrative
Agent (who shall promptly forward a copy to each Bank) by facsimile promptly on
the first Business Day of each
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<PAGE> 18
quarter the daily aggregate Stated Amount of all Letters of Credit issued by
such Issuing Bank for the immediately preceding quarter.
(d) The Borrower agrees (i) that its request for a Letter of
Credit shall be governed by the Uniform Customs and Practice for Documentary
Credits (1993 revision), International Chamber of Commerce Publication No. 500,
or any subsequent revision thereof and (ii) to promptly examine and advise the
Issuing Bank if it notices any irregularity or non-conformance with its
instructions in any Letter of Credit or related document issued by an Issuing
Bank.
2.02 Maximum Letter of Credit Outstandings; Final Maturities.
Notwithstanding anything to the contrary contained in this Agreement, (i) no
Letter of Credit shall be issued the Stated Amount of which, as of the
effective date of such Letter of Credit, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such effective
date would exceed either (x) $15,000,000 or (y) when added to the aggregate
principal amount of all Revolving Loans then outstanding, an amount equal to
the Total Revolving Loan Commitment at such time and (ii) each Letter of Credit
shall by its terms terminate on or before the date that is four Business Days
(or 30 days in the case of a trade Letter of Credit) prior to the Final
Maturity Date.
2.03 Letter of Credit Requests; Minimum Stated Amount. (a)
Whenever the Borrower desires that a Letter of Credit be issued for its
account, the Borrower shall give the Administrative Agent and the respective
Issuing Bank at least five Business Days' (or such shorter period as is
acceptable to such Issuing Bank) written notice thereof. Each notice shall be
in the form of Exhibit C (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.02. Unless the respective Issuing Bank has received notice from
the Borrower or the Required Banks before it issues a Letter of Credit that one
or more of the conditions specified in Section 5 or 6 are not then satisfied,
or that the issuance of such Letter of Credit would violate Section 2.02, then
such Issuing Bank shall, subject to the terms and conditions of this Agreement,
issue the requested Letter of Credit for the account of the Borrower in
accordance with such Issuing Bank's usual and customary practices. Upon its
issuance of or amendment to any standby Letter of Credit, the respective
Issuing Bank shall promptly notify the Borrower, each Participant and the
Administrative Agent of such issuance or amendment and such notification shall
be accompanied by a copy of the issued standby Letter of Credit or amendment.
Notwithstanding anything to the contrary contained in this Agreement, in the
event that a Bank Default exists, no Issuing Bank shall be required to issue
any Letter of Credit unless such Issuing Bank has entered into an arrangement
satisfactory to it and the Borrower to eliminate such Issuing Bank's risk with
respect to the participation in Letters of Credit by the Defaulting Bank or
Banks, including by cash
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collateralizing such Defaulting Bank's or Banks' RL Percentage of the Letter of
Credit Outstandings.
2.04 Letter of Credit Participations. (a) Immediately upon
the issuance by each Issuing Bank of any Letter of Credit, such Issuing Bank
shall be deemed to have sold and transferred to each Bank, other than such
Issuing Bank (each such Bank, in its capacity under this Section 2.04, a
"Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Bank, without
recourse or warranty, an undivided interest and participation, to the extent of
such Participant's RL Percentage, in such Letter of Credit, each drawing or
payment made thereunder and the obligations of the Borrower under this
Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Loan Commitments or RL
Percentages of the Banks pursuant to Section 1.12 or 15.04, it is hereby agreed
that, with respect to all outstanding Letters of Credit and Unpaid Drawings,
there shall be an automatic adjustment to the participations pursuant to this
Section 2.04 to reflect the new RL Percentages of the assignor and assignee
Bank, as the case may be.
(b) In determining whether to pay under any Letter of Credit
issued by it, no Issuing Bank shall have an obligation relative to the other
Banks other than to confirm that any documents required to be delivered under
such Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Bank under or
in connection with any Letter of Credit issued by it if taken or omitted in
accordance with the relevant standards of care mandated by the law governing
the applicable Letter of Credit and in the absence of gross negligence or
willful misconduct, shall not create for such Issuing Bank any resulting
liability to the Borrower, any other Credit Party, any Bank or any other
Person.
(c) In the event that any Issuing Bank makes any payment
under any Letter of Credit issued by it and the Borrower shall not have
reimbursed such amount in full to such Issuing Bank pursuant to Section
2.05(a), such Issuing Bank shall promptly notify the Administrative Agent,
which shall promptly notify each Participant of such failure, and each
Participant shall promptly and unconditionally pay to such Issuing Bank the
amount of such Participant's RL Percentage of such unreimbursed payment in
Dollars and in same day funds. If the Administrative Agent so notifies, prior
to 11:00 A.M. (New York time) on any Business Day, any Participant required to
fund a payment under a Letter of Credit, such Participant shall make available
to the respective Issuing Bank in Dollars such Participant's RL Percentage of
the amount of such payment on such Business Day in same day funds. If and to
the extent such Participant shall not have so made its RL Percentage of the
amount of such payment available to the respective Issuing Bank, such
Participant agrees to pay to such Issuing Bank, forthwith on demand such
amount, together with interest thereon, for each day from such date until the
date such amount is paid to such Issuing Bank at the overnight Federal Funds
Rate for the first three days and at the interest rate applicable to Base Rate
Loans for each day thereafter. The failure of any Participant to make
available to the respective Issuing Bank its RL Percentage
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of any payment under any Letter of Credit shall not relieve any other
Participant of its obligation hereunder to make available to such Issuing Bank
its RL Percentage of any Letter of Credit on the date required, as specified
above, but no Participant shall be responsible for the failure of any other
Participant to make available to such Issuing Bank such other Participant's RL
Percentage of any such payment.
(d) Whenever an Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Bank shall pay to each
Participant which has paid its RL Percentage thereof, in Dollars and in same
day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.
(e) Upon the request of any Participant, each Issuing Bank
shall furnish to such Participant copies of any standby Letter of Credit issued
by it and such other documentation as may reasonably be requested by such
Participant.
(f) The obligations of the Participants to make payments to
each Issuing Bank with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any of its Subsidiaries may have at any
time against a beneficiary named in a Letter of Credit, any transferee
of any Letter of Credit (or any Person for whom any such transferee
may be acting), the Administrative Agent, any Issuing Bank, any
Participant, or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction
between the Borrower or any Subsidiary of the Borrower and the
beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
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(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower agrees to reimburse each Issuing Bank, by making payment to the
Administrative Agent in immediately available funds at the Payment Office, for
any payment or disbursement made by such Issuing Bank under any Letter of
Credit issued by it (each such amount, so paid until reimbursed, an "Unpaid
Drawing"), not later than one Business Day following receipt by the Borrower of
notice of such payment or disbursement (provided that no such notice shall be
required to be given if an Event of Default under Section 10.05 shall have
occurred and be continuing, in which case the Unpaid Drawing shall be due and
payable immediately without presentment, demand, protest or notice of any kind
(all of which are hereby waived by the Borrower)), with interest on the amount
so paid or disbursed by such Issuing Bank, to the extent not reimbursed prior
to 1:00 P.M. (New York time) on the date of such payment or disbursement, from
and including the date paid or disbursed to but excluding the date such Issuing
Bank was reimbursed by the Borrower therefor at a rate per annum which shall be
the Base Rate in effect from time to time; provided, however, to the extent
such amounts are not reimbursed prior to 12:00 Noon (New York time) on the
third Business Day following the receipt by the Borrower of notice of such
payment or disbursement or during the continuance of an Event of Default under
Section 10.05, interest shall thereafter accrue on the amounts so paid or
disbursed by such Issuing Bank (and until reimbursed by the Borrower) at a rate
per annum which shall be the Base Rate in effect from time to time plus 2%, in
each such case, with interest to be payable on demand. Each Issuing Bank shall
use its best efforts to give the Borrower notice of the date and amount of any
draft presented under any Letter of Credit prior to payment thereof and shall
give the Borrower prompt written notice of each Drawing under any Letter of
Credit issued by it, provided that the failure to give any such notice shall in
no way affect, impair or diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.05
to reimburse each Issuing Bank with respect to Unpaid Drawings (including, in
each case, interest thereon) shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against any Bank (including in
its capacity as issuer of the Letter of Credit or as Participant), including,
without limitation, any defense based upon the failure of any drawing or
payment under a Letter of Credit (each a "Drawing") to conform to the terms of
the Letter of Credit or any nonapplication or misapplication by the beneficiary
of the proceeds of such Drawing; provided, however, that the Borrower shall not
be obligated to reimburse the respective Issuing Bank for any wrongful payment
made by such Issuing Bank under a Letter of Credit issued by it as a result of
acts or omissions taken in contravention of the standards of care mandated by
the law governing the applicable Letter of Credit or constituting willful
misconduct or gross negligence on the part of such Issuing Bank.
2.06 Increased Costs. If at any time after the date of this
Agreement, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or
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request or in the interpretation or administration thereof by the NAIC or any
governmental authority charged with the interpretation or administration
thereof, or compliance by any Issuing Bank or any Participant with any request
or directive by the NAIC or by any such authority (whether or not having the
force of law), shall either (i) impose, modify or make applicable any reserve,
deposit, capital adequacy or similar requirement against letters of credit
issued by any Issuing Bank or participated in by any Participant, or (ii)
impose on any Issuing Bank or any Participant any other conditions relating,
directly or indirectly, to this Agreement; and the result of any of the
foregoing is to increase the cost to any Issuing Bank or any Participant of
issuing, maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by any Issuing Bank or any Participant
hereunder or reduce the rate of return on its capital with respect to Letters
of Credit (except for changes in the rate of tax on, or determined by reference
to, the net income or profits of such Issuing Bank or such Participant pursuant
to the laws of the jurisdiction in which it is organized or in which its
principal office or applicable lending office is located or any subdivision
thereof or therein), then, upon the delivery of the certificate referred to
below to the Borrower by such Issuing Bank or such Participant (a copy of which
certificate shall be sent by such Issuing Bank or such Participant to the
Administrative Agent), the Borrower shall pay to such Issuing Bank or such
Participant such additional amount or amounts as will compensate such Issuing
Bank or such Participant for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Each Issuing
Bank or Participant, upon determining that any additional amounts will be
payable to it pursuant to this Section 2.06, will give prompt written notice
thereof to the Borrower, which notice shall include a certificate submitted to
the Borrower by such Issuing Bank or such Participant (a copy of which
certificate shall be sent by such Issuing Bank or such Participant to the
Administrative Agent), setting forth in reasonable detail the basis for the
calculation of such additional amount or amounts necessary to compensate such
Issuing Bank or such Participant. The certificate required to be delivered
pursuant to this Section 2.06 shall, absent manifest error, be final and
conclusive and binding on the Borrower.
SECTION 3. Commitment Commission; Fees; Reductions of
Commitment.
3.01 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for distribution to each Non- Defaulting Bank, a
commitment commission (the "Commitment Commission") for the period from and
including the Effective Date to but excluding the Final Maturity Date (or such
earlier date on which the Total Revolving Loan Commitment shall have been
terminated), computed at a rate for each day equal to 1/2 of 1% per annum on
the daily average Unutilized Revolving Loan Commitment of such Non-Defaulting
Bank. Accrued Commitment Commission shall be due and payable quarterly in
arrears on each Quarterly Payment Date and on the Final Maturity Date (or such
earlier date on which the Total Revolving Loan Commitment shall have been
terminated).
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(b) The Borrower agrees to pay to the Administrative Agent
for distribution to each Bank (based on each such Bank's respective RL
Percentage) a fee in respect of each Letter of Credit issued hereunder (the
"Letter of Credit Fee") for the period from and including the date of issuance
of such Letter of Credit to and including the date of termination or expiration
of such Letter of Credit, computed at a rate per annum equal to the Applicable
Eurodollar Rate Margin in effect from time to time on the daily Stated Amount
of such Letter of Credit. Letter of Credit Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date and on the first day after
the termination of the Total Revolving Loan Commitment upon which no Letters of
Credit remain outstanding. In the event any Letter of Credit is paid, returned
or otherwise retired prior to the stated date of termination or expiration
thereof, any unearned Letter of Credit Fee shall be promptly repaid by the
Banks to the Administrative Agent for distribution to the Borrower.
(c) The Borrower agrees to pay to each Issuing Bank, for its
own account, a facing or fronting fee in respect of each Letter of Credit
issued by such Issuing Bank hereunder upon such terms and conditions as are
separately agreed to between such Issuing Bank and the Borrower.
(d) The Borrower agrees to pay to each of the Administrative
Agent and the Documentation Agent, for their respective accounts, such other
fees as have been agreed to in writing by the Borrower and the Administrative
Agent or the Documentation Agent, as the case may be.
3.02 Voluntary Termination of Unutilized Commitments. Upon
at least five Business Day's prior written notice to the Administrative Agent
at the Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks), the Borrower shall have the right, at any time
or from time to time, without premium or penalty, to terminate the Total
Unutilized Revolving Loan Commitment, in whole or in part, pursuant to this
Section 3.02, in an integral multiple of $5,000,000, in the case of partial
reductions to the Total Unutilized Revolving Loan Commitment, provided that
each such reduction shall apply proportionately to permanently reduce the
Revolving Loan Commitment of each Bank.
3.03 Mandatory Reduction of Commitments. (a) The Total
Revolving Loan Commitment (and the Revolving Loan Commitment of each Bank)
shall terminate in their entirety on October 31, 1997 unless the Effective Date
has occurred on or before such date.
(b) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, on each date upon which a mandatory
prepayment of Revolving Loans is required pursuant to Section 4.02(d), the
Total Revolving Loan Commitment shall be permanently reduced on such date by an
amount equal to 50% of the amount required to be applied to prepay Revolving
Loans pursuant to Section 4.02(d).
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<PAGE> 24
(c) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, on each date upon which a mandatory
prepayment of Revolving Loans is required pursuant to Section 4.02(e) or
4.02(f), the Total Revolving Loan Commitment shall be permanently reduced on
such date by an amount equal to 100% of the amount required to be applied to
prepay Revolving Loans pursuant to Section 4.02(e) or 4.02(f), as the case may
be; provided that (i) so long as no Default or Event of Default then exists, if
the Borrower shall have delivered a certificate to the Agents on or prior to
such date stating that PESCO or its Subsidiaries intends to use all or any
portion of such proceeds, or intends to enter into contractual arrangements to
use all or any portion of such proceeds, within 90 days of such Material Asset
Sale, to purchase or construct assets to be used in the business of PESCO or
any of its Subsidiaries, then the Total Revolving Loan Commitment shall not be
reduced on such date by the amount that the Borrower so certifies it intends to
use, or contractually commit to use, and provided further, that (1) if, within
such 90 day period, all or such portion of such Net Sale Proceeds are not so
used (or contractually committed to be used, with a copy of any contracts or
agreements evidencing such commitments to be provided to the Agents) or PESCO
or its Subsidiaries have not commenced construction (or contractually committed
to acquire assets to be used in such construction) (such commencement or
contractual commitment to be evidenced (x) in the case of a Permitted
Acquisition, by a certificate in the form of Exhibit L hereto and (y) in any
other case, by a certificate of the Borrower, together with copies of such
agreements or documents as the Agents may reasonably request in connection
therewith), then the Total Revolving Loan Commitment shall be reduced by such
remaining portion on the last day of such period and (2) if the Total Revolving
Loan Commitment is not reduced by all or any portion of such Net Sale Proceeds
on the 90th day referred to in clause (1) above because such amount is
contractually committed to be used or because PESCO or its Subsidiaries have
commenced construction (or contractually committed to acquire assets to be used
in such construction), and subsequent to such date such construction ceases or
such contract is terminated or expires without such portion being so used, then
the Total Revolving Loan Commitment shall be reduced by such remaining portion
on the fifth Business Day following the date of such termination, expiration or
cessation and (ii) to the extent the Borrower shall have consummated a
Permitted Acquisition and any asset acquired or constructed pursuant to such
Permitted Acquisition is subsequently transferred, sold or otherwise disposed
of by PESCO or any of its Subsidiaries in a transaction which constitutes a
Material Asset Sale, so long as no Default or Event of Default then exists, the
Total Revolving Loan Commitment shall not be required to be reduced by the Net
Sale Proceeds received from such Material Asset Sale, and provided further,
that in the event the asset sold pursuant to such Material Asset Sale was an
existing asset which was renovated or refurbished pursuant to such Permitted
Acquisition, unless clause (i) applies, the Total Revolving Loan Commitment
shall be reduced by an amount equal to the excess, if any, of the Net Sale
Proceeds received over the amount expended in connection with such renovation
or refurbishment.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Bank) shall terminate in its entirety on the
Final Maturity Date.
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<PAGE> 25
(e) Each reduction to the Total Revolving Loan Commitment
pursuant to this Section 3.03 shall apply proportionately to reduce the
Revolving Loan Commitment of each Bank.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. The Borrower shall have the
right to prepay the Revolving Loans, without premium or penalty, in whole or in
part at any time and from time to time on the following terms and conditions:
(i) the Borrower shall give the Administrative Agent prior to 12:00 Noon (New
York time) at the Notice Office at least three Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of its intent to
prepay Revolving Loans, the amount of such prepayment and the Types of
Revolving Loans to be prepaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings pursuant to which made, which notice the
Administrative Agent shall promptly transmit to each of the Banks; (ii) each
prepayment of Revolving Loans pursuant to this Section 4.01 shall be in an
aggregate principal amount of at least $2,000,000, provided that if any partial
prepayment of Eurodollar Loans made pursuant to any Borrowing shall reduce the
outstanding principal amount of Eurodollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, then such Borrowing may not be continued as a Borrowing of Eurodollar
Loans and any election of an Interest Period with respect thereto given by the
Borrower shall have no force or effect; and (iii) each prepayment pursuant to
this Section 4.01 in respect of any Revolving Loans made pursuant to a
Borrowing shall be applied pro rata among such Revolving Loans.
4.02 Mandatory Repayments. (a) On any day on which the sum
of (I) the aggregate outstanding principal amount of all Revolving Loans (after
giving effect to all other repayments thereof on such date), and (II) the
aggregate amount of all Letter of Credit Outstandings exceeds the Total
Revolving Loan Commitment as then in effect, the Borrower shall prepay on the
Business Day immediately following such day the principal of Revolving Loans in
an amount equal to such excess. If, after giving effect to the prepayment of
all outstanding Revolving Loans, the aggregate amount of the Letter of Credit
Outstandings exceeds the Total Revolving Loan Commitment as then in effect, the
Borrower shall deposit with the Administrative Agent at the Payment Office on
such day an amount of cash and/or Cash Equivalents equal to the amount of such
excess (up to a maximum amount equal to the Letter of Credit Outstandings at
such time), such cash and/or Cash Equivalents to be held as security for all
obligations of the Borrower to the Issuing Banks and the Banks hereunder in an
interest bearing cash collateral account to be established at such time with
the Administrative Agent.
(b) In addition to any other mandatory repayments required
pursuant to this Section 4.02, on the Business Day immediately following each
date on or after the Effective Date of the receipt thereof by PESCO and/or any
of its Subsidiaries, an amount equal to 100%
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<PAGE> 26
of the cash proceeds (net of underwriting discounts and commissions and other
reasonable transaction costs associated therewith) received by the issuer
thereof from any sale or issuance of preferred or common equity pursuant to any
public offering thereof by PESCO and/or any of its Subsidiaries shall be
applied to prepay outstanding Revolving Loans.
(c) In addition to any other mandatory repayments required
pursuant to this Section 4.02, on the Business Day immediately following each
date on or after the Effective Date on which PESCO, Holding and/or the Borrower
receives any Net Debt Proceeds from any incurrence of Permitted Subordinated
Indebtedness, an amount equal to 100% of the Net Debt Proceeds of the
incurrence of such Permitted Subordinated Indebtedness shall be applied to
prepay outstanding Revolving Loans.
(d) In addition to any other mandatory repayments required
pursuant to this Section 4.02, on the Business Day immediately following each
date on or after the Effective Date on which PESCO and/or any of its
Subsidiaries receives any Net Debt Proceeds from any incurrence of Funded Debt
for borrowed money (other than Permitted Subordinated Indebtedness and other
than Funded Debt permitted pursuant to Section 9.04) by PESCO and/or any of its
Subsidiaries, an amount equal to 100% of the Net Debt Proceeds of the
respective incurrence of Funded Debt shall be applied to prepay outstanding
Revolving Loans.
(e) In addition to any other mandatory repayments required
pursuant to this Section 4.02, within 10 days following each date on or after
the Effective Date on which PESCO and/or any of its Subsidiaries receives any
Net Insurance Proceeds from any Recovery Event, an amount equal to 100% of the
Net Insurance Proceeds of such Recovery Event shall be applied to prepay
outstanding Revolving Loans, provided that (i) so long as no Default or Event
of Default then exists, to the extent that the Borrower has delivered a
certificate to the Agents on or prior to such date stating that such proceeds
have been used, or shall be used, to replace or restore any properties or
assets in respect of which such proceeds were paid (which certificate shall set
forth the proceeds so expended or the estimates of the proceeds to be so
expended, as the case may be), the amount of such proceeds which were used, or
to be used, to replace or restore such property or assets shall not be applied
to prepay Revolving Loans, (ii) upon completion of such replacement or
restoration, the Borrower shall deliver a certificate stating that such
replacement or restoration has been completed, the costs therefor and whether
there are any cash proceeds in excess of such costs and, if so, the Revolving
Loans shall be repaid in an amount equal to such excess, and (iii) if the
Borrower has not so used, or committed to so use, all of such proceeds within
180 days following the date of its receipt of such proceeds, the Revolving
Loans shall be repaid on the last day of such period by an amount equal to such
remaining portion.
(f) In addition to any other mandatory repayments pursuant to
this Section 4.02, on the Business Day immediately following each date on or
after the Effective Date on which PESCO and/or any of its Subsidiaries receives
Net Sale Proceeds from any Material
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Asset Sale, an amount equal to 100% of the Net Sale Proceeds therefrom shall be
applied to prepay outstanding Revolving Loans.
(g) With respect to each repayment of Revolving Loans
required by this Section 4.02, the Borrower may designate the Types of
Revolving Loans which are to be repaid and, in the case of Eurodollar Loans,
the specific Borrowing or Borrowings pursuant to which made, provided that:
(i) repayments of Eurodollar Loans pursuant to this Section 4.02 may only be
made on the last day of an Interest Period applicable thereto unless all
Eurodollar Loans with Interest Periods ending on such date of required
repayment and all Base Rate Loans have been paid in full; (ii) if any repayment
of Eurodollar Loans made pursuant to a single Borrowing shall reduce the
outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less
than the Minimum Borrowing Amount applicable thereto, such Borrowing shall be
converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans; and (iii) each repayment of any Revolving Loans made pursuant
to a Borrowing shall be applied pro rata among such Revolving Loans. In the
absence of a designation by the Borrower as described in the preceding
sentence, the Administrative Agent shall, subject to the above, make such
designation in its sole discretion.
(h) If, after repaying all Base Rate Loans then outstanding,
the Borrower is still obligated to make a further mandatory repayment pursuant
to Section 4.02(b) through (f), the remaining amount to be repaid shall be due
and payable on the last day of the Interest Period or Interest Periods next
expiring, until all such amounts required to be prepaid pursuant to such
Sections have been paid in full.
(i) Notwithstanding anything to the contrary contained in
this Agreement or in any other Credit Document, all then outstanding Revolving
Loans shall be repaid in full on the Final Maturity Date.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or under any
Note shall be made to the Administrative Agent for the account of the Bank or
Banks entitled thereto not later than 12:00 Noon (New York time) on the date
when due and shall be made in Dollars in immediately available funds at the
Payment Office of the Administrative Agent. Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
4.04 Net Payments. (a) All payments made by the Borrower
hereunder or under any Note will be made without setoff, counterclaim or other
defense. Except as provided in Section 4.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any
political
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subdivision or taxing authority thereof or therein with respect to such
payments (but excluding, except as provided in the second succeeding sentence,
any tax imposed on or measured by the net income or net profits of a Bank
pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or applicable lending office of such
Bank is located or any subdivision thereof or therein) and all interest,
penalties or similar liabilities with respect to such non-excluded taxes,
levies, imposts, duties, fees, assessments or other charges (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
being referred to collectively as "Taxes"). If any Taxes are so levied or
imposed, the Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
under this Agreement or under any Note, after withholding or deduction for or
on account of any Taxes, will not be less than the amount provided for herein
or in such Note. If any amounts are payable in respect of Taxes pursuant to
the preceding sentence, the Borrower agrees to reimburse each Bank, upon the
written request of such Bank, for taxes imposed on or measured by the net
income or net profits of such Bank pursuant to the laws of the jurisdiction in
which such Bank is organized or in which the principal office or applicable
lending office of such Bank is located or under the laws of any political
subdivision or taxing authority of any such jurisdiction in which such Bank is
organized or in which the principal office or applicable lending office of such
Bank is located and for any withholding of taxes as such Bank shall determine
are payable by, or withheld from, such Bank, in respect of such amounts so paid
to or on behalf of such Bank pursuant to the preceding sentence and in respect
of any amounts paid to or on behalf of such Bank pursuant to this sentence.
The Borrower will furnish to the Administrative Agent within 45 days after the
date the payment of any Taxes is due pursuant to applicable law evidence of
such payment by the Borrower. The Borrower agrees to indemnify and hold
harmless each Bank, and reimburse such Bank upon its written request, for the
amount of any Taxes so levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes agrees to deliver to the Borrower and the Administrative Agent on or
prior to the Effective Date, or in the case of a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.12 or
15.04 (unless the respective Bank was already a Bank hereunder immediately
prior to such assignment or transfer), on the date of such assignment or
transfer to such Bank, (i) two accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001 (or successor forms) certifying to
such Bank's entitlement to a complete exemption from United States withholding
tax with respect to payments to be made under this Agreement and under any
Note, or (ii) if the Bank is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service
Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate substantially
in the form of Exhibit D (any such certificate, a "Section 4.04(b)(ii)
Certificate") and (y) two accurate and complete original signed copies of
Internal Revenue Service Form W-8 (or successor form) certifying to such Bank's
entitlement to a complete exemption from United States withholding tax with
respect to payments of interest to be made under this Agreement and under any
Note. In addition, each Bank agrees
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that from time to time after the Effective Date, when a lapse in time or change
in circumstances renders the previous certification obsolete or inaccurate in
any material respect, such Bank will deliver to the Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001 (or successor forms), or Form W-8
(or successor form) and a Section 4.04(b)(ii) Certificate, as the case may be,
and such other forms as may be required in order to confirm or establish the
entitlement of such Bank to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement and any
Note, or such Bank shall immediately notify the Borrower and the Administrative
Agent of its inability to deliver any such Form or Certificate, in which case
such Bank shall not be required to deliver any such Form or Certificate
pursuant to this Section 4.04(b). Notwithstanding anything to the contrary
contained in Section 4.04(a), but subject to Section 15.04(b) and the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or similar
taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, Fees or other amounts payable
hereunder for the account of any Bank which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal
income tax purposes to the extent that such Bank has not provided to the
Borrower U.S. Internal Revenue Service Forms that establish a complete
exemption from such deduction or withholding and (y) the Borrower shall not be
obligated pursuant to Section 4.04(a) hereof to gross-up payments to be made to
a Bank in respect of income or similar taxes imposed by the United States if
(I) such Bank has not provided to the Borrower the Internal Revenue Service
Forms required to be provided to the Borrower pursuant to this Section 4.04(b)
or (II) in the case of a payment, other than interest, to a Bank described in
clause (ii) above, to the extent that such Forms do not establish a complete
exemption from withholding of such taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section 4.04
and except as set forth in Section 15.04(b), the Borrower agrees to pay any
additional amounts and to indemnify each Bank in the manner set forth in
Section 4.04(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any Taxes deducted or withheld by
it as described in the immediately preceding sentence as a result of any
changes after the Effective Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof,
relating to the deducting or withholding of such Taxes.
(c) If the Borrower pays any additional amount under this
Section 4.04 to a Bank and such Bank determines in its sole discretion that it
has actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid, such Banks shall pay to
the Borrower an amount that the Bank shall, in its sole discretion, determine
is equal to the net benefit, after tax, which was obtained by the Bank in such
year as a consequence of such refund, reduction or credit.
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SECTION 5. Conditions Precedent to the Effective Date. The
occurrence of the Effective Date pursuant to Section 15.10 is subject to the
satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the
Effective Date, (i) this Agreement shall have been executed and delivered as
provided in Section 15.10 and (ii) there shall have been delivered to each
Agent for the account of each of the Banks the appropriate Note executed by the
Borrower in the amount, maturity and as otherwise provided herein.
5.02 Officer's Certificates. On the Effective Date, each
Agent shall have received (i) a certificate, dated the Effective Date and
signed on behalf of the Borrower by the Chairman of the Board, the Chief
Executive Officer, the President or any Vice President of the Borrower,
certifying on behalf of the Borrower that all of the conditions in Sections
5.05, 5.07, 5.09 and 6.02 have been satisfied on such date and (ii) a
certificate, dated the Effective Date and signed by a principal financial
officer of PESCO substantially in the form of Exhibit K hereto to the effect
that PESCO and its Subsidiaries are in compliance with the provisions of
Sections 9.07 through 9.11, inclusive, for the Test Period ended June 30, 1997.
5.03 Opinions of Counsel. On the Effective Date, each Agent
shall have received from each of Gardere Wynne Sewell & Riggs, L.L.P., special
counsel to the Credit Parties, and Geoffrey Arms, Esq., general counsel of the
Borrower an opinion addressed to the Agents and each of the Banks and dated the
Effective Date covering the matters set forth in Exhibits E-1 and E-2,
respectively, and such other matters incident to the transaction contemplated
herein as the Administrative Agent may reasonably request.
5.04 Corporate Documents; Proceedings; etc. (a) On the
Effective Date, each Agent shall have received a certificate from each Credit
Party, dated the Effective Date, signed by the Chairman of the Board, the Chief
Executive Officer, the President or any Vice President of such Credit Party,
and attested to by the Secretary or any Assistant Secretary of such Credit
Party, in the form of Exhibit F with appropriate insertions, together with
copies of the certificate or articles of incorporation (or equivalent
organizational document) and by-laws of such Credit Party and the resolutions
of such Credit Party referred to in such certificate, and the foregoing shall
be in form and substance reasonably acceptable to the Agents.
(b) All corporate and legal proceedings and all instruments
and agreements in connection with the transactions contemplated by this
Agreement and the other Credit Documents shall be reasonably satisfactory in
form and substance to each Agent and each Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings, governmental approvals, good standing certificates and
bring-down telegrams or facsimiles, if any, which such Agent reasonably may
have requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental authorities.
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(c) On the Effective Date, the corporate, ownership and
capital structure (including, without limitation, the terms of any capital
stock, options, warrants or other securities issued by the Borrower or any of
its Subsidiaries) of PESCO and its Subsidiaries shall be in form and substance
reasonably satisfactory to the Agents and the Required Banks.
5.05 Refinancing. On the Effective Date, the Refinancing
shall have been consummated and all Liens securing (and guaranties of, and
letters of credit supporting) the Indebtedness to be Refinanced (including,
without limitation, the Funded Debt evidenced by the NationsBank Credit
Agreement except for letters of credit described on Schedule IV) shall have
been released and terminated (and all appropriate releases, termination
statements or other instruments of assignment with respect thereto shall have
been obtained), in each case to the satisfaction of the Agents, except for the
actions contemplated by Section 8.13. Each Agent shall have received copies of
all documents executed in connection with the Refinancing, all of which shall
be in full force and effect and in form and substance satisfactory to such
Agent.
5.06 Lien Searches. On the Effective Date, there shall have
been delivered to each Agent certified copies of Request for Information or
Copies (Form UCC-11), or equivalent reports, each of a recent date listing all
effective financing statements that name PESCO or any of its Subsidiaries as
debtor, together with copies of such financing statements (none of which shall
cover the Collateral except for Permitted Liens).
5.07 Adverse Change. Nothing shall have occurred (and
neither the Administrative Agent, the Documentation Agent nor the Banks shall
have become aware of any facts or conditions not previously known) which the
Administrative Agent, the Documentation Agent or the Required Banks shall
reasonably determine (a) has had, or could reasonably be expected to have, a
material adverse effect on the rights or remedies of the Banks, the
Documentation Agent or the Administrative Agent, or on the ability of any
Credit Party to perform its obligations to the Banks, the Documentation Agent
or the Administrative Agent hereunder or under any other Credit Document or (b)
has had, or could reasonably be expected to have, a material adverse effect on
the business, operations, property, assets, liabilities, condition (financial
or otherwise) or prospects of PESCO or of the Borrower and its Subsidiaries,
taken as a whole.
5.08 Approvals. On or prior to the Effective Date, all
necessary governmental (domestic and foreign) and third party approvals and/or
consents in connection with the Refinancing and transactions contemplated by
this Agreement and the other Credit Documents and otherwise referred to herein
or therein shall have been obtained and remain in effect. Additionally, there
shall not exist any judgment, order, injunction or other restraint issued or
filed or a hearing seeking injunctive relief or other restraint pending or
notified prohibiting or imposing materially adverse conditions upon the
Refinancing or the other transactions contemplated by this Agreement and the
other Credit Documents or otherwise referred to herein or therein.
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5.09 Litigation. On the Effective Date, there shall be no
actions, suits or proceedings pending or threatened (i) with respect to this
Agreement or any other Credit Document or (ii) which the Administrative Agent,
the Documentation Agent or the Required Banks shall reasonably determine could
reasonably be expected to have a material adverse effect on (a) the Refinancing
or on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of PESCO or of the Borrower and its
Subsidiaries taken as a whole, (b) the rights or remedies of the Banks, the
Documentation Agent or the Administrative Agent hereunder or under any other
Credit Document or (c) the ability of any Credit Party to perform its
respective obligations to the Banks, the Documentation Agent or the
Administrative Agent hereunder or under any other Credit Document.
5.10 Pledge Agreement. On the Effective Date, each Pledgor
shall have duly authorized, executed and delivered the Pledge Agreement in the
form of Exhibit G (as amended, modified or supplemented from time to time, the
"Pledge Agreement") and shall have delivered to the Administrative Agent, as
Pledgee thereunder, all of the Pledged Securities, if any, referred to therein
and owned by the Borrower together with executed and undated stock powers in
the case of capital stock constituting Pledged Securities. Notwithstanding
anything to the contrary contained herein, Pool International Ltd. shall not be
required to pledge the stock of Pool International (Malaysia) Sdn. Bhd.
5.11 Subsidiaries Guaranty. On the Effective Date, each
Subsidiary Guarantor shall have duly authorized, executed and delivered the
Subsidiaries Guaranty in the form of Exhibit H (as amended, modified or
supplemented from time to time, the "Subsidiaries Guaranty").
5.12 Financial Statements; Pro Forma Balance Sheet;
Projections; Business Plan. On or prior to the Effective Date, the Agents,
shall have received (x) true and correct copies of the historical financial
statements, the pro forma capitalization and the Projections referred to in
Sections 7.05(a) and (d), and (y) true and correct copies of a Business Plan
analyzing the business prospects of the Borrower and its Subsidiaries for the
proposed term of this Agreement, which historical financial statements, pro
forma capitalization, Projections and Business Plan shall be in form and
substance reasonably satisfactory to the Agents.
5.13 Fees, etc. On the Effective Date, the Borrower shall
have paid to the Administrative Agent, the Documentation Agent, the Arranger,
the Issuing Bank and each Bank all costs, fees and expenses (including, without
limitation, reasonable legal fees and expenses) payable to such Persons to the
extent then due.
5.14 Existing Indebtedness. On or prior to the Effective
Date, there shall have been delivered to the Agents copies, certified as true
and correct by an appropriate officer of PESCO, of all agreements evidencing or
relating to the Existing Indebtedness that are to remain in effect after giving
effect to the consummation of the Refinancing (including, without limitation,
all Hillman Subordinated Debt
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Documents and all DA&S Subordinated Debt Documents), all of which agreements
shall be in form and substance satisfactory to each Agent and shall be in full
force and effect on the Effective Date.
5.15 Insurance. The Collateral Agent shall have received
evidence of insurance complying with the requirements of Section 8.03 for the
business and properties of PESCO and its Subsidiaries in form and substance
satisfactory to the Agents and, if requested by the Administrative Agent,
naming the Collateral Agent as an additional insured.
SECTION 6. Conditions Precedent to All Credit Events. The
obligation of each Bank to make Revolving Loans (including Revolving Loans made
on the Effective Date), and the obligation of each Issuing Bank to issue
Letters of Credit, is subject, at the time of each such Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:
6.01 Effective Date. The Effective Date shall have occurred.
6.02 No Default; Representations and Warranties. At the time
of each such Credit Event and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and
warranties contained herein and in the other Credit Documents shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on the date of such Credit Event
(it being understood and agreed that any representation or warranty which by
its terms is made as of a specified date shall be required to be true and
correct in all material respects only as of such specified date).
6.03 Notice of Borrowing; Letter of Credit Request. (a)
Prior to the making of each Revolving Loan, the Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 1.03(a).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Bank shall have received a
Letter of Credit Request meeting the requirements of Section 2.03.
6.04 Absence of Material Adverse Change. Since the date of
the most recent financial statements delivered pursuant to Section 8.01, the
Required Banks shall not have concluded, in their reasonable good faith
judgment, that there has been a material adverse change in the business,
operations, property, assets, liabilities, condition (financial or otherwise)
or prospects of PESCO or of the Borrower and its Subsidiaries taken as a whole.
6.05 Post-Closing Actions. Prior to the occurrence of each
Credit Event to occur on or after the 30th day or the 60th day after the
Effective Date, as the case may be, all
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actions required to be taken by such dates as contemplated by Section 8.13
shall have been taken to the satisfaction of the Agents.
The acceptance of the benefits of each Credit Event shall
constitute a representation and warranty by each Credit Party to the Agents and
each of the Banks that all the conditions specified in Section 5 (with respect
to Credit Events on the Effective Date) and in this Section 6 (with respect to
Credit Events on or after the Effective Date) and applicable to such Credit
Event exist as of that time. All of the Notes, certificates, legal opinions
and other documents and papers referred to in Section 5 and in this Section 6,
unless otherwise specified, shall be delivered to the Administrative Agent at
the Notice Office for the account of each of the Banks and, except for the
Notes, in sufficient counterparts or copies for each of the Banks.
SECTION 7. Representations, Warranties and Agreements. In
order to induce the Banks to enter into this Agreement and to make the
Revolving Loans, and issue (or participate in) the Letters of Credit as
provided herein, each of PESCO, Holding and the Borrower makes the following
representations, warranties and agreements, all of which shall survive the
execution and delivery of this Agreement and the Notes and the making of the
Revolving Loans and issuance of the Letters of Credit, with the occurrence of
the Effective Date and the occurrence of each Credit Event on or after the
Effective Date being deemed to constitute a representation and warranty that
the matters specified in this Section 7 are true and correct on and as of the
Effective Date and on the date of each such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct only as of such
specified date).
7.01 Corporate Status. Except as disclosed in writing to the
Agents on or prior to the Effective Date, each of PESCO and each of its
Subsidiaries (i) is a duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its organization, (ii) has the
corporate power and authority to own its property and assets and to transact
the business in which it is engaged and presently proposes to engage and (iii)
is duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the ownership, leasing or operation of its property or
the conduct of its business requires such qualifications except for failures to
be so qualified which, individually or in the aggregate, could not reasonably
be expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of PESCO or of the Borrower and its Subsidiaries taken as a whole.
7.02 Corporate and Other Power and Authority. Each Credit
Party has the corporate power and authority to execute, deliver and perform the
terms and provisions of each of the Credit Documents to which it is party and
has taken all necessary corporate action to authorize the execution, delivery
and performance by it of each of such Credit Documents. Each Credit Party has
duly executed and delivered each of the Credit Documents to which it is party,
and each of such Credit Documents constitutes its legal, valid and binding
obligation
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enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law).
7.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will contravene
any provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach 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
(except pursuant to the Pledge Agreement) upon any of the property or assets of
PESCO or any of its Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, credit agreement or loan agreement, or any other
material agreement, contract or instrument, to which PESCO or any of its
Subsidiaries is a party or by which it or any of its property or assets is
bound or to which it may be subject or (iii) will violate any provision of the
certificate or articles of incorporation or by-laws (or equivalent
organizational documents) of PESCO or any of its Subsidiaries.
7.04 Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except for those that have otherwise been obtained or made and which remain in
full force and effect), or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required by any Credit Party to
authorize, or is required in connection with, (i) the execution, delivery and
performance of any Credit Document by any Credit Party or (ii) the legality,
validity, binding effect or enforceability of any such Credit Document against
any Credit Party.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The consolidated audited balance sheets of
PESCO and its Subsidiaries for the fiscal year ended on December 31, 1996 and
the related consolidated statements of income, cash flows and shareholders'
equity of PESCO and its Subsidiaries for the fiscal year ended on such date,
and the consolidated balance sheets of PESCO and its Subsidiaries for the
fiscal quarter ended on June 30, 1997 and the related consolidated statements
of income, cash flows and shareholders' equity of PESCO and its Subsidiaries
for the fiscal quarter ended on such date, copies of which have been furnished
to the Banks on or prior to the Effective Date, present fairly in all material
respects the consolidated financial position of PESCO and its Subsidiaries at
the dates of such balance sheets and the consolidated results of the operations
of PESCO and its Subsidiaries for the periods covered thereby. All of the
foregoing financial statements have been prepared in accordance with GAAP
consistently applied. The pro forma capitalization of PESCO and its
Subsidiaries as of June 30, 1997 after giving effect to the Identified
Acquisitions, a copy of which has been furnished to the Banks on or prior to
the Effective Date, presents fairly in all material respects the pro forma
capitalization of PESCO and its Subsidiaries as of June 30, 1997 after giving
effect to the Identified Acquisitions.
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(b) On and as of the Effective Date and after giving effect
to the Revolving Loans being incurred on the Effective Date, (a) the sum of the
assets, at a fair valuation, of each of the Borrower on a stand-alone basis and
of the Borrower and its Subsidiaries taken as a whole will exceed its debts;
(b) each of the Borrower on a stand-alone basis and the Borrower and its
Subsidiaries taken as a whole (without duplication of indebtedness for which
the Borrower and/or one or more of its Subsidiaries may be liable) has not
incurred and does not intend to incur, and does not believe that it will incur,
debts beyond its ability to pay such debts as such debts mature; and (c) each
of the Borrower on a stand alone basis and the Borrower and its Subsidiaries
taken as a whole will have sufficient capital with which to conduct its
business. For purposes of this Section 7.05(b), "debt" means any liability on
a claim, and "claim" means (i) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or
(ii) right to an equitable remedy for breach of performance if such breach
gives rise to a payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
(c) Except for liabilities and obligations incurred in the
ordinary course of business or otherwise fully disclosed in the financial
statements delivered pursuant to Section 7.05(a), there were as of the
Effective Date no liabilities or obligations with respect to PESCO or any of
its Subsidiaries of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due) which would reasonably be
expected to have a material adverse effect on the financial condition of PESCO
and its Subsidiaries, taken as a whole. As of the Effective Date, neither
PESCO nor the Borrower know of any basis for the assertion against PESCO or any
of its Subsidiaries of any liability or obligation of any nature whatsoever
that is not fully disclosed in the financial statements delivered pursuant to
Section 7.05(a) which, either individually or in the aggregate, could
reasonably be expected to be material to PESCO and its Subsidiaries taken as a
whole.
(d) On and as of the Effective Date, the Projections
delivered to the Administrative Agent and the Banks prior to the Effective Date
have been prepared in good faith and are based on what the Borrower believes to
be reasonable assumptions, and there are no statements or conclusions in the
Projections which are based upon or include information known to PESCO ,
Holding and/or the Borrower to be misleading in any material respect or which
fail to take into account material information known to PESCO, Holding and/or
the Borrower regarding the matters reported therein. On the Effective Date,
none of PESCO, Holding and the Borrower has reason to believe that the
Projections are unreasonable or unattainable, it being recognized by the Banks,
however, that projections as to future events are not to be viewed as facts and
that the actual results during the period or periods covered by the Projections
may differ from the projected results and that the differences may be material.
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7.06 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of PESCO or any of its Subsidiaries,
threatened (i) with respect to this Agreement or any other Credit Document,
(ii) with respect to any material Funded Debt of PESCO or any of its
Subsidiaries or (iii) that are reasonably likely to materially and adversely
affect the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of PESCO or of the Borrower and its
Subsidiaries taken as a whole.
7.07 True and Complete Disclosure. All factual information
(taken as a whole) furnished by PESCO or any of its Subsidiaries in writing to
the Administrative Agent, the Documentation Agent, the Arranger or any Bank
(including, without limitation, all information contained in the Credit
Documents) for purposes of or in connection with this Agreement, the other
Credit Documents or any transaction contemplated herein or therein is, and all
other such factual information (taken as a whole) hereafter furnished by any
such Persons in writing to the Administrative Agent, the Documentation Agent,
the Arranger or any Bank will be, true and accurate in all material respects on
the date as of which such information is dated or certified and not incomplete
by omitting to state any fact necessary to make such information (taken as a
whole) not misleading in any material respect at such time in light of the
circumstances under which such information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds
of the Revolving Loans shall be used for the working capital, letters of credit
and general corporate purposes for PESCO and its Subsidiaries (including,
without limitation, to effect the Refinancing, to pay fees and expenses
incurred in connection therewith, for Capital Expenditures, for Identified
Acquisitions and for Permitted Acquisitions). Without limiting the generality
of the foregoing, by using a portion of the proceeds of Revolving Loans to
refinance the Funded Debt outstanding under the NationsBank Credit Agreement,
it is intended that the Obligations replace the obligations with respect to the
NationsBank Credit Agreement and that the Obligations constitute "Senior Debt"
within the meaning of the Hillman Deferred Payment Agreement and each Hillman
Subordinated Note and the DA&S Stock Purchase Agreement and each DA&S
Subordinated Note.
(b) No part of any Credit Event (or the proceeds thereof)
will be used to purchase or carry any Margin Stock or to extend credit for the
purpose of purchasing or carrying any Margin Stock. Neither the making of any
Revolving Loan nor the use of the proceeds thereof nor the occurrence of any
other Credit Event will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System.
7.09 Tax Returns and Payments. Each of PESCO and each of its
Subsidiaries has filed all federal and state income tax returns and all other
material tax returns, domestic and foreign, required to be filed by it and has
paid all taxes and assessments payable by it which have become due, except for
those contested in good faith and adequately disclosed and fully provided for
on the financial statements of PESCO and its Subsidiaries in accordance with
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GAAP. PESCO and each of its Subsidiaries have paid, or have provided reserves
in accordance with GAAP (specifically under FAS 109) for the payment of, all
federal, state, local and foreign income taxes applicable for all prior fiscal
years and for the current fiscal year to date. There is no material action,
suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of PESCO or any of its Subsidiaries threatened, by any authority
regarding any taxes relating to PESCO or any of its Subsidiaries. As of the
Effective Date, neither PESCO nor any of its Subsidiaries has entered into an
agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
any material amount of taxes of PESCO or any of its Subsidiaries, or is aware
of any circumstances that would cause the taxable years or other taxable
periods of PESCO or any of its Subsidiaries not to be subject to the normally
applicable statute of limitations.
7.10 Compliance with ERISA. (i) Each Plan (and each related
trust, insurance contract or fund) is in substantial compliance with its terms
and with all applicable laws, including without limitation ERISA and the Code;
each Plan (and each related trust, if any) which is intended to be qualified
under Section 401(a) of the Code has received a determination letter from the
Internal Revenue Service to the effect that it meets the requirements of
Sections 401(a) and 501(a) of the Code; no Reportable Event has occurred and is
continuing; no Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has an Unfunded
Current Liability; no Plan which is subject to Section 412 of the Code or
Section 302 of ERISA has an accumulated funding deficiency, within the meaning
of such sections of the Code or ERISA, or has applied for or received a waiver
of an accumulated funding deficiency or an extension of any amortization
period, within the meaning of Section 412 of the Code or Section 303 or 304 of
ERISA; all contributions required to be made with respect to a Plan have been
made and no material liability has occurred as a result of any failure to make
any such contribution in a timely manner; neither PESCO nor any Subsidiary of
PESCO nor any ERISA Affiliate has incurred any material liability (including
any indirect, contingent or secondary liability) to or on account of a Plan
pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or
expects to incur any such material liability under any of the foregoing
sections with respect to any Plan; no condition exists which presents a
material risk to PESCO or any Subsidiary of PESCO or any ERISA Affiliate of
incurring a material liability to or on account of a Plan pursuant to the
foregoing provisions of ERISA and the Code; no proceedings have been instituted
to terminate or appoint a trustee to administer any Plan which is subject to
Title IV of ERISA; no action, suit, proceeding, hearing, audit or investigation
with respect to the administration, operation or the investment of assets of
any Plan (other than routine claims for benefits) is pending, expected or, to
the best knowledge of PESCO, threatened; using actuarial assumptions and
computation methods consistent with Part 1 of subtitle E of Title IV of ERISA,
the aggregate liabilities of PESCO and its Subsidiaries and its ERISA
Affiliates to all Plans which are multiemployer plans (as defined in Section
4001(a)(3) of ERISA) in the event of a complete withdrawal therefrom, as of the
close of the most recent fiscal year of each such Plan ended
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prior to the date of the most recent Credit Event, would not exceed $500,000;
each group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) which covers or has covered employees or former
employees of PESCO, any Subsidiary of PESCO, or any ERISA Affiliate has at all
times been operated in substantial compliance with the provisions of Part 6 of
subtitle B of Title I of ERISA and Section 4980B of the Code and any failure to
so comply would not result in a material liability; no lien imposed under the
Code or ERISA on the assets of PESCO or any Subsidiary of PESCO or any ERISA
Affiliate exists or, to the best knowledge of PESCO, is likely to arise on
account of any Plan; and PESCO and its Subsidiaries may cease contributions to
or terminate any employee benefit plan maintained by any of them without
incurring any material liability.
(ii) Each Foreign Pension Plan has been maintained in
substantial compliance with its terms and with the requirements of any and all
applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable regulatory
authorities. All contributions required to be made with respect to a Foreign
Pension Plan have been made and no material liability has occurred as a result
of any failure to make any such contribution in a timely manner. Neither PESCO
nor any of its Subsidiaries has incurred any obligation in connection with the
termination of or withdrawal from any Foreign Pension Plan. The present value
of the accrued benefit liabilities (whether or not vested) under each Foreign
Pension Plan, determined as of the end of PESCO's most recently ended fiscal
year on the basis of actuarial assumptions, each of which is reasonable, did
not exceed the current value of the assets of such Foreign Pension Plan
allocable to such benefit liabilities.
7.11 The Pledge Agreement. The Pledged Securities described
in Pledge Agreement are subject to no security interests in favor of any Person
other than the Administrative Agent, as Pledgee under the Pledge Agreement.
7.12 Properties. PESCO and each of its Subsidiaries have
good and indefeasible title to all material properties owned by them, including
all property shown as assets in the balance sheets referred to in Section
7.05(a) (except as sold or otherwise disposed of since the date of such balance
sheet in the ordinary course of business or as permitted by the terms of this
Agreement), free and clear of all Liens, other than Permitted Liens.
7.13 Capitalization. (a) On the Effective Date, the
authorized capital stock of PESCO shall consist of (i) 40,000,000 shares of
common stock, no par value per share and (ii) 1,000 shares of preferred stock,
no par value per share. All outstanding shares of capital stock of PESCO have
been duly and validly issued and are fully paid and non-assessable. Except for
the Shareholders Rights Plan described in the notes to the consolidated
financial statements of PESCO delivered pursuant to Section 7.05(a), PESCO does
not have outstanding any securities convertible into or exchangeable for its
capital stock or outstanding any rights to subscribe for or to purchase, or any
options for the purchase of, or any agreement providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
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character relating to, its capital stock, except for options or warrants to
purchase shares of PESCO's common stock which may be issued from time to time.
(b) On the Effective Date, the authorized capital stock
of Holding shall consist of 100 shares of common stock, $100.00 par value per
share. All outstanding shares of capital stock of Holding have been duly and
validly issued and are fully paid and non-assessable. Holding does not have
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreement providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating
to, its capital stock, except for options or warrants to purchase shares of
Holdings' common stock which may be issued from time to time.
(c) On the Effective Date, the authorized capital stock
of the Borrower shall consist of 200,000 shares of common stock, $100.00 par
value per share. All outstanding shares of capital stock of the Borrower have
been duly and validly issued and are fully paid and non-assessable. The
Borrower does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for
or to purchase, or any options for the purchase of, or any agreement providing
for the issuance (contingent or otherwise) of, or any calls, commitments or
claims of any character relating to, its capital stock, except for options or
warrants to purchase shares of the Borrowers' common stock which may be issued
from time to time.
7.14 Subsidiaries. As of the Effective Date, PESCO has no
Subsidiaries other than Holding and its Subsidiaries, Holding has no
Subsidiaries other than the Borrower and its Subsidiaries and the Borrower has
no Subsidiaries other than those Subsidiaries listed on Schedule III. Schedule
III correctly sets forth, as of the Effective Date, the percentage ownership
(direct or indirect) of PESCO in each class of capital stock or other equity of
each of its Subsidiaries and also identifies the direct owner thereof.
7.15 Compliance with Statutes, etc. Each of PESCO and each
of its Subsidiaries is in compliance with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property (including applicable statutes, regulations, orders
and restrictions relating to environmental standards and controls), except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of PESCO or of the Borrower and its Subsidiaries taken as a whole.
7.16 Investment Company Act. Neither PESCO nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
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7.17 Public Utility Holding Company Act. Neither PESCO nor
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
7.18 Environmental Matters. (a) Each of PESCO and each of
its Subsidiaries have complied with, and on the date of each Credit Event are
in compliance with, all applicable Environmental Laws and the requirements of
any permits issued under such Environmental Laws. There are no pending or, to
the best knowledge of PESCO, threatened Environmental Claims against PESCO or
any of its Subsidiaries (including any such claim arising out of the ownership
or operation by PESCO or any of its Subsidiaries of any Real Property no longer
owned or operated by PESCO or any of its Subsidiaries) or any Real Property
owned or operated by PESCO or any of its Subsidiaries. There are no facts,
circumstances, conditions or occurrences with respect to the business or
operations of PESCO or any of its Subsidiaries, or any Real Property owned or
operated by PESCO or any of its Subsidiaries (including any Real Property
formerly owned or operated by PESCO or any of its Subsidiaries but no longer
owned or operated by PESCO or any of its Subsidiaries) or any property
adjoining or adjacent to any such Real Property that could be expected (i) to
form the basis of an Environmental Claim against PESCO or any of its
Subsidiaries or any Real Property owned or operated by PESCO or any of its
Subsidiaries or (ii) to cause any Real Property owned or operated by PESCO or
any of its Subsidiaries to be subject to any restrictions on the ownership,
occupancy or transferability of such Real Property by PESCO or any of its
Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, any Real Property owned
or operated by PESCO or any of its Subsidiaries where such generation, use,
treatment or storage has violated or could be expected to violate any
Environmental Law. Hazardous Materials have not at any time been Released on
or from any Real Property owned or operated by PESCO or any of its Subsidiaries
where such Release has violated or could be expected to violate any applicable
Environmental Law.
(c) Notwithstanding anything to the contrary in this Section
7.18, the representations made in this Section 7.18 shall not be untrue unless
an officer of PESCO or a chief financial officer of any other Credit Party has
actual knowledge of the falsity of any such representation and the aggregate
effect of all uninsured and unindemnified violations, claims, restrictions,
failures and noncompliances of the types described above could reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of PESCO or the Borrower and its Subsidiaries taken as a whole.
7.19 Labor Relations. Neither PESCO nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a material adverse effect
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on PESCO or the Borrower and its Subsidiaries taken as a whole. There is (i)
no unfair labor practice complaint pending against PESCO or any of its
Subsidiaries or threatened against any of them, before the National Labor
Relations Board, and no grievance or arbitration proceeding arising out of or
under any collective bargaining agreement is so pending against PESCO or any of
its Subsidiaries or, to the best knowledge of PESCO, threatened against any of
them, (ii) no strike, labor dispute, slowdown or stoppage pending against PESCO
or any of its Subsidiaries or, to the best knowledge of PESCO, threatened
against PESCO or any of its Subsidiaries and (iii) no union representation
question exists with respect to the employees of PESCO or any of its
Subsidiaries, except (with respect to any matter specified in clause (i), (ii)
or (iii) above, either individually or in the aggregate) such as could not
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise)
or prospects of PESCO or the Borrower and its Subsidiaries taken as a whole.
7.20 Patents, Licenses, Franchises and Formulas. Each of
PESCO and each of its Subsidiaries owns or has the right to use all the
patents, trademarks, permits, service marks, trade names, copyrights, licenses,
franchises, proprietary information (including but not limited to rights in
computer programs and databases) and formulas, or rights with respect to the
foregoing, and has obtained assignments of all leases and other rights of
whatever nature, necessary for the present conduct of its business, without any
known conflict with the rights of others which, or the failure to obtain which,
as the case may be, could reasonably be expected to result in a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of PESCO or the Borrower and
its Subsidiaries taken as a whole.
7.21 Funded Debt. Schedule IV sets forth a true and complete
list of all Funded Debt (including Contingent Obligations) of PESCO and its
Subsidiaries as of the Effective Date and which is to remain outstanding after
giving effect to the Refinancing (excluding the Revolving Loans and the Letters
of Credit, such outstanding Funded Debt the "Existing Indebtedness"), in each
case showing the aggregate principal amount thereof, the name of the respective
borrower and any Credit Party or any of its Subsidiaries which directly or
indirectly guarantees such debt and describing any assets pledged to secure
such Funded Debt.
7.22 Inactive Subsidiaries. Each Inactive Subsidiary
conducts no business and has no material amount of assets or liabilities except
as disclosed in the financial statements delivered pursuant to Section 7.05(a).
7.23 No Tax Sharing Agreements. There are no tax sharing,
tax allocation or other similar agreements entered into by PESCO or any of its
Subsidiaries.
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SECTION 8. Affirmative Covenants. PESCO, Holding and the
Borrower hereby covenant and agree that on and after the Effective Date and
until the Total Revolving Loan Commitment and all Letters of Credit have
terminated and the Loans, Notes and Unpaid Drawings, together with interest,
Fees and all other Obligations incurred hereunder and thereunder, are paid in
full:
8.01 Information Covenants. PESCO and the Borrower will
furnish to the Agents (with sufficient copies for each Bank):
(a) Quarterly Financial Statements. (i) Within 60 days after
the close of the first three quarterly accounting periods in each
fiscal year of PESCO (commencing with its quarterly accounting period
ending on September 30, 1997), the consolidated balance sheet of PESCO
and its Subsidiaries, as at the end of such quarterly accounting
period and the related statements of income and retained earnings and
statement of cash flows for such quarterly accounting period and for
the elapsed portion of the fiscal year ended with the last day of such
quarterly accounting period, all as filed with PESCO's Form 10-Q for
such quarter, and in each case setting forth comparative figures for
the related periods in the prior fiscal year, all of which shall be
certified by a principal financial officer of PESCO, subject to normal
year-end audit adjustments and the absence of footnotes.
(ii) Within seventy-five (75) days after the close of the
first three (3) quarterly accounting periods in each fiscal year of
PESCO (commencing with its quarterly accounting period ending on
September 30, 1997), the unconsolidated balance sheet for each of
PESCO and the Borrower, as of the end of such quarterly accounting
period, and the related statements of income, retained earnings and
cash flow for such quarterly accounting period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly
accounting period, in each case setting forth comparative figures for
the related periods in the prior fiscal year, all of which shall be
certified by a principal financial officer of PESCO, subject to normal
year-end audit adjustments and the absence of footnotes.
(b) Annual Financial Statements. (i) Within 120 days after
the close of each fiscal year of PESCO, the consolidated and
consolidating balance sheets of PESCO and its Subsidiaries as at the
end of such fiscal year, the related consolidated and consolidating
statements of income, and the related consolidated statements of
retained earnings and cash flow for such fiscal year, setting forth
comparative figures for the preceding fiscal year and in the case of
the consolidated financial statements, certified by Deloitte & Touche
or such other independent certified public accountants of recognized
national standing reasonably acceptable to the Agents, all as filed
with PESCO's Form 10-K for such year, together with a report of such
accounting firm stating that in the course of its regular audit of the
financial statements of PESCO and its Subsidiaries, which audit was
conducted in accordance with generally accepted auditing
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standards, such consolidated financial statements present fairly, in
all material respects, the financial position of PESCO and its
Subsidiaries for the periods indicated in conformity with GAAP applied
on a basis consistent with prior years. Such opinion shall not be
qualified or limited because of a restricted or limited examination by
such accountant of any material portion of PESCO's or any of its
Subsidiary's records. All consolidating financial statements shall be
certified by a principal financial officer of PESCO.
(ii) Within 120 days after the close of each fiscal year of
PESCO, the unaudited consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and retained earnings and statement
of cash flows for such fiscal year setting forth comparative figures
for the preceding fiscal year, certified by a principal financial
officer of the Borrower, subject to normal year-end audit adjustments
and the absence of footnotes.
(c) Budgets and Projections. (i) No later than 15 days
following approval by the Board of Directors of PESCO, the annual
consolidated budget (substantially in the form of its annual
consolidated budgets for prior fiscal years) (including budgeted
statements of income and sources and uses of cash and balance sheets)
prepared by PESCO for each of the twelve months of such fiscal year
prepared in detail setting forth, with appropriate discussion, the
principal assumptions upon which such budgets are based; and (ii)
budgets and projections of PESCO, Holding and the Borrower, and,
promptly upon request, such additional information as may from time to
time be reasonably requested by either Agent.
(d) Officer's Certificates. At the time of the delivery of
the financial statements provided for in Sections 8.01(a) and (b), a
certificate of a principal financial officer of PESCO to the effect
that, to the best of such officer's knowledge, no Default or Event of
Default has occurred and is continuing or, if any Default or Event of
Default has occurred and is continuing, specifying the nature and
extent thereof, which certificate shall be in substantially the form
of Exhibit K hereto and shall set forth in reasonable detail the
calculations required to establish whether PESCO and its Subsidiaries
were in compliance with the provisions of Sections 4.02, 9.04 and 9.07
through 9.11, inclusive, at the end of such fiscal quarter or year, as
the case may be.
(e) Notice of Default or Litigation. Promptly upon, and in
any event within three Business Days after, an officer of PESCO or a
chief financial officer of any other Credit Party obtains actual
knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or an Event of Default and/or (ii) any
litigation or governmental investigation or proceeding pending (x)
against PESCO or any of its Subsidiaries which could reasonably be
expected to materially and adversely affect the business, operations,
property, assets, liabilities, condition (financial or otherwise) or
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prospects of PESCO or the Borrower and its Subsidiaries taken as a
whole, (y) with respect to any material Funded Debt of PESCO or any of
its Subsidiaries or (z) with respect to any Credit Document.
(f) Other Reports and Filings. Within 10 Business Days after
the filing or delivery thereof, copies of all reports on Forms 10-K,
10-Q and 8-K, all proxy materials, if any, and any other material
documents which PESCO or any of its Subsidiaries shall publicly file
with the Securities and Exchange Commission or any successor thereto
(the "SEC").
(g) Environmental Matters. Promptly after an officer of
PESCO or a senior operating officer of any other Credit Party obtains
knowledge thereof, notice of one or more of the following
environmental matters, unless such environmental matters could not,
individually or when aggregated with all other such environmental
matters, be reasonably expected to materially and adversely affect the
business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of PESCO and its Subsidiaries
taken as a whole:
(i) any pending or threatened Environmental Claim
against PESCO or any of its Subsidiaries or any Real Property
owned or operated by PESCO or any of its Subsidiaries;
(ii) any condition or occurrence on or arising
from any Real Property owned or operated by PESCO or any of
its Subsidiaries that (a) results in noncompliance by PESCO
or any of its Subsidiaries with any applicable Environmental
Law or (b) could be expected to form the basis of an
Environmental Claim against PESCO or any of its Subsidiaries
or any such Real Property;
(iii) any condition or occurrence on any Real
Property owned or operated by PESCO or any of its
Subsidiaries that could be expected to cause such Real
Property to be subject to any restrictions on the ownership,
occupancy, use or transferability by PESCO or any of its
Subsidiaries of such Real Property under any Environmental
Law; and
(iv) the taking of any removal or remedial action
in response to the actual or alleged presence of any
Hazardous Material on any Real Property owned or operated by
PESCO or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative
agency; provided, that in any event PESCO shall deliver to
each Bank all notices received by PESCO or any of its
Subsidiaries from any government or governmental agency
under, or pursuant to, CERCLA which identify PESCO or any of
its Subsidiaries as potentially responsible parties for
remediation
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costs or which otherwise notify PESCO or any of its
Subsidiaries of potential liability under CERCLA.
All such notices shall describe in reasonable detail the
nature of the claim, investigation, condition, occurrence or removal
or remedial action and PESCO's or such Subsidiary's response thereto.
(h) Annual Meetings with Banks. At a date to be mutually
agreed upon between the Administrative Agent and the Borrower
occurring on or prior to the 150th day after the close of each fiscal
year of the Borrower, the Borrower shall, at the request of either
Agent, hold a meeting with all of the Banks at which meeting shall be
reviewed the financial results of the Borrower and its Subsidiaries
for the previous fiscal year and the budgets presented for the current
fiscal year of the Borrower.
(i) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to
PESCO or any of its Subsidiaries as either Agent may reasonably
request.
8.02 Books, Records and Inspections. PESCO will, and will
cause each of its Subsidiaries to, keep proper books of record and accounts in
which full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in relation
to its business and activities. Subject to such limitations or restrictions as
may be imposed by governmental bodies, domestic or foreign, or applicable
health and safety regulations or requirements or any of PESCO's or its
Subsidiary's customers, PESCO will, and will cause each of its Subsidiaries to,
permit officers and designated representatives of the Agents or any Bank (who
shall comply with such Person's safety rules and regulations applicable in the
ordinary course of business to each specific location and at their own cost) to
visit and inspect, under guidance of officers of PESCO or such Subsidiary, any
of the properties of PESCO or such Subsidiary, and to examine the books of
account of PESCO or such Subsidiary and discuss the affairs, finances and
accounts of the Borrower or such Subsidiary with, and be advised as to the same
by, its and their officers, all at such reasonable times and intervals and to
such reasonable extent as the Agents or such Bank may reasonably request.
8.03 Maintenance of Property; Insurance. PESCO will, and
will cause each of its Subsidiaries to, (i) keep all property necessary to the
business of PESCO and its Subsidiaries in reasonably good working order and
condition, ordinary wear and tear excepted, (ii) maintain insurance with
responsible insurance companies on all such property in at least such amounts
and against at least such risks as is consistent and in accordance with
industry practice for companies similarly situated owning similar properties in
the same general areas in which PESCO or any of its Subsidiaries operates, and
(iii) furnish to the Administrative Agent or any Bank, upon written request,
full information as to the insurance carried. If, after the occurrence of any
Default or Event of Default, PESCO or any of its Subsidiaries shall fail to
insure its property in accordance with this Section 8.03, the Administrative
Agent shall have
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the right (but shall be under no obligation), upon prior written notice to the
Borrower, to procure such insurance and the Borrower agrees to reimburse the
Administrative Agent for all costs and expenses of procuring such insurance.
8.04 Corporate Franchises. PESCO will, and will cause each
of its Subsidiaries to, do or cause to be done, all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
this Section 8.04 shall prevent (i) sales of assets and other transactions by
PESCO or any of its Subsidiaries in accordance with Section 9.02 or (ii) the
withdrawal by PESCO or any of its Subsidiaries of its qualification as a
foreign corporation in any jurisdiction where such withdrawal could not
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise)
or prospects of PESCO and its Subsidiaries taken as a whole.
8.05 Compliance with Statutes, etc. PESCO will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances (x) as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of PESCO or the Borrower and its Subsidiaries taken as
a whole or (y) as are being contested in good faith by PESCO or such Subsidiary
through appropriate proceedings which are being diligently prosecuted.
8.06 Compliance with Environmental Laws. PESCO will, and
will cause each of its Subsidiaries to, comply with all Environmental Laws
applicable to the ownership or use of its Real Property now or hereafter owned
or operated by PESCO or any of its Subsidiaries, will promptly pay or cause to
be paid all costs and expenses incurred in connection with such compliance, and
will keep or cause to be kept all such Real Property free and clear of any
Liens imposed pursuant to such Environmental Laws. Neither PESCO nor any of
its Subsidiaries will generate, use, treat, store, Release or dispose of, or
permit the generation, use, treatment, storage, Release or disposal of
Hazardous Materials on any Real Property now or hereafter owned or operated by
PESCO or any of its Subsidiaries, or transport or permit the transportation of
Hazardous Materials to or from any such Real Property, except for Hazardous
Materials generated, used, treated, stored, Released or disposed of at any such
Real Properties in compliance in all material respects with all applicable
Environmental Laws and reasonably required in connection with the operation,
use and maintenance of the business or operations of PESCO or any of its
Subsidiaries. Notwithstanding anything to the contrary contained herein, it
will not be a violation of this covenant if any noncompliance (x) would not,
individually or in the aggregate, reasonably be expected to have a material
adverse affect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of PESCO or the Borrower and
its Subsidiaries taken as a whole or (y) is being
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contested in good faith by PESCO or such Subsidiary through appropriate
proceedings which are being diligently prosecuted.
8.07 ERISA. As soon as possible and, in any event, within
ten (10) days after PESCO, any Subsidiary of PESCO or any ERISA Affiliate knows
of the occurrence of any of the following, PESCO will deliver to each of the
Banks a certificate of the Chief Financial Officer of PESCO setting forth the
full details as to such occurrence and the action, if any, that PESCO, such
Subsidiary or such ERISA Affiliate is required or proposes to take, together
with any notices required or proposed to be given to or filed with or by PESCO,
the Subsidiary, the ERISA Affiliate, the PBGC, a Plan participant or the Plan
administrator with respect thereto: that a Reportable Event has occurred
(except to the extent that PESCO has previously delivered to the Banks a
certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably
expected to occur with respect to such Plan within the following 30 days; that
an accumulated funding deficiency, within the meaning of Section 412 of the
Code or Section 302 of ERISA, has been incurred or an application may be
reasonably expected to be or has been made for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code or Section
303 or 304 of ERISA with respect to a Plan; that any contribution required to
be made with respect to a Plan or Foreign Pension Plan has not been timely
made; that a Plan has been or may be terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA; that a Plan has an Unfunded Current
Liability; that proceedings may be reasonably expected to be or have been
instituted to terminate or appoint a trustee to administer a Plan which is
subject to Title IV of ERISA; that a proceeding has been instituted pursuant to
Section 515 of ERISA to collect a delinquent contribution to a Plan; that
PESCO, any Subsidiary of PESCO or any ERISA Affiliate will or may incur any
material liability (including any indirect, contingent, or secondary liability)
to or on account of the termination of or withdrawal from a Plan under Section
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan
under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or
502(i) or 502(l) of ERISA or with respect to a group health plan (as defined in
Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B
of the Code; or that PESCO or any Subsidiary of PESCO may be reasonably
expected to incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any Plan or any Foreign Pension Plan. Upon the request of the
Administrative Agent, PESCO will deliver to each of the Banks (i) a complete
copy of the annual report (on Internal Revenue Service Form 5500-series) of
each Plan (including, to the extent required, the related financial and
actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the
Internal Revenue Service and (ii) copies of any
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records, documents or other information that must be furnished to the PBGC with
respect to any Plan pursuant to Section 4010 of ERISA. In addition to any
certificates or notices delivered to the Banks pursuant to the first sentence
hereof, copies of any records, documents or other information that must be
furnished to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA, and any notices that could reasonably be expected to result in any
material liability received by PESCO, any Subsidiary of PESCO or any ERISA
Affiliate with respect to any Plan or Foreign Pension Plan shall be delivered
to the Banks no later than ten (10) days after the date or such records,
documents and/or information has been furnished to the PBGC or such notice has
been received by PESCO, the Subsidiary or the ERISA Affiliate, as applicable.
8.08 End of Fiscal Years; Fiscal Quarters. PESCO will cause
(i) its fiscal year to end on December 31, and (ii) its fiscal quarters to end
on March 31, June 30, September 30 and December 31.
8.09 Performance of Obligations. PESCO will, and will cause
each of its Subsidiaries to, perform all of its obligations under the terms of
each mortgage, indenture, security agreement, loan agreement or credit
agreement and each other material agreement, contract or instrument by which it
is bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of PESCO or the Borrower and its Subsidiaries taken as
a whole.
8.10 Payment of Taxes. PESCO will pay and discharge, and
will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims for sums that have become
due and payable which, if unpaid, might become a Lien not otherwise permitted
under Section 9.01(i); provided, that neither PESCO nor any of its Subsidiaries
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP.
8.11 Foreign Subsidiaries Guaranty, etc. If following a
change in the relevant sections of the Code or the regulations, rules, rulings,
notices or other official pronouncements issued or promulgated thereunder,
counsel for PESCO reasonably acceptable to the Agents does not within 30 days
after a request from either Agent deliver evidence, in form and substance
mutually satisfactory to the Agents and PESCO, with respect to any Foreign
Subsidiary of PESCO which has not already had all of its stock pledged pursuant
to the Pledge Agreement that (i) a pledge of 66 2/3% or more of the total
combined voting power of all classes of capital stock of such Foreign
Subsidiary entitled to vote, and (ii) the entering into by such Foreign
Subsidiary of a guaranty in substantially the form of the Subsidiaries
Guaranty, in any such case could reasonably be expected to cause (I) the
undistributed earnings of such Foreign Subsidiary
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as determined for federal income tax purposes to be treated as a deemed
dividend to such Foreign Subsidiary's United States parent for federal income
tax purposes or (II) other material adverse federal income tax consequences to
the Credit Parties, then in the case of a failure to deliver the evidence
described in clause (i) above, that portion of such Foreign Subsidiary's
outstanding capital stock owned by any Credit Party and not theretofore pledged
pursuant to the Pledge Agreement shall be pledged to the Administrative Agent
for the benefit of the Secured Creditors pursuant to the Pledge Agreement and
in the case of a failure to deliver the evidence described in clause (ii)
above, such Foreign Subsidiary shall execute and deliver (x) the Subsidiaries
Guaranty (or another guaranty in substantially similar form if needed),
guaranteeing the Obligations of the Borrower under the Credit Documents and
under any Interest Rate Protection Agreement or Other Hedging Agreement and (y)
the Pledge Agreement (or another pledge agreement in substantially similar form
if needed) securing such Foreign Subsidiaries' obligations under the
Subsidiaries Guaranty, in each case to the extent that the entering into the
Subsidiaries Guaranty and Pledge Agreement is permitted by the laws of the
respective foreign jurisdiction and with all documents delivered pursuant to
this Section 8.11 to be in form and substance reasonably satisfactory to the
Agents.
8.12 Margin Stock. PESCO will, and will cause each of the
Pledgors to, take any and all actions as may be required to ensure that no
capital stock pledged, or required to be pledged, pursuant to the Pledge
Agreement shall constitute Margin Stock.
8.13 Post-Closing Actions. PESCO will, and will cause each
of its Subsidiaries to, take the following actions:
(a) within 60 days following the Effective Date, file, or
cause to be filed, any and all termination statements or other
appropriate filings to terminate all Liens (i) in favor of The
Hongkong and Shanghai Banking Corporation Limited with respect to Rig
#488 and 489 and (ii) in favor of the Lenders party to the NationsBank
Credit Agreement with respect to Rig #453; and
(b) within 30 days following the Effective Date, cause
notices of cancellation and applications for replacements to be
executed and delivered to the beneficiaries thereof with respect to
the letters of credit specified in Schedule IV issued by NationsBank
of Texas, N.A.
SECTION 9. Negative Covenants. PESCO, Holding and the
Borrower hereby covenant and agree that on and after the Effective Date and
until the Total Revolving Loan Commitment and all Letters of Credit have
terminated and the Revolving Loans, Notes and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder and thereunder, are
paid in full:
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9.01 Liens. PESCO will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
PESCO or any of its Subsidiaries, whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable with recourse to PESCO or any of its Subsidiaries), or
assign any right to receive income or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute; provided that the provisions of this Section 9.01
shall not prevent the creation, incurrence, assumption or existence of the
following (Liens described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due or not yet delinquent and payable
without any penalty of any kind or character or Liens for taxes,
assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have
been established in accordance with GAAP;
(ii) Liens in respect of property or assets of PESCO or
any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Funded Debt for borrowed
money, such as carriers', warehousemen's, materialmen's and mechanics'
liens and other similar Liens arising in the ordinary course of
business, and (x) which do not in the aggregate materially detract
from the value of PESCO's or such Subsidiary's property or assets or
materially impair the use thereof in the operation of the business of
PESCO or such Subsidiary or (y) which are being contested in good
faith by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to
any such Lien;
(iii) Liens in existence on the Effective Date which are
listed, and the property subject thereto described, in Schedule V, but
only to the respective date, if any, set forth in such Schedule V for
the removal, replacement and termination of any such Liens, without
giving effect to any extension or renewal thereof;
(iv) Liens created pursuant to the Pledge Agreement;
(v) Liens upon assets of PESCO or any of its Subsidiaries
subject to Capitalized Lease Obligations to the extent such
Capitalized Lease Obligations are permitted by Section 9.04(iii),
provided that (x) such Liens only serve to secure the payment of
Funded Debt arising under such Capitalized Lease Obligation and (y)
the Lien encumbering the asset giving rise to the Capitalized Lease
Obligation does not encumber any other asset of PESCO or any
Subsidiary of PESCO;
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(vi) Liens placed upon assets used in the ordinary course
of business of PESCO or any of its Subsidiaries at the time of the
acquisition thereof by PESCO or any such Subsidiary or within 90 days
thereafter to secure Funded Debt incurred to pay all or a portion of
the purchase price thereof or to secure Funded Debt incurred solely
for the purpose of financing the acquisition of any such assets or
extensions, renewals or replacements of any of the foregoing for the
same or a lesser amount of Funded Debt, provided that (x) such Funded
Debt is permitted in Section 9.04 and (y) in all events, the Lien
encumbering the assets so acquired does not encumber any other asset
of PESCO or such Subsidiary;
(vii) easements, rights-of-way, zoning and other
restrictions, encroachments and other similar charges or encumbrances,
and minor title deficiencies, in each case not securing Funded Debt
and not materially interfering with the conduct of the business of
PESCO or any of its Subsidiaries;
(viii) Liens arising from precautionary UCC financing
statement filings regarding operating leases;
(ix) Liens arising out of the existence of judgments or
awards in respect of which PESCO or any of its Subsidiaries shall in
good faith be prosecuting an appeal or proceedings for review in
respect of which there shall have been secured a subsisting stay of
execution pending such appeal or proceedings, provided that the
aggregate amount of any cash and the fair market value of any property
subject to such Liens do not exceed $500,000 at any time outstanding;
(x) statutory and common law landlords' liens under
leases to which PESCO or any of its Subsidiaries is a party;
(xi) Liens (other than Liens imposed under ERISA) incurred
in the ordinary course of business in connection with workers
compensation claims, unemployment insurance and social security
benefits;
(xii) Liens securing the performance of bids, tenders,
leases and contracts in the ordinary course of business, statutory
obligations, surety bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business (exclusive
of obligations in respect of the payment for borrowed money), provided
that the aggregate outstanding amount of obligations secured by Liens
permitted by this clause (xii) (and the value of all cash and property
encumbered by Liens permitted pursuant to this clause (xii)) shall not
at any time exceed $2,000,000;
(xiii) Liens on property or assets acquired pursuant to a
Permitted Acquisition or Identified Acquisition, or on property or
assets of a Subsidiary of the Borrower
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in existence at the time such Subsidiary is acquired pursuant to a
Permitted Acquisition or Identified Acquisition, to the extent
permitted pursuant to Section 9.02(viii) or (ix);
(xiv) Liens in favor of any Credit Party; and
(xv) Liens placed upon assets of any Subsidiary which is a
Foreign Subsidiary to secure Funded Debt incurred by such Subsidiary,
provided that the aggregate amount of any Funded Debt secured by such
Liens shall not exceed $2,500,000 in the aggregate at any one time.
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.
PESCO will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of all or any part
of its property or assets, or enter into any sale-leaseback transactions, or
purchase or otherwise acquire (in one or a series of related transactions) any
part of the property or assets (other than purchases or other acquisitions of
inventory, materials and equipment in the ordinary course of business) of any
Person (or agree to do any of the foregoing at any future time), except that:
(i) PESCO and its Subsidiaries may make sales of
inventory in the ordinary course of business;
(ii) PESCO and its Subsidiaries may sell obsolete or
worn-out equipment or materials, in the ordinary course of business;
(iii) PESCO and its Subsidiaries may sell or discount, in
each case without recourse and in the ordinary course of business,
accounts receivable arising in the ordinary course of business, but
only in connection with the compromise or collection thereof;
(iv) PESCO and its Subsidiaries may sell other assets
which do not constitute Material Asset Sales in the ordinary course of
business so long as the gross proceeds generated from all such asset
sales in any fiscal year of PESCO do not to exceed $3,000,000;
(v) PESCO and its Subsidiaries may make Material Asset
Sales, so long as (i) no Default or no Event of Default then exists or
would result therefrom, (ii) each such sale is in an arm's-length
transaction and PESCO or the respective Subsidiary receives at least
fair market value (as determined in good faith by PESCO or such
Subsidiary, as the case may be), (iii) the total consideration
received by PESCO or such Subsidiary is at least 90% cash and is paid
at the time of the closing of such sale and (iv) the Net Sale Proceeds
from any Material Asset Sales are applied as (and to the extent)
required by Section 3.03(c) and 4.02(f), provided, however, that if,
following
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the sale of equipment, a replacement is necessary for the operation of
the business of PESCO or such Subsidiary, PESCO or such Subsidiary
shall promptly replace the sold equipment with adequate replacement
equipment;
(vi) Investments may be made to the extent permitted by
Section 9.05;
(vii) PESCO and its Subsidiaries may lease (as lessee) real
or personal property (so long as any such lease does not create a
Capitalized Lease Obligation except to the extent permitted by Section
9.04(iii));
(viii) the Borrower and its Wholly-Owned Subsidiaries may
consummate the Identified Acquisitions so long as (i) no Default or
Event of Default then exists or would result therefrom, (ii) each of
the representations and warranties contained in Section 7 shall be
true and correct in all material respects both before and after giving
effect to such Identified Acquisition, and (iii) any Liens or Funded
Debt assumed or issued in connection with such acquisition shall be
issued or assumed only by the Borrower and shall otherwise be on terms
and conditions satisfactory to each Agent;
(ix) the Borrower and its Wholly-Owned Subsidiaries may
consummate a Permitted Acquisition, so long as (i) the Person acquired
(or whose assets were acquired) was, immediately prior to such
acquisition, engaged primarily in the Business or such assets
constitute Equipment, (ii) no Default or Event of Default then exists
or would result therefrom, (iii) each of the representations and
warranties contained in Section 7 shall be true and correct in all
material respects both before and after giving effect to such
Permitted Acquisition, (iv) any Liens or Funded Debt assumed or issued
in connection with such acquisition shall be issued or assumed only by
the Borrower and shall otherwise be on terms and conditions
satisfactory to each Agent, (v) on or prior to the Applicable Notice
Time, the Borrower shall deliver to each Agent and each of the Banks a
certificate of a principal financial officer of the Borrower
substantially in the form of Exhibit L hereto certifying (and showing
the calculations therefor in reasonable detail) that the Pro Forma
Leverage Ratio shall not exceed the Applicable Pro Forma Leverage
Ratio at such time and (vi) each of the Documentation Agent and the
Administrative Agent shall have determined, in their reasonable good
faith judgment, that the pro forma cash flow of such Business or
Equipment after giving effect to such Permitted Acquisition will be
positive; provided, however, that this clause (vi) shall not apply to
any acquisition of rigs with no associated contract revenue;
(x) PESCO or its Subsidiaries may grant leases or
subleases to other Persons not materially interfering with the conduct
of the business of PESCO or any of its Subsidiaries;
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(xi) PESCO, Holding and any Subsidiary of the Borrower may
be merged or consolidated with or into the Borrower so long as the
Borrower is the surviving corporation of such merger or consolidation;
(xii) any Subsidiary of the Borrower may be merged or
consolidated with or into any other Subsidiary of the Borrower so long
as (i) in the case of any such merger or consolidation involving a
Subsidiary Guarantor, the Subsidiary Guarantor is the surviving
corporation of such merger or consolidation and (ii) in the case of
any such merger consolidation involving a Wholly-Owned Subsidiary of
the Borrower, the Wholly-Owned Subsidiary is the surviving corporation
of such merger or consolidation;
(xiii) PESCO and any of its Subsidiaries may transfer
assets between or among themselves in the ordinary course of business;
and
(xiv) Holding may dissolve and liquidate, so long as all
of its assets and liabilities are distributed to and assumed by PESCO,
and any Wholly-Owned Subsidiary of the Borrower may dissolve and
liquidate, so long as all of the assets and liabilities of such
Wholly-Owned Subsidiary are distributed to and assumed by the
Borrower.
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale of any Pledge Agreement Collateral, or any Pledge Agreement
Collateral is sold as permitted by this Section 9.02 (other than to PESCO or a
Subsidiary thereof), such Pledge Agreement Collateral shall be sold free and
clear of the Liens created by the Pledge Agreement and the Administrative Agent
and the Pledgee shall be authorized to take any actions deemed appropriate in
order to effect the foregoing.
9.03 Dividends. PESCO will not, and will not permit any of
its Subsidiaries to, authorize, declare or pay any Dividends with respect to
PESCO or any of its Subsidiaries, except that:
(i) any Subsidiary (including any Excluded Subsidiary) of
the Borrower may pay cash Dividends to the Borrower or to any
Subsidiary of the Borrower;
(ii) any non-Wholly-Owned Subsidiary of PESCO may pay cash
Dividends to its shareholders generally so long as PESCO or its
respective Subsidiary which owns the equity interest in the Subsidiary
paying such Dividends receives at least its proportionate share
thereof (based upon its relative holding of the equity interest in the
Subsidiary paying such Dividends and taking into account the relative
preferences, if any, of the various classes of equity interests of
such Subsidiary);
(iii) Holding may pay cash Dividends to PESCO so long as
the proceeds thereof are promptly used by PESCO to pay the currently
due state and local taxes
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payable by PESCO and the reasonable expenses of preparing returns
reflecting such taxes; and
(iv) the Borrower may pay cash Dividends to Holding to
permit Holding to pay, and to pay amounts to PESCO to permit PESCO to
pay, then currently due state and local taxes payable by Holding
and/or PESCO and the reasonable expenses of preparing returns
reflecting such taxes.
9.04 Funded Debt. PESCO will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Funded Debt, except:
(i) Funded Debt incurred pursuant to this Agreement and
the other Credit Documents;
(ii) Existing Indebtedness outstanding on the Effective
Date and listed on Schedule IV, without giving effect to any
subsequent extension, renewal or refinancing thereof;
(iii) Funded Debt of the Borrower and its Subsidiaries
evidenced by Capitalized Lease Obligations and purchase money Funded
Debt subject to Liens permitted under Section 9.01(vi), provided that
in no event shall the sum of (I) the aggregate principal amount of all
Capitalized Lease Obligations and (II) the aggregate principal amount
of all purchase money Funded Debt exceed $2,000,000 at any time
outstanding;
(iv) intercompany Funded Debt among PESCO and its
Subsidiaries to the extent permitted by Sections 9.05(viii) and
(xiii);
(v) Funded Debt consisting of guaranties by PESCO and its
Subsidiaries of (x) Funded Debt of Excluded Subsidiaries in an
aggregate principal amount not to exceed $5,000,000 outstanding at any
one time and (y) other Funded Debt of the Borrower and its
Subsidiaries otherwise permitted to be incurred under this Section
9.04;
(vi) Funded Debt under Interest Rate Protection Agreements
and Other Hedging Agreements providing protection against fluctuations
in currency values in connection with PESCO's or any of its
Subsidiaries' operations so long as management of PESCO or such
Subsidiary, as the case may be, has determined that the entering into
of such Interest Rate Protection Agreements or Other Hedging
Agreements are bona fide hedging activities and are not for
speculative purposes;
(vii) additional unsecured Funded Debt of PESCO, Holding or
the Borrower issued on a subordinated basis ("Permitted Subordinated
Indebtedness") so long as all
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of the terms and conditions (and the documentation) in connection
therewith (including, without limitation, the amortization, maturity,
interest rates, limitations on cash interest payable, covenants,
defaults, remedies, sinking fund provisions, subordination provisions
and other terms) and the purchasers or lenders thereof shall be
satisfactory to the Required Banks;
(viii) the Borrower may assume Funded Debt of a Subsidiary
pursuant to a Permitted Acquisition or Identified Acquisition (or the
Borrower may assume Funded Debt at the time of a Permitted Acquisition
or Identified Acquisition of an asset securing such Funded Debt), to
the extent permitted in connection with a Permitted Acquisition;
(ix) additional Funded Debt constituting overdraft lines
of PESCO and its Subsidiaries in an aggregate principal amount not to
exceed $5,000,000.00 at any one time outstanding (calculated so as to
not include both the overdraft line and any related guaranty); and
(x) in addition to all other Funded Debt permitted
pursuant to this Section 9.04, additional unsecured Funded Debt
incurred by PESCO and its Subsidiaries in an aggregate principal
amount not to exceed $2,000,000.00 at any one time outstanding.
9.05 Advances, Investments and Loans. PESCO will not,
and will not permit any of its Subsidiaries to, directly or indirectly, lend
money or credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person, or purchase or own a futures
contract or otherwise become liable for the purchase or sale of currency or
other commodities at a future date in the nature of a futures contract, (each
of the foregoing an "Investment" and, collectively, "Investments"), except that
the following shall be permitted:
(i) PESCO and its Subsidiaries may acquire and hold
accounts receivables owing to any of them, if created or acquired in
the ordinary course of their business and payable or dischargeable in
accordance with customary trade terms of the Borrower or such
Subsidiary;
(ii) PESCO and its Subsidiaries may acquire and hold cash
and Cash Equivalents;
(iii) PESCO and its Subsidiaries may hold the Investments
held by them, and maintain the Intercompany Loans outstanding, on the
Effective Date and described on Schedule VI, provided that any
additional Investments made with respect thereto or any extensions or
renewals of any Intercompany Loans shall be permitted only if
independently justified under the other provisions of this Section
9.05;
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(iv) PESCO and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in
good faith settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of
business;
(v) PESCO and its Subsidiaries may make loans and
advances in the ordinary course of business to their respective
officers, directors and employees so long as the principal amount
thereof at any time outstanding (determined without regard to any
write-downs or write-offs of such loans and advances) shall not exceed
$25,000 for any one officer, director or employee and shall not exceed
in the aggregate $500,000 at any one time;
(vi) PESCO may acquire and hold obligations of one or more
officers or other employees of PESCO or any of its Subsidiaries in
connection with such officers' or employees' acquisition of shares of
common stock of PESCO so long as no cash is paid by PESCO or any of
its Subsidiaries to such officers or employees in connection with the
acquisition of any such obligations;
(vii) PESCO and its Subsidiaries may enter into Interest
Rate Protection Agreements and Other Hedging Agreements to the extent
permitted by Section 9.04(vi);
(viii) PESCO and its Subsidiaries may make intercompany
loans and advances between or among one another (collectively,
"Intercompany Loans"), so long as (i) each Intercompany Loan made to a
Foreign Subsidiary shall only be made by the Borrower and shall be
evidenced by an Intercompany Note that is pledged to the Collateral
Agent pursuant to the Pledge Agreement, provided that (x) Intercompany
Loans to Foreign Subsidiaries (other than Pool International
(Malaysia) Sdn. Bhd.) which are outstanding on the Effective Date as
set forth in Schedule VI shall not be subject to this requirement and
(y) any advances which represent charges to a Subsidiary for Trade
Advances shall not be subject to this requirement, so long as the
aggregate amount of all such Trade Advances not evidenced by an
Intercompany Note at any one time outstanding shall not exceed
$2,000,000, and (ii) the aggregate outstanding principal amount of all
Intercompany Loans made by the Credit Parties to Foreign Subsidiaries,
in addition to those described on Schedule VI and in addition to those
described in Section 9.05(xiii), shall not exceed $15,000,000 at any
time outstanding (determined without regard to any write-downs or
write-offs of such Intercompany Loans);
(ix) PESCO may make equity contributions to the capital of
Holding, Holding may make equity contributions to the capital of the
Borrower, the Borrower may make equity contributions to the capital of
the Subsidiary Guarantors and the
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Subsidiary Guarantors may make equity contributions to the capital of
their respective Subsidiaries which are Subsidiary Guarantors;
(x) PESCO, Holding, the Borrower and the Subsidiary
Guarantors may make equity contributions to the capital of
Subsidiaries of PESCO which are not Subsidiary Guarantors and to
Excluded Subsidiaries (i) for the purpose of enabling Wholly-Owned
Subsidiaries to consummate Permitted Acquisitions or (ii) for any
other purpose, so long as the aggregate outstanding amount of all such
equity contributions for such other purposes, in addition to the
amounts described as "shareholder advances (treated as equity for
accounting purposes)" on Schedule VI, does not exceed the sum of
$5,000,000 and the aggregate sum of all cash distributions received by
PESCO, Holding, the Borrower and the Subsidiary Guarantors after the
Effective Date from Excluded Subsidiaries and Subsidiaries of PESCO
which are not Subsidiary Guarantors;
(xi) Permitted Acquisitions and Identified Acquisitions
shall be permitted pursuant to Section 9.02(viii) and Section
9.02(ix), respectively;
(xii) PESCO and its Subsidiaries may acquire and hold
promissory notes issued by the purchaser of assets in connection with
a sale of such assets to the extent permitted by Sections 9.02(v);
(xiii) PESCO and the Subsidiary Guarantors may make
additional Intercompany Loans (A) to other Subsidiary Guarantors for
the purpose of enabling such Subsidiary Guarantor to consummate the
Refinancing, Permitted Acquisitions or Identified Acquisitions and (B)
to Foreign Subsidiaries for the purpose of enabling such Foreign
Subsidiary to consummate the Refinancing, Permitted Acquisitions or
Identified Acquisitions so long as each such Intercompany Loan to a
Foreign Subsidiary shall be made only by the Borrower and shall be
evidenced by an Intercompany Note that is pledged to the Collateral
Agent pursuant to the Pledge Agreement;
(xiv) PESCO and its Subsidiaries may hold receivables owing
to any of them in the ordinary course of business with respect to
insurance claims; and
(xv) in addition to all other Investments and advances
permitted by this Section 9.05, PESCO and its Subsidiaries may make
additional Investments in an aggregate amount outstanding at any time
not to exceed $2,000,000.00.
9.06 Transactions with Affiliates. PESCO will not, and will
not permit any of its Subsidiaries to, enter into any transaction or series of
related transactions with any Affiliate of PESCO or any of its Subsidiaries,
other than in the ordinary course of business and on terms and conditions
substantially as favorable to PESCO or such Subsidiary as would reasonably be
obtained by PESCO or such Subsidiary at that time in a comparable arm's-length
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transaction with a Person other than an Affiliate, except that the following in
any event shall be permitted:
(i) Dividends may be paid to the extent provided in
Section 9.03;
(ii) loans may be made and other transactions may be
entered into by PESCO and its Subsidiaries to the extent permitted by
Sections 9.04 and 9.05;
(iii) customary fees may be paid to non-officer directors
of PESCO and its Subsidiaries; and
(iv) transactions between or among PESCO and its
Subsidiaries (including Excluded Subsidiaries) to the extent that such
transactions are otherwise permitted under this Agreement.
9.07 Consolidated Interest Coverage Ratio. None of the
Parties will permit the Consolidated Interest Coverage Ratio for any Test
Period to be less than 3.00:1.00.
9.08 Fixed Charge Coverage Ratio. None of the Parties will
permit the Fixed Charge Coverage Ratio for any Test Period up to and ending on
the last day of a fiscal quarter of PESCO set forth below to be less than the
ratio set forth opposite such fiscal quarter below:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Ratio
--------------------- -----
<S> <C>
March 31, 1998 1.25:1.00
September 30, 1998 1.40:1.00
March 31, 1999 1.55:1.00
June 30, 1999 and 1.75:1.00
the last day of each
fiscal quarter
thereafter
</TABLE>
9.09 Maximum Leverage Ratio. None of the Parties will permit
the Leverage Ratio at any time to be greater than 3.25:1.00.
9.10 Maximum Debt-to-Total Capital Ratio. None of the
Parties will permit the ratio of Consolidated Funded Debt to Total Capital at
the end of any fiscal quarter of PESCO to be greater than 0.45:1.00.
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9.11 Minimum Consolidated Net Worth. None of the Parties
will permit the Consolidated Net Worth of PESCO and its Subsidiaries (plus net
income of Excluded Subsidiaries (after giving effect to deductions for
interests held by Persons other than PESCO and its Subsidiaries)) at any time
to be less than $175,000,000, plus (x) 50% of the cumulative Consolidated Net
Income for the period from July 1, 1997 until December 31, 1997 and for each
fiscal year thereafter (without reduction to the extent Consolidated Net Income
for any such fiscal year is negative), and (y) 50% of the cash proceeds (net of
underwriting discounts and commissions and other reasonable transaction costs
associated therewith) received by PESCO or any of its Subsidiaries for of any
sale of equity on or after July 1, 1997.
9.12 Limitation on Modifications of Certificate of
Incorporation and By-Laws; Limitation on Voluntary Payments and Modifications
of Funded Debt. (a) PESCO will not, and will not permit any of its
Subsidiaries to, amend, modify or change its certificate or articles of
incorporation (including, without limitation, by the filing or modification of
any certificate of designation) or by-laws (or the equivalent organizational
documents) unless such amendment, modification or change could not be adverse
to the interests of the Banks.
(b) PESCO will not, and will not permit any of its
Subsidiaries to:
(i) make (or give any notice in respect of) any voluntary
or optional payment or prepayment on or redemption or acquisition for
value of (including, without limitation, by way of depositing with the
trustee with respect thereto or any other Person money or securities
before due for the purpose of paying when due) any Existing
Indebtedness; provided that, to the extent the Borrower and the
holders of the DA&S Subordinated Notes enter into arrangements for the
defeasance of the DA&S Subordinated Notes, the Borrower may deposit
money or securities with an escrow agent or other Person prior to the
date payment is due under the DA&S Subordinated Notes in accordance
with such arrangements so long as (x) no Default or Event of Default
is then in existence, and (y) concurrently with the making of such
deposit, (1) the Borrower is unconditionally released from its
obligations with respect to the DA&S Subordinated Notes, and (2) any
and all Liens held by the holders of the DA&S Subordinated Notes (or
their representative) are unconditionally released, in each case in a
manner satisfactory to each of the Agents;
(ii) amend or modify, or permit the amendment or
modification of, any provision of any Hillman Subordinated Debt
Document or DA&S Subordinated Debt Document.
9.13 Limitation on Certain Restrictions on Subsidiaries.
PESCO will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by PESCO or any Subsidiary of
PESCO, or pay
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any Funded Debt owed to PESCO or any Subsidiary of PESCO, (b) make loans or
advances to PESCO or any Subsidiary of PESCO or (c) transfer any of its
properties or assets to PESCO or any Subsidiary of PESCO, except for such
encumbrances or restrictions existing under or by reason of (i) applicable law,
(ii) this Agreement and the other Credit Documents, (iii) customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest of PESCO or any Subsidiary of PESCO, (v) customary provisions
restricting assignment of any licensing agreement entered into by PESCO or any
Subsidiary of PESCO in the ordinary course of business and (vi) restrictions on
the transfer of any asset subject to a Lien permitted by Sections 9.01 (vi).
9.14 Limitation on Issuance of Capital Stock. PESCO will not
permit any of its Subsidiaries to issue any capital stock (including by way of
sales of treasury stock) or any options or warrants to purchase, or securities
convertible into, capital stock, except (i) for transfers and replacements of
then outstanding shares of capital stock, (ii) for stock splits, stock
dividends and issuances which do not decrease the percentage ownership of PESCO
or any of its Subsidiaries in any class of the capital stock of such
Subsidiary, (iii) to qualify directors to the extent required by applicable law
or (iv) for issuances by newly created or acquired Subsidiaries in accordance
with the terms of this Agreement, provided that if the stock of the respective
Subsidiary is pledged pursuant to the Pledge Agreement, then any shares issued
pursuant to the proceeding clauses shall be delivered directly to the
Collateral Agent for pledge pursuant to the Pledge Agreement.
9.15 Business. (a) PESCO and its Subsidiaries will not
engage in any businesses other than the businesses engaged in by PESCO and its
Subsidiaries as of the Effective Date and activities directly related thereto,
and similar or related businesses.
(b) No Inactive Subsidiary shall conduct any business or
possess any material amount of assets or liabilities, except as disclosed in
the financial statements delivered pursuant to Section 7.05(a).
9.16 Limitation on Creation of Subsidiaries. Notwithstanding
anything to the contrary contained in this Agreement, PESCO will not, and will
not permit any of its Subsidiaries to, establish, create or acquire after the
Effective Date any Subsidiary, provided that the Borrower and its Wholly-Owned
Subsidiaries shall be permitted to establish or create Wholly-Owned
Subsidiaries so long as (i) the capital stock or other equity interests of each
such new Wholly-Owned Subsidiary (to the extent owned by a Credit Party) is
pledged pursuant to, and to the extent required by, the Pledge Agreement, (ii)
each such new Wholly-Owned Subsidiary (other than a Foreign Subsidiary except
to the extent required pursuant to Section 8.11) executes a counterpart of the
Subsidiaries Guaranty and the Pledge Agreement, and (iii) each such new
Wholly-Owned Subsidiary (other than a Foreign Subsidiary except to the extent
required pursuant to Section 8.11) executes and delivers, or causes to be
executed and delivered, all other relevant documentation of the type described
in Section 5 as such new Wholly-
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Owned Subsidiary would have had to deliver if such new Wholly-Owned Subsidiary
were a Credit Party on the Effective Date.
9.17 Senior Debt. PESCO will not, and will not permit any of
its Subsidiaries to, designate any Funded Debt (other than the Obligations) as
"Senior Debt" for purposes of, and as defined in, each of the Hillman Deferred
Payment Agreements and the Hillman Subordinated Notes and the DA&S Stock
Purchase Agreement and the DA&S Subordinated Notes.
SECTION 10. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the
payment when due of any principal of any Revolving Loan or any Note or (ii)
default, and such default shall continue unremedied for two or more Business
Days, in the payment when due of any interest on any Revolving Loan or Note,
any Unpaid Drawing or any Fees or any other amounts owing hereunder or
thereunder; or
10.02 Representations, etc. Any representation, warranty or
statement made (or deemed made) by any Credit Party herein or in any other
Credit Document or in any certificate delivered to the Agents or any Bank
pursuant hereto or thereto shall prove to be untrue in any material respect on
the date as of which made or deemed made; or
10.03 Covenants. Any Credit Party shall (i) default in the
due performance or observance by it of any term, covenant or agreement
contained in Section 8.01(e)(i) or Section 9 (other than any default under
clause (vi) of Section 9.01, clause (iv) of Section 9.02 and clause (iii) of
Section 9.04 which occurs solely as a result of a permitted transaction or
transactions exceeding the dollar limitations set forth therein and other than
a default under Section 9.17) or (ii) default in the due performance or
observance by it of any other term, covenant or agreement contained in this
Agreement or any other Credit Document (other than those set forth in Sections
10.01 and 10.02) and such default shall continue unremedied for a period of 30
days after written notice thereof to the defaulting party by the Agents or the
Required Banks; or
10.04 Default Under Other Agreements. (i) PESCO or any of
its Subsidiaries shall (x) default in any payment of any Funded Debt (other
than the Notes) beyond the period of grace, if any, provided in the instrument
or agreement under which such Funded Debt was created or (y) default in the
observance or performance of any agreement or condition relating to any Funded
Debt (other than the Notes) or contained in any instrument or agreement
evidencing, securing or relating thereto, beyond the applicable grace period or
any other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of
such Funded Debt (or a trustee or agent on behalf of such
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holder or holders) to cause (determined without regard to whether any notice is
required), any such Funded Debt to become due prior to its stated maturity, or
(ii) any Funded Debt (other than the Notes) of PESCO or any of its Subsidiaries
shall be declared to be (or shall become) due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior to the
stated maturity thereof, provided that it shall not be a Default or an Event of
Default under this Section 10.04 unless the aggregate principal amount of all
Funded Debt as described in preceding clauses (i) and (ii) is at least
$5,000,000; or
10.05 Bankruptcy, etc. PESCO or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against PESCO or any of its Subsidiaries, and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of PESCO or any of
its Subsidiaries, or PESCO or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to PESCO or any of its
Subsidiaries, or there is commenced against PESCO or any of its Subsidiaries
any such proceeding which remains undismissed for a period of 60 days, or PESCO
or any of its Subsidiaries is adjudicated insolvent or bankrupt; or any order
of relief or other order approving any such case or proceeding is entered; or
PESCO or any of its Subsidiaries suffers any appointment of any custodian or
the like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or PESCO or any of its
Subsidiaries makes a general assignment for the benefit of creditors; or any
corporate action is taken by PESCO or any of its Subsidiaries for the purpose
of effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412
of the Code or Section 302 of ERISA or a waiver of such standard or extension
of any amortization period is sought or granted under Section 412 of the Code
or Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to
occur with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan or a
Foreign Pension Plan has not been timely made, PESCO or any Subsidiary of PESCO
or any ERISA Affiliate has incurred or is likely to incur any liability to or
on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201,
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4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on
account of a group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) under Section 4980B of the Code, or PESCO or
any Subsidiary of PESCO has incurred or is likely to incur liabilities pursuant
to one or more employee welfare benefit plans (as defined in Section 3(1) of
ERISA) that provide benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or Plans or Foreign Pension
Plans; (b) there shall result from any such event or events the imposition of a
lien, the granting of a security interest, or a liability or a material risk of
incurring a liability; and (c) such lien, security interest or liability,
individually, and/or in the aggregate, has had, or could reasonably be expected
to have, a material adverse effect on the business, operations, properties,
assets, liabilities, condition (financial or otherwise) or prospects of PESCO
and its Subsidiaries taken as a whole; or
10.07 Pledge Agreement. At any time after the execution and
delivery thereof, the Pledge Agreement shall cease to be in full force and
effect, or shall cease to give the Collateral Agent for the benefit of the
Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby and in each such case the Pledgors shall fail to promptly take
any and all steps requested by the Agents to remedy such situation; or
10.08 Guaranties. The Guaranties or any material provision
thereof shall cease to be in full force or effect as to any Guarantor, or any
Guarantor or any Person acting by or on behalf of such Guarantor shall deny or
disaffirm such Guarantor's obligations under any Guaranty or any Guarantor
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any Guaranty and
such Guarantor shall fail to promptly take any and all steps requested by the
Agents to remedy such default; or
10.09 Judgments. One or more judgments or decrees shall be
entered against PESCO or any Subsidiary of PESCO involving in the aggregate for
PESCO and its Subsidiaries a liability (not paid or fully covered (other than
the deductible maintained with respect thereto) by a reputable and solvent
insurance company) and such judgments and decrees either shall be final and
non-appealable or shall not be vacated, discharged or stayed or bonded pending
appeal for any period of 60 consecutive days, and the aggregate amount of all
such judgments equals or exceeds $1,000,000; or
10.10 Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Administrative Agent, upon the written
request of the Required Banks, shall by written notice to the Borrower, take
any or all of the following actions, without prejudice to the rights of the
Administrative Agent, any Bank or the holder of any Note to enforce its claims
against any Credit Party (provided, that, if an Event of Default specified in
Section 10.05 shall occur with respect to the Borrower, the result which would
occur upon the giving of written
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notice by the Administrative Agent as specified in clauses (i) and (ii) below
shall occur automatically without the giving of any such notice): (i) declare
the Total Revolving Loan Commitment terminated, whereupon the Revolving Loan
Commitment of each Bank shall forthwith terminate immediately and any
Commitment Commission shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued interest in
respect of all Revolving Loans and the Notes and all Obligations owing
hereunder and thereunder to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Credit Party; (iii) terminate any Letter
of Credit which may be terminated in accordance with its terms; (iv) direct the
Borrower to pay (and the Borrower agrees that upon receipt of such notice, or
upon the occurrence of an Event of Default specified in Section 10.05 with
respect to the Borrower, it will pay) to the Administrative Agent at the
Payment Office such additional amount of cash or Cash Equivalents, to be held
as security by the Administrative Agent, as is equal to the aggregate Stated
Amount of all Letters of Credit issued for the account of the Borrower and then
outstanding; (v) enforce, as Administrative Agent, all Liens, rights and
remedies created pursuant to the Pledge Agreement; and (vi) apply any cash
collateral held by the Administrative Agent pursuant to Section 4.02 to the
repayment of the Obligations.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" shall mean Credit Lyonnais, in its
capacity as Administrative Agent for the Banks hereunder, and shall include any
successor to the Administrative Agent appointed pursuant to Section 12.09.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. A Person shall be deemed to control
another Person if such Person possesses, directly or indirectly, the power (i)
to vote 10% or more of the securities having ordinary voting power for the
election of directors of such Person or (ii) to direct or cause the direction
of the management and policies of such other Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" shall mean and include the Administrative Agent and
the Documentation Agent.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
hereof), extended, renewed, refinanced or replaced from time to time.
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"Applicable Base Rate Margin" shall mean the percentage per
annum determined by reference to the Leverage Ratio in effect from time to
time, all as set forth below, it being understood and agreed that for purposes
of determining Applicable Base Rate Margin (i) the Leverage Ratio for a
particular Test Period shall be effective from the first day of the calendar
quarter immediately succeeding the day on which the financial statements
relating to such Test Period are delivered pursuant to Section 5.12, 8.01(a) or
8.01(b), as the case may be, until the first day of the calendar quarter
immediately succeeding the day on which the financial statements relating to
the immediately succeeding Test Period are so delivered and (ii) in the event
financial statements for a particular Test Period are not delivered on or prior
to the date required pursuant to Section 5.12, 8.01(a) or 8.01(b), as the case
may be, the Leverage Ratio for such Test Period shall be deemed to be 3.00:
<TABLE>
<CAPTION>
Leverage Ratio Applicable Base Rate Margin
-------------- ---------------------------
<S> <C>
Greater than or equal to 3.00 0.50%
Less than 3.00 0
</TABLE>
"Applicable Eurodollar Rate Margin" shall mean the percentage
per annum determined by reference to the Leverage Ratio in effect from time to
time, all as set forth below, it being understood and agreed (i) that at no
time prior to the first anniversary of the Effective Date shall the Applicable
Eurodollar Rate Margin be less than 1.50%, (ii) that for purposes of
determining Applicable Eurodollar Rate Margin (a) the Leverage Ratio for a
particular Test Period shall be effective from the first day of the calendar
quarter immediately succeeding the day on which the financial statements
relating to such Test Period are delivered pursuant to Section 5.12, 8.01(a) or
8.01(b), as the case may be, until the first day of the calendar quarter
immediately succeeding the day on which the financial statements relating to
the immediately succeeding Test Period are so delivered, and (b) in the event
financial statements are not delivered on or prior to the date required
pursuant to Section 5.12, 8.01(a) or 8.01(b), as the case may be, the Leverage
Ratio for such Test Period shall be deemed to be 3.00, and (iii) that for
purposes of determining the interest payable with respect to a Eurodollar Loan,
the Applicable Eurodollar Rate Margin for the Interest Period for such
Eurodollar Loan shall be the Applicable Eurodollar Rate Margin in effect on the
first day of such Interest Period, notwithstanding whether the Applicable
Eurodollar Rate Margin changes during such Interest Period:
<TABLE>
<CAPTION>
Leverage Ratio Applicable Eurodollar Rate Margin
-------------- ---------------------------------
<S> <C>
Greater than or equal to 3.00 1.75%
Greater than or equal to 2.50 1.50
Less than 2.50 1.00
</TABLE>
"Applicable Notice Time" shall mean (i) in the case of a
Permitted Acquisition which consists of an acquisition of all or substantially
all of the assets of any Person, an
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acquisition of the capital stock of any Person or the acquisition of any
Equipment of any Person, at least 10 Business Days prior to the consummation of
such Permitted Acquisition, (ii) in the case of a Permitted Acquisition which
consists of the construction, renovation or refurbishment of Equipment pursuant
to a contract, agreement or undertaking with a Person other than PESCO or its
Subsidiaries, the date which is the earlier of (x) 10 Business Days following
the entering into of such contract, agreement or undertaking and (y) at least
ten Business Days prior to the first payment by PESCO or its Subsidiaries under
such contract, agreement or undertaking and (iii) in the case of a Permitted
Acquisition which consists of the construction, renovation or refurbishment of
Equipment by PESCO or its Subsidiaries, the date which is the earlier of (x) 10
Business Days following the commencement of a substantial portion of such
construction, renovation or refurbishment and (y) at least 10 Business Days
prior to the incurrence, issuance or assumption of any Funded Debt in
connection therewith.
"Applicable Pro Forma Leverage Ratio" shall mean (x) 3.00:1.00
with respect to any Permitted Acquisition consummated prior to the time that
the aggregate cash consideration (including, without limitation, the then
present value of any earn-out, non-compete or deferred compensation
arrangements and the aggregate principal amount of Funded Debt assumed in
connection therewith) paid or to be paid in connection with such Permitted
Acquisition, together with the aggregate cash consideration paid in connection
with all Permitted Acquisitions consummated prior to such time, is equal to or
less than $50,000,000, and (y) 2.50:1.00 with respect to any Permitted
Acquisition consummated subsequent to the time that the aggregate cash
consideration (including, without limitation, any earn-out, non-compete or
deferred compensation arrangements and the aggregate principal amount of Funded
Debt assumed in connection therewith) paid or to be paid in connection with
such Permitted Acquisition, together with the aggregate cash consideration paid
in connection with all Permitted Acquisitions consummated prior to such time,
exceeds $50,000,000.
"Arranger" shall have the meaning provided in the first
paragraph hereof.
"Asset Sale" shall mean any sale, transfer or other
disposition by the Borrower or any of its Subsidiaries to any Person (including
by-way-of redemption by such Person) other than to the Borrower or a
Wholly-Owned Subsidiary of the Borrower of any asset (including, without
limitation, any capital stock or other securities of, or equity interests in,
another Person) other than sales of assets pursuant to Sections 9.02(i), (ii),
(iii), (iv), (x) and (xiii).
"Assignment and Assumption Agreement" shall mean an Assignment
and Assumption Agreement substantially in the form of Exhibit I (appropriately
completed).
"Bank" shall mean each financial institution listed on
Schedule I, as well as any Person which becomes a "Bank" hereunder pursuant to
Section 1.12 or 15.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) or the failure of a Bank to make available its portion of any
Borrowing or to fund its portion of any
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unreimbursed payment under Section 2.04(c) or (ii) a Bank having notified in
writing the Borrower and/or the Administrative Agent that such Bank does not
intend to comply with its obligations under Section 1.01 or 2, in the case of
either clause (i) or (ii) as a result of any takeover or control (including,
without limitation, as a result of the occurrence of any event of the type
described in Section 10.05 with respect to such Bank) of such Bank by any
regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section
10.05.
"Base Rate" shall mean, at any time, the higher of (i) the
Prime Lending Rate and (ii) 1/2 of 1% in excess of the Federal Funds Rate.
"Base Rate Loan" shall mean each Revolving Loan designated or
deemed designated as such by the Borrower at the time of the incurrence thereof
or conversion thereto.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean the borrowing of one Type of Revolving
Loan from all the Banks on a given date (or resulting from a conversion or
conversions on such date) having in the case of Eurodollar Loans the same
Interest Period, provided that Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of the related Borrowing of Eurodollar Loans.
"Business" shall mean the provision of well-servicing,
workover, drilling and/or other energy production services, whether on land or
offshore.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City, New York or Houston, Texas, a legal holiday or a day
on which banking institutions are authorized or required by law or other
government action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in clause (i) above
and which is also a day for trading by and between banks in the New York
interbank Eurodollar market.
"Business Plan" shall mean the slide presentation dated August
12, 1997 and the accompanying information memorandum of August, 1997.
"Capital Expenditures" shall mean, with respect to any Person,
all maintenance expenditures by such Person which should be capitalized in
accordance with GAAP, plus rig modifications and enhancements where the
individual project cost is not in excess of $750,000 (excluding top drives) but
excluding (i) the amount of Capitalized Lease Obligations incurred by such
Person and (ii) the amount of any Permitted Acquisitions and Identified
Acquisitions.
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"Capitalized Lease Obligations" shall mean, with respect to
any Person, all rental obligations of such Person which, under GAAP, are or
will be required to be capitalized on the books of such Person, in each case
taken at the amount thereof accounted for as indebtedness in accordance with
such principles.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having
maturities of not more than six months from the date of acquisition, (ii)
Dollar denominated time deposits and certificates of deposit of the Agents or
any commercial bank having, or which is the principal banking subsidiary of a
bank holding company having, a long-term unsecured debt rating of at least
"BBB-" or the equivalent thereof from Standard & Poor's Ratings Services or
"Baa1" or the equivalent thereof from Moody's Investors Service, Inc. with
maturities of not more than six months from the date of acquisition by such
Person, (iii) Dollar denominated time deposits and certificates of deposit of
any commercial bank organized under the laws of the United States which are
insured by the Federal Deposit Insurance Corporation, (iv) Eurodollar
investments with financial institutions (A) having combined capital, surplus
and undivided profits of not less than U.S. $100,000,000.00 and (B) with
commercial paper rated at least "P-1" or "A" by Moody's Investor Service, Inc.
or Standard & Poor's Ratings Services, respectively, or, if any institution
does not have a commercial paper rating, a comparable bond rating of at least
"A" or "Baa1" by Moody's Investor Service, Inc. or Standard & Poor's Ratings
Services, respectively, (v) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (ii)
above, (vi) commercial paper issued by any Person incorporated in the United
States rated at least A-1 or the equivalent thereof by Standard & Poor's
Ratings Services or at least P-1 or the equivalent thereof by Moody's Investors
Service, Inc. and in each case maturing not more than six months after the date
of acquisition by such Person, (vii) marketable direct obligations issued by
the District of Columbia or any State of the United States or any political
subdivision of any such State or any public instrumentality thereof maturing
within six months from the date of acquisition and, at the time of acquisition,
having one of the two highest ratings obtainable from either Standard & Poor's
Ratings Services or Moody's Investors Service, Inc. and (viii) investments in
money market funds substantially all of whose assets are comprised of
securities of the types described in clauses (i) through (v) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale,
the aggregate cash payments (including any cash received by way of deferred
payment pursuant to a note receivable issued in connection with such Asset Sale
or pursuant to a receivable or otherwise, other than (in each case) the portion
of such deferred payment constituting interest, but only as and when so
received) received by PESCO and/or any of its Subsidiaries from such Asset
Sale.
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"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time
to time, 42 U.S.C. Section 9601 et seq.
"Change of Control" shall mean, except as permitted by Section
9.02, (i) PESCO shall cease to own directly 100% on a fully diluted basis of
the economic and voting interest in Holding's capital stock, (ii) Holding shall
cease to own directly 100% on a fully diluted basis of the economic and voting
interest in the Borrower's capital stock, (iii) any Person or "group" (within
the meaning of Section 13(d) and 14(d) under the Securities Exchange Act, as in
effect on the Effective Date), shall (A) have acquired beneficial ownership of
25% or more on a fully diluted basis of the voting and/or economic interest in
PESCO's capital stock or (B) obtained the power (whether or not exercised) to
elect a majority of the directors of PESCO, Holding or the Borrower or (iv) the
Board of Directors of PESCO shall cease to consist of a majority of Continuing
Directors.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the "Code" are to the Code, as in effect at
the date of this Agreement and any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean the Pledge Agreement Collateral and
all cash and Cash Equivalents delivered as collateral pursuant to Section 4.02
or 10.
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Secured Creditors pursuant to the Pledge Agreement.
"Commitment Commission" shall have the meaning set forth in
Section 3.01.
"Consolidated EBIT" shall mean, for any period, Consolidated
Net Income for such period, before Consolidated Interest Expense and provision
for income taxes for such period and without giving effect (x) to any
extraordinary gains or losses and (y) to any gains or losses from sales of
assets other than from sales of assets in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT for such period, adjusted by adding thereto the amount of all amortization
of intangibles and depreciation that were deducted in arriving at Consolidated
EBIT for such period, provided that there shall be excluded from the
calculation of Consolidated EBITDA lease payments in respect of the San Angelo
Lease (net of sublease payments received with respect thereto to the extent not
included in Consolidated Net Income) and, provided further, that (i) the net
income of any other Person which is not a Subsidiary of PESCO or is accounted
for by the equity method of accounting shall be included only to the extent of
the payment of dividends or distributions by such other Person to PESCO or a
Subsidiary thereof during such period, (ii) Consolidated EBITDA shall be
reduced by the amount of equity contributions made after the Effective Date
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to Excluded Subsidiaries or Subsidiaries of PESCO which are not Subsidiary
Guarantors and (iii) the net income of any Subsidiary of PESCO or any Excluded
Subsidiary shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Person of its income is not at the
time permitted by operation of the terms of its charter or any agreement,
instrument or law applicable to such Person.
"Consolidated Funded Debt" shall mean, at any time, the
principal amount of all Funded Debt of PESCO and its Subsidiaries at such time
as determined on a consolidated basis.
"Consolidated Interest Coverage Ratio" shall mean, for any
period, the ratio of Consolidated EBITDA to Consolidated Interest Expense for
such period.
"Consolidated Interest Expense" shall mean, for any period,
the total consolidated cash interest expense (including any interest which is
capitalized in accordance with FASB 34) of PESCO and its Subsidiaries for such
period (calculated without regard to any limitations on the payment thereof)
plus, without duplication, (x) that portion of Capitalized Lease Obligations of
PESCO and its Subsidiaries representing the interest factor for such period and
(y) Letter of Credit Fees payable during such period; provided that the
amortization of deferred financing costs with respect to this Agreement shall
be excluded from Consolidated Interest Expense to the extent same would
otherwise have been included therein.
"Consolidated Net Income" shall mean, for any period, the net
income (or loss) of PESCO and its Subsidiaries for such period, determined on a
consolidated basis (and without giving effect to the net income (or loss) of
any of the Excluded Subsidiaries).
"Consolidated Net Worth" shall mean, at any time, the Net
Worth of PESCO, its Subsidiaries and the Excluded Subsidiaries (without
duplication of any investments held by PESCO or its Subsidiaries in such
Excluded Subsidiaries) determined on a consolidated basis after appropriate
deduction for any minority interests in Subsidiaries and Excluded Subsidiaries,
all in accordance with GAAP.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person as a result of such Person being a general partner of
the other Person, unless the underlying obligation is expressly made
non-recourse as to such general partner, and any obligation of such Person
guaranteeing or intended to guarantee any Funded Debt, leases, dividends or
other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily
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for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the holder of such primary obligation
against loss in respect thereof; provided, however, that the term Contingent
Obligation shall not include (A) endorsements of instruments for deposit or
collection in the ordinary course of business, (B) guarantees by Pool
California Energy Services, Inc. of up to $400,000 (in the aggregate
outstanding at any time) with respect to vehicle lease obligations of its
employees, (C) obligations of Pool Alaska, Inc., as a general partner in
Kuupik/Pool Arctic Alaska, an Alaska general partnership, (D) guarantees
relating to bid bonds and surety bonds (or other similar instruments) issued in
the ordinary course of business with respect to performance obligations of
PESCO or any of its Subsidiaries, (E) performance guarantees for contractual
performance obligations of PESCO or any of its Subsidiaries made in the
ordinary course of business, (F) contractual indemnities made in the ordinary
course of business with respect to claims for personal injuries and property
damages, (G) PESCO's guarantee of the Borrower's obligations relating to the
Ranger Rigs sale/leaseback, (H) PESCO's obligation to repay ENSERCH Corporation
for any costs incurred under its guarantee of Borrower's obligations under the
San Angelo Lease, (I) any obligations to repay ENSERCH corporation for any
costs it incurs with respect to claims covered by its pre-1990 insurance
program, (J) any obligations of PESCO to the United States Coast Guard with
respect to any financial responsibility guarantees for water pollution with
respect to rigs (only to the extent fully covered (other than the deductible
maintained with respect thereto) by insurance maintained with a reputable and
solvent insurance company), (K) any guarantees of operating leases of the
Borrower or its Subsidiaries entered into in the ordinary course of business
and (L) any guarantees relating to the obligations of PESCO or its Subsidiaries
under Interest Rate Protection Agreements or Other Hedging Agreements which are
permitted hereunder. The amount of any Contingent Obligation shall be deemed
to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation 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.
"Continuing Directors" shall mean the directors of PESCO on
the Effective Date and each other director if (a) such director's nomination
for election to the Board of Directors of PESCO is recommended by a majority of
the then Continuing Directors or (b) such director is elected by the vote of
the shareholders of PESCO prior to the occurrence of a Change of Control.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, the Subsidiaries Guaranty and the Pledge Agreement.
"Credit Event" shall mean the making of any Revolving Loan or
the issuance of any Letter of Credit.
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"Credit Lyonnais" shall mean Credit Lyonnais, New York Branch,
in its individual capacity, and any successor corporation thereto by merger,
consolidation or otherwise.
"Credit Party" shall mean and include each Parent Guarantor,
the Borrower and each Subsidiary Guarantor and any successor entity permitted
by Section 9.02.
"DA&S Stock Purchase Agreement" shall mean the Stock Purchase
Agreement, dated June 19, 1997, among the Sellers named therein, DA&S Oil Well
Servicing, Incorporated, a New Mexico corporation, and the Borrower, providing
for the issuance by the Borrower of $10,050,000 principal amount of 9%
subordinated notes due January 15, 2003.
"DA&S Subordinated Debt Documents" shall mean and include the
DA&S Stock Purchase Agreement, each DA&S Subordinated Note, each amendment,
modification or supplement thereto, together with all other agreements,
instruments and documents executed or delivered pursuant thereto or in
connection therewith (including, without limitation, any promissory notes,
guaranties and security documents).
"DA&S Subordinated Notes" shall mean each of the subordinated
promissory notes issued pursuant to the DA&S Stock Purchase Agreement.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Dividend" shall mean, with respect to any Person, that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders or partners or authorized or made any other distribution, payment
or delivery of property (other than common stock of such Person) or cash to its
stockholders or partners as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for a consideration any shares of any class
of its capital stock or any partnership interests outstanding on or after the
Effective Date (or any options or warrants issued by such Person with respect
to its capital stock), or set aside any funds for any of the foregoing
purposes, or shall have permitted any of its Subsidiaries to purchase or
otherwise acquire for a consideration any shares of any class of the capital
stock or any partnership interests of such Person outstanding on or after the
Effective Date (or any options or warrants issued by such Person with respect
to its capital stock). Without limiting the foregoing, "Dividends" with
respect to any Person shall also include all payments made or required to be
made by such Person with respect to any stock appreciation rights plans, equity
incentive or achievement plans or any similar plans or setting aside of any
funds for the foregoing purposes.
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"Documentation Agent" shall have the meaning provided in the
first paragraph of this Agreement.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of the
Borrower that is incorporated under the laws of the United States or any State
or territory thereof.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Effective Date" shall have the meaning provided in Section
15.10.
"Eligible Transferee" shall mean and include a commercial
bank, financial institution, any fund that invests in bank loans or any other
"accredited investor" (as defined in Regulation D of the Securities Act).
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment
due to the presence of Hazardous Materials.
"Environmental Law" shall mean any Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guideline, written
policy and rule of common law now or hereafter in effect and in each case as
amended, and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment, relating to
the environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the
Safe Drinking Water Act, 42 U.S.C. Section 3803 et seq.; the Oil Pollution Act
of 1990, 33 U.S.C. Section 2701 et seq.; the Emergency Planning and the
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the
Hazardous Material Transportation Act, 49 U.S.C. Section 1801 et seq.; the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; and any
state and local or foreign counterparts or equivalents, in each case as amended
from time to time.
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"Equipment" shall mean and include rigs, other well-servicing
equipment and any other related equipment utilized in the Business.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with PESCO or a Subsidiary of PESCO would
be deemed to be a "single employer" (i) within the meaning of Section 414(b),
(c), (m) or (o) of the Code or (ii) as a result of PESCO or a Subsidiary of
PESCO being or having been a general partner of such person.
"Eurodollar Loan" shall mean each Revolving Loan designated as
such by the Borrower at the time of the incurrence thereof or conversion
thereto.
"Eurodollar Rate" shall mean (a) the offered rate (rounded
upwards, if necessary, to the next higher 1/100th of 1%) which appears on the
Telerate Page 3750, British Bankers Association Interest Settlement Rates (or
such other system for the purpose of displaying rates of leading reference
banks in the London interbank market that replaces such system) as of 11:00
a.m. (London time) for deposits in Dollars on the day two (2) Business Days
prior to the first day of such Interest Period in an amount approximately equal
to the principal amount of the Eurodollar Rate Loan to which such Interest
Period is to apply and for a period of time comparable to such Interest Period,
divided (and rounded upward to the nearest 1/16 of 1%) by (b) a percentage
equal to 100% minus the then stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves required by applicable law) applicable to any member bank of
the Federal Reserve System in respect of Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
"Event of Default" shall have the meaning provided in Section
10.
"Excluded Subsidiary" shall mean and include Pool Arabia Ltd.,
Intairdril Oman, L.L.C. and PIASA.
"Existing Indebtedness" shall have the meaning provided in
Section 7.21.
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding
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Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Administrative Agent from
three Federal Funds brokers of recognized standing selected by the
Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"Final Maturity Date" shall mean October 2, 2000, as such date
may be extended pursuant to Section 1.13.
"Fixed Charge Coverage Ratio" shall mean the ratio of
Consolidated EBITDA (minus the amount of all cash taxes paid, net of cash tax
refunds, for the period for which Consolidated EBITDA is calculated) to Fixed
Charges.
"Fixed Charges" for any period shall mean the sum of (i)
Consolidated Interest Expense for such period, (ii) the amount of Capital
Expenditures made by PESCO and its Subsidiaries on a consolidated basis during
such period and (iii) the amount of scheduled repayments of Consolidated Funded
Debt required to be made during such period.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by PESCO or any
one or more of its Subsidiaries primarily for the benefit of employees of PESCO
or such Subsidiaries residing outside the United States of America, which plan,
fund or other similar program provides, or results in, retirement income, a
deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the
Borrower which is not a Domestic Subsidiary.
"Funded Debt" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money (which, for the avoidance of doubt,
is funded and outstanding) or for the deferred purchase price of property or
services other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices, including all
obligations evidenced by bonds, debentures, notes or similar instruments, or
any other obligations which, in accordance with GAAP, should be classified upon
such Person's balance sheet as liabilities, (ii) the maximum amount available
to be drawn under all letters of credit issued for the account of such Person
and all unpaid drawings in respect of such letters of credit, (iii) all Funded
Debt secured by any Lien on any property owned by such Person, whether or not
such Funded Debt has been assumed by such Person, (iv) the aggregate amount
required in accordance with GAAP to be capitalized under leases under which
such Person is the lessee, (v) all obligations
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of such person to pay a specified purchase price for goods or services, whether
or not delivered or accepted, i.e., take-or-pay and similar obligations and
(vi) all Contingent Obligations of such Person.
"GAAP" shall mean generally accepted accounting principles in
the United States as in effect from time to time applied on a consistent basis
(i) as set forth in Opinions of the Accounting Principles Board of the American
Institute of Certified Public Accountants ("AICPA") and in statements of the
Financial Accounting Standards Board which are applicable in the circumstances
as of the date in question, and (ii) where not inconsistent with such opinions
and statements, as set forth in other AICPA publications and guidelines or
which otherwise arise by custom for the particular industry; and the requisite
that such principles be applied on a consistent basis means that the accounting
principles in a current period are comparable in all material respects to those
applied in a preceding period.
"Guaranteed Creditors" shall mean and include each of the
Administrative Agent, the Arranger, the Documentation Agent, the Collateral
Agent, the Banks and each party (other than any Credit Party) party to an
Interest Rate Protection Agreement or Other Hedging Agreement to the extent
that such party constitutes a Secured Creditor under the Pledge Agreement.
"Guaranteed Obligations" shall mean (i) the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of the principal and interest on each Note issued by the Borrower to each Bank,
and Revolving Loans made, under this Agreement and all reimbursement
obligations and Unpaid Drawings with respect to Letters of Credit, together
with all the other obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due)
and liabilities (including, without limitation, indemnities, fees and interest
thereon) of the Borrower to such Bank, the Administrative Agent, the Arranger,
the Documentation Agent, and the Collateral Agent now existing or hereafter
incurred under, arising out of or in connection with this Agreement or any
other Credit Document and the due performance and compliance with all the
terms, conditions and agreements contained in the Credit Documents by the
Borrower and (ii) the full and prompt payment when due (whether by acceleration
or otherwise) of all obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due)
and liabilities of the Borrower or any of its Subsidiaries owing under any
Interest Rate Protection Agreement or Other Hedging Agreement entered into by
the Borrower or any of its Subsidiaries with any Bank or any affiliate thereof
(even if such Bank subsequently ceases to by a Bank under this Agreement for
any reason) so long as such Bank or affiliate participate in such Interest Rate
Protection Agreement or Other Hedging Agreement, and their subsequent assigns,
if any, whether now in existence or hereafter arising, and the due performance
and compliance with all terms, conditions and agreements contained therein.
"Guarantor" shall mean each Parent Guarantor and each
Subsidiary Guarantor.
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"Guaranty" shall mean and include each of the Parents Guaranty
and the Subsidiaries Guaranty.
"Hazardous Materials" shall mean (a) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is
friable, urea formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing levels of polychlorinated biphenyls,
and radon gas; (b) any chemicals, materials or substances defined as or
included in the definition of "hazardous substances," "hazardous waste,"
"hazardous materials," "extremely hazardous substances," "restricted hazardous
waste," "toxic substances," "toxic pollutants," "contaminants," or
"pollutants," or words of similar import, under any applicable Environmental
Law; and (c) any other chemical, material or substance, the Release of which is
prohibited, limited or regulated by any governmental authority.
"Hillman Deferred Payment Agreement" shall mean the Agreement
regarding Deferred Payment of Purchase Price, dated June 13, 1995 among Robert
D. Hillman, Barbara A. Hillman, Richard H. Hillman, Robert D. Hillman, Jr. and
the Borrower providing for the issuance by the Borrower of $11,500,000
principal amount of 10% subordinated notes due June 13, 2005.
"Hillman Subordinated Debt Documents" shall mean and include
the Hillman Deferred Payment Agreement, each Hillman Subordinated Note, each
amendment, modification or supplement thereto, together with all other
agreements, instruments and documents executed or delivered pursuant thereto or
in connection therewith (including, without limitation, any promissory notes,
guaranties and security documents).
"Hillman Subordinated Notes" shall mean each of the
subordinated promissory notes issued pursuant to the Hillman Deferred Payment
Agreement.
"Holding" shall have the meaning provided in the first
paragraph of this Agreement.
"Identified Acquisitions" shall mean and include the R&H
Acquisition and the Rig #16.
"Inactive Subsidiary" shall mean and include each of The
International Air Drilling Company, a Texas corporation, Pool Australia, Inc.,
a Texas corporation, Pool Americas, Inc., a Texas corporation and ENS Equipment
Leasing, B.V.
"Indebtedness to be Refinanced" shall mean the Funded Debt of
PESCO and its Subsidiaries set forth on Schedule VII which is to be repaid in
full, and all commitments in respect thereof to be terminated, pursuant to the
Refinancing.
"Intercompany Loan" shall have the meaning provided in Section
9.05(viii).
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"Intercompany Note" shall mean a promissory note, in the form
of Exhibit J or such other form as may be reasonably acceptable to the
Administrative Agent, in either case evidencing Intercompany Loans.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedging agreement or other similar agreement or
arrangement.
"Investments" shall have the meaning provided in Section 9.05.
"Issuing Bank" shall mean Credit Lyonnais New York Branch,
Bank One, Texas, N.A., The Hongkong & Shanghai Banking Corporation Limited, the
other Agent, and any other Bank which at the request of the Borrower and with
the consent of the Agents agrees, in such Bank's sole discretion, to become an
Issuing Bank for the purpose of issuing Letters of Credit pursuant to Section
2.
"L/C Supportable Obligations" shall mean (i) obligations of
PESCO or any of its Subsidiaries with respect to liability insurance, all-risk
insurance, workers compensation, surety bonds and other similar statutory
obligations and (ii) such other obligations of PESCO or any of its Subsidiaries
as are reasonably acceptable to the respective Issuing Bank and otherwise
permitted to exist pursuant to the terms of this Agreement.
"Leaseholds" of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all effective and outstanding Letters
of Credit at such time and (ii) the amount of all Unpaid Drawings at such time.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
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"Leverage Ratio" shall mean, at any time, the ratio of
Consolidated Funded Debt at such time to Consolidated EBITDA for the Test
Period then most recently ended, provided that, for purposes of calculating
either the Applicable Base Rate Margin or the Applicable Eurodollar Rate
Margin, the foregoing numerator shall instead be the sum of (i) Consolidated
Funded Debt (excluding Revolving Outstandings) at such time plus (ii) the
average Revolving Outstandings for the then most recently ended fiscal quarter
of PESCO.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Margin Stock" shall have the meaning provided in Regulation
U.
"Material Asset Sale" shall mean any Asset Sale of assets
generating gross cash sale proceeds to PESCO and/or its Subsidiaries in excess
of $3,000,000.
"Minimum Borrowing Amount" shall mean (i) for Base Rate Loans,
$5,000,000 and (ii) for Eurodollar Loans, $10,000,000.
"NAIC" shall mean the National Association of Insurance
Commissioners.
"NationsBank Credit Agreement" shall mean each of the Restated
Revolving Credit Agreement, and the Restated Term Credit Agreement, each dated
as of November 30, 1995, among the Borrower, NationsBank of Texas, N.A., as
agent, the Lenders party thereto and the other Obligors party thereto, as the
same has been amended, modified or supplemented prior to the date hereof,
together with all other agreements, instruments and documents executed or
delivered pursuant thereto or in connection therewith (including, without
limitation, any promissory notes, guarantees and security documents).
"Net Debt Proceeds" shall mean, with respect to any incurrence
of Funded Debt for borrowed money, the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith)
received by the respective Person from the respective incurrence of such Funded
Debt for borrowed money, but shall not include proceeds deemed received
pursuant to a refinancing of Funded Debt to the extent permitted pursuant to
Section 9.04.
"Net Insurance Proceeds" shall mean, with respect to any
Recovery Event, the cash proceeds (net of reasonable costs and any incremental
taxes paid or payable in connection with such Recovery Event) received by the
respective Person in connection with the respective Recovery Event.
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"Net Sale Proceeds" shall mean, for any Material Asset Sale,
the gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from such Material Asset Sale, net of the reasonable costs
of such sale (including fees and commissions, payments of unassumed liabilities
relating to the assets sold and required payments of any Funded Debt which is
secured by the respective assets which were sold), and any incremental taxes
paid or payable as a result of such Material Asset Sale.
"Net Worth" shall mean, as to any Person, the sum of its
capital stock (including, without limitation, any preferred stock, but
excluding any such capital stock subject to mandatory redemption), capital in
excess of par or stated value of shares of its capital stock, retained
earnings, currency translation adjustments and any other account which, in
accordance with GAAP constitutes stockholders equity, excluding any treasury
stock.
"Non-Defaulting Bank" shall mean and include each Bank other
than a Defaulting Bank.
"Note" shall have the meaning provided in Section 1.05.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at 1000 Louisiana, Suite 5360, Houston, TX 77002, Attention: W.
Thomas Byargeon or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Arranger, the Documentation Agent, the Collateral
Agent, any Issuing Bank or any Bank pursuant to the terms of this Agreement or
any other Credit Document.
"Other Hedging Agreement" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
agreements or arrangements designed to protect against the fluctuations in
currency values.
"Parent Guarantor" shall mean and include each of PESCO and
Holding.
"Parents Guaranty" shall have the meaning provided in Section
14.
"Participant" shall have the meaning provided in Section
2.04(a).
"Parties" shall mean PESCO, Holding and the Borrower.
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"Payment Office" shall mean the office of the Administrative
Agent located at 1000 Louisiana, Suite 5360, Houston, TX 77002, or such other
office as the Administrative Agent may hereafter designate in writing as such
to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall mean an acquisition of all or
substantially all of the assets of any Person (or all or substantially all of
the assets of a product line or division of any Person), an acquisition of 100%
of the capital stock of any Person or any acquisition, construction, renovation
or refurbishment of Equipment (including (i) rig modifications and enhancements
where the individual project cost is equal to or in excess of $750,000 and (ii)
top drives) or other property or assets used in the Business, in any case,
which satisfies the conditions set forth in Section 9.02(ix).
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Permitted Subordinated Indebtedness" shall have the meaning
provided in Section 9.04(vii).
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, limited liability company, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"PESCO" shall have the meaning provided in the first paragraph
of this Agreement.
"PIASA" shall mean Pool International Argentina S.A.
"Plan" shall mean any pension plan as defined in Section 3(2)
of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) PESCO or a Subsidiary of PESCO or an ERISA
Affiliate, and each such plan for the five year period immediately following
the latest date on which PESCO, or a Subsidiary of PESCO or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section
5.10.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in the Pledge Agreement.
"Pledged Securities" shall mean all "Pledged Securities" as
defined in the Pledge Agreement.
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"Pledgee" shall have the meaning provided in the Pledge
Agreement.
"Pledgor" shall mean and include each "Pledgor" party to the
Pledge Agreement, which, as of the Effective Date, shall mean the Borrower
and/or each Subsidiary of the Borrower which owns capital stock, Partnership
Interest, or Membership Interests (as defined in the Pledge Agreement) of any
Wholly-Owned Foreign Subsidiary.
"Prime Lending Rate" shall mean the rate which the
Administrative Agent establishes from time to time as its base lending rate,
the Prime Lending Rate to change when and as such base lending rate changes.
The Prime Lending Rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer. The Administrative
Agent may make commercial loans or other loans at rates of interest at, above
or below the Prime Lending Rate.
"Pro Forma Leverage Ratio" shall mean, at any time prior to
any Permitted Acquisition, the ratio of Consolidated Funded Debt (to be
determined on a pro forma basis at such time as if such Permitted Acquisition
had been consummated at such time (and assuming that (x) the entire purchase
price for such Permitted Acquisition (or cost of construction, renovation or
refursbishment) had been borrowed at such time and (y) any Funded Debt (without
duplication) incurred, issued or assumed in connection with such Permitted
Acquisition had been outstanding at such time)) to Consolidated EBITDA for the
Test Period then most recently ended (and for which financial statements have
been delivered) prior to the date of consummation of such Permitted Acquisition
(with such Consolidated EBITDA to be determined on a pro forma basis as if such
Permitted Acquisition had been consummated on the first day of such Test
Period).
"Projections" shall mean the projections delivered to the
Agents prior to the Effective Date which were prepared by the Borrower for the
periods ending on December 31, 2000.
"Quarterly Payment Date" shall mean the last Business Day of
each September, December, March and June occurring after the Effective Date.
"R&H Acquisition" shall mean the acquisition of R&H Well
Service, Inc. by the Borrower for a purchase price not to exceed $38.0 million,
provided that all existing Funded Debt, relating to R&H Well Services shall
have been paid with proceeds of Loans.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
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"Recovery Event" shall mean the receipt by PESCO or any of its
Subsidiaries of any cash insurance proceeds or condemnation awards payable (i)
by reason of theft, loss, physical destruction, damage, taking or any other
similar event occurring on or after the Effective Date with respect to any
property or assets of PESCO or any of its Subsidiaries and (ii) under any
policy of insurance required to be maintained under Section 8.03.
"Refinancing" shall mean, collectively, the repayment of all
Indebtedness to be Refinanced, together with all accrued interest, premiums,
fees, commissions and expenses owing in connection therewith, and the
termination of all commitments thereunder.
"Register" shall have the meaning provided in Section 15.15.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Release" shall mean the disposing, discharging, injecting,
spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying,
pouring or migrating, into or upon any land or water or air, or otherwise
entering into the environment.
"Replaced Bank" shall have the meaning provided in Section
1.12.
"Replacement Bank" shall have the meaning provided in Section
1.12.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived under
subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
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"Required Banks" shall mean Non-Defaulting Banks the sum of
whose Revolving Loan Commitments (or after the termination thereof, outstanding
Revolving Loans and RL Percentages of Letter of Credit Outstandings) represent
an amount at least 66 2/3% of the sum of the Total Revolving Loan Commitment
less the Revolving Loan Commitments of all Defaulting Banks (or after the
termination thereof, the sum of the then total outstanding Revolving Loans of
Non- Defaulting Banks and the aggregate RL Percentages of Non-Defaulting Banks
of the total Letter of Credit Outstandings at such time).
"Revolving Loan" shall have the meaning provided in Section
1.01.
"Revolving Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I directly below the
column entitled "Revolving Loan Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03 and/or 10 or (y) adjusted from
time to time as a result of assignments to or from such Bank pursuant to
Section 1.12 or 15.04(b).
"Revolving Outstandings" shall mean, at any time, the sum of
the aggregate principal amount of all Revolving Loans then outstanding plus the
aggregate amount of all Letter of Credit Outstandings at such time.
"Rig #16" shall mean the construction of "Rig #16".
"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the RL Percentage of
any Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the RL Percentages of the Banks shall be determined
immediately prior (and without giving effect) to such termination.
"San Angelo Lease" shall mean the Sublease Agreement, dated
March 15, 1983, between the Borrower and Olo Associates Limited Partnership.
"SEC" shall have the meaning provided in Section 8.01(f).
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning assigned that term
in the Pledge Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
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"Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Stated Amount" of each Letter of Credit shall mean, at any
time, the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).
"Subsidiaries Guaranty" shall have the meaning provided in
Section 5.11.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person and/or
one or more Subsidiaries of such Person and (ii) any partnership, limited
liability company, association, joint venture or other entity in which such
Person and/or one or more Subsidiaries of such Person has more than a 50%
equity interest at the time, excluding each Excluded Subsidiary.
"Subsidiary Guarantor" shall mean each Domestic Subsidiary of
the Borrower and, to the extent provided in Section 8.11, each Foreign
Subsidiary of the Borrower.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Test Period" shall mean the four consecutive fiscal quarters
of PESCO then last ended (in each case taken as one accounting period). The
first Test Period of PESCO shall be for the four consecutive fiscal quarters
ending June 30, 1997.
"Total Capital" shall mean, at any time, an amount equal to
the sum of (x) the Consolidated Funded Debt at such time and (y) the
Consolidated Net Worth at such time.
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the remainder of (x) the Total Revolving Loan
Commitment then in effect less (y) the sum of the aggregate principal amount of
all Revolving Loans then outstanding plus the then aggregate amount of all
Letter of Credit Outstandings.
"Trade Advances" shall mean any advances which represent
charges to a Subsidiary for (w) PESCO's insurance program, (x) allocation of
overhead, (y) services rendered for the benefit of such Subsidiary (including,
without limitation, those rendered by
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financial, legal or engineering professionals), or (z) assets purchased by such
Subsidiary in the ordinary course of its business.
"Type" shall mean the type of Revolving Loan determined with
regard to the interest option applicable thereto, i.e., whether a Base Rate
Loan or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the actuarial present value of the accumulated plan
benefits under the Plan as of the close of its most recent plan year,
determined in accordance with actuarial assumptions at such time consistent
with Statement of Financial Accounting Standards No. 87, exceeds the market
value of the assets allocable thereto.
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided for in
Section 2.05(a).
"Unutilized Revolving Loan Commitment" shall mean, with
respect to any Bank at any time, such Bank's Revolving Loan Commitment at such
time less the sum of (i) the aggregate outstanding principal amount of all
Revolving Loans made by such Bank at such time and (ii) such Bank's RL
Percentage of the Letter of Credit Outstandings at such time.
"Wholly-Owned Foreign Subsidiary" shall mean each Foreign
Subsidiary of the Borrower that is also a Wholly-Owned Subsidiary of the
Borrower.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest
at such time, excluding each Excluded Subsidiary.
SECTION 12. The Administrative Agent.
12.01 Appointment. The Banks hereby irrevocably designate
Credit Lyonnais as Administrative Agent to act as specified herein and in the
other Credit Documents. Each Bank hereby irrevocably authorizes, and each
holder of any Note by the acceptance of such Note shall be deemed irrevocably
to authorize, the Administrative Agent to take such action on their behalf
under the provisions of this Agreement, the other Credit Documents and any
other instruments and agreements referred to herein or therein and to exercise
such powers and
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to perform such duties hereunder and thereunder as are specifically delegated
to or required of the Administrative Agent by the terms hereof and thereof and
such other powers as are reasonably incidental thereto. The Administrative
Agent may perform any of its duties hereunder by or through its officers,
directors, agents, employees or affiliates.
12.02 Nature of Duties. The Administrative Agent shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and in the other Credit Documents. Neither the Administrative Agent
nor any of its officers, directors, agents, employees or affiliates shall be
liable for any action taken or omitted by them hereunder or under any other
Credit Document or in connection herewith or therewith, unless caused by its or
their gross negligence or willful misconduct. The duties of the Administrative
Agent shall be mechanical and administrative in nature; the Administrative
Agent shall not have by reason of this Agreement or any other Credit Document a
fiduciary relationship in respect of any Bank or the holder of any Note; and
nothing in this Agreement or any other Credit Document, expressed or implied,
is intended to or shall be so construed as to impose upon the Administrative
Agent any obligations in respect of this Agreement or any other Credit Document
except as expressly set forth herein or therein.
12.03 Lack of Reliance on the Administrative Agent.
Independently and without reliance upon the Administrative Agent, each Bank and
the holder of each Note, to the extent it deemed or deems appropriate, has made
and shall continue to make (i) its own independent investigation of the
financial condition and affairs of the Borrower and its Subsidiaries in
connection with the making and the continuance of the Revolving Loans and the
taking or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of the Borrower and its Subsidiaries and,
except as expressly provided in this Agreement, the Administrative Agent shall
not have any duty or responsibility, either initially or on a continuing basis,
to provide any Bank or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Revolving Loans or at any time or times thereafter. The
Administrative Agent shall not be responsible to any Bank or the holder of any
Note for any recitals, statements, information, representations or warranties
herein or in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectability, priority or sufficiency of this
Agreement or any other Credit Document or the financial condition of the
Borrower or any of its Subsidiaries or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement or any other Credit Document, or the financial
condition of the Borrower or any of its Subsidiaries or the existence or
possible existence of any Default or Event of Default.
12.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Banks with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and
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until the Administrative Agent shall have received instructions from the
Required Banks; and the Administrative Agent shall not incur liability to any
Bank by reason of so refraining. Without limiting the foregoing, no Bank or
the holder of any Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Banks.
12.05 Reliance. The Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be
the proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Credit Document and its duties hereunder and
thereunder, upon advice of counsel selected by the Administrative Agent.
12.06 Indemnification. To the extent the Administrative
Agent is not reimbursed and indemnified by the Borrower or any of its
Subsidiaries, the Banks will reimburse and indemnify the Administrative Agent
in proportion to their respective "percentage" as used in determining the
Required Banks for and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties
hereunder or under any other Credit Document or in any way relating to or
arising out of this Agreement or any other Credit Document; provided that no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct.
12.07 The Administrative Agent in its Individual Capacity.
With respect to its obligation to make Revolving Loans, or issue or participate
in Letters of Credit, under this Agreement, the Administrative Agent shall have
the rights and powers specified herein for a "Bank" and may exercise the same
rights and powers as though it were not performing the duties specified herein;
and the term "Banks," "Required Banks," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its respective individual capacities. The
Administrative Agent and its affiliates may accept deposits from, lend money
to, and generally engage in any kind of banking, investment banking, trust or
other business with, or provide debt financing, equity capital or other
services (including financial advisory services) to, any Credit Party or any
Affiliate of any Credit Party (or any Person engaged in a similar business with
any Credit Party or any Affiliate thereof) as if they were not performing the
duties specified herein, and may accept fees and other consideration from any
Credit Party or any Affiliate of any Credit Party for services in connection
with this Agreement and otherwise without having to account for the same to the
Banks.
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12.08 Holders. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment, transfer or endorsement thereof, as
the case may be, shall have been filed with the Administrative Agent. Any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
12.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its respective
functions and duties hereunder and/or under the other Credit Documents at any
time by giving 15 Business Days' prior written notice to the Banks. Such
resignation shall take effect upon the appointment of a successor
Administrative Agent pursuant to clauses (b) and (c) below or as otherwise
provided below.
(b) Upon any such notice of resignation by the Administrative
Agent, the Required Banks shall appoint a successor Administrative Agent
hereunder or thereunder who shall be a commercial bank or trust company
reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been
so appointed within such 15 Business Day period, the Administrative Agent with
the consent of the Borrower (which consent shall not be unreasonably withheld
or delayed), shall then appoint a successor Administrative Agent who shall
serve as Administrative Agent hereunder or thereunder until such time, if any,
as the Required Banks appoint a successor Administrative Agent as provided
above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 20th Business Day after the date
such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Required
Banks shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Credit Document until such time, if any, as
the Required Banks appoint a successor Administrative Agent as provided above.
SECTION 13. The Arranger; The Documentation Agent.
13.01 The Arranger; Documentation Agent. The Borrower hereby
confirms the designation of SBC Warburg Dillon Read Inc. as Arranger and Swiss
Bank Corporation, New York Branch, as Documentation Agent. Neither the
Arranger nor the Documentation Agent assumes any responsibility or obligation
hereunder for servicing, enforcement or collection of the Obligations, or any
duties as agent for the Banks. Neither the title "Arranger" nor the title
"Documentation Agent" implies any fiduciary responsibility on the part of the
Arranger or the Documentation Agent to the Administrative Agent, any Issuing
Bank or the Banks and the use of such title does not impose on the Arranger or
the Documentation Agent
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any duties or obligations under this Agreement or any other Credit Document
except as may be expressly set forth herein and therein.
13.02 Liability of the Arranger and the Documentation Agent.
Neither the Arranger nor the Documentation Agent nor any of their officers,
directors, employees, agents, attorneys-in-fact or affiliates shall (a) be
liable for any action lawfully taken or omitted to be taken by it or any such
Person under or in connection with this Agreement or any other Credit Document
(except for its or such Person's own gross negligence or willful misconduct),
or (b) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by the Borrower or any officer
thereof, contained in this Agreement or in any other Credit Document, or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Arranger or the Documentation Agent under or in
connection with, this Agreement or any other Credit Document or for the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other credit document or for any failure of the Issuer or any
other party to any other Credit Document to perform its obligations hereunder
or thereunder. Except as otherwise expressly stated herein, neither the
Arranger nor the Documentation Agent shall be under any obligation to any Bank
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Credit
Document, or to inspect the properties, books or records of the Borrower.
13.03 Indemnification. The Banks agree to indemnify upon
demand the Arranger and the Documentation Agent (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to the respective amounts of their RL Percentages in effect
on the date indemnification is sought under this Section 13.03 (or, if
indemnification is sought after the date upon which the Commitments have
terminated and the Obligations have been paid in full, ratably in accordance
with their respective RL Percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including at any time following the payment
of the Obligations be imposed on, incurred by or asserted against the Arranger
or the Documentation Agent in connection with this Agreement or any other
Credit Document; provided, however, that no Bank shall be liable for (a) the
payment of any arrangement fees or (b) any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent it results from the Arranger's or the
Documentation Agent's gross negligence or willful misconduct. The agreements
in this Section 13.03 shall survive the payment of the Obligations and the
resignation or replacement of the Arranger or the Documentation Agent.
13.04 Arranger and Documentation Agent in their Individual
Capacities. Each of the Arranger and the Documentation Agent and their
respective Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with PESCO or any of its Affiliates as though it
were not the Arranger or the Documentation Agent hereunder.
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13.05 Credit Decision. Each Bank expressly acknowledges that
neither the Arranger nor the Documentation Agent nor any of their respective
Affiliates, officers, directors, employees, agents or attorneys-in-fact has
made any representation or warranty to it, and that no act by the Arranger or
the Documentation Agent hereafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Arranger or the Documentation Agent to any Bank. Each Bank represents to
the Arranger and the Documentation Agent that it has, independently and without
reliance upon the Arranger or the Documentation Agent, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of the Borrower and its
affiliates and made its own decision to enter into this Agreement. Each Bank
also represents that it will, independently and without reliance upon the
Arranger or the Documentation Agent, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Documents, and to make such investigations
as it deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Borrower. Neither the Arranger nor the Documentation Agent shall have any duty
or responsibility to provide any Bank with any information concerning the
business, prospects, operations, property, financial and other condition or
creditworthiness of the Borrower which may come into the possession of the
Arranger or the Documentation Agent or any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates.
SECTION 14. Parents Guaranty.
14.01 The Guaranty. In order to induce the Banks to enter
into this Agreement and to extend credit hereunder and in recognition of the
direct benefits to be received by each Parent Guarantor from the proceeds of
the Revolving Loans and the issuance of the Letters of Credit, each Parent
Guarantor hereby agrees with the Banks as follows: Each Parent Guarantor
hereby unconditionally and irrevocably, jointly and severally, guarantees, as
primary obligor and not merely as surety the full and prompt payment when due,
whether upon maturity, acceleration or otherwise, of any and all of the
Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or
all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors
becomes due and payable hereunder, each Parent Guarantor, jointly and
severally, and unconditionally promises to pay such indebtedness to the
Guaranteed Creditors, on demand, together with any and all expenses which may
be incurred by the Guaranteed Creditors in collecting any of the Guaranteed
Obligations. If claim is ever made upon any Guaranteed Creditor for repayment
or recovery of any amount or amounts received in payment or on account of any
of the Guaranteed Obligations and any of the aforesaid payees repays all or
part of said amount by reason of (i) any judgment, decree or order of any court
or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by
such payee with any
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such claimant (including the Borrower), then and in such event each Parent
Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon such Parent Guarantor, notwithstanding any
revocation of this Guaranty or any other instrument evidencing any liability of
the Borrower, and each Parent Guarantor shall be and remain jointly and
severally liable to the aforesaid payees hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by any such payee.
14.02 Bankruptcy. Additionally, each Parent Guarantor
unconditionally and irrevocably, jointly and severally, guarantees the payment
of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed
Creditors whether or not due or payable by the Borrower upon the occurrence of
any of the events specified in Section 10.05, and unconditionally, and jointly
and severally, promises to pay such indebtedness to the Guaranteed Creditors,
or order, on demand, in lawful money of the United States.
14.03 Nature of Liability. The liability of each Parent
Guarantor hereunder is joint and several and exclusive and independent of any
security for or other guaranty of the Guaranteed Obligations of the Borrower
whether executed by such Parent Guarantor, any other Parent Guarantor, any
other guarantor or by any other party, and the liability of each Parent
Guarantor hereunder is not affected or impaired by (a) any direction as to
application of payment by the Borrower or by any other party, or (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor
or of any other party as to the Guaranteed Obligations of the Borrower, or (c)
any payment on or in reduction of any such other guaranty or undertaking, or
(d) any dissolution, termination or increase, decrease or change in personnel
by the Borrower, or (e) any payment made to the Guaranteed Creditors on the
Guaranteed Obligations which any such Guaranteed Creditor repays to the
Borrower pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and each Parent
Guarantor waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding.
14.04 Independent Obligation. The obligations of each Parent
Guarantor hereunder are independent of the obligations of any other Parent
Guarantor, any other guarantor, any other party or the Borrower, and a separate
action or actions may be brought and prosecuted against each Parent Guarantor
whether or not action is brought against any other Parent Guarantor, any other
guarantor, any other party or the Borrower and whether or not any other
guarantor, any other party or the Borrower be joined in any such action or
actions. Any payment by the Borrower or other circumstance which operates to
toll any statute of limitations as to the Borrower shall operate to toll the
statute of limitations as to any Parent Guarantor.
14.05 Authorization. Each Parent Guarantor authorizes the
Guaranteed Creditors without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or impairing
its liability hereunder, from time to time to:
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(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate
or alter, any of the Guaranteed Obligations (including any increase or
decrease in the rate of interest thereon), any security therefor, or
any liability incurred directly or indirectly in respect thereof, and
the Guaranty herein made shall apply to the Guaranteed Obligations as
so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against
the Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of the Borrower to
its creditors other than the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized
to any liability or liabilities of the Borrower to the Guaranteed
Creditors regardless of what liability or liabilities of the Borrower
remain unpaid;
(g) consent to or waive any breach of, or any act, omission
or default under, this Agreement, any other Credit Document or any of
the instruments or agreements referred to herein or therein, or
otherwise amend, modify or supplement this Agreement, any other Credit
Document or any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of any Parent Guarantor from its liabilities under this
Guaranty.
14.06 Reliance. It is not necessary for the Guaranteed
Creditors to inquire into the capacity or powers of the Borrower or the
officers, directors, partners or agents acting
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or purporting to act on their behalf, and any Guaranteed Obligations made or
created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
14.07 Subordination. Any of the indebtedness of the Borrower
now or hereafter owing to any Parent Guarantor is hereby subordinated to the
Guaranteed Obligations of the Borrower owing to the Guaranteed Creditors; and
if the Administrative Agent so requests at a time when an Event of Default
exists, all such indebtedness of the Borrower to any Parent Guarantor shall be
collected, enforced and received by such Parent Guarantor for the benefit of
the Guaranteed Creditors and be paid over to the Administrative Agent on behalf
of the Guaranteed Creditors on account of the Guaranteed Obligations of the
Borrower to the Guaranteed Creditors, but without affecting or impairing in any
manner the liability of any Parent Guarantor under the other provisions of this
Guaranty. Prior to the transfer by any Parent Guarantor of any note or
negotiable instrument evidencing any of the indebtedness of the Borrower to
such Parent Guarantor, such Parent Guarantor shall mark such note or negotiable
instrument with a legend that the same is subject to this subordination.
Without limiting the generality of the foregoing, each Parent Guarantor hereby
agrees with the Guaranteed Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this
Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise) until all Guaranteed Obligations have been irrevocably paid in full
in cash.
14.08 Waiver. (a) Each Parent Guarantor waives any right
(except as shall be required by applicable statute and cannot be waived) to
require any Guaranteed Creditor to (i) proceed against the Borrower, any other
Parent Guarantor, any other guarantor or any other party, (ii) proceed against
or exhaust any security held from the Borrower, any other Parent Guarantor, any
other guarantor or any other party or (iii) pursue any other remedy in any
Guaranteed Creditor's power whatsoever. Each Parent Guarantor waives any
defense based on or arising out of any defense of the Borrower, any other
Parent Guarantor, any other guarantor or any other party, other than payment in
full of the Guaranteed Obligations, based on or arising out of the disability
of the Borrower, any other Parent Guarantor, any other guarantor or any other
party, or the unenforceability of the Guaranteed Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of the
Borrower other than payment in full of the Guaranteed Obligations. Each Parent
Guarantor waives any defense arising out of any such election by the Guaranteed
Creditors, even though such election operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of such Parent
Guarantor against the Borrower or any other party or any security.
(b) Each Parent Guarantor waives all presentments, demands
for performance, protests and notices, including, without limitation, notices
of nonperformance, notices of protest, notices of dishonor, notices of
acceptance of this Guaranty, and notices of the existence, creation or
incurring of new or additional Guaranteed Obligations. Each Parent Guarantor
assumes all responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the
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Guaranteed Obligations and the nature, scope and extent of the risks which each
Parent Guarantor assumes and incurs hereunder, and agrees that the Guaranteed
Creditors shall have no duty to advise any Parent Guarantor of information
known to them regarding such circumstances or risks.
14.09 Nature of Liability. It is the desire and intent of
each Parent Guarantor and the Guaranteed Creditors that this Guaranty shall be
enforced against each Parent Guarantor to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought. If, however, and to the extent that, the obligations of any Parent
Guarantor under this Guaranty shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of the Guaranteed Obligations of such Parent
Guarantor shall be deemed to be reduced and such Parent Guarantor shall pay the
maximum amount of the Guaranteed Obligations which would be permissible under
applicable law.
SECTION 15. Miscellaneous.
15.01 Payment of Expenses, etc. The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Agents (including, without
limitation, the reasonable fees and disbursements of White & Case) in
connection with the preparation, execution and delivery of this Agreement and
the other Credit Documents and the documents and instruments referred to herein
and therein and any amendment, waiver or consent relating hereto or thereto, of
the Administrative Agent and the Arranger in connection with its syndication
efforts with respect to this Agreement and of the Administrative Agent and,
after the occurrence of an Event of Default, each of the Banks in connection
with the enforcement of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein (including, without
limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent and, after the occurrence of an Event of Default, for each
of the Banks); (ii) pay and hold each of the Banks harmless from and against
any and all present and future stamp, excise and other similar documentary
taxes with respect to the foregoing matters and save each of the Banks harmless
from and against any and all liabilities with respect to or resulting from any
delay or omission (other than to the extent attributable to such Bank) to pay
such taxes; and (iii) indemnify the Administrative Agent, the Arranger, the
Documentation Agent and each Bank, and each of their respective officers,
directors, employees, representatives and agents from and hold each of them
harmless against any and all liabilities, obligations (including removal or
remedial actions), losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorneys' and
consultants' fees and disbursements) incurred by, imposed on or assessed
against any of them as a result of, or arising out of, or in any way related
to, or by reason of, (a) any investigation, litigation or other proceeding
(whether or not the Administrative Agent, the Arranger or the Documentation
Agent or any
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Bank is a party thereto and whether or not such investigation, litigation or
other proceeding is brought by or on behalf of any Credit Party) related to the
entering into and/or performance of this Agreement or any other Credit Document
or the use of any Letter of Credit or the proceeds of any Revolving Loans
hereunder or the consummation of any of the transactions contemplated herein or
in any other Credit Document or the exercise of any of their rights or remedies
provided herein or in the other Credit Documents, or (b) the actual or alleged
presence of Hazardous Materials in the air, surface water or groundwater or on
the surface or subsurface of any Real Property owned or at any time operated by
the Borrower or any of its Subsidiaries, the generation, storage,
transportation, handling or disposal of Hazardous Materials by the Borrower or
any of its Subsidiaries at any location, whether or not owned or operated by
the Borrower or any of its Subsidiaries, the non-compliance of any Real
Property with foreign, federal, state and local laws, regulations, and
ordinances (including applicable permits thereunder) applicable to any Real
Property, or any Environmental Claim asserted against the Borrower, any of its
Subsidiaries or any Real Property owned or at any time operated by the Borrower
or any of its Subsidiaries, including, in each case, without limitation, the
reasonable fees and disbursements of counsel and other consultants incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any losses, liabilities, claims, damages or expenses to the extent
incurred by reason of the gross negligence, bad faith or willful misconduct of
the Person to be indemnified or incurred by reason of the breach by the Person
to be indemnified of any provision of this Agreement). To the extent that the
undertaking to indemnify, pay or hold harmless the Agents or any Bank set forth
in the preceding sentence may be unenforceable because it is violative of any
law or public policy, the Borrower shall make the maximum contribution to the
payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
15.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance
of an Event of Default, each Bank is hereby authorized at any time or from time
to time, without presentment, demand, protest or other notice of any kind to
any Credit Party or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general
or special) and any other Funded Debt at any time held or owing by such Bank
(including, without limitation, by branches and agencies of such Bank wherever
located) to or for the credit or the account of any Credit Party against and on
account of the Obligations and liabilities of the Credit Parties to such Bank
under this Agreement or under any of the other Credit Documents, including,
without limitation, all interests in Obligations purchased by such Bank
pursuant to Section 15.06(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Bank shall have made any demand hereunder
and although said Obligations, liabilities or claims, or any of them, shall be
contingent or unmatured.
15.03 Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex,
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telecopier or cable communication) and mailed, telegraphed, telexed,
telecopied, cabled or delivered: if to any Credit Party, at the address
specified opposite its signature below or in the other relevant Credit
Documents or at such other address as shall be designated by such party in
written notice to the other parties hereto; if to any Bank, at its address
specified on Schedule II; and if to the Administrative Agent, at its Notice
Office; or, as to any Credit Party or the Agents, at such other address as
shall be designated by such party in a written notice to the other parties
hereto and, as to each Bank, at such other address as shall be designated by
such Bank in a written notice to the Borrower and each Administrative Agent.
All such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, be effective when deposited
in the mails, delivered to the telegraph company, cable company or overnight
courier, as the case may be, or sent by telex or telecopier, except that
notices and communications to the Administrative Agent and the Borrower shall
not be effective until received by the Administrative Agent or the Borrower, as
the case may be.
15.04 Benefit of Agreement; Assignments; Participations. (a)
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto;
provided, however, the Borrower may not assign or transfer any of its rights,
obligations or interest hereunder without the prior written consent of each of
the Banks and, provided further, that, although any Bank may transfer, assign
or grant participations in its rights hereunder, such Bank shall remain a
"Bank" for all purposes hereunder (and may not transfer or assign all or any
portion of its Commitments hereunder except as provided in Sections 1.12 and
15.04(b)) and the transferee, assignee or participant, as the case may be,
shall not constitute a "Bank" hereunder and, provided further, that no Bank
shall transfer, assign or grant any participation to any Person which is
engaged in the Business or any other business competitive with the business
conducted by PESCO and its Subsidiaries or under which the participant shall
have rights to approve any amendment to or waiver of this Agreement or any
other Credit Document except to the extent such amendment or waiver would (i)
extend the final scheduled maturity of any Revolving Loan, Note or Letter of
Credit (unless such Letter of Credit is not extended beyond the Final Maturity
Date) in which such participant is participating, or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection with a
waiver of applicability of any post-default increase in interest rates) or
reduce the principal amount thereof, or increase the amount of the
participant's participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Total Revolving Loan Commitment, shall not constitute a change
in the terms of such participation, and that an increase in any Revolving Loan
Commitment or Revolving Loan shall be permitted without the consent of any
participant if the participant's participation is not increased as a result
thereof), (ii) consent to the assignment or transfer by the Borrower of any of
its rights and obligations under this Agreement or (iii) release all or
substantially all of the Pledge Agreement Collateral (except as expressly
provided in the Credit Documents) supporting the Revolving Loans hereunder in
which such participant is participating. In the case of any such
participation, the participant shall not have any rights under this Agreement
or any of the other Credit Documents (the participant's rights against such
Bank in respect of such participation
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to be those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of its
Revolving Loan Commitment and related outstanding Obligations hereunder to (i)
its parent company and/or any affiliate of such Bank which is at least 50%
owned by such Bank or its parent company or to one or more Banks or (ii) in the
case of any Bank that is a fund that invests in bank loans, any other fund that
invests in bank loans and is managed by the same investment advisor of such
Bank or by an Affiliate of such investment advisor or (y) assign all, or if
less than all, a portion equal to at least $5,000,000 in the aggregate for the
assigning Bank or assigning Banks, of such Revolving Loan Commitment and
related outstanding Obligations hereunder to one or more Eligible Transferees
(treating any fund that invests in bank loans and any other fund that invests
in bank loans and is managed by the same investment advisor of such fund or by
an Affiliate of such investment advisor as a single Eligible Transferee), each
of which assignees shall become a party to this Agreement as a Bank by
execution of an Assignment and Assumption Agreement, provided that, (i) at such
time Schedule I shall be deemed modified to reflect the Revolving Loan
Commitments of such new Bank and of the existing Banks, (ii) upon the surrender
of the relevant Note by the assigning Bank (or, upon such assigning Bank's
indemnifying the Borrower for any lost Note pursuant to a customary
indemnification agreement) a new Note will be issued, at the Borrower's
expense, to such new Bank and to the assigning Bank upon the request of such
new Bank or assigning Bank, such new Note to be in conformity with the
requirements of Section 1.05 (with appropriate modifications) to the extent
needed to reflect the revised Revolving Loan Commitments and/or outstanding
Revolving Loans, as the case may be, (iii) the consent of each Agent and, to
the extent no Default or Event of Default is then in existence, the Borrower
shall be required in connection with any assignment to an Eligible Transferee
pursuant to clause (y) above (which consent shall not be unreasonably withheld
or delayed), (iv) the Administrative Agent shall receive at the time of each
such assignment, from the assigning or assignee Bank, the payment of a
non-refundable assignment fee of $3,500, (v) no such transfer or assignment
will be effective until recorded by the Administrative Agent on the Register
pursuant to Section 15.15 and (vi) no such transfer or assignment will be
effective if, after giving effect thereto, there would be fifteen (15) or more
Banks provided that, to the extent a Default or Event of Default is then in
existence, this requirement shall not be applicable. To the extent of any
assignment pursuant to this Section 15.04(b), the assigning Bank shall be
relieved of its obligations hereunder with respect to its assigned Revolving
Loan Commitment and outstanding Revolving Loans. At the time of each
assignment pursuant to this Section 15.04(b) to a Person which is not already a
Bank hereunder and which is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Bank shall, to the extent legally entitled to do so,
provide to the Borrower the appropriate Internal Revenue Service Forms (and, if
applicable, a Section 4.04(b)(ii) Certificate) described in Section 4.04(b).
To the extent that an assignment of all or any portion of a Bank's Revolving
Loan Commitment and related outstanding Obligations
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pursuant to Section 1.12 or this Section 15.04(b) would, at the time of such
assignment, result in increased costs under Section 1.10, 2.06 or 4.04 from
those being charged by the respective assigning Bank prior to such assignment,
then the Borrower shall not be obligated to pay such increased costs (although
the Borrower, in accordance with and pursuant to the other provisions of this
Agreement, shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
assignment).
(c) Nothing in this Agreement shall prevent or prohibit any
Bank from pledging its Revolving Loans and Note hereunder to a Federal Reserve
Bank in support of borrowings made by such Bank from such Federal Reserve Bank
and, with the consent of the Administrative Agent, any Bank which is a fund may
pledge all or any portion of its Revolving Loans and Note to its trustee in
support of its obligations to its trustee. No pledge pursuant to this clause
(c) shall release the transferor Bank from any of its obligations hereunder.
15.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent, the Documentation Agent, any Issuing Bank
or any Bank in exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between the Borrower or any
other Credit Party and the Administrative Agent, the Documentation Agent, any
Issuing Bank or any Bank shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which the Administrative Agent, the Documentation Agent, any Issuing Bank or
any Bank would otherwise have. No notice to or demand on any Credit Party in
any case shall entitle any Credit Party to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights
of the Administrative Agent, the Documentation Agent, any Issuing Bank or any
Bank to any other or further action in any circumstances without notice or
demand.
15.06 Payments Pro Rata. (a) Except as otherwise provided
in this Agreement, the Administrative Agent agrees that promptly after its
receipt of each payment from or on behalf of the Borrower in respect of any
Obligations hereunder, it shall distribute such payment to the Banks (other
than any Bank that has consented in writing to waive its pro rata share of any
such payment) pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security,
by the exercise of the right of setoff or banker's lien, by counterclaim or
cross action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Revolving Loans, Unpaid Drawings, Commitment Commission or Letter of
Credit Fees, of a sum which with respect to the related sum or sums received by
other Banks
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is in a greater proportion than the total of such Obligation then owed and due
to such Bank bears to the total of such Obligation then owed and due to all of
the Banks immediately prior to such receipt, then such Bank receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Banks an interest in the Obligations of the respective Credit Party to
such Banks in such amount as shall result in a proportional participation by
all the Banks in such amount; provided that if all or any portion of such
excess amount is thereafter recovered from such Bank, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) Notwithstanding anything to the contrary contained
herein, the provisions of the preceding Sections 15.06(a) and (b) shall be
subject to the express provisions of this Agreement which require, or permit,
differing payments to be made to Non-Defaulting Banks as opposed to Defaulting
Banks.
15.07 Calculations; Computations; Accounting Terms. (a) The
financial statements to be furnished to the Banks pursuant hereto shall be made
and prepared in accordance with GAAP consistently applied throughout the
periods involved (except as set forth in the notes thereto or as otherwise
disclosed in writing by PESCO or the Borrower to the Banks). If any change or
proposed change after the Effective Date in GAAP as in effect on the Effective
Date shall result in a change in any calculation required to determine
compliance with any provision contained in this Agreement, the Borrower and the
Required Banks will negotiate in good faith to amend such provision in a manner
to reflect such change such that the determination of compliance with such
provision shall yield the same substantive result as would have obtained prior
to such change in GAAP. Until such an amendment is entered into, covenants
shall be calculated in accordance with GAAP as in effect immediately preceding
such change.
(b) All computations of interest, Commitment Commission and
other Fees hereunder shall be made on the basis of a year of 360 days for the
actual number of days (including the first day but excluding the last day;
except that in the case of Letter of Credit Fees, the last day shall be
included) occurring in the period for which such interest, Commitment
Commission or Fees are payable.
15.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, EACH CREDIT PARTY
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IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH CREDIT PARTY
HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL
JURISDICTION OVER IT, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENTS BROUGHT
IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL
JURISDICTION OVER IT. EACH CREDIT PARTY FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO IT AT ITS ADDRESS FOR NOTICES HEREUNDER, SUCH SERVICE TO
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH CREDIT PARTY HEREBY
IRREVOCABLY WAIVES ANY OBJECTION TO SUCH METHOD OF SECURING SERVICE OF PROCESS
AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION
OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SUCH
METHOD OF SECURING SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY BANK OR
THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN
ANY OTHER JURISDICTION TO WHICH SUCH CREDIT PARTY IS SUBJECT.
(b) EACH CREDIT PARTY 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 OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, WAIVES 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.
(c) EACH CREDIT PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
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15.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with the Borrower and the Administrative Agent.
15.10 Effectiveness. This Agreement shall become effective
on the date (the "Effective Date") on which (i) the Borrower, PESCO, Holding,
the Documentation Agent, the Arranger, the Administrative Agent and each of the
Banks shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered the same to the Administrative Agent at
its Notice Office or, in the case of the Banks, shall have given to the
Administrative Agent telephonic (confirmed in writing), written or telex notice
(actually received) at such office that the same has been signed and mailed to
it and (ii) the conditions set forth in Section 5 are met to the satisfaction
of each Agent and the Required Banks. Unless either Agent has received actual
notice from any Bank that the conditions contained in Section 5 have not been
met to its satisfaction, upon the satisfaction of the condition described in
clause (i) of the immediately preceding sentence and upon each Agent's good
faith determination that the conditions described in clause (ii) of the
immediately preceding sentence have been met, then the Effective Date shall
have been deemed to have occurred, regardless of any subsequent determination
that one or more of the conditions thereto had not been met (although the
occurrence of the Effective Date shall not release the Borrower from any
liability for failure to satisfy one or more of the applicable conditions
contained in Section 5). The Administrative Agent will give the Borrower and
each Bank prompt written notice of the occurrence of the Effective Date.
15.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision of
this Agreement.
15.12 Amendment or Waiver; etc. (a) Neither this Agreement
nor any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Banks, provided that no such change, waiver, discharge or
termination shall, without the consent of each Bank (other than a Defaulting
Bank), (i) extend the final scheduled maturity of any Revolving Loan or Note or
extend the stated expiration date of any Letter of Credit beyond the Final
Maturity Date, or reduce the rate or extend the time of payment of interest or
Fees thereon, or reduce the principal amount thereof (except to the extent
repaid in cash) (it being understood that any amendment or modification to the
financial definitions in this Agreement or to Section 15.07(a) shall not
constitute a reduction in the rate of interest or Fees for the purposes of this
clause (i)), (ii) release all or substantially all of the Pledge Agreement
Collateral (except as expressly provided in the Credit Documents), (iii) amend,
modify or waive any provision of this Section 15.12, (iv) release any Guarantor
from its obligations under its respective Guaranty except in
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accordance with the terms thereof, (v) reduce the percentage specified in the
definition of Required Banks (it being understood that, with the consent of the
Required Banks, additional extensions of credit pursuant to this Agreement may
be included in the determination of the Required Banks on substantially the
same basis as the Revolving Loan Commitments are included on the Effective
Date) or (vi) consent to the assignment or transfer by the Borrower of any of
its rights and obligations under this Agreement; provided further, that no such
change, waiver, discharge or termination shall (v) increase the Revolving Loan
Commitment of any Bank over the amount thereof then in effect without the
consent of such Bank (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a
mandatory reduction in the Total Revolving Loan Commitment shall not constitute
an increase of the Revolving Loan Commitment of any Bank, and that an increase
in the available portion of any Revolving Loan Commitment of any Bank shall not
constitute an increase of the Revolving Loan Commitment of such Bank), (w)
without the consent of any Issuing Bank, amend, modify or waive any provision
of Section 2 or alter its rights or obligations with respect to Letters of
Credit, (x) without the consent of the Administrative Agent, amend, modify or
waive any provision of Section 12 or any other provision as same relates to the
rights or obligations of the Administrative Agent, (y) without the consent of
the Arranger and the Documentation Agent, amend, modify or waive any provision
of Section 13 or any provision as same relates to the rights or obligations of
the Arranger or the Documentation Agent or (z) without the consent of the
Collateral Agent, amend, modify or waive any provision relating to the rights
or obligations of the Collateral Agent.
(b) Any request by a Credit Party for a consent or waiver
with respect to this Agreement or any other Credit Document shall be made in
writing to the Documentation Agent and the Documentation Agent shall provide a
copy of such request to the Banks promptly following receipt thereof. The
Agents and each of the Banks agrees to use their best efforts to respond to
such request promptly.
15.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06, 13.03 and 15.01
shall survive the execution, delivery and termination of this Agreement and the
Notes and the making and repayment of the Obligations with respect to matters
occurring prior to the termination of this Agreement and the repayment of the
Obligations.
15.14 Domicile of Revolving Loans. Each Bank may transfer
and carry its Revolving Loans at, to or for the account of any office,
Subsidiary or Affiliate of such Bank.
15.15 Register. The Borrower hereby authorizes the
Administrative Agent to maintain a register (the "Register") on which it will
record the Revolving Loan Commitments from time to time of each of the Banks,
the Revolving Loans made by each of the Banks and each repayment in respect of
the principal amount of the Revolving Loans of each Bank. Failure to make any
such recordation, or any error in such recordation shall not affect the
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Borrower's obligations in respect of such Revolving Loans. With respect to any
Bank, the transfer of the Revolving Loan Commitment of such Bank and the rights
to the principal of, and interest on, any Revolving Loan made pursuant to such
Revolving Loan Commitment shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Revolving Loan Commitment and Revolving Loans and prior to
such recordation all amounts owing to the transferor with respect to such
Revolving Loan Commitment and Revolving Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Revolving Loan Commitments and Revolving Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 15.04(b). Coincident with the
delivery of such an Assignment and Assumption Agreement to the Administrative
Agent for acceptance and registration of assignment or transfer of all or part
of a Revolving Loan, or as soon thereafter as practicable, the assigning or
transferor Bank shall surrender the Note evidencing such Revolving Loan, and
thereupon one or more new Notes in the same aggregate principal amount shall be
issued to the assigning or transferor Bank and/or the new Bank. The Borrower
agrees to indemnify the Administrative Agent from and against any and all
losses, claims, damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 15.15 (but excluding any losses,
claims, damages or liabilities to the extent incurred by reason of the gross
negligence or willful misconduct of the Administrative Agent).
15.16 Confidentiality. (a) Subject to the provisions of
clause (b) of this Section 15.16, each Bank agrees that it will not disclose
without the prior consent of the Borrower (other than to its employees,
auditors, advisors or counsel who need to know such information in connection
with the transactions contemplated by this Agreement or to another Bank,
provided such Persons shall be subject to the provisions of this Section 15.16
to the same extent as such Bank) any information with respect to PESCO,
Holding, the Borrower or any of its Subsidiaries which is now or in the future
furnished pursuant to this Agreement or any other Credit Document; provided
that any Bank may disclose any such information (i) as has become generally
available to the public other than by virtue of a breach of this Section
15.16(a) by the respective Bank, (ii) as may be required or appropriate in any
report, statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Bank or to
the Federal Reserve Board or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors, (iii) as may be required or appropriate in respect to any summons
or subpoena or in connection with any litigation, (iv) in order to comply with
any law, order, regulation or ruling applicable to such Bank, (v) to the
Administrative Agent or the Collateral Agent and (vi) to any prospective or
actual transferee or participant in connection with any contemplated transfer
or participation of any of the Notes or Revolving Loan Commitments or any
interest therein by such Bank, provided that such prospective transferee or
participant agrees in writing with the Borrower to be bound by the
confidentiality provisions contained in this Section 15.16.
-99-
<PAGE> 107
(b) Each of PESCO, Holding and the Borrower hereby
acknowledges and agrees that, if necessary in connection with the transactions
contemplated by this Agreement, each Bank may share with any of its affiliates
any information related to PESCO or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the creditworthiness
of PESCO and its Subsidiaries), provided such Persons shall agree in writing
with the Borrower to be subject to the provisions of this Section 15.16 to the
same extent as such Bank.
15.17 Knowledge. Whenever the words "to the knowledge of
PESCO", "to the knowledge of the Borrower", or words of similar import are
used, the reference shall be to matters of which the Chief Financial Officer,
the Chief Accounting Officer or any principal financial officer are currently
aware (when referring to matters of a financial nature) and to matters of which
the President, the Group Vice President of U.S. Operations, the Group Vice
President of International Operations or the Vice President of Operations for
any of the Gulf Offshore, U.S. California or Alaska divisions are currently
aware (when referring to matters of an operational or environmental nature).
In no event shall any constructive or imputed knowledge or notice be implied.
15.18 Credit Documents. To the extent that any term,
provision or agreement contained in any Credit Document (other than this
Agreement) is inconsistent with any term, provision or agreement contained in
this Agreement, the terms, provisions and agreements of this Agreement shall
control.
15.19 Inactive Subsidiaries. Notwithstanding anything to
the contrary contained herein, except for Section 7.22 and Section 9.15(b),
Inactive Subsidiaries shall not be subject to, or bound by, the representations
set forth in Section 7 or the covenants set forth in Sections 8 and 9 hereof.
* * *
-100-
<PAGE> 108
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
10375 Richmond Avenue POOL ENERGY SERVICES CO.
Houston, TX 77042
Tel: 713-954-3084
Fax: 713-954-3244 By /s/ E.J. Spillard
Attn: Treasurer ---------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
---------------------------------
Name: R.A. Johannsen
Title: Treasurer
10375 Richmond Avenue POOL ENERGY HOLDING, INC.
Houston, TX 77042
Tel: 713-954-3084
Fax: 713-954-3244 By /s/ E.J. Spillard
Attn: Treasurer ---------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
---------------------------------
Name: R.A. Johannsen
Title: Treasurer
<PAGE> 109
10375 Richmond Avenue POOL COMPANY
Houston, TX 77042
Tel: 713-954-3084
Fax: 713-954-3244 By /s/ E.J. Spillard
Attn: Treasurer ---------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
---------------------------------
Name: R.A. Johannsen
Title: Treasurer
SBC WARBURG DILLON READ INC.,
as Arranger
By /s/ Aida M. Kalla
---------------------------------
Name: Aida M. Kalla
Title: Executive Director
By /s/ Nancy Hanrahan
---------------------------------
Name: Nancy Hanrahan
Title: Director
CREDIT LYONNAIS NEW YORK BRANCH,
Individually and as Administrative
Agent
By /s/ Pascal Poupelle
---------------------------------
Name: Pascal Poupelle
Title: Authorized Signatory
<PAGE> 110
SWISS BANK CORPORATION,
NEW YORK BRANCH,
Individually and as Documentation
Agent
By /s/ Thomas Eggenschwiler
---------------------------------
Name: Thomas Eggenschwiler
Title: Executive Director
Credit Risk Management
By /s/ Dorothy L. McKinley
---------------------------------
Name: Dorothy L. McKinley
Title: Associate Director
BANK ONE, TEXAS, N.A.,
Individually and as Co-Agent
By /s/ Kelly L. Elmore, III
---------------------------------
Name: Kelly L. Elmore, III
Title: Vice President
THE HONGKONG & SHANGHAI BANKING
CORPORATION LIMITED, Individually
and as Co-Agent
By /s/ Douglas F. Stolberg
---------------------------------
Name: Douglas F. Stolberg
Title: SVP & Manager
<PAGE> 111
Banks:
ARAB BANKING CORPORATION (B.S.C.)
By /s/ Stephen A. Plauche
---------------------------------
Name: Stephen A. Plauche
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ F.C.H. Ashby
---------------------------------
Name: F.C.H. Ashby
Title: Senior Manager
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By /s/ Thierry Bonetto
---------------------------------
Name: Thierry Bonetto
Title: Deputy General Manager
& VP
DEN NORSKE BANK ASA
By /s/ Byron L. Cooley
---------------------------------
Name: Byron L. Cooley
Title: Senior Vice President
By /s/ Morten Bjornsen
---------------------------------
Name: Morten Bjornsen
Title: Senior Vice President
<PAGE> 112
THE FUJI BANK, LIMITED --
HOUSTON AGENCY
By /s/ Kenichi Tatara
---------------------------------
Name: Kenichi Tatara
Title: Vice President & Manager
GULF INTERNATIONAL BANK B.S.C.
By /s/ Issa N. Baconi
---------------------------------
Name: Issa N. Baconi
Title: SVP & Branch Manager
By /s/ William B. Shepard
---------------------------------
Name: William B. Shepard
Title: Vice-President
HIBERNIA NATIONAL BANK
By /s/ Lyndsay Job
---------------------------------
Name: Lyndsay Job
Title: Senior Vice President
<PAGE> 113
NATEXIS BANQUE
BFCE
By /s/ Mark A. Harrington
---------------------------------
Name: Mark A. Harrington
Title: Vice President and
Regional Manager
By /s/ Eric Ditges
---------------------------------
Name: Eric Ditges
Title: Assistant Treasurer
NATIONAL BANK OF ALASKA
By /s/ Patricia Jelley Benz
---------------------------------
Name: Patricia Jelly Benz
Title: Vice President
THE SUMITOMO BANK, LIMITED
By /s/ Harumitsu Seki
---------------------------------
Name: Harumitsu Seki
Title: General Manager
<PAGE> 114
EXHIBIT A
FORM OF NOTICE OF BORROWING
[Date]
Credit Lyonnais New York Branch,
as Administrative Agent for the
Banks party to the Credit Agreement
referred to below
1000 Louisiana, Suite 5360
Houston, TX 77002
Attention: W. Thomas Byargeon
Ladies and Gentlemen:
The undersigned, POOL COMPANY (the "Borrower"), refers to the
Credit Agreement, dated as of September 30, 1997 (as amended from time to time,
the "Credit Agreement," the terms defined therein being used herein as therein
defined), among Pool Energy Services Co., Pool Energy Holding, Inc., the
Borrower, the lenders from time to time party thereto (the "Banks"), SBC
Warburg Dillon Read Inc., as Arranger, Swiss Bank Corporation, New York Branch,
as Documentation Agent, and you, as Administrative Agent and as Collateral
Agent for such Banks, and hereby gives you notice, irrevocably, pursuant to
Section 1.03(a) of the Credit Agreement, that the undersigned hereby requests a
Borrowing of Revolving Loans under the Credit Agreement, and in that connection
sets forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 1.03(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
____________.(1)
__________________________________
(1) Shall be a Business Day at least one Business Day in the case of Base Rate
Loans and at least three Business Days in the case of Eurodollar Loans, in each
case, after the date hereof.
<PAGE> 115
EXHIBIT A
Page 2
(ii) The aggregate principal amount of the Proposed Borrowing is
$____________.
(iii) The Revolving Loans to be made pursuant to the Proposed
Borrowing shall be initially maintained as [Base Rate Loans] [Eurodollar
Loans].
[(iv) The initial Interest Period for the Proposed Borrowing is
[one] [two] [three] [six] month(s).](2)
The Borrower hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and
correct in all material respects, both before and after giving effect to
the Proposed Borrowing and to the application of the proceeds thereof,
as though made on such date, unless stated to relate to a specific
earlier date, in which case such representations and warranties shall be
true and correct in all material respects as of such earlier date; and
(B) no Default or Event of Default has occurred and is
continuing, or would result from such Proposed Borrowing or from the
application of the proceeds thereof.
Very truly yours,
POOL COMPANY
By ________________________
Name:
Title:
__________________________________
(2) To be included for a Proposed Borrowing of Eurodollar Loans.
<PAGE> 116
EXHIBIT B
FORM OF NOTE
$__________ New York, New York
[Date]
FOR VALUE RECEIVED, POOL COMPANY (the "Borrower"), a Texas
corporation, hereby promises to pay to _______________ or its permitted assigns
(the "Bank"), in lawful money of the United States of America in immediately
available funds, at the office of Credit Lyonnais New York Branch (the
"Administrative Agent") located at 1000 Louisiana, Suite 5360, Houston, TX
77002, on the Final Maturity Date (as defined in the Agreement referred to
below) the principal sum of _____________ DOLLARS ($________) or, if less, the
unpaid principal amount of all Revolving Loans (as defined in the Credit
Agreement) made by the Bank pursuant to the Credit Agreement.
The Borrower promises also to pay interest on the unpaid
principal amount hereof in like money at said office from the date hereof until
paid at the rates and at the times provided in Section 1.08 of the Credit
Agreement.
This Note is one of the Notes referred to in the Credit
Agreement, dated as of September 30, 1997, among Pool Energy Services Co., Pool
Energy Holding, Inc., the Borrower, the lenders from time to time party thereto
(including the Bank), SBC Warburg Dillon Read Inc. as Arranger, Swiss Bank
Corporation, New York Branch, as Documentation Agent, and Credit Lyonnais New
York Branch, as Administrative Agent and as Collateral Agent (as amended,
modified or supplemented from time to time, the "Credit Agreement") and is
entitled to the benefits thereof and of the other Credit Documents (as defined
in the Credit Agreement). This Note is secured by the Pledge Agreement (as
defined in the Credit Agreement) and is entitled to the benefits of the
Subsidiaries Guaranty (as defined in the Credit Agreement). This Note is
subject to voluntary prepayment and mandatory repayment prior to the Final
Maturity Date, in whole or in part, as provided in the Credit Agreement.
In case an Event of Default (as defined in the Credit Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may become or be declared to be due and payable in the manner and with the
effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice
of any kind in connection with this Note except as set forth in the Credit
Agreement or in any other Credit Document.
<PAGE> 117
EXHIBIT B
Page 2
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE LAW OF THE STATE OF NEW YORK.
POOL COMPANY
By _________________________
Name:
Title:
By _________________________
Name:
Title:
<PAGE> 118
EXHIBIT C
FORM OF LETTER OF CREDIT REQUEST
No.__(1) Dated______ (2)
Credit Lyonnais, as Administrative Agent under the
Credit Agreement (the "Credit Agreement"),
dated as of September 30, 1997, among Pool
Energy Services Co., Pool Energy Holding, Inc.,
POOL COMPANY, the lenders from time to time
party thereto, SBC Warburg Dillon Read Inc.
as Arranger, Swiss Bank Corporation, New York Branch,
as Documentation Agent, and Credit Lyonnais New York Branch,
as Administrative Agent and as Collateral Agent
1000 Louisiana, Suite 5360
Houston, TX 77002
Attention: W. Thomas Byargeon
[Name and Address of Issuing Bank]
Attention:
Dear Sirs:
The Borrower hereby requests that _________________, in its
individual capacity, issue a __________________ Letter of Credit for the
account of the undersigned on ______(3)_____ (the "Date of Issuance") in the
aggregate stated amount of ____________. The requested Letter of Credit shall
be denominated in Dollars.
__________________________________
(1) Letter of Credit Request number.
(2) Date of Letter of Credit Request.
(3) Date of Issuance which shall be at least five Business Days from the date
hereof (or such shorter period as is acceptable to the respective Issuing
Bank).
<PAGE> 119
EXHIBIT C
Page 2
For purposes of this Letter of Credit Request, unless otherwise
defined herein, all capitalized terms used herein which are defined in the
Credit Agreement shall have the respective meaning provided therein.
The beneficiary of the requested Letter of Credit will be
______(4)______, and such Letter of Credit will be in support of ______(5)______
and will have a stated expiration date of ______(6)______.
The Borrower hereby certifies that:
(1) The representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and
correct in all material respects, both before and after giving effect to
the issuance of the Letter of Credit requested hereby, on the Date of
Issuance (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as of such
specified date).
(2) No Default or Event of Default has occurred and is
continuing nor, after giving effect to the issuance of the Letter of
Credit requested hereby, would such a Default or an Event of Default
occur and be continuing.
__________________________________
(4) Insert name and address of beneficiary.
(5) Insert description of L/C Supportable Obligations in the case of standby
letters of credit and insert description of commercial transaction in the case
of trade letters of credit.
(6) Insert the last date upon which drafts may be presented which may not be
later than the date that is the fourth Business Day prior to the Final Maturity
Date in the case of standby Letters of Credit or the 30th day prior to the
Final Maturity Date in the case of trade Letters of Credit.
<PAGE> 120
EXHIBIT C
Page 3
Copies of all documentation with respect to the supported transaction
are attached hereto.
POOL COMPANY
By_____________________________
Name:
Title:
<PAGE> 121
EXHIBIT D
FORM OF SECTION 4.04(b)(ii) CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as
September ___, 1997, among Pool Energy Services Co., Pool Energy Holding, Inc.,
POOL COMPANY, the lenders from time to time party thereto, SBC Warburg Dillon
Read Inc., as Arranger, Swiss Bank Corporation, New York Branch, as
Documentation Agent, and Credit Lyonnais New York Branch, as Administrative
Agent and as Collateral Agent (as amended from time to time, the "Credit
Agreement"). Pursuant to the provisions of Section 4.04(b)(ii) of the Credit
Agreement, the undersigned hereby certifies that it is not a "bank" as such
term is used in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended.
[NAME OF BANK]
By ____________________________
Name:
Title:
Date: _______________, ____
<PAGE> 122
EXHIBIT F
FORM OF OFFICERS' CERTIFICATE
[Name of Credit Party], a corporation organized and existing
under the laws of the ____________________ (the "Company"), does hereby certify
that:
1. This Certificate is furnished pursuant to Section 5.04(a) of
the Credit Agreement, dated as of September ___, 1997, among Pool Energy
Services Co., Pool Energy Holding, Inc., POOL COMPANY, the lenders from time to
time party thereto, SBC Warburg Dillon Read Inc., as Arranger, Swiss Bank
Corporation, New York Branch, as Documentation Agent, and Credit Lyonnais New
York Branch, as Administrative Agent and as Collateral Agent (such Credit
Agreement, as in effect on the date of this Certificate, being herein called
the "Credit Agreement"). Unless otherwise defined herein, capitalized terms
used in this Certificate shall have the meanings set forth in the Credit
Agreement.
2. The following named individuals are elected officers of the
Company, each holds the office of the Company set forth opposite his or her
name and has held such office since prior to _________ __, 19__.(1) The
signature written opposite the name and title of each such officer is his or
her genuine signature.
Name(2) Office Signature
--------------- ----------- ------------
--------------- ----------- ------------
--------------- ----------- ------------
--------------- ----------- ------------
__________________________________
(1) Insert a date prior to the time of any corporate action relating to the
Credit Documents or related documentation.
(2) Include name, office and signature of each officer who will sign any
Credit Document, including the officer who will sign the certification at the
end of this Certificate or related documentation.
<PAGE> 123
EXHIBIT F
Page 2
3. (1) Attached hereto as Exhibit A is a certified copy of the
[Certificate of Incorporation] [Articles of Incorporation] of the Company, as
filed in the Office of ________ on ___________, 19__, together with all
amendments thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of
the By-Laws of the Company which were duly adopted, are in full force and
effect on the date hereof, and have been in effect since _____________, 19__.
5. Attached hereto as Exhibit C is a true and correct copy of
resolutions which were duly adopted on __________, 19__ [by unanimous written
consent of the Board of Directors of the Company] [by a meeting of the Board of
Directors of the Company at which a quorum was present and acting throughout],
and said resolutions have not been rescinded, amended or modified. Except as
attached hereto as Exhibit C, no resolutions have been adopted by the Board of
Directors of the Company which deal with the execution, delivery or performance
of any of the Credit Documents to which the Company is party.
[6. On the date hereof, all of the applicable conditions set
forth in Sections 5.05, 5.07, 5.09 and 6.02 of the Credit Agreement have been
satisfied.](3)
[6.][7.] On the date hereof, the representations and warranties
contained in the Credit Agreement and in the other Credit Documents are true
and correct in all material respects with the same effect as though such
representations and warranties had been made on the date hereof, both before
and after giving effect to the incurrence of Revolving Loans on the date hereof
and the application of the proceeds thereof, unless stated to relate to a
specific earlier date, in which case such representations and warranties were
true and correct in all material respects as of such earlier date.
[7.][8.] On the date hereof, no Default or Event of Default has
occurred and is continuing or would result from the Borrowing to occur on the
date hereof or from the application of the proceeds thereof.
__________________________________
(3) Insert only in Officers' Certificate of the Borrower.
<PAGE> 124
EXHIBIT F
Page 3
[8.][10.] There is no proceeding for the dissolution or
liquidation of the Company pending.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
___________, 1997.
[NAME OF CREDIT PARTY]
By ______________________________
Name:
Title: [Chairman of the Board/
Chief Executive Officer/
President/Vice President]
<PAGE> 125
EXHIBIT F
Page 4
I, the undersigned, [Secretary/Assistant Secretary] of the Company, do hereby
certify on behalf of the Company that:
1. [Name of Person making above certifications] is the duly
elected and qualified [Chairman of the Board/President/Vice President] of the
Company and the signature above is his genuine signature.
2. The certifications made by [name of Person making above
certifications] on behalf of the Company in Items 2, 3, 4 and 5 above are true
and correct.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
____________, 1997.
[NAME OF CREDIT PARTY]
By ___________________________
Name:
Title:
<PAGE> 126
EXHIBIT G*
PLEDGE AGREEMENT
PLEDGE AGREEMENT (as amended, modified or supplemented from
time to time, this "Agreement"), dated as of September 30, 1997, made by each
of the undersigned pledgors (each a "Pledgor" and, together with any other
entity that becomes a pledgor hereunder pursuant to Section 22 hereof, the
"Pledgors") to Credit Lyonnais New York Branch, as Collateral Agent (the
"Pledgee"), for the benefit of the Secured Creditors (as defined below).
Except as otherwise defined herein, capitalized terms used herein and defined
in the Credit Agreement (as defined below) shall be used herein as therein
defined.
W I T N E S S E T H :
WHEREAS, Pool Energy Services Co., Pool Energy Holding, Inc.,
POOL COMPANY (the "Borrower"), the lenders from time to time party thereto (the
"Banks"), SBC Warburg Dillon Read Inc., as Arranger, Swiss Bank Corporation,
New York Branch, as Documentation Agent, and Credit Lyonnais New York Branch,
as Administrative Agent and as Collateral Agent, have entered into a Credit
Agreement, dated as of September 30, 1997 (as amended, modified or supplemented
from time to time, the "Credit Agreement"), providing for the making of
Revolving Loans to, and the issuance of Letters of Credit for the account of,
the Borrower as contemplated therein (the Banks, the Administrative Agent, the
Documentation Agent and the Pledgee are herein called the "Bank Creditors");
WHEREAS, the Borrower may at any time and from time to time
enter into one or more Interest Rate Protection Agreements or Other Hedging
Agreements with one or more Banks or any Affiliate thereof (each such Bank or
Affiliate, even if the respective Bank subsequently ceases to be a Bank under
the Credit Agreement for any reason, together with such Bank's or Affiliate's
successors and assigns, if any, collectively, the "Other Creditors," and
together with the Bank Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each Pledgor
(other than the Borrower) which is a Subsidiary Guarantor has jointly and
severally guaranteed to the Secured Creditors the payment when due of all
Guaranteed Obligations as described therein;
WHEREAS, it is a condition precedent to the Effective Date
under the Credit Agreement that each Pledgor shall have executed and delivered
to the Pledgee this Agreement; and
- --------------------------
* Deleted as executed.
<PAGE> 127
EXHIBIT G*
WHEREAS, each Pledgor will obtain benefits from the incurrence
of Revolving Loans to, and the issuance of Letters of Credit for the account
of, the Borrower under the Credit Agreement and the entering into by the
Borrower of Interest Rate Protection Agreements or Other Hedging Agreements
and, accordingly, desires to execute this Agreement in order to satisfy the
condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Pledgor, the receipt and sufficiency of which are
hereby acknowledged, each Pledgor hereby makes the following representations
and warranties to the Pledgee for the benefit of the Secured Creditors and
hereby covenants and agrees with the Pledgee for the benefit of the Secured
Creditors as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each
Pledgor for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and
indebtedness (including, without limitation, indemnities, Fees and
interest thereon) of the Credit Parties to the Bank Creditors, whether
now existing or hereafter incurred under, arising out of, or in
connection with the Credit Agreement and the other Credit Documents to
which each Pledgor is a party (including, in the case of each
Subsidiary Guarantor, all such obligations and indebtedness of such
Subsidiary Guarantor under the Subsidiaries Guaranty) and the due
performance and compliance by each Pledgor with all of the terms,
conditions and agreements applicable to it and contained in the Credit
Agreement and such other Credit Documents (all such obligations and
liabilities under this clause (i), except to the extent consisting of
obligations or indebtedness with respect to Interest Rate Protection
Agreements or Other Hedging Agreements, being herein collectively
called the "Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and
liabilities owing by each Pledgor to the Other Creditors under, or
with respect to (including by reason of each Pledgor's guaranty under
the Subsidiaries Guaranty), any Interest Rate Protection Agreement or
Other Hedging Agreement, whether such Interest Rate Protection
Agreement or Other Hedging Agreement is now in existence or hereafter
arising, and the due performance and compliance by each Pledgor with
all of the terms, conditions and agreements contained therein (all
such obligations and liabilities described in this clause (ii) being
herein collectively called the "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) or preserve its security
interest in the Collateral;
- --------------------------
* Deleted as executed.
2
<PAGE> 128
EXHIBIT G*
(iv) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations, or liabilities of each Pledgor
referred to in clauses (i), (ii) and (iii) above, after an Event of
Default (which term to mean and include any Event of Default under,
and as defined in, the Credit Agreement or any payment default by the
Borrower under any Interest Rate Protection Agreement or Other Hedging
Agreement and shall, in any event, include, without limitation, any
payment default on any of the Obligations (as hereinafter defined)
shall have occurred and be continuing, the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, or of any exercise by the
Pledgee of its rights hereunder, together with reasonable attorneys'
fees and court costs; and
(v) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 11 of
this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITION OF STOCK, NOTES, PARTNERSHIP INTERESTS,
MEMBERSHIP INTERESTS, SECURITIES, ETC. (a) As used herein: (i) the term
"Stock" shall mean 65% of the issued and outstanding shares of capital stock of
any Foreign Subsidiary of any Pledgor at any time owned by any Pledgor and all
certificates and instruments evidencing the same; (ii) the term "Notes" shall
mean all Intercompany Notes from time to time issued to, or held by, any
Pledgor that is not a Foreign Subsidiary; (iii) the term "Partnership Interest"
shall mean 65% of the partnership interest whether general and/or limited at
any time owned by any Pledgor in any Foreign Subsidiary of such Pledgor (each
such partnership, a "Pledged Partnership"); (iv) the term "Membership Interest"
shall mean 65% of the limited liability company membership interest at any time
owned by any Pledgor in any Foreign Subsidiary of such Pledgor (each such
limited liability company, a "Pledged LLC", and together with any Pledged
Partnership, each, a "Pledged Entity"); and (v) the term "Securities" shall
mean all of the Stock, Notes, Partnership Interests and Membership Interests;
provided that, except as provided in the last sentence of this Section 2, no
Pledgor shall be required to pledge hereunder (and the terms Stock, Partnership
Interests, Membership Interests, Securities and Collateral shall not include)
more than 65% of the total combined voting power of all classes of capital
stock or other equity interests of any such Foreign Subsidiary of any Pledgor.
Each Pledgor represents and warrants, that on the date hereof, (A) the capital
stock of each Foreign Subsidiary held by such Pledgor consists of the number
and type of shares of the stock of the corporations as described in Annex A
hereto for such Pledgor, (B) such capital stock constitutes that percentage of
the issued and outstanding capital stock of the issuing corporation as is set
forth in Annex A hereto, (C) the Notes held by such Pledgor consist of the
Intercompany Notes described in Annex B hereto for such Pledgor, (D) such
Pledgor is the
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holder of record and sole beneficial owner of the Stock and the Notes held by
such Pledgor and there exists no options or preemptive rights in respect of the
Stock, (E) the limited liability company membership interests of each Pledged
LLC held by such Pledgor constitute that percentage of the entire limited
liability company interests of the respective Pledged LLC as is set forth on
Annex C hereto, (F) the partnership interests of each Pledged Partnership held
by such Pledgor constitute that percentage of the entire partnership interest
of the respective Pledged Partnership as is set forth on Annex D hereto for
such Pledgor and (G) on the date hereof, such Pledgor owns or possesses no
other Securities. In the circumstances and to the extent provided in Section
8.11 of the Credit Agreement, the 65% limitation set forth above in this
Section 2 and in Section 3.2 hereof shall no longer be applicable and such
Pledgor shall duly pledge and deliver to the Pledgee such of the Securities not
theretofore required to be pledged hereunder.
(b) All Stock at any time pledged or required to be pledged
hereunder is hereinafter called the "Pledged Stock;" all Notes at any time
pledged or required to be pledged hereunder are hereinafter called the "Pledged
Notes;" all Partnership Interests at any time pledged or required to be pledged
hereunder are hereinafter called the "Pledged Partnership Interests;" all
Membership Interests at any time pledged or required to be pledged hereunder
are hereinafter called the "Pledged Membership Interests;" all Pledged Stock,
Pledged Notes, Pledged Partnership Interests and Pledged Membership Interests
together are hereinafter called the "Pledged Securities;" and the Pledged
Securities, together with all proceeds thereof, including any securities and
moneys received and at the time held by the Pledgee hereunder, are hereinafter
called the "Collateral."
3. PLEDGE OF SECURITIES, ETC.
3.1. Pledge. (a) To secure the Obligations of each Pledgor
and for the purposes set forth in Section 1 hereof, each Pledgor hereby (i)
grants to the Pledgee a first priority continuing security interest in all of
the Collateral owned by such Pledgor, (ii) pledges and deposits as security
with the Pledgee, the Securities owned by such Pledgor on the date hereof, and
delivers to the Pledgee certificates or instruments therefor (in the case of
certificated Securities), duly endorsed in blank by such Pledgor in the case of
Notes and accompanied by undated stock or other powers duly executed in blank
by such Pledgor (and accompanied by any transfer tax stamps required in
connection with the pledge of such Securities) in the case of other
certificated Securities, or such other instruments of transfer as are
reasonably acceptable to the Pledgee, (iii) collaterally assigns, transfers,
hypothecates, mortgages, charges and sets over to the Pledgee all of such
Pledgor's right, title and interest in and to such Securities (and in and to
all certificates or instruments evidencing such Securities), to be held by the
Pledgee upon the terms and conditions set forth in this Agreement and (iv)
collaterally transfers and assigns to the Pledgee all of such Pledgor's (x)
Partnership Interests and all of such Pledgor's right, title and interest in
each Pledged Partnership and (y) Membership Interests and all of such Pledgor's
right, title and interest in each Pledged LLC, in each case including, without
limitation:
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(i) all of the capital thereof and its interest in all
profits, income, surplus, losses, Partnership Assets (as defined
below), LLC Assets (as defined below) and other distributions to which
such Pledgor shall at any time be entitled in respect of any such
Collateral;
(ii) all other payments due or to become due to such Pledgor
in respect of any such Collateral, whether under any partnership
agreement, limited liability company agreement or otherwise, whether
as contractual obligations, damages, insurance proceeds or otherwise;
(iii) all of its claims, rights, powers, privileges, authority,
options, security interest, liens and remedies, if any, under any
partnership agreement, limited liability company agreement or other
agreement or at law or otherwise in respect of any such Collateral;
(iv) all present and future claims, if any, of such Pledgor
against any Pledged Partnership or any Pledged LLC for moneys loaned
or advanced, for services rendered or otherwise;
(v) all of such Pledgor's rights under any partnership
agreement, limited liability company agreement or at law to exercise
and enforce every right, power, remedy, authority, option and
privilege of such Pledgor relating to any Partnership Interest or
Membership Interest, including any power, if any, to terminate, cancel
or modify any general or limited partnership agreement or any limited
liability company agreement, to execute any instruments and to take
any and all other action on behalf of and in the name of such Pledgor
in respect of such Partnership Interest or Membership Interest and any
Pledged Entity to make determinations, to exercise any election
(including, but not limited to, election of remedies) or option or to
give or receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive, enforce,
collect, or receipt for any of the foregoing or for any Partnership
Asset or LLC Asset, to enforce or execute any checks, or other
instruments or orders, to file any claims and to take any action in
connection with any of the foregoing;
(vi) all other property hereafter delivered in substitution
for or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such other property and all
cash, securities, interest, dividends, distributions, rights and other
property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
thereof; and
(vii) to the extent not otherwise included, all proceeds of any
or all of the foregoing.
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(b) As used herein, the term "Partnership Assets" and "LLC
Assets" shall mean, respectively, all assets, whether tangible or intangible
and whether real, personal or mixed (including, without limitation, all
partnership and limited liability company capital and interests in other
partnerships and limited liability company interests), at any time owned by any
Pledged Partnership or Pledged LLC or represented by any Partnership Interest
or Membership Interest.
3.2. Subsequently Acquired Securities. If any Pledgor shall
acquire (by purchase, stock dividend, distribution or otherwise) any additional
Securities at any time or from time to time after the date hereof, such Pledgor
will promptly thereafter pledge and deposit such Securities (or certificates or
instruments representing such Securities) as security with the Pledgee and
deliver to the Pledgee certificates or instruments therefor, duly endorsed in
blank, in the case of Notes, and accompanied by undated stock or other powers
duly executed in blank by such Pledgor, in the case of other Securities, and
will promptly thereafter deliver to the Pledgee a certificate executed by a
principal executive officer of such Pledgor describing such Securities and
certifying that the same has been duly pledged with the Pledgee hereunder. No
Pledgor shall be required at any time to pledge hereunder any Securities which
represents more than 65% of the total combined voting power of all classes of
capital stock or other equity interests of any Foreign Subsidiary entitled to
vote except to the extent provided in the last sentence of Section 2(a) of this
Agreement.
3.3. Uncertificated Securities and Partnership Interests.
Notwithstanding anything to the contrary contained in Sections 3.1 and 3.2
hereof, if any Securities (whether now owned or hereafter acquired) are
uncertificated securities, the relevant Pledgor shall promptly notify the
Pledgee thereof, and shall promptly take all actions required to perfect the
security interest of the Pledgee under applicable law (including, in any event,
under Sections 8-313 and 8-321 of the New York Uniform Commercial Code, if
applicable). Each Pledgor further agrees to take such actions as the Pledgee
deems reasonably necessary or desirable to effect the foregoing and to permit
the Pledgee to exercise any of its rights and remedies hereunder.
3.4. Release of Securities. Notwithstanding anything to the
contrary contained in this Agreement, if, at any time, the Stock, Partnership
Interests or Membership Interests of any Foreign Subsidiary pledged hereby
constitutes more than 65% of the total combined voting power of all classes of
all capital stock or other equity interests of such Foreign Subsidiary, then
the Pledgee shall promptly following the request of the Pledgor that owns such
Securities, release a portion of the Securities (by written release and the
delivery to such Pledgor of certificates evidencing the released Securities,
together with such other documents or instruments as such Pledgor may
reasonably request) sufficient to cause the Pledgee to hold not more than 65%
of the total combined voting power of all classes of capital stock or other
equity interest of such Foreign Subsidiary.
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4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Pledged Securities, which, if held by any
person other than the Pledgee, shall be held in the name of the relevant
Pledgor, with a notation that such Pledged Securities have been pledged to the
Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until
there shall have occurred and be continuing an Event of Default, each Pledgor
shall be entitled to exercise any and all voting, consent, administration,
management and other rights and remedies pertaining to the Pledged Securities
owned by it, and to give consents, waivers or ratifications in respect thereof;
provided, that no vote shall be cast or any consent, waiver or ratification
given or any action taken or omitted to be taken which would violate or be
inconsistent with any of the terms of this Agreement, the Credit Agreement, any
other Credit Document or any Interest Rate Protection Agreement or Other
Hedging Agreement (collectively, the "Secured Debt Agreements"), or which would
have the effect of impairing the value of the Collateral or any part thereof or
the position or interests of the Pledgee or any other Secured Creditor in the
Collateral. All such rights of each Pledgor to vote and to give consents,
waivers and ratifications shall cease in case an Event of Default has occurred
and is continuing, and Section 7 hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there
shall have occurred and be continuing an Event of Default, (i) all cash
dividends and distributions payable in respect of the Pledged Stock and all
payments in respect of the Pledged Notes (including in both cases, without
limitation, all amounts described in Section 3.1(a)(i)-(vii)) shall be paid to
the respective Pledgor and (ii) all cash distributions and other amounts
payable in respect of the Pledged Partnership Interests and Pledged Membership
Interests (including, without limitation, all amounts described in Section
3.1(a)(i)-(vii)) shall be paid to the respective Pledgor. Notwithstanding the
foregoing, the Pledgee shall be entitled to receive directly, and to retain as
part of the Collateral:
(i) all other or additional stock or other securities or
property (other than cash) paid or distributed by way of dividend,
distribution or otherwise in respect of the Collateral;
(ii) all other or additional stock or other securities or
property paid or distributed in respect of the Collateral by way of
merger, consolidation, conveyance of assets, liquidation, exchange of
stock, stock-split, spin-off, split-up, reclassification, combination
of shares or similar rearrangement; and
(iii) all other or additional stock or other securities or
property which may be paid in respect of the Collateral by reason of
any consolidation, merger, exchange of stock, conveyance of assets,
liquidation or similar corporate reorganization.
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Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions, proceeds or
other payments which are received by any Pledgor contrary to the provisions of
this Section 6 and Section 7 hereof shall be segregated from other property or
funds of such Pledgor and shall be forthwith deposited with the Pledgee as
Collateral in the same form as so received (with any necessary endorsement).
7. REMEDIES IN CASE OF DEFAULT OR EVENT OF DEFAULT. If
there shall have occurred and be continuing an Event of Default, then and in
every such case, the Pledgee shall be entitled to exercise all of the rights,
powers and remedies (whether vested in it by this Agreement, any other Secured
Debt Agreement or by law) for the protection and enforcement of its rights in
respect of the Collateral, and the Pledgee shall be entitled to exercise all
the rights and remedies of a secured party under the Uniform Commercial Code
and also shall be entitled, without limitation, to exercise the following
rights which each Pledgor hereby agrees to be commercially reasonable:
(a) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 hereof to the respective
Pledgor;
(b) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(c) to accelerate any Pledged Note which may be accelerated
in accordance with its terms, and take any other lawful action to
collect upon any Pledged Note (including, without limitation, to make
any demand for payment thereon);
(d) to vote all or any part of the Pledged Securities
(whether or not transferred into the name of the Pledgee) and give all
consents, waivers and ratifications in respect of the Collateral and
otherwise act with respect thereto as though it were the outright
owner thereof (each Pledgor hereby irrevocably constituting and
appointing the Pledgee, after the occurrence and during the
continuance of an Event of Default, the proxy and attorney-in-fact of
such Pledgor, with full power of substitution to do so); and
(e) at any time and from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by each Pledgor),
for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine, provided that at least 10 days' written notice of the time
and place of any such sale shall be given to the Borrower and the
respective Pledgor. The Pledgee
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EXHIBIT G*
shall not be obligated to make any such sale of Collateral regardless
of whether any such notice of sale has theretofore been given. Each
Pledgor hereby waives and releases to the fullest extent permitted by
law any right or equity of redemption with respect to the Collateral,
whether before or after sale hereunder, and all rights, if any, of
marshalling the Collateral and any other security for the Obligations
or otherwise. At any such sale, unless prohibited by applicable law,
the Pledgee on behalf of the Secured Creditors may bid for and
purchase all or any part of the Collateral so sold free from any such
right or equity of redemption. Neither the Pledgee nor any other
Secured Creditor shall be liable for failure to collect or realize
upon any or all of the Collateral or for any delay in so doing nor
shall any of them be under any obligation to take any action
whatsoever with regard thereto.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power
and remedy of the Pledgee provided for in this Agreement or in any other
Secured Debt Agreement, or now or hereafter existing at law or in equity or by
statute shall be cumulative and concurrent and shall be in addition to every
other such right, power or remedy. The exercise or beginning of the exercise
by the Pledgee or any other Secured Creditor of any one or more of the rights,
powers or remedies provided for in this Agreement or any other Secured Debt
Agreement or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by the Pledgee
or any other Secured Creditor of all such other rights, powers or remedies, and
no failure or delay on the part of the Pledgee or any other Secured Creditor to
exercise any such right, power or remedy shall operate as a waiver thereof. No
notice to or demand on any Pledgor in any case shall entitle it to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Pledgee or any other Secured Creditor to any
other or further action in any circumstances without notice or demand. The
Secured Creditors agree that this Agreement may be enforced only by the action
of the Administrative Agent or the Pledgee, in each case acting upon the
instructions of the Required Banks (or, after the date on which all Credit
Document Obligations have been paid in full, the holders of at least the
majority of the outstanding Other Obligations) and that no other Secured
Creditor shall have any right individually to seek to enforce or to enforce
this Agreement or to realize upon the security to be granted hereby, it being
understood and agreed that such rights and remedies may be exercised by the
Administrative Agent or the Pledgee or the holders of at least a majority of
the outstanding Other Obligations, as the case may be, for the benefit of the
Secured Creditors upon the terms of this Agreement.
9. APPLICATION OF PROCEEDS. (a) All moneys or other
proceeds collected by the Pledgee upon any sale or other disposition of the
Collateral pursuant to the terms of this Agreement, together with all other
moneys or other proceeds received by the Pledgee hereunder, shall be applied to
the payment of the Obligations as follows:
(i) first, to the payment of all Obligations owing to the
Pledgee of the type described in clauses (iii) and (iv) of Section 1
of this Agreement;
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(ii) second, to the extent moneys or other proceeds remain
after the application pursuant to the preceding clause (i), an amount
equal to the outstanding Primary Obligations (as hereinafter defined)
shall be paid to the Secured Creditors as provided in Section 9(e)
hereof, with each Secured Creditor receiving an amount equal to its
outstanding Primary Obligations or, if the moneys or other proceeds
are insufficient to pay in full all such Primary Obligations, its Pro
Rata Share (as hereinafter defined) of the amount remaining to be
distributed;
(iii) third, to the extent moneys or other proceeds remain
after the application pursuant to the preceding clauses (i) and (ii),
an amount equal to the outstanding Secondary Obligations (as
hereinafter defined) shall be paid to the Secured Creditors as
provided in Section 9(e) hereof, with each Secured Creditor receiving
an amount equal to its outstanding Secondary Obligations or, if the
moneys or proceeds are insufficient to pay in full all such Secondary
Obligations, its Pro Rata Share of the amount remaining to be
distributed; and
(iv) fourth, to the extent moneys or proceeds remain after the
application pursuant to the preceding clauses (i) through (iii),
inclusive, and following the termination of this Agreement pursuant to
Section 18(a) hereof, to the relevant Pledgor or to whomever may be
lawfully entitled to receive such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall
mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's Primary
Obligations or Secondary Obligations, as the case may be, and the denominator
of which is the then outstanding amount of all Primary Obligations or Secondary
Obligations, as the case may be, (y) "Primary Obligations" shall mean (i) in
the case of the Credit Document Obligations, all principal of, and interest on,
all Revolving Loans under the Credit Agreement, all Unpaid Drawings theretofore
made (together with all interest accrued thereon), the aggregate Stated Amounts
of all Letters of Credit issued (or deemed issued) under the Credit Agreement,
and all Fees and (ii) in the case of the Other Obligations, all amounts due
under the Interest Rate Protection or Other Hedging Agreements (other than
indemnities, reasonable fees (including, without limitation, reasonable
attorneys' fees) and similar obligations and liabilities) and (z) "Secondary
Obligations" shall mean all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 9 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Creditors, with
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EXHIBIT G*
each Secured Creditor whose Primary Obligations or Secondary Obligations, as
the case may be, have not been paid in full to receive an amount equal to such
excess amount multiplied by a fraction the numerator of which is the unpaid
Primary Obligations or Secondary Obligations, as the case may be, of such
Secured Creditor and the denominator of which is the unpaid Primary Obligations
or Secondary Obligations, as the case may be, of all Secured Creditors entitled
to such distribution.
(d) Each of the Secured Creditors agrees and acknowledges
that if the Bank Creditors are to receive a distribution on account of undrawn
amounts with respect to Letters of Credit issued (or deemed issued) under the
Credit Agreement (which shall only occur after all outstanding Revolving Loans
and Unpaid Drawings with respect to such Letters of Credit have been paid in
full), such amounts shall be deposited with the Administrative Agent under the
Credit Agreement and held by it, for the equal and ratable benefit of the Bank
Creditors, as cash security for the repayment of Obligations owing to the Bank
Creditors as such. If any amounts are held as cash security pursuant to the
immediately preceding sentence, then upon the termination of all outstanding
Letters of Credit, and after the application of all such cash security to the
repayment of all Obligations owing to the Bank Creditors after giving effect to
the termination of all such Letters of Credit, if there remains any excess
cash, such excess cash shall be returned by the Administrative Agent to the
Pledgee for distribution in accordance with Section 9(a) hereof.
(e) Except as set forth in Section 9(d) hereof, all payments
required to be made hereunder shall be made (x) if to the Bank Creditors, to
the Administrative Agent under the Credit Agreement for the account of the Bank
Creditors and (y) if to the Other Creditors, to the trustee, paying agent or
other similar representative (each, a "Representative") for the Other Creditors
or, in the absence of such a Representative, directly to the Other Creditors.
(f) For purposes of applying payments received in accordance
with this Section 9, the Pledgee shall be entitled to rely upon (i) the
Administrative Agent under the Credit Agreement, (ii) the Representative for
the Other Creditors or, in the absence of such a Representative, upon the Other
Creditors for a determination (which the Administrative Agent, each
Representative for any Secured Creditor and the Secured Creditors agree (or
shall agree) to provide upon request of the Pledgee), of the outstanding
Primary Obligations and Secondary Obligations owed to the Bank Creditors or the
Other Creditors, as the case may be. Unless it has actual knowledge (including
by way of written notice from a Bank Creditor or an Other Creditor) to the
contrary, the Administrative Agent and each Representative, in furnishing
information pursuant to the preceding sentence, and the Pledgee, in acting
hereunder, shall be entitled to assume that no Secondary Obligations are
outstanding. Unless it has actual knowledge (including by way of written
notice from an Other Creditor) to the contrary, the Pledgee, in acting
hereunder, shall be entitled to assume that no Interest Rate Protection
Agreements or Other Hedging Agreements are in existence.
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10. PURCHASERS OF COLLATERAL. Upon any sale of the
Collateral by the Pledgee hereunder (whether by virtue of the power of sale
herein granted, pursuant to judicial process or otherwise), the receipt of the
Pledgee or the officer making the sale shall be a sufficient discharge to the
purchaser or purchasers of the Collateral so sold, and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Pledgee or such officer or be answerable in any
way for the misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor that is not a Foreign Subsidiary
jointly and severally agrees (i) to indemnify and hold harmless the Pledgee and
each other Secured Creditor and their respective successors, assigns,
employees, agents and servants (individually an "Indemnitee," and collectively
the "Indemnitees") from and against any and all claims, demands, losses,
judgments and liabilities (including liabilities for penalties) of whatsoever
kind or nature, and (ii) to reimburse each Indemnitee for all costs and
expenses, including reasonable attorneys' fees, in each case growing out of or
resulting from this Agreement or the exercise by any Indemnitee of any right or
remedy granted to it hereunder or under any other Secured Debt Agreement (but
excluding any claims, demands, losses, judgments and liabilities or expenses to
the extent incurred by reason of gross negligence or willful misconduct of such
Indemnitee). In no event shall any Indemnitee be liable, in the absence of
gross negligence or willful misconduct on its part, for any matter or thing in
connection with this Agreement other than to account for monies actually
received by it in accordance with the terms hereof. If and to the extent that
the obligations of any Pledgor under this Section 11 are unenforceable for any
reason, such Pledgor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable law. The indemnity obligations of each Pledgor contained in this
Section 11 shall continue in full force and effect notwithstanding the full
payment of all the Notes issued under the Credit Agreement, the termination of
all Interest Rate Protection Agreements or Other Hedging Agreements and Letters
of Credit and the payment of all other Obligations and notwithstanding the
discharge thereof.
12. PLEDGEE NOT BOUND. (a) Nothing herein shall be
construed to make the Pledgee or any other Secured Creditor liable as a general
partner or limited partner of any Pledged Partnership or as a member of any
Pledged LLC and the Pledgee or any other Secured Creditor by virtue of this
Agreement or otherwise (except as referred to in the following sentence) shall
not have any of the duties, obligations or liabilities of a general partner or
limited partner of any Pledged Partnership or of a member of any Pledged LLC.
The parties hereto expressly agree that, unless the Pledgee shall become the
absolute owner of a Pledged Partnership Interest or a Pledged Membership
Interest pursuant hereto, this Agreement shall not be construed as creating a
partnership or joint venture among the Pledgee, any other Secured Creditor
and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph (a)
of this Section, the Pledgee, by accepting this Agreement, did not intend to
become a general partner or limited
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EXHIBIT G*
partner of any Pledged Partnership or of a member of any Pledged LLC or
otherwise be deemed to be a co-venturer with respect to any Pledgor or any
Pledged Partnership or any Pledged LLC either before or after an Event of
Default shall have occurred. The Pledgee shall have only those powers set
forth herein and shall assume none of the duties, obligations or liabilities of
a general partner or limited partner of any Pledged Partnership or of a member
of any Pledged LLC or of any Pledgor.
(c) The Pledgee shall not be obligated to perform or
discharge any obligation of any Pledgor as a result of the collateral
assignment hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Pledgee to appear in or defend any action or
proceeding relating to the Collateral to which it is not a party, or to take
any action hereunder or thereunder, or to expend any money or incur any
expenses or perform or discharge any obligation, duty or liability under the
Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor
agrees that it will join with the Pledgee in executing and, at such Pledgor's
own expense, file and refile under the Uniform Commercial Code or other
applicable law such financing statements, continuation statements and other
documents in such offices as the Pledgee may deem necessary or appropriate and
wherever required or permitted by law in order to perfect and preserve the
Pledgee's security interest in the Collateral and hereby authorizes the Pledgee
to file financing statements and amendments thereto relative to all or any part
of the Collateral without the signature of such Pledgor where permitted by law,
and agrees to do such further acts and things and to execute and deliver to the
Pledgee such additional conveyances, assignments, agreements and instruments as
the Pledgee may reasonably require or deem necessary to carry into effect the
purposes of this Agreement or to further assure and confirm unto the Pledgee
its rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such
Pledgor's attorney-in-fact, with full authority in the place and stead of such
Pledgor and in the name of such Pledgor or otherwise, to act from time to time
solely after the occurrence and during the continuance of an Event of Default
in the Pledgee's discretion to take any action and to execute any instrument
which the Pledgee may deem necessary or advisable to accomplish the purposes of
this Agreement.
14. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee will hold
in accordance with this Agreement all items of the Collateral at any time
received under this Agreement. It is expressly understood and agreed by each
Secured Creditor that by accepting the benefits of this Agreement each such
Secured Creditor acknowledges and agrees that the obligations of the Pledgee as
holder of the Collateral and interests therein and with respect to the
disposition thereof, and otherwise under this Agreement, are only those
expressly set forth
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* Deleted as executed.
13
<PAGE> 139
EXHIBIT G*
in this Agreement. The Pledgee shall act hereunder on the terms and conditions
set forth herein and in Section 12 of the Credit Agreement.
15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein (except as may
be permitted in accordance with the terms of the Credit Agreement).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PLEDGORS. Each Pledgor represents, warrants and covenants that (i) it is the
legal, record and beneficial owner of and has good and marketable title to all
Pledged Securities pledged by it hereunder, subject to no Lien (except the Lien
created by this Agreement); (ii) it has full power, authority and legal right
to pledge all the Pledged Securities pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered by such
Pledgor and constitutes a legal, valid and binding obligation of such Pledgor
enforceable in accordance with its terms except to the extent that the
enforceability hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law); (iv) except as have been obtained by the Pledgors as of
the date hereof and which remain in full force and effect on the date hereof,
no consent of any other party (including, without limitation, any stockholder,
member, partner or creditor of such Pledgor or any of its Subsidiaries or any
Pledged Entity) and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration with,
any governmental authority is required to be obtained by such Pledgor in
connection with the execution, delivery or performance of this Agreement, the
validity or enforceability of this Agreement, the perfection or enforceability
of the Pledgee's security interest in the Collateral or, except for compliance
with or as may be required by applicable securities laws, the exercise by the
Pledgee of any of its rights or remedies provided herein; (v) the execution,
delivery and performance of this Agreement by such Pledgor will not violate any
provision of any applicable law or regulation or of any order, judgment, writ,
award or decree of any court, arbitrator or governmental authority, domestic or
foreign, applicable to such Pledgor, or of the certificate or articles of
incorporation or by-laws (or equivalent organizational documents) of such
Pledgor or of any securities issued by such Pledgor or any of its Subsidiaries,
or of any mortgage, indenture, lease, deed of trust, loan agreement, credit
agreement or other material contract, agreement or instrument or undertaking to
which such Pledgor or any of its Subsidiaries is a party or which purports to
be binding upon such Pledgor or any of its Subsidiaries or upon any of their
respective assets and will not result in the creation or imposition of (or the
obligation to create or impose) any lien or encumbrance on any of the assets of
such Pledgor or any of its Subsidiaries except as contemplated by this
Agreement; (vi) all the shares of Stock have been duly and validly issued, are
fully paid and non-assessable and are subject to no options to purchase or
similar rights; (vii) each of the Pledged Notes constitutes, or when executed
by the obligor thereof will constitute, the legal, valid and binding obligation
of such obligor, enforceable in accordance with its terms except to the extent
that the enforceability
- --------------------------
* Deleted as executed.
14
<PAGE> 140
EXHIBIT G*
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law); (viii) the pledge, assignment and delivery to the Pledgee of the
Securities (other than uncertificated securities) pursuant to this Agreement
creates a valid and perfected first priority Lien in the Securities, and the
proceeds thereof, subject to no other Lien or to any agreement purporting to
grant to any third party a Lien on the property or assets of the Pledgor which
would include the Securities; (ix) each Pledged Partnership Interest and
Pledged Membership Interest has been validly acquired and is fully paid for (to
the extent applicable) and is duly and validly pledged hereunder; (x) each
general or limited partnership agreement and limited liability company
agreement delivered to the Pledgee in respect of any Pledged Entity is an
original signed counterpart (or a copy thereof) of the complete and entire such
agreement in effect on the date hereof; (xi) each partnership agreement and
limited liability company agreement in respect of any Pledged Entity is the
legal, valid and binding obligation of each Pledgor, and to each Pledgor's
knowledge, the other parties thereto, enforceable in accordance with its terms
and, together with this Agreement, contains the entire agreement between the
Pledgors relating to the subject matter thereof; (xii) no Pledgor is in default
in the payment of any portion of any mandatory capital contribution, if any,
required to be made under any general or limited partnership agreement or
limited liability company agreement in respect of any Pledged Entity to which
such Pledgor is a party, and no Pledgor is in violation of any other material
provisions of any such partnership agreement or limited liability company
agreement to which such Pledgor is a party, or otherwise in default or
violation thereunder; (xiii) no Pledged Partnership Interest or Pledged
Membership Interest is subject to any defense, offset or counterclaim, nor have
any of the foregoing been asserted or alleged against such Pledgor by any
Person with respect thereto; (xiv) the pledge and assignment of the Pledged
Partnership Interests and Pledged Membership Interests pursuant to this
Agreement, together with the relevant filings or recordings under the UCC
(which filings and recordings have been or will be made), creates a valid,
perfected and continuing first priority security interest in such Partnership
Interests and Membership Interests and the proceeds thereof, subject to no
prior lien or encumbrance or to any agreement purporting to grant to any third
party a lien or encumbrance on the property or assets of such Pledgor which
would include the Collateral; (xv) there are no currently effective financing
statements under the UCC covering any property which is now or hereafter may be
included in the Collateral and such Pledgor will not, without the prior written
consent of the Pledgee, execute and, until the Termination Date (as hereinafter
defined), there will not ever be on file in any public office any enforceable
financing statement or statements covering any or all of the Collateral, except
financing statements filed or to be filed in favor of the Pledgee as secured
party; (xvi) each Pledgor shall give the Pledgee prompt notice of any written
claim it receives relating to the Collateral; (xvii) each Pledgor shall deliver
to the Pledgee a copy of each other demand, notice or document received by it
which may adversely affect the Pledgee's interest in the Collateral promptly
upon, but in any event within 10 days after, such Pledgor's receipt thereof;
(xviii) no Pledgor shall withdraw as a partner of any Pledged Partnership or
member of any Pledged LLC, or file or pursue or take any action which may,
directly or indirectly, cause a dissolution or liquidation of or with respect
to any Pledged Entity or seek a partition
- --------------------------
* Deleted as executed.
15
<PAGE> 141
EXHIBIT G*
of any property of any Pledged Entity, except as permitted by the Credit
Agreement; (xix) a notice in the form set forth in Annex E attached hereto and
by this reference made a part hereof (such notice the "Pledge Notice"),
appropriately completed, notifying each Pledged Entity of the existence of this
Agreement and a certified copy of this Agreement have been delivered by each
Pledgor to the relevant Pledged Entity, and each such Pledgor has received and
delivered to the Collateral Agent an acknowledgment in the form set forth in
Annex F attached hereto (such acknowledgement, the "Pledge Acknowledgement"),
duly executed by the relevant Pledged Entity; (xx) the chief executive office
and principal place of business of such Pledgor and the sole location where the
records of such Pledgor with respect to any Pledged Partnership Interests and
Pledged Membership Interests are kept are located at the address set forth for
such Pledgor on Annex G hereto, and such Pledgor shall not move its chief
executive office, principal place of business, or location of records unless
(x) it shall have given to the Pledgee written notice thereof no later than 60
days thereafter, clearly describing such new location and providing such other
information in connection therewith as the Pledgee may reasonably request and
(y) with respect to such new location, it shall have taken all action,
reasonably satisfactory to the Pledgee, to maintain the security interest of
the Pledgee in the Collateral intended to be granted hereby at all times fully
perfected and in full force and effect; (xxi) such Pledgor shall not change its
legal name as set forth on the signature pages hereto or assume or operate in
any jurisdiction under any trade, fictitious or other name unless (x) it shall
have given to the Pledgee written notice thereof no later than 60 days
thereafter, clearly describing such new name and the jurisdictions in which
such new name shall be used and providing such other information in connection
therewith as the Pledgee may reasonably request and (y) with respect to such
new name, it shall have taken all action, reasonably satisfactory to the
Pledgee, to maintain the security interest of the Pledgee in the Collateral
intended to be granted hereby at all times fully perfected and in full force
and effect; and (xxii) all filings, registrations and recordings necessary or
appropriate to create, preserve, protect and perfect the security interest
granted by such Pledgor to the Pledgee hereby in respect of the Collateral have
been accomplished and the security interest granted to the Pledgee pursuant to
this Agreement in and to the Collateral constitutes a perfected security
interest therein prior to the rights of all other Persons therein and subject
to no other Liens and is entitled to all the rights, priorities and benefits
afforded by the Uniform Commercial Code or other relevant law as enacted in any
relevant jurisdiction to perfected security interests. Each Pledgor covenants
and agrees that it will defend the Pledgee's right, title and security interest
in and to the Collateral against the claims and demands of all persons
whomsoever; and such Pledgor covenants and agrees that it will have like title
to and right to pledge any other property at any time hereafter pledged to the
Pledgee as Collateral hereunder and will likewise defend the right thereto and
security interest therein of the Pledgee and the other Secured Creditors.
17. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of
each Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement
- --------------------------
* Deleted as executed.
16
<PAGE> 142
EXHIBIT G*
to or deletion from any Secured Debt Agreement or any other instrument or
agreement referred to therein, or any assignment or transfer of any thereof;
(ii) any waiver, consent, extension, indulgence or other action or inaction
under or in respect of any such agreement or instrument including, without
limitation, this Agreement; (iii) any furnishing of any additional security to
the Pledgee or its assignee or any acceptance thereof or any release of any
security by the Pledgee or its assignee; (iv) any limitation on any party's
liability or obligations under any such instrument or agreement or any
invalidity or unenforceability, in whole or in part, of any such instrument or
agreement or any term thereof; or (v) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to any Pledgor or any Subsidiary of any Pledgor, or any
action taken with respect to this Agreement by any trustee or receiver, or by
any court, in any such proceeding, whether or not such Pledgor shall have
notice or knowledge of any of the foregoing.
18. TERMINATION; RELEASE. (a) After the Termination Date
(as defined below), this Agreement and the security interest created hereby
shall terminate (provided that all indemnities set forth herein including,
without limitation, in Section 11 hereof shall survive any such termination),
and the Pledgee, at the request and expense of any Pledgor, will execute and
deliver to such Pledgor a proper instrument or instruments acknowledging the
satisfaction and termination of this Agreement, and will duly assign, transfer
and deliver to such Pledgor (without recourse and without any representation or
warranty) such of the Collateral as has not theretofore been sold or otherwise
applied or released pursuant to this Agreement, together with any moneys at the
time held by the Pledgee or any of its sub-agents hereunder. As used in this
Agreement, "Termination Date" shall mean the date upon which the Total
Revolving Loan Commitment and all Interest Rate Protection Agreements or Other
Hedging Agreements have been terminated, no Note under the Credit Agreement is
outstanding (and all Revolving Loans have been repaid in full), all Letters of
Credit have been terminated and all Obligations then owing have been paid in
full.
(b) In the event that any part of the Collateral is sold
in connection with a sale permitted by Section 9.02 of the Credit Agreement
(other than a sale to any Pledgor or any Subsidiary thereof) or is otherwise
released at the direction of the Required Banks (or all Banks if required by
Section 15.12 of the Credit Agreement) and the proceeds of such sale or sales
or from such release are applied in accordance with the provisions of the
Credit Agreement, to the extent required to be so applied, the Pledgee, at the
request and expense of any Pledgor, will duly assign, transfer and deliver to
such Pledgor (without recourse and without any representation or warranty) such
of the Collateral (and releases therefor) as is then being (or has been) so
sold or released and has not theretofore been released pursuant to this
Agreement.
(c) At any time that a Pledgor desires that the Pledgee
assign, transfer and deliver Collateral (and releases therefor) as provided in
Section 18(a) or (b) hereof, it shall deliver to the Pledgee a certificate
signed by a principal executive officer of such Pledgor stating that the
release of the respective Collateral is permitted pursuant to such Section
18(a) or (b).
- --------------------------
* Deleted as executed.
17
<PAGE> 143
EXHIBIT G*
(d) The Pledgee shall have no liability whatsoever to any
other Secured Creditor as the result of any release of Collateral by it in
accordance with this Section 18.
19. NOTICES, ETC. All such notices and communications
hereunder shall be sent or delivered by mail, telegraph, telex, telecopy, cable
or overnight courier service and all such notices and communications shall,
when mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when delivered to the telegraph company, cable company or
overnight courier, as the case may be, or sent by telex or telecopier and when
mailed shall be effective three Business Days following deposit in the mail
with proper postage, except that notices and communications to the Pledgee
shall not be effective until received by the Pledgee. All notices and other
communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at:
c/o Pool Energy Services Co.
10375 Richmond Avenue
Houston, TX 77042
Attention: Treasurer
Telephone No.: 713-954-3084
Telecopier No.: 713-954-3244
(b) if to the Pledgee, at:
Credit Lyonnais New York Branch
1000 Louisiana, Suite 5360
Houston, TX 77002
Attention: W. Thomas Byargeon
Telephone No.: 713-753-8706
Telecopier No.: 713-751-0307
(c) if to any Bank Creditor, either (x) to the
Administrative Agent, at the address of the Administrative Agent
specified in the Credit Agreement or (y) at such address as such Bank
Creditor shall have specified in the Credit Agreement;
(d) if to any Other Creditor at such address as such
Other Creditor shall have specified in writing to the Pledgors and the
Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
- --------------------------
* Deleted as executed.
18
<PAGE> 144
EXHIBIT G*
20. WAIVER; AMENDMENT. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each Pledgor directly affected
thereby and the Pledgee (with the written consent of either (x) the Required
Banks (or all of the Banks to the extent required by Section 15.12 of the
Credit Agreement) at all times prior to the time on which all Credit Document
Obligations have been paid in full or (y) the holders of at least a majority of
the outstanding Other Obligations at all times after the time on which all
Credit Document Obligations have been paid in full); provided, that any change,
waiver, modification or variance affecting the rights and benefits of a single
Class (as defined below) of Secured Creditors (and not all Secured Creditors in
a like or similar manner) shall also require the written consent of the
Requisite Creditors (as defined below) of such affected Class. For the purpose
of this Agreement, the term "Class" shall mean each class of Secured Creditors,
i.e., whether (i) the Bank Creditors as holders of the Credit Document
Obligations or (ii) the Other Creditors as the holders of the Other
Obligations. For the purpose of this Agreement, the term "Requisite Creditors"
of any Class shall mean each of (i) with respect to the Credit Document
Obligations, the Required Banks (or to the extent required by Section 15.12 of
the Credit Agreement, each Bank) and (ii) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Interest Rate Protection Agreements or Other
Hedging Agreements.
21. MISCELLANEOUS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of and be enforceable by each of the parties hereto and its
successors and assigns, provided that no Pledger may assign any of its rights
or obligations under this Agreement without the prior consent of the Collateral
Agent. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK. The headings in this
Agreement are for purposes of reference only and shall not limit or define the
meaning hereof. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which shall constitute one
instrument. In the event that any provision of this Agreement shall prove to
be invalid or unenforceable, such provision shall be deemed to be severable
from the other provisions of this Agreement which shall remain binding on all
parties hereto.
22. ADDITIONAL PLEDGORS. It is understood and agreed
that any Subsidiary of the Borrower that is required to execute a counterpart
of this Agreement after the date hereof pursuant to the Credit Agreement shall
automatically become a Pledgor hereunder by executing a counterpart hereof and
delivering the same to the Pledgee.
23. MISCELLANEOUS. Notwithstanding anything to the
contrary contained herein or in the Credit Agreement, each Pledgor hereby
covenants and agrees that with respect to any Pledged Partnership Interest and
Pledged Membership Interest pledged by it hereunder, such Pledgor will deliver
to the respective Pledged Partnerships and Pledged LLCs (with copies to the
Pledgee) a Pledge Notice (appropriately completed) and such Pledgor
- --------------------------
* Deleted as executed.
19
<PAGE> 145
EXHIBIT G*
will deliver to the Pledgee a Pledge Acknowledgement signed by the respective
Pledged Partnerships and Pledged Membership Interest, in each case within 10
days following the date any such Pledged Partnership Interests and Pledged
Membership Interest are pledged hereunder.
* * * *
- --------------------------
* Deleted as executed.
20
<PAGE> 146
EXHIBIT G*
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused
this Agreement to be executed by their duly elected officers duly authorized as
of the date first above written.
POOL COMPANY,
as a Pledgor
By /s/ E.J. Spillard
-----------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
-----------------------------
Name: R.A. Johannsen
Title: Treasurer
Accepted and Agreed to:
CREDIT LYONNAIS NEW YORK BRANCH,
as Collateral Agent
By /s/ Pascal Poupelle
------------------------------
Name: Pascal Poupelle
Title: Authorized Signatory
- --------------------------
* Deleted as executed.
21
<PAGE> 147
ANNEX A
to
PLEDGE AGREEMENT
LIST OF STOCK
POOL COMPANY
<TABLE>
<CAPTION>
Percentage of
Outstanding
Name of Issuing Certificate Type of Number of Shares of
Corporation Number Shares Shares Capital Stock
- --------------- ----------- ------- ------ -----
<S> <C> <C> <C> <C>
Pool International 8 Ordinary 66,000 66%
(Trinidad) Ltd.
(Trinidad)
International Sea 3 Common 66 66%
Drilling Ltd.
(Cayman Islands)
Pool International 13 Common 330,000 66%
Ltd.
(Cayman Islands)
</TABLE>
<PAGE> 148
ANNEX B
to
PLEDGE AGREEMENT
LIST OF NOTES
PLEDGOR: Pool Company
<TABLE>
<CAPTION>
Obligor Principal Amount Maturity Date
- ------- ---------------- -------------
<S> <C> <C> <C>
Pool International 1. $9,353,215.99 Demand
(Malaysia)
Sdn. Bhd.
2. aggregate amount of Demand
Loans outstanding as
of Effective Date
3. aggregate amount of Demand
Intercompany Loans
outstanding after
Effective Date
Pool International outstanding Intercompany Demand
(Trinadad) Ltd. Loans
International outstanding Intercompany Demand
Sea Drilling Ltd. Loans
Pool International Ltd. outstanding Intercompany Demand
Loans
</TABLE>
<PAGE> 149
ANNEX C
to
PLEDGE AGREEMENT
MEMBERSHIP INTERESTS
NONE
<PAGE> 150
ANNEX D
to
PLEDGE AGREEMENT
PARTNERSHIP INTERESTS
None
<PAGE> 151
ANNEX E
to
PLEDGE AGREEMENT
FORM OF PLEDGE NOTICE
[Letterhead of Pledgor]
[Date]
TO: [Name of Pledged Entity]
Notice is hereby given that, pursuant to the Pledge Agreement (a
true and correct copy of which is attached hereto), dated as of September 30,
1997 (as amended, modified or supplemented from time to time in accordance with
the terms thereof, the "Pledge Agreement"), between [NAME OF PLEDGOR] (the
"Pledgor"), the other pledgors from time to time party thereto and Credit
Lyonnais New York Branch, as Collateral Agent (the "Pledgee") on behalf of the
Secured Creditors described therein, the Pledgor has pledged and assigned to
the Pledgee for the benefit of the Secured Creditors, and granted to the
Pledgee for the benefit of the Secured Creditors a continuing security interest
in, all right, title and interest of the Pledgor, whether now existing or
hereafter arising or acquired, as a [[limited partner] [general partner]]
[member] in [NAME OF PLEDGED ENTITY] (the ["Partnership"] ["LLC"]), and in, to
and under the [TITLE OF APPLICABLE AGREEMENT] (the "[Partnership] [LLC]
Agreement"), including, without limitation:
(i) all the capital of the [Partnership] [LLC] and the Pledgor's
interest in all profits, income, surplus, losses, [Partnership] [LLC]
Assets and other distributions to which the Pledgor shall at any time be
entitled in respect of such [Partnership] [Membership] Interest;
(ii) all other payments due or to become due to the Pledgor in
respect of such [partnership] [limited liability company] interest,
whether under the [Partnership] [LLC] Agreement or otherwise, whether as
contractual obligations, damages, insurance proceeds or otherwise;
(iii) all of its claims, rights, powers, privileges, authority,
options, security interest, liens and remedies, if any, under the
[Partnership] [LLC] Agreement or at law or otherwise in respect of such
[Partnership] [Membership] Interest;
(iv) all of the Pledgor's rights under the [Partnership] [LLC]
Agreement or at law to exercise and enforce every right, power, remedy,
authority, option and privilege of the Pledgor relating to the
[Partnership] [Membership] Interest, including any power to terminate,
cancel or modify the [Partnership] [LLC] Agreement, to execute any
instruments and to take any and all other action on behalf of and in the
name of the Pledgor in respect of the [Partnership] [Membership] Interest
<PAGE> 152
ANNEX E
Page 2
and the [Partnership] [LLC], to make determinations, to exercise any
election (including, but not limited, election of remedies) or option or
to give or receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive, enforce,
collect or receipt for any of the foregoing, to enforce or execute any
checks, or other instruments or orders, to file any claims and to take any
action in connection with any of the foregoing;
(v) all other property hereafter delivered in substitution for
or in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash, securities,
interest, dividends, rights and other property at any time and from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all thereof; and
(vi) to the extent not otherwise included, all proceeds of any or
all of the foregoing.
Pursuant to the Pledge Agreement, the [Partnership] [LLC] is
hereby authorized and directed to register the Pledgor's pledge to the Pledgee
on behalf of the Secured Creditors of the interest of the Pledgor on the
[Partnership's] [LLC's] books.
The Pledgor hereby requests the [Partnership] [LLC] to indicate
the [Partnership's] [LLC's] acceptance of this Notice and consent to and
confirmation of its terms and provisions by signing a copy hereof where
indicated on the attached page and returning the same to the Pledgee on behalf
of the Secured Creditors.
[NAME OF PLEDGOR]
By
-----------------------------
Name:
Title:
<PAGE> 153
ANNEX F
to
PLEDGE AGREEMENT
FORM OF PLEDGE ACKNOWLEDGMENT
[NAME OF PLEDGED ENTITY] (the ["Partnership"] ["LLC"]) hereby
acknowledges receipt of a copy of the assignment by [NAME OF PLEDGOR]
("Pledgor") of its interest under the [TITLE OF APPLICABLE AGREEMENT] (the
"[Partnership] [LLC] Agreement") pursuant to the terms of the Pledge Agreement,
dated as of September 30, 1997 (as amended, modified or supplemented from time
to time in accordance with the terms thereof, the "Pledge Agreement"), among
the Pledgor, the other pledgors from time to time party thereto, and Credit
Lyonnais New York Branch, as Collateral Agent (the "Pledgee") on behalf of the
Secured Creditors described therein. The undersigned hereby further confirms
the registration of the Pledgor's pledge of its interest to the Pledgee on
behalf of the Secured Creditors on the [Partnership's] [LLC's] books.
Dated: ______________ __, ____
[NAME OF PLEDGED ENTITY]
By
------------------------
Name:
Title:
<PAGE> 154
ANNEX G
to
PLEDGE AGREEMENT
SCHEDULE OF OFFICE LOCATIONS
Pool Company
Principal Place of Business and
Location Where Records are Kept:
10375 Richmond Avenue, 19th Floor
Houston, Texas 77042
<PAGE> 155
EXHIBIT H*
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY, dated as of September 30, 1997 (as
amended, modified or supplemented from time to time, this "Guaranty"), made by
each of the undersigned guarantors (each a "Guarantor," and together with any
other entity that becomes a guarantor hereunder pursuant to Section 25 hereof,
the "Guarantors"). Except as otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement (as defined below) shall be used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, Pool Energy Services Co., Pool Energy Holding, Inc.,
POOL COMPANY (the "Borrower"), the lenders from time to time party thereto (the
"Banks"), SBC Warburg Dillon Read Inc., as Arranger, Swiss Bank Corporation,
New York Branch, as Documentation Agent, and Credit Lyonnais New York Branch,
as Administrative Agent and as Collateral Agent, have entered into a Credit
Agreement, dated as of September 30, 1997 (as amended, modified, or
supplemented from time to time, the "Credit Agreement"), providing for the
making of Revolving Loans to, and the issuance of Letters of Credit for the
account of, the Borrower as contemplated therein (the Banks, the Arranger, the
Documentation Agent, the Collateral Agent, and the Administrative Agent are
herein called the "Bank Creditors");
WHEREAS, the Borrower may at any time and from time to time
enter into one or more Interest Rate Protection Agreements or Other Hedging
Agreements with one or more Banks or any Affiliate thereof (each such Bank or
Affiliate, even if the respective Bank subsequently ceases to be a Bank under
the Credit Agreement for any reason, together with such Bank's or Affiliate's
successors and assigns, if any, collectively, the "Other Creditors," and
together with the Bank Creditors, the "Secured Creditors");
WHEREAS, each Guarantor is a direct or indirect domestic
Subsidiary of the Borrower;
WHEREAS, it is a condition to the Effective Date under the
Credit Agreement that each Guarantor shall have executed and delivered this
Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the
incurrence of Revolving Loans to, and the issuance of Letters of Credit for the
account of, the Borrower
____________________________
* Deleted as executed
<PAGE> 156
EXHIBIT H*
under the Credit Agreement and the entering into by the Borrower of Interest
Rate Protection Agreements or Other Hedging Agreements and, accordingly,
desires to execute this Guaranty in order to satisfy the condition described in
the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Guarantor, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby makes the following representations
and warranties to the Secured Creditors and hereby covenants and agrees with
each Secured Creditor as follows:
1. Each Guarantor, jointly and severally, irrevocably,
absolutely and unconditionally guarantees: (i) to the Bank Creditors the full
and prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of (x) the principal of and interest on the Notes issued by, and the
Revolving Loans made to, the Borrower under the Credit Agreement, and all
reimbursement obligations and Unpaid Drawings with respect to Letters of Credit
issued under the Credit Agreement and (y) all other obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), liabilities and indebtedness owing by the
Borrower to the Bank Creditors under the Credit Agreement and each of the other
Credit Document to which the Borrower is a party (including, without
limitation, indemnities, Fees and interest thereon), whether now existing or
hereafter incurred under, arising out of or in connection with the Credit
Agreement and each such other Credit Document and the due performance and
compliance by the Borrower with all of the terms, conditions and agreements
contained in the Credit Documents (all such principal, interest, liabilities,
indebtedness and obligations being herein collectively called the "Credit
Document Obligations"); and (ii) to each Other Creditor the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of all obligations (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness owing by the Borrower under any Interest Rate Protection Agreement
or Other Hedging Agreement, whether now in existence or hereafter arising, and
the due performance and compliance by the Borrower with all of the terms,
conditions and agreements contained in the Interest Rate Protection Agreements
or Other Hedging Agreements (all such obligations, liabilities and indebtedness
being herein collectively called the "Other Obligations," and together with the
Credit Document Obligations, the "Guaranteed Obligations"). Each Guarantor
understands, agrees and confirms that the Secured Creditors may enforce this
Guaranty up to the full amount of the Guaranteed Obligations against such
Guarantor without proceeding against any other Guarantor, the Borrower, against
any security for the Guaranteed Obligations, or under any other guaranty
covering all or a portion of the Guaranteed Obligations.
2. Additionally, each Guarantor, jointly and severally,
unconditionally, absolutely and irrevocably, guarantees the payment of any and
all Guaranteed Obligations whether or not due or payable by the Borrower upon
the occurrence in respect of the Borrower of any of the events specified in
Section 10.05 of the Credit Agreement, and unconditionally
____________________________
* Deleted as executed
2
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EXHIBIT H*
and irrevocably, jointly and severally, promises to pay such Guaranteed
Obligations to the Secured Creditors, or order, on demand, in legal tender of
the United States. This Guaranty shall constitute a guaranty of payment, and
not of collection.
3. The liability of each Guarantor hereunder is primary,
absolute and unconditional and is exclusive and independent of any security for
or other guaranty of the indebtedness of the Borrower whether executed by such
Guarantor, any other Guarantor, any other guarantor or by any other party, and
the liability of each Guarantor hereunder shall not be affected or impaired by
any circumstance or occurrence whatsoever, including, without limitation: (a)
any direction as to application of payment by the Borrower or by any other
party, (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the Guaranteed
Obligations, (c) any payment on or in reduction of any such other guaranty or
undertaking, (d) any dissolution, termination or increase, decrease or change
in personnel by the Borrower, (e) any payment made to any Secured Creditor on
the Guaranteed Obligations which any Secured Creditor repays the Borrower
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Guarantor waives any
right to the deferral or modification of its obligations hereunder by reason of
any such proceeding, (f) any action or inaction by the Secured Creditors as
contemplated in Section 6 hereof or (g) any invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations or of any
security therefor.
4. The obligations of each Guarantor hereunder are
independent of the obligations of any other Guarantor, any other guarantor or
the Borrower, and a separate action or actions may be brought and prosecuted
against each Guarantor whether or not action is brought against any other
Guarantor, any other guarantor or the Borrower and whether or not any other
Guarantor, any other guarantor or the Borrower be joined in any such action or
actions. Any payment by the Borrower or other circumstance which operates to
toll any statute of limitations as to the Borrower shall operate to toll the
statute of limitations as to each Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this
Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking of other action
by either Agent or any other Secured Creditor against, and any other notice to,
any party liable thereon (including such Guarantor, any other Guarantor, any
other guarantor, the Borrower), except to the extent required pursuant to the
Credit Agreement or any other Credit Document.
6. Any Secured Creditor may at any time and from time to time
without the consent of, or notice to, any Guarantor, without incurring
responsibility to such Guarantor, without impairing or releasing the
obligations of such Guarantor hereunder, upon or without any terms or
conditions and in whole or in part:
____________________________
* Deleted as executed
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EXHIBIT H*
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew or alter, any of the
Guaranteed Obligations (including any increase or decrease in the rate
of interest or fees thereon), any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the guaranty
herein made shall apply to the Guaranteed Obligations as so changed,
extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, impair, surrender, realize
upon or otherwise deal with in any manner and in any order any
property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against
the Borrower or any Subsidiary thereof or otherwise act or refrain
from acting;
(d) release or substitute any one or more endorsers,
Guarantors, other guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of the Borrower to
creditors of the Borrower other than the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized
to any Guaranteed Obligations of the Borrower to the Secured Creditors
regardless of what Guaranteed Obligations of the Borrower remain
unpaid;
(g) consent to or waive any breach of, or any act, omission
or default under, any of the Interest Rate Protection Agreements or
Other Hedging Agreements, the Credit Documents or any of the
instruments or agreements referred to therein, or otherwise amend,
modify or supplement any of the Interest Rate Protection Agreements or
Other Hedging Agreements, the Credit Documents or any of such other
instruments or agreements;
(h) act or fail to act in any manner referred to in this
Guaranty which may deprive such Guarantor of its right to subrogation
against the Borrower to recover full indemnity for any payments made
pursuant to this Guaranty; and/or
____________________________
* Deleted as executed
4
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EXHIBIT H*
(i) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of such Guarantor from its liabilities under this Guaranty.
7. This Guaranty is a continuing one and all liabilities to
which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or delay on the
part of any Secured Creditor in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein expressly specified are cumulative
and not exclusive of any rights or remedies which any Secured Creditor would
otherwise have. No notice to or demand on any Guarantor in any case shall
entitle such Guarantor to any other further notice or demand in similar or
other circumstances or constitute a waiver of the rights of any Secured
Creditor to any other or further action in any circumstances without notice or
demand. It is not necessary for any Secured Creditor to inquire into the
capacity or powers of the Borrower or the officers, directors, partners or
agents acting or purporting to act on its behalf, and any indebtedness made or
created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
8. Any indebtedness of the Borrower now or hereafter held by
any Guarantor is hereby subordinated to the Guaranteed Obligations of the
Borrower to the Secured Creditors, and such Guaranteed Obligations of the
Borrower to any Guarantor, if either Agent or the Collateral Agent, after the
occurrence and during the continuance of an Event of Default, so requests,
shall be collected, enforced and received by such Guarantor and be paid over to
the Secured Creditors on account of the Guaranteed Obligations of the Borrower
to the Secured Creditors, but without affecting or impairing in any manner the
liability of such Guarantor under the other provisions of this Guaranty.
Without limiting the generality of the foregoing, each Guarantor hereby agrees
with the Secured Creditors that it will not exercise any right of subrogation
which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the Bankruptcy Code or otherwise) until all
Guaranteed Obligations have been irrevocably paid in full in cash.
9. (a) Each Guarantor waives any right (except as shall be
required by applicable law and cannot be waived) to require the Secured
Creditors to: (i) proceed against the Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party; (ii) proceed
against or exhaust any security held from the Borrower, any other Guarantor,
any other guarantor of the Guaranteed Obligations or any other party; or (iii)
pursue any other remedy in the Secured Creditors' power whatsoever. Each
Guarantor waives any defense based on or arising out of any defense of the
Borrower, any other Guarantor, any other guarantor of the Guaranteed
____________________________
* Deleted as executed
5
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EXHIBIT H*
Obligations or any other party other than payment in full of the Guaranteed
Obligations, including, without limitation, any defense based on or arising out
of the disability of the Borrower, any other Guarantor, any other guarantor of
the Guaranteed Obligations or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of the Borrower other than payment in full of
the Guaranteed Obligations. The Secured Creditors may, at their election,
foreclose on any security held by the Administrative Agent, the Collateral
Agent or the other Secured Creditors by one or more judicial or nonjudicial
sales, or exercise any other right or remedy the Secured Creditors may have
against the Borrower or any other party, or any security, without affecting or
impairing in any way the liability of any Guarantor hereunder except to the
extent the Guaranteed Obligations have been paid in full in cash. Each
Guarantor waives any defense arising out of any such election by the Secured
Creditors, even though such election operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other party or any security.
(b) Each Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Each Guarantor assumes all responsibility
for being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks which
such Guarantor assumes and incurs hereunder, and agrees that the Secured
Creditors shall have no duty to advise any Guarantor of information known to
them regarding such circumstances or risks.
10. The Secured Creditors agree that this Guaranty may be
enforced only by the action of either Agent or the Collateral Agent as provided
in the Credit Agreement and that no other Secured Creditors shall have any
right individually to seek to enforce or to enforce this Guaranty or to realize
upon the security to be granted by the Security Documents, it being understood
and agreed that such rights and remedies may be exercised by either Agent or
the Collateral Agent or, after all the Credit Document Obligations have been
paid in full, by the holders of at least a majority of the outstanding Other
Obligations, as the case may be, for the benefit of the Secured Creditors upon
the terms of this Guaranty and the Pledge Agreement. The Secured Creditors
further agree that this Guaranty may not be enforced against any director,
officer, employee, partner or stockholder of any Guarantor (except to the
extent such partner or stockholder is also a Guarantor hereunder).
11. In order to induce the Banks to make Revolving Loans to,
and issue Letters of Credit for the account of, the Borrower pursuant to the
Credit Agreement, and in order to induce the Other Creditors to execute,
deliver and perform the Interest Rate Protection Agreements or Other Hedging
Agreements, each Guarantor makes the following representations, warranties, and
covenants, all of which shall survive the execution and delivery of this
Agreement, with the occurrence of the Effective Date and the occurrence of each
Credit Event on or after the Effective Date being deemed to constitute a
representation and warranty that the matters specified herein are true and
correct on and as of the Effective Date and on the date of each such Credit
Event, that:
____________________________
* Deleted as executed
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EXHIBIT H*
(a) Such Guarantor (i) is a duly organized and validly
existing corporation in good standing under the laws of the
jurisdiction of its organization, (ii) has the corporate power and
authority to own its property and assets and to transact the business
in which it is engaged and presently proposes to engage and (iii) is
duly qualified and is authorized to do business and is in good
standing in each jurisdiction where the conduct of its business
requires such qualification except for failures to be so qualified
which, individually or in the aggregate, could not reasonably be
expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of PESCO or of the Borrower and its
Subsidiaries taken as a whole.
(b) Such Guarantor has the corporate power and authority to
execute, deliver and perform the terms and provisions of this Guaranty
and each other Credit Document to which it is a party and has taken
all necessary corporate action to authorize the execution, delivery
and performance by it of this Guaranty and each such other Credit
Document. Such Guarantor has duly executed and delivered this
Guaranty and each other Credit Document to which it is a party, and
this Guaranty and each such other Credit Document constitutes the
legal, valid and binding obligation of such Guarantor enforceable in
accordance with its terms, except to the extent that the
enforceability hereof or thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by such
Guarantor of this Guaranty or any other Credit Document to which it is
a party, nor compliance by it with the terms and provisions hereof and
thereof, will (i) contravene any provision of any applicable law,
statute, rule or regulation or any applicable order, writ, injunction
or decree of any court or governmental instrumentality, (ii) conflict
with or result in any breach 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 (except pursuant to the Pledge Agreement) upon any of
the property or assets of such Guarantor or any of its Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, loan
agreement, credit agreement, or any other material agreement, contract
or instrument to which such Guarantor or any of its Subsidiaries is a
party or by which it or any of its property or assets is bound or to
which it may be subject or (iii) violate any provision of the
certificate or articles of incorporation or by-laws (or equivalent
organizational documents) of such Guarantor or any of its
Subsidiaries.
(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as
have been obtained or made), or exemption by, any governmental or
public body or authority, or any subdivision thereof, is required to
authorize, or is required for, (i) the execution, delivery and
____________________________
* Deleted as executed
7
<PAGE> 162
EXHIBIT H*
performance of this Guaranty by such Guarantor or any other Credit
Document to which such Guarantor is a party or (ii) the legality,
validity, binding effect or enforceability of this Guaranty or any
other Credit Document to which such Guarantor is a party.
(e) There are no actions, suits or proceedings pending or, to
the knowledge of such Guarantor, threatened (i) with respect to this
Guaranty or any other Credit Document to which such Guarantor is a
party, (ii) with respect to any material Funded Debt of PESCO or any
of its Subsidiaries or (iii) with respect to such Guarantor that could
reasonably be expected to materially and adversely affect the
business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of PESCO or of the Borrower and
its Subsidiaries taken as a whole.
12. Each Guarantor covenants and agrees that on and after the
Effective Date and until the termination of the Total Revolving Loan Commitment
and all Interest Rate Protection Agreements or Other Hedging Agreements and
when no Note or Letter of Credit remains outstanding and all Guaranteed
Obligations have been paid in full, such Guarantor will comply, and will cause
each of its Subsidiaries to comply, with all of the applicable provisions,
covenants and agreements contained in Sections 8 and 9 of the Credit Agreement,
and will take, or will refrain from taking, as the case may be, all actions
that are necessary to be taken or not taken so that it is not in violation of
any provision, covenant or agreement contained in Section 8 or 9 of the Credit
Agreement, and so that no Default or Event of Default is caused by the actions
of such Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to pay
all reasonable out-of-pocket costs and expenses of each Secured Creditor in
connection with the enforcement of this Guaranty and of each Agent in
connection with any amendment, waiver or consent relating hereto (including in
each case, without limitation, the reasonable fees and disbursements of counsel
employed by each Secured Creditor).
14. This Guaranty shall be binding upon each Guarantor and
its successors and assigns and shall inure to the benefit of the Secured
Creditors and their successors and permitted assigns.
15. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated except with the written consent of
each Guarantor directly affected thereby and with the written consent of either
(x) the Required Banks (or to the extent required by Section 15.12 of the
Credit Agreement, with the written consent of each Bank) at all times prior to
the time on which all Credit Document Obligations have been paid in full or (y)
the holders of at least a majority of the outstanding Other Obligations at all
times after the time on which all Credit Document Obligations have been paid in
full; provided, that any change, waiver, modification or variance affecting the
rights and benefits of a single Class (as defined below) of Secured Creditors
(and not all Secured Creditors in a like or similar manner) shall
____________________________
* Deleted as executed
8
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EXHIBIT H*
also require the written consent of the Requisite Creditors (as defined below)
of such Class of Secured Creditors (it being understood that the addition or
release of any Guarantor hereunder shall not constitute a change, waiver,
discharge or termination affecting any Guarantor other than the Guarantor so
added or released). For the purpose of this Guaranty, the term "Class" shall
mean each class of Secured Creditors, i.e., whether (x) the Bank Creditors as
holders of the Credit Document Obligations or (y) the Other Creditors as the
holders of the Other Obligations. For the purpose of this Guaranty, the term
"Requisite Creditors" of any Class shall mean (x) with respect to the Credit
Document Obligations, the Required Banks (or to the extent required by Section
15.12 of the Credit Agreement, each Bank) and (y) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Interest Rate Protection or Other Hedging
Agreements.
16. Each Guarantor acknowledges that an executed (or
conformed) copy of each of the Credit Documents and Interest Rate Protection
Agreements or Other Hedging Agreements has been made available to its principal
executive officers and such officers are familiar with the contents thereof.
17. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Secured Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default
(such term to mean and include any "Event of Default" as defined in the Credit
Agreement or any payment default under any Interest Rate Protection Agreement
or Other Hedging Agreement continuing after any applicable grace period), each
Secured Creditor is hereby authorized, at any time or from time to time,
without notice to any Guarantor or to any other Person, any such notice being
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or owing by
such Secured Creditor to or for the credit or the account of such Guarantor,
against and on account of the obligations and liabilities of such Guarantor to
such Secured Creditor under this Guaranty, irrespective of whether or not such
Secured Creditor shall have made any demand hereunder and although said
obligations, liabilities, deposits or claims, or any of them, shall be
contingent or unmatured.
18. All notices, requests, demands or other communications
pursuant hereto shall be deemed to have been duly given or made when delivered
to the Person to which such notice, request, demand or other communication is
required or permitted to be given or made under this Guaranty, addressed to
such party at (i) in the case of any Bank Creditor, as provided in the Credit
Agreement, (ii) in the case of any Guarantor, at the address set forth for such
Guarantor opposite its signature below and (iii) in the case of any Other
Creditor, at such address as such Other Creditor shall have specified in
writing to the Guarantors; or in any case at such other address as any of the
Persons listed above may hereafter notify the others in writing.
____________________________
* Deleted as executed
9
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EXHIBIT H*
19. If claim is ever made upon any Secured Creditor for
repayment or recovery of any amount or amounts received in payment or on
account of any of the Guaranteed Obligations and any of the aforesaid payees
repays all or part of said amount by reason of (i) any judgment, decree or
order of any court or administrative body having jurisdiction over such payee
or any of its property or (ii) any settlement or compromise of any such claim
effected by such payee with any such claimant (including the Borrower) then and
in such event each Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon such Guarantor, notwithstanding
any revocation hereof or other instrument evidencing any liability of the
Borrower, and such Guarantor shall be and remain liable to the aforesaid payees
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by any such payee.
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
SECURED CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal
action or proceeding with respect to this Guaranty or any other Credit Document
to which any Guarantor is a party may be brought in the courts of the State of
New York or of the United States of America for the Southern District of New
York, and, by execution and delivery of this Guaranty, each Guarantor hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each Guarantor
hereby further irrevocably waives any claim that any such court lacks personal
jurisdiction over such Guarantor, and agrees not to plead or claim in any legal
action or proceeding with respect to this Guaranty or any other Credit Document
to which such Guarantor is a party brought in any of the aforesaid courts that
any such court lacks personal jurisdiction over such Guarantor. Each Guarantor
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 such Guarantor at
its address for notices hereunder, such service to become effective 30 days
after such mailing. Each Guarantor hereby irrevocably waives any objection to
such method of securing service of process and further irrevocably waives and
agrees not to plead or claim in any action or proceeding commenced hereunder or
under any other Credit Document to which such Guarantor is a party that such
method of securing service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any of the Secured Creditors to serve
process in any other manner permitted by law or to commence legal proceedings
or otherwise proceed against each Guarantor in any other jurisdiction to which
such Credit Party is subject.
(b) Each Guarantor hereby irrevocably waives (to the fullest
extent permitted by applicable law) 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 Guaranty or any other Credit Document
to which such Guarantor is a party brought in the courts referred to in clause
(a) above and hereby further irrevocably waives and agrees not to plead or
claim in any such court that such action or proceeding brought in any such
court has been brought in an inconvenient forum.
____________________________
* Deleted as executed
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EXHIBIT H*
(c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS
ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH
GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. In the event that any Guarantor ceases to be a
Subsidiary, whether pursuant to the requirements of Section 9.02 of the Credit
Agreement (or such event has been approved in writing by the Required Banks (or
all Banks if required by Section 15.12 of the Credit Agreement)) and the
proceeds of such transaction, if any, are applied in accordance with the
provisions of the Credit Agreement, to the extent applicable, such Guarantor
shall, upon ceasing to be a Subsidiary, be released from this Guaranty
automatically and without further action and this Guaranty shall, as to each
such Guarantor or Guarantors, terminate, and have no further force or effect
(it being understood and agreed that if one or more Persons that own, directly
or indirectly, all of the capital stock of any Guarantor shall cease to be a
Subsidiary, it shall be deemed that such Guarantor has ceased to be a
Subsidiary for the purposes of this Section 21).
22. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Guarantors and the
Administrative Agent.
23. Each Guarantor hereby confirms that it is its intention
that this Guaranty not constitute fraudulent transfer or conveyance for
purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act of any
similar Federal or state law. To effectuate the foregoing intention, each
Guarantor and each Secured Creditor hereby irrevocably agrees that the
Guaranteed Obligations guaranteed by such Guarantor shall be limited to such
amount as will, after giving effect to such maximum amount and all other
(contingent or otherwise) liabilities of such Guarantor that are relevant under
such laws, and after giving effect to any rights to contribution pursuant to
any agreement providing for an equitable contribution among such Guarantor and
the other Guarantors, result in the Guaranteed Obligations of such Guarantor in
respect of such maximum amount not constituting a fraudulent transfer or
conveyance.
24. All payments made by any Guarantor hereunder will be made
without setoff, counterclaim or other defense and on the same basis as payments
are made by the Borrower under Sections 4.03 and 4.04 of the Credit Agreement.
25. It is understood and agreed that any Subsidiary of the
Borrower that is required to execute a counterpart of this Guaranty after the
date hereof pursuant to the Credit Agreement shall automatically become a
Guarantor hereunder by executing a counterpart hereof and delivering the same
to the Administrative Agent.
____________________________
* Deleted as executed
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EXHIBIT H*
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be executed and delivered as of the date first above written.
ASSOCIATED PETROLEUM SERVICES, INC.
By /s/ E.J. Spillard
--------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
--------------------------------
Name: R.A. Johannsen
Title: Treasurer
POOL ALASKA, INC.
By /s/ E.J. Spillard
--------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
--------------------------------
Name: R.A. Johannsen
Title: Treasurer
____________________________
* Deleted as executed
<PAGE> 167
EXHIBIT H*
POOL PRODUCTION SERVICES, INC.
By /s/ E.J. Spillard
---------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
---------------------------------
Name: R.A. Johannsen
Title: Treasurer
PTX, INC.
By /s/ E.J. Spillard
---------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
---------------------------------
Name: R.A. Johannsen
Title: Treasurer
____________________________
* Deleted as executed
<PAGE> 168
EXHIBIT H*
POOL INTERNATIONAL, INC.
By /s/ E.J. Spillard
---------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
---------------------------------
Name: R.A. Johannsen
Title: Treasurer
POOL CALIFORNIA ENERGY SERVICES, INC.
By /s/ E.J. Spillard
---------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
---------------------------------
Name: R.A. Johannsen
Title: Treasurer
____________________________
* Deleted as executed
<PAGE> 169
EXHIBIT H*
BIG 10 FISHING TOOL COMPANY, INC.
By /s/ E.J. Spillard
---------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
---------------------------------
Name: R.A. Johannsen
Title: Treasurer
PCNV, INC.
By /s/ E.J. Spillard
---------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
---------------------------------
Name: R.A. Johannsen
Title: Treasurer
POOL COMPANY TEXAS LTD.
By POOL COMPANY, General Partner of
the foregoing Guarantor
By /s/ E.J. Spillard
---------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
---------------------------------
Name: R.A. Johannsen
Title: Treasurer
____________________________
* Deleted as executed
<PAGE> 170
EXHIBIT H*
POOL COMPANY HOUSTON LTD.
By POOL COMPANY, General Partner of
the foregoing Guarantor
By /s/ E.J. Spillard
---------------------------------
Name: E.J. Spillard
Title: Senior Vice President,
Finance
By /s/ R.A. Johannsen
---------------------------------
Name: R.A. Johannsen
Title: Treasurer
____________________________
* Deleted as executed
<PAGE> 171
EXHIBIT H*
Accepted and Agreed to:
CREDIT LYONNAIS NEW YORK BRANCH,
as Administrative Agent
By /s/ Pascal Poupelle
----------------------------
Name: Pascal Poupelle
Title: Authorized Signatory
SWISS BANK CORPORATION,
NEW YORK BRANCH,
as Documentation Agent
By /s/ Thomas Eggenschwiler
----------------------------
Name: Thomas Eggenschwiler
Title: Executive Director Credit Risk Management
By /s/ Dorothy McKinley
----------------------------
Name: Dorothy McKinley
Title: Associate Director
____________________________
* Deleted as executed
<PAGE> 172
EXHIBIT I
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
DATE: ________ __, 19__
Reference is made to the Credit Agreement described in Item 2
of Annex I annexed hereto (as such Credit Agreement may hereafter be amended,
modified or supplemented from time to time, the "Credit Agreement"). Unless
defined in Annex I attached hereto, terms defined in the Credit Agreement are
used herein as therein defined. _____________ (the "Assignor") and
______________ (the "Assignee") hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee
without recourse and without representation or warranty (other than as
expressly provided herein), and the Assignee hereby purchases and assumes from
the Assignor, that interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the date hereof which represents
the percentage interest specified in Item 4 of Annex I (the "Assigned Share")
of all of the outstanding rights and obligations with respect to the Assigned
Share of the Total Revolving Loan Commitment and all outstanding Revolving
Loans and Letters of Credit.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claims; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of PESCO or
any of its Subsidiaries or the performance or observance by PESCO or any of its
Subsidiaries of any of their respective obligations under the Credit Agreement
or the other Credit Documents or any other instrument or document furnished
pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement and the other Credit Documents, together with copies of
the financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption Agreement; (ii) agrees
that it will, independently and without reliance upon either Agent, the
Arranger, the Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not
<PAGE> 173
EXHIBIT I
PAGE 2
taking action under the Credit Agreement; (iii) appoints and authorizes each
Agent and the Collateral Agent to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement and the other Credit
Documents as are delegated to each Agent and the Collateral Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; [and]
(iv) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank[; and (v) attaches the Forms and/or Certificate set
forth in the penultimate sentence of Section 15.04(b) of the Credit
Agreement.](1)
4. Following the execution of this Assignment and Assumption
Agreement by the Assignor and the Assignee, an executed original hereof
(together with all attachments) will be delivered to the Administrative Agent.
The effective date of this Assignment and Assumption Agreement shall be the
date of execution hereof by the Assignor and the Assignee, to the extent
required by the Credit Agreement, the receipt of the consent of the Arranger,
the Documentation Agent and the Administrative Agent, receipt by the
Administrative Agent of the assignment fee referred to in Section 15.04(b) of
the Credit Agreement, and the recordation by the Administrative Agent of the
assignment effected hereby in the Register, unless otherwise specified in Item
5 of Annex I (the "Settlement Date").
5. Upon the delivery of a fully executed original hereof to
the Administrative Agent, as of the Settlement Date, (i) the Assignee shall be
a party to the Credit Agreement and, to the extent provided in this Assignment
and Assumption Agreement, have the rights and obligations of a Bank thereunder
and under the other Credit Documents and (ii) the Assignor shall, to the extent
provided in this Assignment and Assumption Agreement, relinquish its rights and
be released from its obligations under the Credit Agreement and the other
Credit Documents.
6. It is agreed that upon the effectiveness hereof, the
Assignee shall be entitled to (x) all interest on the Assigned Share of the
Revolving Loans at the rates specified in Item 6 of Annex I, (y) all Commitment
Commission on the Assigned Share of the Total Revolving Loan Commitment at the
rate specified in Item 7 of Annex I hereto, and (z) all Letter of Credit Fees
on the Assignee's participation in all Letters of Credit at the rate specified
in Item 8 of Annex I hereto, which, in each case, accrue on and after the
Settlement Date, such interest, Commitment Commission and Letter of Credit Fees
to be paid by the Administrative Agent directly to the Assignee. It is further
agreed that all payments of principal made on the Assigned Share of the
Revolving Loans which occur on and after the Settlement Date will be
____________________
(1) If the Assignee is not already a Bank under the Credit Agreement and is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for Federal income tax purposes.
<PAGE> 174
EXHIBIT I
Page 3
paid directly by the Administrative Agent to the Assignee. Upon the Settlement
Date, the Assignee shall pay to the Assignor an amount specified by the
Assignor in writing which represents the Assigned Share of the principal amount
of the respective Revolving Loans made by the Assignor pursuant to the Credit
Agreement which are outstanding on the Settlement Date, net of any closing
costs, and which are being assigned hereunder. The Assignor and the Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
for periods prior to the Settlement Date directly between themselves.
7. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
<PAGE> 175
EXHIBIT I
Page 4
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Assumption Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written, such execution
also being made on Annex I hereto.
[NAME OF ASSIGNOR],
as Assignor
By
----------------------------
Name:
Title:
[NAME OF ASSIGNEE],
as Assignee
By
----------------------------
Name:
Title:
[Acknowledged and Agreed:
CREDIT LYONNAIS NEW YORK BRANCH, as Administrative Agent
By
----------------------------
Name:
Title:
SWISS BANK CORPORATION, NEW YORK BRANCH, as Documentation Agent
By
----------------------------
Name:
Title: ]
<PAGE> 176
ANNEX I
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
ANNEX I
1. The Borrower: Pool Company (the "Borrower")
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of September ___, 1997, among Pool Energy
Services Co., Pool Energy Holding, Inc., the Borrower, the lenders
from time to time party thereto, SBC Warburg Dillon Read Inc., as
Arranger, Swiss Bank Corporation, New York Branch, as Documentation
Agent, and Credit Lyonnais New York Branch, as Administrative Agent
and as Collateral Agent.
3. Date of Assignment and Assumption Agreement:
4. Amounts (as of date of item #3 above):
<TABLE>
<CAPTION>
Revolving
Loan
Commitment
- ---------------------------------------------
<S> <C> <C>
a. Aggregate
Amount for
all Banks $_________
b. Assigned Share ________%
c. Amount of
Assigned Share $_________(1)
5. Settlement Date:
6. Rate of Interest
to the Assignee: As set forth in Section 1.08 of the Credit Agreement (unless otherwise agreed to by
the Assignor and the Assignee).(2)
</TABLE>
____________________
(1) Which amount may not be less than $5,000,000, or result in the Assignor's
holding less than $5,000,000.
(2) The Borrower and the Agent shall, following recordation of such assignment
by the Agent on the Register, direct the entire amount of interest to the
Assignee at the rate set forth in Section 1.08 of the Credit Agreement, with
the Assignor and Assignee effecting any agreed upon sharing of interest through
payments by the Assignee to the Assignor.
<PAGE> 177
ANNEX I
Page 2
<TABLE>
<S> <C> <C>
7. Commitment
Commission to
the Assignee: As set forth in Section 3.01(a) of the Credit Agreement (unless otherwise agreed to by
the Assignor and the Assignee).(3)
8. Letter of Credit
Fee to the Assignee: As set forth in Section 3.01(b) of the Credit Agreement (unless otherwise agreed to by
the Assignor and the Assignee).(4)
9. Notice: ASSIGNEE:
-------------------
-------------------
-------------------
-------------------
Attention:
Telephone:
Telecopier:
Reference:
</TABLE>
____________________
(3) The Borrower and the Agent shall, following recordation of such assignment
by the Agent on the Register, direct the entire amount of the Commitment
Commission to the Assignee at the rate set forth in Section 3.01(a) of the
Credit Agreement, with the Assignor and the Assignee effecting any agreed upon
sharing of the Commitment Commission through payment by the Assignee to the
Assignor.
(4) The Borrower and the Agent shall, following recordation of such assignment
by the Agent on the Register, direct the entire amount of the Letter of Credit
Fee to the Assignee at the rate set forth in Section 3.01(b) of the Credit
Agreement, with the Assignor and the Assignee effecting any agreed upon sharing
of the Letter of Credit Fee through payment by the Assignee to the Assignor.
<PAGE> 178
ANNEX I
Page 3
<TABLE>
<S> <C>
Payment Instructions: ASSIGNEE:
-------------------
-------------------
-------------------
-------------------
Attention:
Reference:
</TABLE>
Accepted and Agreed:
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By By
----------------------- -----------------------
Name: Name:
Title: Title:
<PAGE> 179
EXHIBIT J
FORM OF INTERCOMPANY NOTE
New York, New York
[Date]
FOR VALUE RECEIVED, [NAME OF PAYOR] (the "Payor"), hereby
promises to pay on demand to the order of _____________ or its assigns (the
"Payee"), in lawful money of the United States of America in immediately
available funds, at such location in the United States of America as the Payee
shall from time to time designate, the unpaid principal amount of all loans and
advances made by the Payee to the Payor after the date hereof, in excess of
$_______.
The Payor promises also to pay interest on the unpaid
principal amount hereof in like money at said office from the date hereof until
paid at the rate of ___% per annum.
Upon the commencement of any bankruptcy, reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar proceeding of any jurisdiction relating to the Payor,
the unpaid principal amount hereof shall become immediately due the payable
without presentment, demand, protest or notice of any kind in connection with
this Note.
This Note evidences certain permitted Intercompany Loans
referred to in the Credit Agreement, dated as of September 30, 1997, among Pool
Energy Services Co., Pool Energy Holding, Inc., Pool Company, the lenders party
thereto from time to time, SBC Warburg Dillon Read Inc., as Arranger, Swiss
Bank Corporation, as Documentation Agent, and Credit Lyonnais New York Branch,
as Administrative Agent and as Collateral Agent (as amended, modified or
supplemented from time to time, the "Credit Agreement"), and is subject to the
terms thereof, and shall be pledged by the Payee pursuant to the Pledge
Agreement (as defined in the Credit Agreement). The Payor hereby acknowledges
and agrees that the Collateral Agent pursuant to and as defined in the Pledge
Agreement, as in effect from time to time, may exercise all rights provided
therein with respect to this Note.
The Payee is hereby authorized to record all loans and
advances made by it to the Payor (all of which shall be evidenced by this
Note), and all repayments or
<PAGE> 180
EXHIBIT J
Page 2
prepayments thereof, in its books and records, such books and records
constituting prima facie evidence of the accuracy of the information contained
therein.
All payments under this Note shall be made without offset,
counterclaim or deduction of any kind.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF NEW YORK.
[NAME OF PAYOR]
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
[NAME OF PAYEE]
By
-----------------------------
Name:
Title:
By
-----------------------------
Name:
Title:
Pay to the order of
- -------------------------------
<PAGE> 181
EXHIBIT K
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate (the "Certificate") is delivered
to you pursuant to Section 8.01(d) of the Credit Agreement, dated as of
September 30, 1997 (as amended from time to time, the "Credit Agreement"),
among Pool Energy Services Co., Pool Energy Holding, Inc., Pool Company ("the
Borrower"), the lenders from time to time party thereto (the "Banks"), SBC
Warburg Dillon Read Inc., as Arranger, Swiss Bank Corporation, New York Branch,
as Documentation Agent, and Credit Lyonnais New York Branch, as Administrative
Agent and as Collateral Agent for such Banks. Terms defined in the Credit
Agreement and not otherwise defined herein are used herein as therein defined.
1. I am a duly elected, qualified and acting principal
financial officer of Pool Energy Services Co.
2. I have reviewed and am familiar with the contents of this
Certificate. I am providing this Certificate solely in my capacity as officer
of Pool Energy Services Co. The matters set forth herein are true to the best
of my knowledge, but I express no personal opinion as to any conclusions of law
or other legal matters.
3. I have reviewed the terms of the Credit Agreement and the
other Credit Documents and have made or caused to be made under my supervision,
a review in reasonable detail of the transactions and condition of the Borrower
during the accounting period covered by the financial statements attached
hereto as Annex I. Such financial statements have been prepared in accordance
with the requirements of the Credit Agreement.
4. Attached hereto as Annex II are the computations showing
compliance with the covenants specified in Sections 9.07 through 9.11 of the
Credit Agreement. All such computations are true and correct, absent manifest
error.
5. At the end of [INSERT FISCAL QUARTER OR YEAR, AS THE CASE
MAY BE], PESCO and its Subsidiaries were in compliance with the provisions of
Section 9.04 relating to Funded Debt. With regard to Section 9.04(iii), at the
end of
<PAGE> 182
EXHIBIT K
Page 2
[INSERT FISCAL QUARTER OR YEAR, AS THE CASE MAY BE], the sum of (I) the
aggregate principal amount of all Capitalized Lease Obligations and (II) the
aggregate principal amount of all purchase money Funded Debt amounts to
$______________. With regard to Section 9.04(v), at the end of [INSERT FISCAL
QUARTER OR YEAR, AS THE CASE MAY BE], Funded Debt consisting of guarantees by
PESCO or its Subsidiaries of Funded Debt of Excluded Subsidiaries amounts to
$_______________. With regard to Section 9.04(ix), at the end of [INSERT
FISCAL QUARTER OR YEAR, AS THE CASE MAY BE], additional Funded Debt
constituting overdraft lines of PESCO or its Subsidiaries amounts to
$________________. With regard to Section 9.04(x), at the end of [INSERT
FISCAL QUARTER OR YEAR, AS THE CASE MAY BE], additional unsecured Funded Debt
incurred by PESCO and its Subsidiaries amounts to $______________. With regard
to Sections 9.04(iv) and 9.05(viii), at the end of [INSERT FISCAL QUARTER OR
YEAR, AS THE CASE MAY BE], the aggregate outstanding principal amount of all
Intercompany Loans, excluding existing Intercompany Loans described on Schedule
VI to the Credit Agreement and excluding Intercompany Loans for the purpose of
consummating the Refinancing, Identified Acquisitions or Permitted Acquisitions
as provided in Section 9.05(xiii) of the Credit Agreement, made by the Credit
Parties to Foreign Subsidiaries amounts to $______________.
6. To the best of my knowledge, on the date hereof, no
Default or Event of Default has occurred and is continuing [, except as set
forth below].
IN WITNESS WHEREOF,(1) this Certificate has been executed on
and as of this ___ day of ___________, ____.
POOL ENERGY SERVICES CO.
By
------------------------------
Name:
Title:
- -------------------
(1) TO BE DELIVERED PERIODICALLY, WITHIN 60 DAYS AFTER THE CLOSE
OF THE FIRST THREE QUARTERLY ACCOUNTING PERIODS OF PESCO AND 120
DAYS AFTER THE CLOSE OF EACH FISCAL YEAR OF PESCO, IN EACH CASE
IN ACCORDANCE WITH SECTION 8.01(d) OF THE CREDIT AGREEMENT.
<PAGE> 183
ANNEX I to
COMPLIANCE CERTIFICATE
CONSOLIDATED FINANCIAL STATEMENTS
<PAGE> 184
ANNEX II to
COMPLIANCE CERTIFICATE
COMPLIANCE WORKSHEET
Test Period most recently ended on __________.
Part I.
Consolidated Interest Coverage Ratio
<TABLE>
<S> <C> <C>
1. Consolidated Net Income for the Test Period most recently
ended $
-------------------
2. Provision for taxes based on income for the Test Period most
recently ended $
-------------------
3. Consolidated Interest Expense for the Test Period most
recently ended $
-------------------
4. Losses on sales of assets (excluding sales in the ordinary
course of business) and other extraordinary losses for the
Test Period most recently ended $
-------------------
5. Gains on sales of assets (excluding sales in the ordinary
course of business) and other extraordinary gains for the Test
Period most recently ended $
-------------------
6. Consolidated EBIT (sum of Items 1 through 4 minus Item 5) $
-------------------
7. Depreciation and amortization expense for the Test Period most
recently ended $
-------------------
</TABLE>
<PAGE> 185
ANNEX II
Page 2
<TABLE>
<S> <C> <C>
8. Dividends or distributions received from Excluded Subsidiaries
during the Test Period most recently ended (sum of (a), (b)
and (c) below)
(a) dividends or distributions received from PIASA $
-------------------
(b) dividends or distributions received from Pool Arabia
Ltd. $
------------------
(c) dividends or distributions received from Intairdril
Oman, L.L.C. $
-------------------
9. Lease payments in respect of the San Angelo Lease for the Test
Period most recently ended (net of sublease payments received
with respect thereto to the extent not included in
Consolidated Net Income) $
-------------------
10. Consolidated EBITDA (sum of Items 6, 7 and 8 minus Item 9) $
-------------------
11. Consolidated Interest Expense for the Test Period most
recently ended $
-------------------
12. Consolidated Interest Coverage Ratio (Item 10:Item 11) :1.00
---------
13. Minimum Consolidated Interest Coverage Ratio pursuant to
Section 9.07 3.00:1.00
</TABLE>
<PAGE> 186
ANNEX II
Page 3
Part II.
Leverage Ratio
<TABLE>
<S> <C>
A. LEVERAGE RATIO FOR PURPOSES OF SECTION 9.09
1. Consolidated Funded Debt at [INSERT FISCAL QUARTER OR YEAR] $
-------------------
2. Consolidated EBITDA for the Test Period most recently ended,
from Part I, Item 10 $
-------------------
3. Leverage Ratio for purposes of calculations made pursuant to
Section 9.09 (Item 1:Item 2) :1.00
------------
4. Maximum permitted Leverage Ratio pursuant to Section 9.09 3.25:1:00
B. LEVERAGE RATIO FOR PURPOSES OF CALCULATING EITHER THE APPLICABLE BASE RATE MARGIN OR THE
APPLICABLE EURODOLLAR RATE MARGIN
1. Consolidated Funded Debt at [INSERT FISCAL QUARTER OR YEAR] $
-----------------
2. Revolving Outstandings at [INSERT FISCAL QUARTER OR YEAR] $
-----------------
3. Average Revolving Outstandings for the most recently ended $
fiscal quarter of PESCO -----------------
4. Consolidated EBITDA for the Test Period most recently ended, $
from Part I, Item 10 -----------------
5. Leverage Ratio for purposes of calculating either the :1.00
Applicable Base Rate Margin or the Applicable Eurodollar Rate ----------
Margin ([Item B.1 minus Item B.2 plus Item B.3]:Item B.4)
</TABLE>
<PAGE> 187
ANNEX II
Page 4
Part III.
Debt-to-Total Capital Ratio
<TABLE>
<S> <C> <C>
1. Consolidated Funded Debt at end of [Fiscal Quarter or Fiscal
Year] $
-------------------
2. Consolidated Net Worth at end of [Fiscal Quarter or Fiscal
Year] $
-------------------
3. Total Capital (Item 1 plus Item 2) $
-------------------
4. Debt-to-Total Capital Ratio (Item 1:Item 3) :1.00
------------
5. Maximum Debt-to-Total Capital Ratio permitted pursuant to
Section 9.10 0.45:1.00
</TABLE>
<PAGE> 188
ANNEX II
Page 5
Part IV.
Fixed Charge Coverage Ratio
<TABLE>
<S> <C> <C>
1. Consolidated EBITDA for the Test Period most recently ended,
from Part I, Item 10 $
-------------------
2. Amount of cash income taxes paid, net of cash tax refunds,
during the Test Period most recently ended $
-------------------
3. Item 1 less Item 2 $
-------------------
4. Consolidated Interest Expense for the Test Period most
recently ended $
-------------------
5. Capital Expenditures made by PESCO and its Subsidiaries during
the Test Period most recently ended $
-------------------
6. Scheduled repayments of Funded Debt required to be made during
the Test Period most recently ended $
-------------------
7. Fixed Charges (Item 4 plus Item 5 plus Item 6) $
-------------------
8. Fixed Charge Coverage Ratio (Item 3:Item 7) :1.00
------------
9. Minimum Fixed Charge Coverage Ratio pursuant to Section 9.08
a. If calculated for any Test Period up to and ending on
the last day of the fiscal quarter ending March 31,
1998 1.25:1.00
b. If calculated for any Test Period up to and ending on
the last day of the fiscal quarter ending September
30, 1998 1.40:1.00
</TABLE>
<PAGE> 189
ANNEX II
Page 6
<TABLE>
<S> <C> <C>
c. If calculated for any Test Period up to and ending on
the last day of the fiscal quarter ending March 31,
1999 1.55:1.00
d. If calculated for any Test Period up to and ending on
the last day of the fiscal quarter ending June 30,
1999 and the last day of each fiscal quarter
thereafter 1.75:1.00
</TABLE>
<PAGE> 190
ANNEX II
Page 7
Part V.
Minimum Consolidated Net Worth
<TABLE>
<S> <C> <C>
1. Cumulative Consolidated Net Income (plus net income of
Excluded Subsidiaries (after giving effect to deductions for
interests held by Persons other than PESCO and its
Subsidiaries)) for the period from July 1, 1997 through
December 31, 1997 $
-------------------
2. The greater of Item 1 or $0.00 $
-------------------
3. Cumulative Consolidated Net Income (plus net income of
Excluded Subsidiaries (after giving effect to deductions for
interests held by Persons other than PESCO and its
Subsidiaries)) for the fiscal year of PESCO ending December
31, 1998 $
-------------------
4. The greater of Item 3 or $0.00 $
-------------------
5. Cumulative Consolidated Net Income (plus net income of
Excluded Subsidiaries (after giving effect to deductions for
interests held by Persons other than PESCO and its
Subsidiaries)) for the fiscal year of PESCO ending December
31, 1999 $
-------------------
6. The greater of Item 5 or $0.00 $
-------------------
7. Cumulative Consolidated Net Income (plus net income of
Excluded Subsidiaries (after giving effect to deductions for
interests held by Persons other than PESCO and its
Subsidiaries)) for the fiscal year of PESCO ending December
31, 2000 $
-------------------
8. The greater of Item 7 or $0.00 $
-------------------
</TABLE>
<PAGE> 191
ANNEX II
Page 8
<TABLE>
<S> <C> <C>
9. Net cash proceeds, (net of underwriting discounts and
commissions and other reasonable transaction costs associated
therewith), received by PESCO or any of its Subsidiaries for
any sale of equity on or after July 1, 1997 $
-------------------
10. 50% of the sum of Item 2, Item 4, Item 6, Item 8 and Item 9 $
------------------
11. Minimum permitted Consolidated Net Worth pursuant to Section $
9.11 ($175,000,000 plus Item 10) ------------------
12. Consolidated Net Worth at end of [Fiscal Quarter or Fiscal $
Year] ------------------
</TABLE>
<PAGE> 192
EXHIBIT L
[FORM OF OFFICER'S CERTIFICATE FOR PERMITTED ACQUISITION]
OFFICER'S CERTIFICATE
This Officer's Certificate (the "Certificate") is delivered to
you (i) in connection with [DESCRIBE PROPOSED ACQUISITION OR CONSTRUCTION,
RENOVATION OR REFURBISHMENT] (the "Permitted Acquisition") and (ii) pursuant to
Section 9.02(ix) of the Credit Agreement, dated as of September 30, 1997 (as
amended from time to time, the "Credit Agreement"), among Pool Energy Services
Co., Pool Energy Holding, Inc., Pool Company (the "Borrower"), the lenders from
time to time party thereto (the "Banks"), SBC Warburg Dillon Read Inc., as
Arranger, Swiss Bank Corporation, New York Branch, as Documentation Agent, and
Credit Lyonnais New York Branch, as Administrative Agent and as Collateral
Agent for such Banks. Terms defined in the Credit Agreement and not otherwise
defined herein are used herein as therein defined.
1. I am a duly elected, qualified and acting principal
financial officer of the Borrower.
2. The Borrower hereby certifies to each Agent and each of
the Banks that the Pro Forma Leverage Ratio does not exceed the Applicable Pro
Forma Leverage Ratio, as demonstrated in the Annex I attached hereto.
3. The Person to be acquired (or whose assets are to be
acquired) pursuant to the Permitted Acquisition is, immediately prior to such
acquisition, engaged primarily in the Business or such assets constitute
Equipment.
4. To the best of my knowledge, no Default or Event of
Default exists on the date hereof or will exist immediately after giving effect
to the Permitted Acquisition.
5. To the best of my knowledge, all representations and
warranties contained in Section 7 of the Credit Agreement are true and correct
in all material respects with the same effect as though such representations
and warranties had been made on and as of the date hereof (both before and
after giving effect to the Permitted Acquisition), unless such representation
or warranty is stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date.
<PAGE> 193
EXHIBIT L
PAGE 2
6. Any Liens or Funded Debt assumed or issued in connection
with the Permitted Acquisition are issued or assumed only by the Borrower.
For purposes of this Certificate, the term "consummation" or
"consummated" shall mean (i) in the case of a Permitted Acquisition which
consists of an acquisition of all or substantially all the assets of any
Person, an acquisition of the capital stock of any Person or the acquisition of
any Equipment of any Person, the date on which such purchase and sale is
completed, (ii) in the case of a Permitted Acquisition which consists of the
construction, renovation or refurbishment of Equipment pursuant to a contract,
agreement or undertaking with a Person other than PESCO or its Subsidiaries,
the date such construction, renovation or refurbishment is completed and, if
applicable, such Equipment has been delivered to PESCO or its Subsidiaries and
(iii) in the case of a Permitted Acquisition which consists of the
construction, renovation or refurbishment of Equipment by PESCO or its
Subsidiaries, the date such construction, renovation or refurbishment is
completed.
IN WITNESS WHEREOF, this certificate has been executed on and
as of this ___ day of ___________, ____.(1)
POOL COMPANY
By___________________________
Name:
Title: [A PRINCIPAL FINANCIAL
OFFICER]
____________________
(1) To be delivered at each Applicable Notice Time.
<PAGE> 194
ANNEX I TO EXHIBIT L
PERMITTED ACQUISITION WORKSHEET
Test Period most recently ended for which financial statements have been
delivered to the Agents: ___________.
Part I.
Consolidated EBITDA
<TABLE>
<S> <C> <C>
1. Consolidated Net Income for the Test Period most recently
ended for which financial statements have been delivered to
the Agents $____________
2. Provision for taxes based on income for the Test Period most
recently ended for which financial statements have been
delivered to the Agents $____________
3. Consolidated Interest Expense for the Test Period most
recently ended for which financial statements have been
delivered to the Agents $____________
4. Losses on sales of assets (excluding sales in the ordinary
course of business) and other extraordinary losses for the
Test Period most recently ended for which financial statements
have been delivered to the Agents $____________
5. Gains on sales of assets (excluding sales in the ordinary
course of business) and other extraordinary gains for the Test
Period most recently ended for which financial statements have
been delivered to the Agents $____________
6. Consolidated EBIT (sum of Items 1 through 4 minus Item 5) $____________
7. Depreciation and amortization expense for the Test Period most
recently ended for which financial statements have been
delivered to the Agents $____________
</TABLE>
<PAGE> 195
ANNEX I TO EXHIBIT L
Page 2
<TABLE>
<S> <C> <C>
8. Dividends or distributions received from Excluded Subsidiaries
(sum of (a), (b) and (c) below) for such period $____________
(a) dividends or distributions received from PIASA $____________
(b) dividends or distributions received from Pool Arabia
Ltd. $____________
(c) dividends or distributions received from Intairdril
Oman, L.L.C. $____________
9. (a) Lease payments in respect of the San Angelo Lease for
the Test Period most recently ended for which
financial statements have been delivered to the Agents
(net of sublease payments received with respect
thereto to the extent not included in Consolidated Net
Income) $____________
(b) Equity contributions made after the Effective Date
during such period to Excluded Subsidiaries or
Subsidiaries which are not Subsidiary Guarantors $____________
10. Consolidated EBITDA (sum of Items 6, 7 and 8 minus Items 9(a)
and (b)) $____________
</TABLE>
<PAGE> 196
ANNEX I TO EXHIBIT L
Page 3
Part II.
Pro Forma Leverage Ratio
<TABLE>
<S> <C> <C>
A. Pro Forma Leverage Ratio for Purposes of Section 9.02(ix)
1. Pro Forma Consolidated Funded Debt
a. Consolidated Funded Debt as of the date hereof. $____________
b. Aggregate amount of Funded Debt (including Revolving Loans)
incurred, issued or assumed in connection with the proposed
Permitted Acquisition; plus, to the extent not included in the
amount of Funded Debt described above, the purchase price (or
cost of construction, renovation or refurbishment) for the
proposed Permitted Acquisition. $____________
c. The aggregate amount determined pursuant to clause A.1.b.
to Part II of Annex I on all previous Officer's Certificates
delivered to the Agents and the Banks with respect to Permitted
Acquisitions and Identified Acquisitions (the "Prior Permitted
Acquisition Certificates") (i) which have not been consummated
as of the date hereof or (ii) to the extent not included in the
amount set forth in clause A.1.a. of this Part II above, which
have been consummated as of the date hereof; minus the amount
determined pursuant to clause A.1.b. to Part II of Annex I on
such Prior Permitted Acquisition Certificates with respect to
(A) any non-consummated Permitted Acquisition or Identified
Acquisition which has been abandoned or (B) any consummated
Permitted Acquisition or Identified Acquisition that the
Borrower in good faith does not anticipate funding with
Revolving Loans. $____________
d. Pro Forma Consolidated Funded Debt (Item 1(a) plus 1(b),
plus 1(c)) $____________
</TABLE>
<PAGE> 197
ANNEX I TO EXHIBIT L
Page 4
<TABLE>
<S> <C> <C>
2. Pro Forma Consolidated EBITDA
a. Consolidated EBITDA from Part I, Item 10 $___________
[b. (i) EBITDA of the Person to be acquired pursuant to the
proposed Permitted Acquisition for the most recently ended 12
month period for which financial statements of such Person are
available or, if such financial statements are not available, a
reasonable estimate thereof; $___________
(ii) private company expenses of the Person to be acquired
for the most recently ended 12 month period for which financial
statements of such Person are available; $___________
(iii) aggregate effect of any changes in accounting which
differ from those of PESCO [DESCRIBE]; $___________
(iv) sum of (i), (ii) and (iii)](1) $___________
[b. Amount of anticipated EBITDA to be obtained from operation
of the asset to be acquired, based upon a written contract or
such other agreements or understandings (whether oral or
written) which would give rise to a reasonable expectation of
such asset generating revenue (the "Anticipated Agreement"), in
each case, for the 12 month period following consummation of
the proposed Permitted Acquisition.](2) $___________
c. Aggregate amount of EBITDA with respect to Identified
Acquisitions and Permitted Acquisitions consummated prior to
the date hereof from Part II, Item 2(b) on Prior Permitted
Acquisition Certificates; minus (i) the anticipated EBITDA for
a Permitted Acquisition or Identified Acquisition if (x) the
construction, renovation or refurbishment of such Permitted
Acquisition or Identified Acquisition has been abandoned or (y)
</TABLE>
____________________
(1) Insert this alternative clause 2.b. in the case of a Permitted
Acquisition of a business.
(2) Insert this alternative clause 2.b. in the case of a Permitted
Acquisition of Equipment. If there is no associated written contract, or other
agreement or understanding giving rise to expectations of revenue, the amount
for this item 2.b. shall be zero.
<PAGE> 198
ANNEX I TO EXHIBIT L
Page 5
<TABLE>
<S> <C>
in the case of anticipated EBITDA based on an Anticipated
Agreement, the negotiations with respect to definitive
agreements evidencing the Anticipated Agreement with respect to
such Permitted Acquisition or Identified Acquisition are
terminated and (ii) the excess, if any, of the anticipated
EBITDA based upon the Anticipated Agreement with respect to any
such Permitted Acquisition or Identified Acquisition over the
anticipated EBITDA based upon the definitive agreement entered
into with respect to such Anticipated Agreement. $__________
d. Pro rata portion of amount in Item 2(c) above determined by
multiplying the amount from Part II, Item 2(b) of each Prior
Permitted Acquisition Certificate by a fraction (not greater
than 1), the numerator of which is the number of months elapsed
from the date of consummation of each Identified Acquisition
and Permitted Acquisition consummated prior to the date that is
the last day of the Test Period most recently ended for which
financial statements have been delivered to the Agents, rounded
to the nearest whole month, and the denominator of which is 12. $___________
e. Item 2(c) minus item 2(d). $___________
f. Amount of anticipated EBITDA to be obtained for the 12
month period following consummation of the proposed Permitted
Acquisition with respect to Identified Acquisitions and
Permitted Acquisitions as to which Prior Permitted Acquisition
Certificates have been submitted but which have not been
consummated prior to the date hereof from Part II, Item 2(b) of
such Prior Permitted Acquisition Certificates; minus the
anticipated EBITDA for a Permitted Acquisition if (x) the
construction, renovation or refurbishment of such Permitted
Acquisition or Identified Acquisition has been abandoned or (y)
in the case of anticipated EBITDA based on an Anticipated
Agreement, the negotiations with respect to definitive
agreements evidencing the Anticipated Agreement with respect to
such Permitted Acquisition or Identified Acquisition are
terminated; and
</TABLE>
<PAGE> 199
ANNEX I TO EXHIBIT L
Page 6
<TABLE>
<S> <C> <C>
plus or minus, as the case may be, the difference, if any, of
the anticipated EBITDA based upon the Anticipated Agreement
with respect to any such Permitted Acquisition or Identified
Acquisition and the anticipated EBITDA based upon the
definitive agreement entered into with respect to such
Anticipated Agreement. $___________
g. Pro Forma consolidated EBITDA (sum of items 2(a), 2(b),
2(e) and 2(f). $___________
3. Pro Forma Leverage Ratio for purposes of calculations made
pursuant to Section 9.02(x) (Item 1(d):Item 2(g)) _______:1.00
4. Applicable Pro Forma Leverage Ratio pursuant to Section
9.02(ix) _______:1.00
a) with respect to any Permitted Acquisition consummated prior to the
time that the aggregate cash consideration (including, without
limitation, the then present value of any earn-out, non-compete or
deferred compensation arrangements and the aggregate principal amount
of Funded Debt assumed in connection therewith) paid or to be paid in
connection with such Permitted Acquisition, together with the
aggregate cash consideration paid in connection with all Permitted
Acquisitions consummated prior to such time, is equal to or less than
$50,000,000 3.00:1.00
b) with respect to any Permitted Acquisition consummated subsequent to
the time that the aggregate cash consideration (including, without
limitation, the then present value of any earn-out, non-compete or
deferred compensation arrangements and the aggregate principal amount
of Funded Debt assumed in connection therewith) paid or to be paid in
connection with such Permitted Acquisition, together with the
aggregate cash consideration paid in connection with all Permitted
Acquisitions consummated prior to such time, is greater than
$50,000,000 2.50:1.00
</TABLE>
<PAGE> 200
ANNEX II TO EXHIBIT L
LIST OF PERMITTED ACQUISITIONS
<TABLE>
<CAPTION>
Purchase Price/Cost of Revolving Loans Associated Date of
Permitted Acquisitions Construction or Renovation Incurred EBITDA Consummation
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 1
Exhibit 10.2
PURCHASE AGREEMENT
BY AND AMONG
POOL COMPANY
AS BUYER,
R & H WELL SERVICE, INC.
AS THE COMPANY,
TREY SERVICES, INC.
AS TREY
AND
STEVE L. HOLIFIELD
AS SELLER
DATED AS OF OCTOBER 10, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1. SALE AND TRANSFER OF THE TREY SHARES AND THE ASSETS; PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . 1
-------------------------------------------------------------------
1.1 Sale and Transfer of the Shares and the Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
----------------------------------------------
1.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
--------------
1.3 New Directors and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
--------------------------
2. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
-------
3. REPRESENTATIONS AND WARRANTIES OF SELLERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
-----------------------------------------
3.1 Organization and Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
------------------------------
3.2 Validity of Agreement; Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-------------------------------------
3.3 No Approvals or Notices Required; No Conflict with Instruments . . . . . . . . . . . . . . . . . . . 4
--------------------------------------------------------------
3.4 Financial Information and Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . 4
----------------------------------------------------
3.5 Title to Properties; Absence of Liens and Encumbrances . . . . . . . . . . . . . . . . . . . . . . . 6
------------------------------------------------------
3.6 Properties, Contracts, Permits and Other Data . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
---------------------------------------------
3.7 Defects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
-------
3.8 Accounts Receivable; Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
------------------------------
3.9 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-----------------
3.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
---------
3.11 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
---------------------
3.12 Conduct of Business in Compliance with Regulatory and Contractual Requirements . . . . . . . . . . . 9
------------------------------------------------------------------------------
3.13 Certain Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
------------
3.14 Environmental, Health and Safety Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
-------------------------------------------
3.15 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
-----------------
3.16 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
-----
3.17 Additional Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
----------------------
3.18 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-------------
3.19 Employee Benefit Plans and Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
---------------------------------------
3.20 Qualified Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
---------------
3.21 Title IV Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
--------------
3.22 Multi-employer Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
--------------------
3.23 Welfare Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
---------------------
3.24 Fines and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
-------------------
3.25 Transactions With Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
----------------------------
3.26 Customers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
---------
3.27 Foreign Corrupt Practices Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
-----------------------------
3.28 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
----------
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
4. REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
---------------------------------------
4.1 Due Organization; Good Standing and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-----------------------------------------
4.2 Authorization and Validity of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
---------------------------------------
4.3 No Approvals or Notices Required; No Conflict with Instruments . . . . . . . . . . . . . . . . . . . 15
--------------------------------------------------------------
4.4 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-----------------
4.5 Investment Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
-----------------
5. COVENANTS; ACTIONS PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
-----------------------------------
5.1 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
---------------------
5.2 Conduct of the Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
-----------------------
5.3 Restrictions on Certain Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
-------------------------------
5.4 Further Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
---------------
5.5 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
------------
5.6 No Inconsistent Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
----------------------
5.7 Acquisition Proposals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
---------------------
5.8 Public Announcements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
--------------------
5.9 Amendment of Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
----------------------
5.10 Title Insurance Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
--------------------------
6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
--------------------
6.1 Conditions Precedent to Obligations of All Parties . . . . . . . . . . . . . . . . . . . . . . . . . 21
--------------------------------------------------
(a) No Governmental Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
----------------------
(b) Consulting Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
-------------------
(c) Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
------
(d) Hart-Scott-Rodino Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
---------------------
6.2 Conditions Precedent to Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
--------------------------------------------
(a) Accuracy of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . 21
------------------------------------------
(b) Performance of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
-------------------------
(c) Actions and Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
-----------------------
(d) Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
-----
(e) Licenses and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
---------------------
(f) Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
---------------------
(g) Opinion of Counsel to Trey, Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
----------------------------------
(h) Operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
---------
(i) Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
-----------------------
(j) Facts or Omissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
------------------
(k) Non-Competition Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
-------------------------
(l) Transfer of Certain Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
--------------------------
(m) Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
------
(n) Other Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
---------------
(o) Norton Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
--------------
(p) The Company Bonus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-----------------
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
6.3 Conditions Precedent to the Obligations of the Seller . . . . . . . . . . . . . . . . . . . . . . . 25
-----------------------------------------------------
(a) Accuracy of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . 25
------------------------------------------
(b) Performance of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-------------------------
(c) Actions and Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-----------------------
(d) Opinion of Counsel to Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
---------------------------
(e) Other Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
---------------
(f) Payment of Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
------------------------
(g) Debt Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
--------------
7. TERMINATION; AMENDMENT AND WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
---------------------------------
7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
-----------
7.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
---------------------
7.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
---------
7.4 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
------
8. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
---------------
8.1 Indemnification by the Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
-----------------------------
8.2 Tax Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
-----------------------------
8.3 Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
------------------------
8.4 Indemnification Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
--------------------------
8.5 Limitation on Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
-----------------------------
8.6 Certain Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
---------------
8.7 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
--------
9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
-------------
9.1 Payment of Certain Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
------------------------------------
9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
-------
9.3 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
----------------
9.4 Binding Effect; Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
-----------------------
9.5 Assignability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
-------------
9.6 Amendment; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
-----------------
9.7 Limitation on Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
----------------------
9.8 Section Headings; Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
-----------------------
9.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
------------
9.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
------------
9.11 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
--------------
9.12 Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
------------------
(a) Good Faith Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
-----------------------
(b) Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
---------
(c) Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
-----------
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
10. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
-------------
10.2 References and Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
-----------------------------
LIST OF SCHEDULES AND EXHIBITS
------------------------------
Schedule 1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Seller's Shares and Assets
Schedule 3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Organization and Qualification
Schedule 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Capitalization
Schedule 3.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approvals; Conflicts
Schedule 3.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Financial Statements
Schedule 3.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Title to Property
Schedule 3.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Real Property, Contracts, Permits
Schedule 3.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defects
Schedule 3.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accounts Receivable; Inventory
Schedule 3.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Proceedings
Schedule 3.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insurance
Schedule 3.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intellectual Property
Schedule 3.12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compliance with Laws
Schedule 3.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Environmental Matters
Schedule 3.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Taxes
Schedule 3.17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additional Information
Schedule 3.19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ERISA Plans
Schedule 3.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Qualified Plans
Schedule 3.21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Title IV Plans
Schedule 3.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Multi-Employer Plans
Schedule 3.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Affiliate Transactions
Schedule 3.26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Customers
Schedule 4.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Buyer Approvals
Schedule 5.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-Closing Disposition
Schedule 6.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assets and Liabilities to be Sold to Seller
Schedule 8.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tax Accruals
Exhibit A Consulting Contract
Exhibit B Lease Agreement
Exhibit C Non-Competition Agreement
Exhibit D Bill of Sale
</TABLE>
iv
<PAGE> 6
PURCHASE AGREEMENT
This Purchase Agreement ("Agreement") is made and entered into
effective as of October 10, 1997 by and between POOL COMPANY, a Texas
corporation ("Buyer"), and R & H WELL SERVICE, INC., a Texas corporation (the
"Company"), TREY SERVICES, INC., a Texas corporation ("Trey"), and STEVE L.
HOLIFIELD (the "Seller").
WITNESSETH:
WHEREAS, the Seller is the owner and holder of 95,000 issued and
outstanding shares (the "Trey Shares") of common stock of Trey, which
constitute, and as of the Closing Date will constitute, one hundred percent
(100%) of the issued and outstanding capital stock of Trey; and
WHEREAS, Trey is the owner and holder of 1,000 issued and outstanding
shares (the "Company Shares") of common stock of Company, which constitute, and
of the Closing Date will constitute, one hundred percent (100%) of the issued
and outstanding capital stock of the Company; and
WHEREAS, Seller is the owner of the assets ("Assets") described in
Schedule 1.2 hereto; and
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, the Trey Shares and the Assets; and
WHEREAS, the Company and Trey join in the execution of this Agreement
for the purpose of evidencing their consent to consummation of the foregoing
transaction and for the purpose of making certain representations and
warranties to and covenants and agreements with Buyer.
NOW, THEREFORE, for and in consideration of the premises, and the
agreements, covenants, representations and warranties hereinafter set forth,
and other good and valuable consideration, the receipt and adequacy of which
are forever acknowledged and confessed, the parties agree as follows:
1. SALE AND TRANSFER OF THE TREY SHARES AND THE ASSETS; PURCHASE PRICE.
1.1 Sale and Transfer of the Shares and the Assets. Subject to
the terms and conditions of this Agreement, Seller shall sell, convey and
deliver to Buyer, and Buyer shall purchase and accept from Seller, all of the
right, title and interest of Seller in and to the Trey Shares and the Assets.
1
<PAGE> 7
1.2 Purchase Price. In consideration of the sale of the Trey
Shares and the Assets to Buyer, Buyer shall pay to Sellers at the Closing an
aggregate purchase price (the "Purchase Price") of $31,341,293 by wire transfer
to an account designated in writing by Seller two business days before the
Closing Date. The Purchase Price shall be allocated among the Shares and the
Assets as set forth on Schedule 1.2.
1.3 New Directors and Officers. On the Closing Date, the Seller
shall cause a meeting of the Boards of Directors of Trey and the Company to be
held upon due notice or waiver thereof, at which the resignations of the
officers and directors of Trey and the Company shall be accepted, effective
immediately, and the vacancies created by such resignations shall be filled by
the persons designated by Buyer.
2. CLOSING.
Subject to the satisfaction or waiver by the appropriate party of all
the conditions precedent to Closing specified in Article 6, the consummation of
the sale and purchase of the Trey Shares and the Assets and the other
transactions contemplated by and described in this Agreement (the "Closing")
shall take place at the offices of Buyer located at 10375 Richmond Avenue,
Houston, Texas 77042, at 9:00 A.M. on October 16, 1997, or on such later date
or at such other location as the parties may mutually agree in writing (the
"Closing Date").
3. REPRESENTATIONS AND WARRANTIES OF SELLERS.
As of the date hereof and as of the Closing Date, Company, Trey and
Seller jointly and severally represent and warrant to Buyer that the following
facts and circumstances are and, except as expressly contemplated hereby, at
all times up to the Closing Date will be, true and correct, and hereby
acknowledge that such facts and circumstances constitute the basis upon which
Buyer has been induced to enter into and perform this Agreement:
3.1 Organization and Qualification.
(a) The Company and Trey are corporations duly organized,
validly existing and in good standing under the laws of the state of
Texas and have all requisite corporate power and corporate authority
to own, lease and operate their respective properties and to carry on
their respective business as now being conducted. No actions or
proceedings to dissolve the Company or Trey are pending. The Company
and Trey are duly qualified or licensed to do business and are in good
standing in each of the jurisdictions set forth on Schedule 3.1, which
are all jurisdictions in which the property owned, leased or operated
by them or the conduct of their business requires such qualification
or licensing, except jurisdictions in which the failure to be so
qualified or licensed would not, individually or in the aggregate,
have a material adverse effect on the business, assets, results of
operations or condition (financial or otherwise) of the Company or
Trey.
2
<PAGE> 8
(b) Except as disclosed on Schedule 3.1, the Company and
Trey have made available to Buyer accurate and complete copies of (i)
the charter and bylaws of the Company and Trey as currently in effect,
(ii) the stock records of the Company and Trey (iii) the minutes of
all meetings of the Boards of Directors of the Company and Trey, any
committees of such Boards, and the shareholders of the Company and
Trey (and all consents in lieu of such meetings). Such records,
minutes and consents accurately reflect the stock ownership of the
Company and Trey and all actions taken by their Boards of Directors,
committees and shareholders. The Company and Trey are not in
violation of any provision of their respective charters or bylaws.
3.2 Validity of Agreement; Capitalization. This Agreement has
been duly executed and delivered by the Seller, Trey and the Company and
constitutes a legal, valid and binding obligation of each of them, enforceable
against them in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally and by general equity principles. The Company's authorized capital
consists of 400,000 shares of common stock, $1.00 par value, of which 1,000 are
issued and outstanding. The record and beneficial ownership of such shares is
as set forth on Schedule 3.2 hereto. All of the issued and outstanding shares
of the Company have been duly authorized and validly issued, are fully paid and
nonassessable, have not been issued in violation of any preemptive or similar
rights, and have been issued in compliance with all Applicable Laws (including
state and federal securities laws). Trey's authorized capital consists of
5,000,000 shares of common stock, no par value, of which 95,000 are issued and
outstanding. The record and beneficial ownership of such shares is as set
forth on Schedule 3.2 hereto. All of the issued and outstanding shares of Trey
have been duly authorized and validly issued, are fully paid and nonassessable,
have not been issued in violation of any preemptive or similar rights, and have
been issued in compliance with all Applicable Laws (including state and federal
securities laws). The Trey Shares and the Company Shares constitute all shares
of the outstanding capital stock of Trey and the Company, respectively. Except
as set forth on Schedule 3.2, there are (and as of the Closing Date there will
be) outstanding (i) no shares of capital stock or other voting securities of
Trey or the Company, no securities of Trey or the Company convertible into or
exchangeable for shares of the capital stock or other voting securities of Trey
or the Company, (iii) no options or other rights to acquire from the Trey or
the Company, and no obligation of Trey or the Company to issue or sell, any
shares of their capital stock or other voting securities or any securities of
the Trey or the Company convertible into or exchangeable for such capital stock
or voting securities, (iv) no equity equivalents, interest in the ownership or
earnings, or other similar rights of or with respect to Trey or the Company,
and (v) no shares of any other entity owned by Trey or the Company. There are
(and as of the Closing Date there will be) no outstanding obligations of Trey
or the Company to repurchase, redeem or otherwise acquire any shares,
securities, options, equity equivalents, interests or rights. The Seller is
(and at the Closing Date will be) the record and beneficial owners of, and upon
consummation of the transactions contemplated hereby Buyer will acquire, good,
valid and marketable title to, the Trey Shares, free and clear of all
Encumbrances, other than (i) those that may arise by virtue of any actions
taken by or on behalf of Buyer or its affiliates or (ii) restrictions on
transfer that may be imposed by federal or state securities laws. Except as
set forth in Schedule 3.2,
3
<PAGE> 9
Trey and the Company do not own, directly or indirectly, any capital stock or
equity securities of any corporation or have any direct or equity ownership in
any other Person (other than Trey's ownership of the Company).
3.3 No Approvals or Notices Required; No Conflict with
Instruments. Except as described in Schedule 3.3 hereto, the execution,
delivery and performance of this Agreement by the Seller, Trey and the Company
and the consummation by them of the transactions contemplated hereby (i) will
not violate (with or without the giving of notice or the lapse of time or both)
or require any consent, approval, filing or notice under, any provision of any
Applicable Law and (ii) will not result in the creation of any Encumbrance on
the Trey Shares or the Assets under, conflict with, or result in the breach or
termination of any provision of, or constitute a default under, or result in
the acceleration of the performance of the obligations of the Seller, Trey or
the Company under, or result in the creation of an Encumbrance upon any portion
of the assets of Trey or the Company pursuant to, the charters or by-laws of
Trey or the Company, or any indenture, mortgage, deed of trust, lease,
licensing agreement, contract, instrument or other agreement to which the
Seller, Trey or the Company is a party or by which any of their assets are
bound or affected. The Trey Shares are transferable and assignable to Buyer as
contemplated by this Agreement without the waiver of any right of first refusal
or the consent of any other party being obtained, and there exists no
preferential right of purchase in favor of any person with respect of any of
the Trey Shares, the Company Shares or the business or any of the assets of the
Company or Trey.
3.4 Financial Information and Absence of Certain Changes. Trey
has delivered to Buyer accurate and complete copies of (i) Trey's consolidated
balance sheets as of December 31, 1995 and December 31, 1996, and the related
consolidated statements of income, stockholders' equity and cash flows for each
of the years then ended, and the notes and schedules thereto, prepared in
conformity with GAAP except as otherwise disclosed in the notes to such
Financial Statements, together with the unqualified accountant's review reports
thereon of Johnson & Miller, independent public accountants (the "Reviewed
Financial Statements"); and (ii) Trey's unaudited consolidated balance sheet as
of June 30, 1997 (the "Latest Balance Sheet"), and the related unaudited
consolidated statements of income, stockholders' equity and cash flows for the
six month period then ended (together with the Latest Balance Sheet, the
"Latest Financial Statements"), certified by Trey's President (collectively,
the "Financial Statements"). The Financial Statements (i) represent actual
bona fide transactions, (ii) have been prepared from the books and records of
Trey and the Company in conformity with GAAP applied on a basis consistent with
preceding years throughout the periods involved, except that the Latest
Financial Statements are not accompanied by notes or other textual disclosure
required by GAAP, and (iii) are substantially complete and correct and fairly
present Trey's financial position as of the respective date thereof and its
results of operations and cash flows for the period then ended, except that the
Latest Financial Statements are subject to normal year-end adjustments
consistent with past practice, which will not be material in the aggregate.
Neither Trey nor the Company have any liability or obligation that would
materially and adversely affect the Assets or the business, assets, financial
condition or results of operations of Trey or the Company whether accrued,
absolute, contingent, or otherwise, except as set forth on the Latest Balance
Sheet or on
4
<PAGE> 10
Schedule 3.4. Except as disclosed on Schedule 3.4, since the date of the
Latest Balance Sheet, there has not been nor will there be any change in the
assets, liabilities, financial condition, or operations of Trey or the Company
from that reflected in the Financial Statements, other than changes in the
ordinary course of business, none of which individually or in the aggregate
have had or will have a material adverse effect on the Assets or the business,
assets, liabilities, financial condition, or results of operations of Trey or
the Company. Without limiting any of the foregoing, from the date of the
Latest Balance Sheet until the Closing Date, except as disclosed on Schedule
3.4 or otherwise provided in this Agreement the Company and Trey have not and,
will not have:
(i) incurred or become subject to, or
agreed to incur or become subject to, any obligation or
liability, absolute or contingent, except current liabilities
incurred in the ordinary course of business;
(ii) mortgaged, pledged, or subjected to
any Encumbrance (or agreed to do so with respect to) any of
their assets, or discharged or satisfied any Encumbrance, or
paid or satisfied any obligation or liability other than in
the ordinary course of business and consistent with past
practice;
(iii) sold or transferred, or agreed to
sell or transfer, any of their assets, or cancelled or agreed
to cancel, any debts due them or claims therefor, except, in
each case, for full consideration and in the ordinary course
of business;
(iv) engaged in any transactions
adversely affecting Trey or the Company or their respective
assets or suffered any extraordinary losses or waived any
rights of substantial value not in the ordinary course of
business;
(v) purchased or agreed to purchase any
securities, bonds, or any other capital stock or assets of any
other entity with cash or liquid assets, or used cash or
liquid assets to incur debts, for matters not within the
ordinary course of business or not for appropriate corporate
purposes;
(vi) increased any salaries or granted or
agreed to grant, or paid, or agreed to pay, any bonus, loan,
incentive payment or other item of value or made any other
similar agreement, to or with any of its directors, officers or
agents except as compensation in the ordinary course of
business for appropriate services performed;
(vii) declared or paid any dividend or
made any other distribution to their shareholders;
(viii) made or authorized any capital
expenditure of more than $100,000.00 in the aggregate;
5
<PAGE> 11
(ix) made or agreed to make any changes
in its Articles or Certificate of Incorporation, bylaws, or
capital structure;
(x) entered into any representative,
distributorship, service, installation, support and
maintenance, agency or other similar agreement;
(xi) incurred or suffered any damage,
destruction, or loss, whether or not covered by insurance,
materially affecting the business or any of its assets;
(xii) made or applied to make any change
in accounting methods or practices, including for tax
purposes; or
(xiii) entered into any agreement,
commitment or understanding, whether or not in writing, with
respect to any of the foregoing.
3.5 Title to Properties; Absence of Liens and Encumbrances. Trey,
the Seller (as to the Assets and the Trey Shares only) and the Company own
(except as described in Schedule 3.5 hereto) good and indefeasible title to all
of their respective assets, free and clear of all Encumbrances and other
restrictions of any kind and nature, other than the Permitted Encumbrances or
Encumbrances specifically set forth on Schedule 3.5 hereto.
3.6 Properties, Contracts, Permits and Other Data.
(i) Schedule 3.6 hereto contains a
complete and correct list of Trey and the Company's owned and
leased real estate (the "Real Property") and any leases or
other agreements relating to the Real Property.
(ii) Schedule 3.6 hereto contains a
complete and correct list of, all of the material contracts,
contract proposals, outstanding bids, maintenance and
service agreements, purchase commitments for materials and
other services, leases under which the Trey or the Company is a
lessor or lessee and other agreements pertaining to the Assets
or Trey's or the Company's businesses to which Seller, Trey or
the Company or an affiliate of Seller, Trey or the Company is a
party, the benefits of which are enjoyed in Trey's or the
Company's businesses or to which any of the Assets or the
assets of Trey or the Company is subject; and
(iii) Schedule 3.6 hereto contains a
complete and correct list of all material Permits relating to
the development, use, maintenance or occupation of the Assets
or of Trey's or the Company's properties, Real Property, or
the operation of its business (other than sales and use tax
Permits and franchise tax registrations).
6
<PAGE> 12
True and complete copies of all documents (including all amendments thereto)
referred to in Schedule 3.6 hereto have been delivered to or made available for
inspection by Buyer. All rights, licenses, leases, registrations,
applications, contracts, commitments, Permits and other arrangements by the
Seller, Trey or the Company referred to in Schedule 3.6 are in full force and
effect and are valid and enforceable in accordance with their respective terms,
except where the failure to be in full force and effect and valid and
enforceable would not in the aggregate have a material adverse effect on the
Assets or the assets of Trey or the Company or on their respective business,
assets, financial condition or results of operations. Trey, the Company and
their affiliates are not in breach or default in the performance of any
material obligation thereunder and to the Knowledge of Trey, the Seller and the
Company, no event has occurred or has failed to occur whereby any of the other
parties thereto have been or will be released therefrom or will be entitled to
refuse to perform thereunder. Except as set forth in Schedule 3.6 hereto,
there are no contracts, agreements, licenses, Permits, franchises or rights to
which Trey, the Company or their affiliates is a party which are material to
the ownership of any of Trey's or the Company's assets, or to the conduct of
its business as conducted by the Company or Trey or to which Seller is a party
which relate to or affect the Assets. Except as described on Schedule 3.6
hereto, Trey and the Company have and will have following the Closing, all
material licenses, Permits, consents, approvals, authorizations, qualifications
and orders of Governmental Entities required for the conduct of the business as
presently conducted. There are no outstanding powers of attorney relating to
or affecting the Company or Trey. Neither the Company nor Trey is a guarantor
for or otherwise liable for any liability or obligation, including
indebtedness, of any other Person.
3.7 Defects. Except as provided in Schedule 3.7, to the Knowledge
of the Seller, the buildings, plants, structures and equipment owned or used by
the Company, including those constituting a part of the Real Property, are
structurally sound, are in good operating condition and repair, and are
adequate for the uses to which they are being put, and none of such buildings,
plants, structures, or equipment is in need of maintenance or repairs, except
for ordinary, routine maintenance and repairs that are not material in nature
or cost.
3.8 Accounts Receivable; Inventory. All accounts receivable
reflected on the Latest Balance Sheet or on the accounting records of Trey or
the Company as of the Closing Date (collectively, the "Accounts Receivable")
represent or will represent valid obligations arising from sales actually made
or services actually performed in the ordinary course of business. Except as
set out in Schedule 3.8, the Seller has no reason to believe that such Accounts
Receivable would not be collectible. The inventories reflected on the Latest
Balance Sheet and those items of inventory acquired by the Company and the work
performed by the Company after the date of the Latest Balance Sheet, except to
the extent disposed of or billed since such date in the ordinary conduct of the
business by the Company, are, in the case of such inventory, in good,
merchantable and usable condition, and have been reflected on the books of the
Company in accordance with GAAP. Except as set forth on Schedule 3.8 hereto,
all such inventories and work in progress are owned by the Company free and
clear of any Encumbrances.
7
<PAGE> 13
3.9 Legal Proceedings. Except as described in Schedule 3.9
hereto, (i) there is no litigation, Proceeding, claim or governmental
investigation pending or, to the Knowledge of the Seller, Trey or the Company,
threatened seeking relief or damages which, if granted, would adversely affect
Trey or the Company, any of their assets, the Assets or the ability of Buyer to
use and operate the assets of the Company or Trey or the Assets or which would
prevent the consummation of the transactions contemplated by this Agreement and
(ii) none of Trey, the Seller nor the Company have been charged with any
violation of or, to the Knowledge of any of the Seller, Trey or the Company,
threatened with a charge or violation of, nor are any of the Seller, Trey or
the Company aware of any facts or circumstances that, if discovered by third
parties, could give rise to a charge or a violation of, any provision of
Applicable Law which charge or violation, if determined adversely to either the
Seller, Trey or the Company, would adversely affect the Assets or the business,
assets, financial condition or results of operations of Trey or the Company or
that might reasonably be expected to affect the right of Buyer to own the
Shares of Trey or operate the Company's business or the Assets after the
Closing Date in substantially the manner in which they are currently operated.
None of the Seller, Trey, the Company, nor any director, officer, or authorized
agent of Trey or the Company have, directly or indirectly, paid or delivered
any fee, commission or other sum of money or item of property however
characterized to any broker, finder, agent, governmental official or other
person, in any matter related to the businesses of Trey or the Company, which
the Seller, Trey or the Company, or any such director, officer, or authorized
agent has knowledge of or reason to believe to have been illegal under any
Applicable Law.
3.10 Insurance.
(a) Schedule 3.10(a) hereto sets forth a list and brief
description of the insurance policies relating to the insurable properties
(including the Real Property) of the Seller (as to the Assets), Trey and the
Company and the conduct of the businesses of Trey and the Company. All
premiums due and arising thereon have been paid and such policies are in full
force and effect. Adequate reserves have been made for any retro premiums
which may become payable.
(b) Schedule 3.10(b) is a complete and accurate list of
all pending or outstanding insurance claims ("Outstanding Insurance Claims") of
Trey or the Company against Trey's or the Company's insurance companies and the
amount, if any, of each Outstanding Insurance Claim that is reflected in the
Reviewed Financial Statements as an account receivable or other asset.
3.11 Intellectual Property. Schedule 3.11 contains a complete list
of all of Trey's and the Company's right, title or interest in or to any
Intellectual Property. Except as described on Schedule 3.11 hereto, Trey and
the Company own and possess all of the Intellectual Property needed for the
conduct of their businesses as presently conducted. To the Knowledge of
Seller, Trey and the Company, there is no basis for the assertion by any person
of any claim against Buyer, Trey or the Company with respect to the use by
Trey, the Company or Buyer of any of such Intellectual Property. To the
Knowledge of Seller, none of Trey, Seller or the Company have infringed or
violated, any
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rights of any person with respect to any of such Intellectual Property, and
such Intellectual Property is not subject to any order, injunction or agreement
respecting its use.
3.12 Conduct of Business in Compliance with Regulatory and
Contractual Requirements. Except as described on Schedule 3.12 hereto, Seller
(as to the Assets), Trey and the Company have conducted their businesses so as
to comply with all Applicable Laws, the failure to comply with which would
individually or in the aggregate have a material adverse effect on the Assets,
or the business, assets, financial condition or results of operations of the
Company or Trey taken as a whole.
3.13 Certain Fees. None of Trey, the Company, or their officers,
or directors or Seller, on behalf of Trey or the Company, have employed any
broker or finder or incurred any other liability for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated
hereby.
3.14 Environmental, Health and Safety Compliance. Except as
described on Schedule 3.14 hereto,
(i) to the Knowledge of Seller, Trey and
the Company, Trey and the Company are, and have continuously
been, in material compliance with all Environmental Laws;
(ii) all material notices, Permits,
licenses or similar authorizations, if any, required to be
obtained or filed under any Environmental Law in connection
with the operation of the Assets, business of Company or Trey
or the Real Property have been obtained or filed;
(iii) to the Knowledge of Seller, Trey and
the Company, there are no past, pending or threatened
investigations, proceedings or claims against Seller (as to
the Assets) Trey or the Company relating to the presence,
release or remediation of any Hazardous Material or for
non-compliance with any Environmental Law;
(iv) to the Knowledge of Seller, Trey and
the Company, Hazardous Materials have not been treated, stored
or disposed of on, to or from any property relating in any way
to the Assets, the Company or Trey or that is or was owned or
leased by Trey or the Company (including the Real Property);
(v) to the Knowledge of Seller, Trey and
the Company, none of the properties now or heretofore owned,
leased or operated by Trey or the Company (including the Real
Property and the Assets) have been used as landfill or waste
disposal sites or contain any underground storage tanks;
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<PAGE> 15
(vi) to the Knowledge of Trey, the
Company or the Seller, no conditions or circumstances exist or
have existed with respect to the Assets, Trey or the Company
or the Real Property, including without limitation the
off-site disposal of Hazardous Materials, that could give rise
to any remedial action under, or impose any liability on Trey,
the Company, or Buyer with respect to any Environmental Law;
(vii) none of Trey, the Seller or the
Company have received any notice or claim, and none of them
has Knowledge of any facts suggesting, that Trey or the
Company is or may be liable to any person as a result of any
Hazardous Material generated, treated or stored at any real
estate at any time owned or leased by the Company or Trey
(including the Real Property) or discharged, emitted, released
or transported from any real estate at any time owned or
leased by Trey or the Company (including the Real Property) or
any other source in the conduct of the business of Trey or the
Company;
(viii) to the Knowledge of Trey, the Seller
or the Company, no conditions or circumstances exist or have
existed, and no activities are occurring or have occurred
that are resulting or have resulted in the exposure of any
person or property to a Hazardous Material such that the owner
of the Real Property or of the business of Trey or the Company
may in the future be liable to such persons or to the owners
of such property for personal or other injuries or damages
resulting from such exposure; and
(ix) there are no federal or state air
emission credits or air or water discharge Permits related to
the Real Property.
For purposes of this Agreement, the term "Environmental Laws" shall mean, as to
any given asset or operation of Trey or the Company, all applicable laws,
statutes, ordinances, rules and regulations of any Governmental Entity
pertaining to protection of the environment in effect as of the Closing Date.
For purposes of this Agreement, the term "Hazardous Material" shall mean any
substance which is listed or defined as a hazardous substance, hazardous
constituent or solid waste pursuant to any Environmental Law.
3.15 Books and Records. All of the books and records of Trey and
the Company have been prepared and maintained in accordance with good business
practices and, where applicable, in conformity with GAAP and, to the best of
Trey's, Company's and Seller's Knowledge, in compliance with all Applicable
Laws and other requirements.
3.16 Taxes. Trey, the Company and the Seller have caused to be
timely filed with appropriate federal, state, local and other Governmental
Entities all Tax Returns required to be filed with respect to the Trey and the
Company or the conduct of their businesses and have paid, caused to be paid, or
adequately reserved in the Financial Statements all Taxes (including penalties
and
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<PAGE> 16
interest) shown to be due on or with respect to such Tax Returns. All such Tax
Returns fairly reflect the Taxes of Trey and the Company for the periods
covered thereby. Except as set forth on Schedule 3.16, no extension of time
has been requested or granted with respect to any Tax Return not yet filed or
payment of any Taxes not yet paid, and no issue has been raised or adjustment
proposed by the IRS or any other taxing authority in connection with any of
Trey's or the Company's Tax Returns, and there are no outstanding agreements or
waivers that extend any statutory period of limitations applicable to any
federal, state or local Tax Returns that include or reflect the use and
operation of Trey and the Company or the conduct of their businesses. Except
as set forth on Schedule 3.16, none of the Seller, Trey or the Company have
received or have Knowledge of any notice of deficiency, assessment, audit,
investigation, or proposed deficiency, assessment or audit with respect to Trey
or the Company or the conduct of their business from any taxing authority.
Neither Trey nor the Company have taken any action which is not in accordance
with past practice that could defer any liability for Taxes from any taxable
period ending on or before the Closing Date to any taxable period ending after
such date. Neither Trey nor the Company has consented to the application of
Section 341(f) of the Code. Without limiting the generality of the foregoing,
all Taxes relating to the Real Property have been timely paid.
3.17 Additional Information. Schedule 3.17 hereto contains
accurate lists and summary descriptions of the following:
(i) the name and address of every bank
and other financial institution at which Trey or the Company
maintains an account (whether checking, savings or otherwise),
lock box or safe deposit box for Trey's or the Company's
business, and the account numbers and names of persons having
signing authority or other access thereto;
(ii) the names and titles of and current
hourly rates for all employees of Trey or the Company,
together with the vacation benefits to which each such person
is entitled; and
(iii) all names under which Trey or the
Company has conducted any business or which either of them has
otherwise used.
3.18 Labor Matters. Neither Trey nor the Company has suffered any
strike, slowdown, picketing or work stoppage by any union or other group of
employees. Neither Trey nor the Company is a party to any collective
bargaining agreement; no such agreement determines the terms and conditions of
employment of any employee of Trey or the Company; no collective bargaining
agent has been certified as a representative of any of the employees of Trey or
the Company; and no representation campaign or election is now in progress with
respect to any of the employees of Trey or the Company. None of Trey, the
Seller or the Company have taken or failed to take any action that would cause
Buyer to incur any liability other than the provision of benefits available to
employees under the various plans or arrangements described in Schedule 3.19 in
the event Buyer
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<PAGE> 17
chooses to dismiss from its employment any of Trey's or the Company's employees
following the Closing. Trey and the Company have complied in all material
respects with all laws relating to the employment of labor in the conduct of
its business, including provisions thereof relating to wages, hours, equal
opportunity and the payment of pension contributions, social security and other
taxes.
3.19 Employee Benefit Plans and Arrangements.
(i) Schedule 3.19 hereto lists all
employee benefit plans and collective bargaining, labor and
employment agreements and severance agreements or other
similar arrangements, whether or not in writing (together with
all documents or instruments establishing or constituting any
related trust, annuity contract or other funding instrument)
to which Trey or the Company is (or ever has been) a party or
by which Trey or the Company is (or ever has been) bound,
including, without limitation, (1) any profit-sharing,
deferred compensation, bonus, stock option, stock purchase,
pension, retainer, consulting, retirement, severance, or
incentive compensation plan, agreement or arrangement, (2) any
material welfare benefit plan, agreement or arrangement or any
material plan, agreement or arrangement providing for "fringe
benefits" or perquisites to employees, officers, directors or
agents, including but not limited to benefits relating to
automobiles, clubs, vacation, child care, parenting or
maternity leave, sabbaticals, sick leave, medical expenses,
dental expenses, disability, accidental death or
dismemberment, hospitalization, life insurance and other types
of insurance, (3) any employment agreement, or (4) any other
"employee benefit plan" (within the meaning of Section 3(3) of
ERISA).
(ii) Trey, Seller and the Company have
delivered to Buyer true, correct and complete copies of all
plan documents and/or contracts (including, where applicable,
any documents and/or instruments establishing or constituting
any related trust, annuity contract or funding instrument) and
summary plan descriptions with respect to the plans, agreements
and arrangements listed in Schedule 3.19 hereto. Trey, Seller
and the Company have provided Buyer with true, correct and
complete copies of the Form 5500 filed with respect to each
plan identified in Schedule 3.19 hereto that was required to
file an annual report for the plan year immediately preceding
the Closing Date. Each of such Forms 5500 accurately reflects
the financial status of the plan to which it relates as of the
dates specified therein. In addition, Trey, Seller and the
Company have provided Buyer with (a) true, correct and complete
copies of any and all written communications notices or claims
that the Seller, Trey or the Company have received from the
IRS, the Department of Labor and/or the Pension Benefit
Guaranty Corporation concerning any plan, arrangement or
agreement identified in Schedule 3.19 hereto that give notice
of possible imposition of a fine, penalty or liability with
respect to such plan, arrangement or agreement and (b) true,
correct and complete copies of any complaints, petitions,
claims or other
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<PAGE> 18
notices of liability relating to any such plan, arrangement or
agreement that have been filed by any other party.
(iii) For each of the plans, agreements
and arrangements identified in Schedule 3.19 hereto, there are
no negotiations, demands or proposals that are pending or have
been made since the dates of the respective items furnished
pursuant to Section 3.19(ii) hereto which concern matters now
covered, or that would be covered, by plans, agreements or
arrangements of the type described in this Section.
(iv) The plans, agreements and
arrangements identified in Schedule 3.19 hereto are in
material compliance with the applicable provisions of the Code
and ERISA, the regulations and published authorities
thereunder, and all other laws applicable with respect to all
such employee benefit plans, agreements and arrangements.
Trey and the Company have performed all of their respective
material obligations under all such plans, agreements and
arrangements including, but not limited to, the full payment
when due of all amounts required to be made as contributions
thereto or otherwise. There are no actions, suits or claims
(other than routine claims for benefits) pending or threatened
against such plans or their assets, or arising out of such
plans, agreements or arrangements, and, to the Knowledge of
Trey, Seller and the Company, no facts exist which could give
rise to any such actions, suits or claims that might have a
material adverse effect on such plans, agreements or
arrangements.
(v) Except as specified in Schedule 3.19
hereto, each of the plans, agreements or arrangements can be
terminated by Trey or the Company within a period of 30 days,
without payment of any additional compensation or amount or the
additional vesting or acceleration of any such benefits.
(vi) With respect to each plan identified
in Schedule 3.19 hereto which is an "employee benefit plan"
(within the meaning of Section 3(3) of ERISA) or a "plan"
(within the meaning of Section 4975(e)(1) of the Code), no
transaction has occurred which is prohibited by Section 406 of
ERISA or which could give rise to a material liability under
Section 4975 of the Code or Sections 502(i) or 409 of ERISA.
3.20 Qualified Plans. Except as specifically identified in
Schedule 3.20 hereto, Trey and the Company do not now, or have at any time
previously maintained, a stock bonus, pension or profit-sharing plan which is
or was intended to meet the requirements of Section 401(a) of the Code.
3.21 Title IV Plans. Except as specifically identified in Schedule
3.21 hereto, neither Trey nor the Company has, and has not at any time
previously maintained, a plan subject to Title IV of ERISA.
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<PAGE> 19
3.22 Multi-employer Plans. No plan listed in Schedule 3.22 hereto
is or ever has been a "multi-employer plan" (within the meaning of Section
3(37) of ERISA).
3.23 Welfare Benefit Plans. All group health plans of Trey and the
Company have been operated in material compliance with the group health plan
continuation coverage requirements of Sections 601 through 608 of ERISA and
4980B of the Code to the extent such requirements are applicable. Except to
the extent required under Section 4980B of the Code, neither the Company nor
Trey provides health or welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employees.
3.24 Fines and Penalties. To the Knowledge of Seller, there has
been no act or omission by Trey, the Company or the Seller or any ERISA
affiliate that has given rise to or may give rise to fines, penalties, taxes,
or related charges under Sections 502 and 4071 of ERISA or Chapter 43 of the
Code.
3.25 Transactions With Affiliates. No shareholder, director or
officer of Trey or the Company and no associate of any such shareholder,
director or officer is currently, directly, or indirectly, a party to any
transaction with Trey or the Company, including any agreement, arrangement or
understanding, written or oral, providing for the employment of, furnishing of
services by, rental of real or personal property from, or otherwise requiring
payment to any such shareholder, director, officer or associate, except as
disclosed on Schedule 3.25. Except as disclosed on Section 3.25, no
shareholder, director or officer of Trey or the Company, and, to the Knowledge
of Seller, no associate of such shareholder, director or officer owns, directly
or indirectly, any material ownership or beneficial interest in, or serves as a
director, officer, or employee of, any customer, supplier or competitor of Trey
or the Company. For the purposes of this Section 3.25 only, an "associate" of
any shareholder, director or officer means a member of the immediate family of
such shareholder, director or officer or any corporation, partnership, trust or
other entity in which such shareholder, director or officer has a material
ownership or beneficial interest in or is a director, officer, partner or
trustee, or person holding a similar position.
3.26 Customers. Set forth in Schedule 3.26 hereto is a complete
and accurate list of the top ten (10) customers in terms of revenues of the
Company.
3.27 Foreign Corrupt Practices Act. To the Knowledge of Seller,
since the inception of Trey or the Company, there have been no violations of
the Foreign Corrupt Practices Act by Trey, the Company or any of their agents.
3.28 Disclosure. No representation or warranty in this Section 3
or in any Schedule attached pursuant to this Section 3, or in any written
statement, certificate or other document furnished to Buyer contains or will
contain any untrue statement of a material fact or omits or will omit a
material fact necessary to make the statements therein not misleading.
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<PAGE> 20
4. REPRESENTATIONS AND WARRANTIES OF BUYER
As of the date hereof and as of the Closing Date, Buyer represents and
warrants to Seller that the following facts and circumstances are, and except
as contemplated hereby, at all times up to the Closing Date, will be true and
correct and hereby acknowledge that such facts and circumstances constitute the
basis upon which Sellers have been induced to enter into and perform this
Agreement.
4.1 Due Organization; Good Standing and Power. Buyer is a
corporation duly organized, validly existing and in good standing under the
laws of Texas. Buyer has all corporate power and authority to enter into this
Agreement (and each other agreement expressly provided for herein) and to
perform its respective obligations hereunder and thereunder.
4.2 Authorization and Validity of Agreement. The execution,
delivery and performance of this Agreement by Buyer and the consummation by
Buyer of the transactions contemplated hereby have been duly authorized by all
requisite corporate action on its part. No other corporate action is necessary
for the authorization, execution, delivery and performance by Buyer of this
Agreement and the consummation by Buyer of the transactions contemplated hereby
and thereby. This Agreement has been duly executed and delivered by Buyer and
constitutes, and each other agreement document executed or to be executed by
Buyer in connection with the transactions contemplated hereby has been, or when
executed will be, duly executed and delivered by Buyer and constitutes or when
executed or delivered, will constitute, a legal, valid and binding obligation
of Buyer, enforceable against Buyer in accordance with their respective terms,
except as the same may be limited by bankruptcy, insolvency or other similar
laws affecting creditors' rights generally and by general equity principles.
4.3 No Approvals or Notices Required; No Conflict with
Instruments. Except as disclosed on Schedule 4.3, the execution, delivery and
performance of this Agreement by Buyer and the consummation by it of the
transactions contemplated hereby (i) will not violate (with or without the
giving of notice or the lapse of time or both), or require any consent,
approval, filing or notice under any provision of any law, rule or regulation,
court order, judgment or decree applicable to Buyer, and (ii) will not conflict
with, or result in the breach or termination of any provision of, or constitute
a default under, or result in the acceleration of the performance of the
obligations of Buyer, under, the charter or bylaws of Buyer or any indenture,
mortgage, deed of trust, lease, licensing agreement, contract, instrument or
other agreement to which Buyer is a party or by which Buyer or any of its
assets or properties is bound.
4.4 Legal Proceedings. There are no Proceedings pending or, to
the Knowledge of Buyer, threatened against or involving Buyer seeking to
restrain, prohibit or obtain damages or other relief in connection with this
Agreement or the transactions contemplated hereby.
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4.5 Investment Intent. Buyer is acquiring the Trey Shares for its
own account for investment and not with a view to, or for sale or other
disposition in connection with, any distribution of all or any part thereof,
except in compliance with applicable federal and state securities laws.
5. COVENANTS; ACTIONS PRIOR TO CLOSING.
5.1 Access to Information. During the period beginning on the
date hereof and ending on the Closing Date, the Seller, Trey and the Company
will (a) give or cause to be given to Buyer and its representatives such
reasonable access, upon reasonable notice during normal business hours, to the
office, yards, properties, books and records of Trey and the Company as Buyer
shall from time to time reasonably request and (b) furnish or cause to be
furnished to Buyer such financial and operating data and other information with
respect to Trey and the Company as Buyer shall from time to time reasonably
request. Buyer and its representatives shall be entitled, in consultation with
the Seller, to such access to the representatives, officers and employees of
Trey and the Company as Buyer may reasonably request. The Seller shall permit
Buyer and its representatives to confirm, on reasonable notice and on the basis
of agreed methods, with Trey's or the Company's principal vendors, customers,
and trade affiliates, that the acquisition by Buyer of the Company will be
acceptable to such vendors, customers and trade affiliates and that the
acquisition will not materially adversely affect the relationship of such
vendors, customers and trade affiliates with the businesses of Trey and the
Company. The Seller, Trey and the Company agree that such access by Buyer and
its representatives shall include the right to perform a soil and groundwater
analysis of the Real Property and to conduct such other environmental
investigations of the Real Property as Buyer shall deem necessary or
appropriate to determine on-site conditions and the presence or absence of any
Hazardous Materials. In connection with such environmental investigations, the
Seller, Trey and the Company will provide to or make available for inspection
by Buyer and its representatives (i) all records relating to the disposal of
waste materials generated at the Real Property; (ii) all environmental Permits
and records relating to compliance with such Permits; (iii) all records of
spills or other releases; (iv) all records relating to employee exposure to
workplace chemicals; (v) all environmental audits or assessments; (vi) all
insurance records relating to coverage for environmental incidents affecting
the Real Property; (vii) all chemical inventories and reports of chemical
emissions; (viii) all correspondence relating to pending or threatened
environmental claims; and (ix) all records obtained from prior owners or
operators of the Real Property relating to environmental conditions.
5.2 Conduct of the Business. Except as specifically required or
contemplated by this Agreement or otherwise consented to or approved in writing
by Buyer, during the period commencing on the date hereof and ending on the
Closing Date, Trey, the Company and the Seller will cause Trey and the Company
to:
(a) conduct the business of Trey and the Company only in
the usual, regular and ordinary manner consistent with current practice and, to
the extent consistent with such operation, use their reasonable best efforts to
keep available the services of the present employees of Trey and
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<PAGE> 22
the Company and preserve Trey's and the Company's present relationships with
persons having business dealings with the Company;
(b) maintain Trey's and the Company's books, accounts and
records in the usual, regular and ordinary manner, on a basis consistent with
past practice, and comply in all material respects with all Applicable Laws and
other obligations of Trey and the Company.
5.3 Restrictions on Certain Actions. Without limiting the
generality of the foregoing, and except as otherwise expressly provided in this
Agreement, commencing on the date hereof and continuing until the Closing Date,
Trey and the Company shall not (and Seller shall not with respect to the
Assets), without the prior written consent of Buyer:
(a) amend their charter or bylaws;
(b) (i) issue, sell or deliver (whether through the
issuance or granting of options, warrants, commitments, subscriptions,
rights to purchase or otherwise) any shares of their capital stock of
any class or any other securities or equity equivalents; or (ii) amend
in any material respects any of the terms of any such securities
outstanding as of the date hereof;
(c) (i) split, combine or reclassify any shares of their
capital stock; (ii) declare, set aside or pay any dividend or other
distribution (whether in cash, stock, or property or any combination
thereof) in respect of their capital stock; (iii) repurchase, redeem or
otherwise acquire any of their securities; or (iv) adopt a plan of
complete or partial liquidation or resolutions providing for or
authorizing a liquidation, dissolution, merger, consolidation,
restructuring, recapitalization or other reorganization of Trey or the
Company;
(d) (i) except in the ordinary course of business
consistent with past practice, create, incur, guarantee or assume any
indebtedness for borrowed money or otherwise become liable or
responsible for the obligations of any other person; (ii) make any
loans, advances or capital contributions to, or investments in, any
other person, (iii) pledge or otherwise encumber shares of capital
stock of Trey or the Company; or (iv) mortgage or pledge any of their
assets, tangible or intangible, or create or suffer to exist any lien
thereupon; provided, however, that in no event shall Trey or the
Company (A) incur incremental indebtedness to a financial institution
in excess of $25,000 in the aggregate or (B) incur incremental
indebtedness which is not prepayable at any time without penalty or
premium;
(e) (i) enter into, adopt or (except as may be required
by law) amend or terminate (except as contemplated in this Agreement)
any bonus, profit sharing, compensation, severance, termination, stock
option, stock appreciation right, restricted stock, performance unit,
stock equivalent, stock purchase, pension, retirement, deferred
compensation, employment, severance or other employee benefit
agreement, trust, plan, fund or other
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arrangement for the benefit or welfare of any director, officer or
employee; (ii) except for normal increases in the ordinary course of
business consistent with past practice that, in the aggregate, do not
result in a material increase in benefits or compensation expense to
Trey or the Company, increase in any manner the compensation or fringe
benefits of any director, officer or employee; or (iii) pay to any
director, officer or employee any benefit not required by any employee
benefit agreement, trust, plan, fund or other arrangement as in effect
on the date hereof;
(f) except as set out in Schedule 5.3 hereof, acquire,
sell, lease, transfer or otherwise dispose of, directly or indirectly,
any assets outside the ordinary course of business consistent with past
practice or any assets that in the aggregate are material to Trey or
the Company;
(g) acquire (by merger, consolidation, or acquisition of
stock or assets or otherwise) any corporation, partnership or other
business organization or division thereof;
(h) except as set forth in Schedule 5.3, make any capital
expenditures which, individually, is in excess of $25,000 or, in the
aggregate, are in excess of $50,000;
(i) make any Tax election or settle or compromise any
federal, state, local or foreign Tax liability material to Trey or the
Company;
(j) except as expressly provided herein, pay, discharge
or satisfy any claims, liabilities or obligations (whether accrued,
absolute, contingent, unliquidated or otherwise, and whether asserted
or unasserted), other than the payment, discharge or satisfaction in
the ordinary course of business consistent with past practice, or in
accordance with their terms, of liabilities reflected or reserved
against in the Latest Balance Sheet or incurred since June 30, 1997 in
the ordinary course of business consistent with past practice;
provided, however, that in no event shall Trey or the Company repay
any long-term indebtedness except to the extent required by the terms
thereof;
(k) except as expressly provided herein, enter into any
lease, contract, agreement, commitment, arrangement or transaction
outside the ordinary course of business consistent with past practice;
(l) amend, modify or change any existing lease, contract
or agreement, other than in the ordinary course of business consistent
with past practice;
(m) waive, release, grant or transfer any rights of
value, other than in the ordinary course of business consistent with
past practice;
(n) lay off any of their employees;
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(o) change any of their banking or safe deposit
arrangements;
(p) change any of the accounting principles or practices
used by them, except for any change required by reason of a concurrent
change in generally accepted accounting principles and notice of which
is given in writing by Trey or the Company to Buyer, and except as
otherwise contemplated by this Agreement;
(q) take any action which would make any of the
representations or warranties of Trey, Seller or the Company contained
in this Agreement untrue or inaccurate as of any time from the date of
this Agreement to the Closing or would result in any of the conditions
set forth in this Agreement not being satisfied; or
(r) authorize or propose, or agree in writing or
otherwise to take, any of the actions described in this Section.
5.4 Further Actions. Subject to the terms and conditions hereof,
Trey, the Seller, Company and Buyer will each use their reasonable best efforts
to take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement, including using reasonable best
efforts: (i) to obtain prior to the Closing Date all licenses, Permits,
consents, approvals, authorizations, qualifications and orders of Governmental
Entities and parties to contracts with Trey and the Company as are necessary
for the consummation of the transactions contemplated hereby; (ii) to effect
all necessary registrations and filings (including filings required by the HSR
Act); and (iii) to furnish to each other such information and assistance as
reasonably may be requested in connection with the foregoing. Where the
consent of any third party is required under the terms of any of Trey's or the
Company's leases or contracts to the transactions contemplated by this
Agreement, the Seller, Trey and the Company will use reasonable best efforts to
obtain such consent on terms and conditions not less favorable than as in
effect on the date hereof. Trey, Seller, the Company and Buyer shall cooperate
fully with each other to the extent reasonably required to obtain such
consents.
5.5 Notification. Trey, Seller and the Company shall promptly
notify Buyer in writing and keep it advised as to (i) any litigation or
administrative proceeding filed or pending against Trey or the Company or, to
their Knowledge, threatened against any of them, including any such litigation
or administrative proceeding that challenges the transactions contemplated
hereby; (ii) any material damage or destruction of any Assets or of the assets
of Trey or the Company or to the Real Property; (iii) any material adverse
change in the results of operations of Trey or the Company; and (iv) any
variance from the representations and warranties contained in Section 3 hereof
or of any failure or inability on the part of Trey, Seller or the Company to
comply with any of their respective covenants contained in this Section 5.
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5.6 No Inconsistent Action. Subject to Sections 7.1 and 7.2
hereof, no party hereto shall take any action inconsistent with its obligations
under this Agreement or which could materially hinder or delay the consummation
of the transactions contemplated by this Agreement.
5.7 Acquisition Proposals. Neither Trey, Seller, the Company nor
any affiliate, director, officer, or authorized representative of any of them
shall, directly or indirectly (i) solicit, initiate or knowingly encourage any
Acquisition Proposal or (ii) engage in discussions or negotiations with any
person that is considering making or has made an Acquisition Proposal. Trey,
Seller and the Company shall immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any persons conducted
heretofore with respect to any Acquisition Proposal and, to the extent Trey,
Seller or Company is entitled to do so pursuant to the terms of the applicable
agreement, shall promptly request each such person who has heretofore entered
into a confidentiality agreement in connection with Acquisition Proposal to
return to Trey, Seller and the Company all confidential information hereto
furnished to such person by or on behalf of Trey, Seller or the Company. The
term "Acquisition Proposal," as used herein, means any offer or proposal for or
any indication of interest in, a merger or other business combination involving
Trey, the Company or any of their affiliates, or the acquisition of an equity
interest in or substantial portion of the Assets or the assets of, Trey, the
Company or affiliate of Trey or the Company, other than the transactions
contemplated by this Agreement.
5.8 Public Announcements. Except as may be required by Applicable
Law or recommended by counsel to Buyer, neither Buyer, on the one hand, nor
Seller, Trey and the Company, on the other, shall issue any press release or
otherwise make any public statements with respect to this Agreement or the
transactions contemplated hereby without the prior written consent of the other
party.
5.9 Amendment of Schedules. Each party hereto agrees that, with
respect to the representations and warranties of such party contained in this
Agreement, such party shall have the continuing obligation until the Closing to
supplement or amend promptly the Schedules hereto with respect to any matter
hereafter arising or discovered which, if existing or known at the date of this
Agreement, would have been required to be set forth or described in the
Schedules. For all purposes of this Agreement, including without limitation
for purposes of determining whether the conditions set forth in Sections 6.2(a)
and 6.3(a) have been fulfilled, the Schedules hereto shall be deemed to include
only that information contained therein on the date of this Agreement and shall
be deemed to exclude all information contained in any supplement or amendment
thereto; provided, however, that if the Closing shall occur, then all matters
disclosed pursuant to any such supplement or amendment at or prior to the
Closing shall be waived and no party shall be entitled to make a claim thereon
pursuant to the terms of this Agreement.
5.10 Title Insurance Commitment. Prior to the Closing Date, Trey
or the Company shall obtain at his expense and provide to Buyer commitments for
title insurance insuring the Company or Trey covering the Real Property issued
by one or more title companies acceptable to Buyer and
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Seller, (the "Title Company,") setting forth the status of title to the Real
Property and listing all encumbrances of record, shown by any surveys obtained
by the Buyer or within the Knowledge of Seller, Trey or the Company or any of
their affiliates, together with legible copies of all instruments referred to
in such commitment as constituting exceptions to or restrictions upon the fee
simple title of the owner to the Real Property. If such commitment shall
reveal material Encumbrances affecting Real Property which are not Permitted
Encumbrances, Seller shall cause such Encumbrances to be removed.
6. CONDITIONS PRECEDENT.
6.1 Conditions Precedent to Obligations of All Parties. The
respective obligations of the parties to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction (or waiver
by each party) at or prior to the Closing Date of each of the following
conditions:
(a) No Governmental Action. No action of any private
party or Governmental Entity shall have been taken or threatened and
no statute, rule, regulation or executive order shall have been
proposed, promulgated or enacted by any Governmental Entity which
seeks to restrain, enjoin or otherwise prohibit or to obtain damages
or other relief in connection with this Agreement or the transactions
contemplated hereby.
(b) Consulting Contract. The Company and Seller shall
have entered into a Consulting Contract in the form attached hereto as
Exhibit A.
(c) Leases. The Company and the owners of the facility
located in the Air Terminal area in Midland, Texas described in
Schedule 5.3 (the "Lease Real Property") shall have entered into a
Lease Agreement in the form attached hereto as Exhibit B.
(d) Hart-Scott-Rodino Act. All required filings under
the Hart-Scott-Rodino Act shall have been made as required and the
waiting period (and any extension thereof) under the Hart-Scott-Rodino
Act relating to the transactions contemplated hereby shall have
expired or been terminated without government objection thereto.
6.2 Conditions Precedent to Obligations of Buyer. The obligations
of Buyer under this Agreement are subject to the satisfaction (or waiver by
Buyer) at or prior to the Closing Date of each of the following conditions:
(a) Accuracy of Representations and Warranties. All
representations and warranties of Trey, Seller and the Company
contained herein or in any certificate or document delivered to Buyer
pursuant hereto shall be true and correct on and as of the Closing
Date, with the same force and effect as though such representations
and warranties had been made
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on and as of the Closing Date, except as expressly contemplated or
permitted by this Agreement.
(b) Performance of Agreements. Trey, Seller and the
Company shall have performed all obligations and agreements, and
complied with all covenants and conditions, contained in this
Agreement to be performed or complied with by them prior to or at the
Closing Date.
(c) Actions and Proceedings. All corporate actions,
proceedings, instruments and documents required to carry out the
transactions contemplated by this Agreement or incidental thereto and
all other related legal matters shall be reasonably satisfactory to
counsel for Buyer, and such counsel shall have been furnished with
such certified copies of such corporate actions and proceedings and
such other instruments and documents as it shall have reasonably
requested.
(d) Title. On the Closing Date, Buyer shall be satisfied
in its reasonable discretion as to the Seller's ownership of the
Shares and the Assets free and clear of all Encumbrances.
(e) Licenses and Consents. All licenses, Permits,
consents, approvals, authorizations, qualifications and orders of
governmental authorities which are reasonably necessary to enable
Buyer to own the Trey Shares, the Company Shares, the Assets and the
business of the Company and to conduct the business after the Closing
in substantially the same manner as the assets of the Company are
owned and the business is being conducted as of the date hereof shall
be in full force and effect.
(f) Environmental Matters. Buyer shall, at its option,
have obtained one or more Environmental Assessments and shall not have
discovered any events, occurrences or conditions at or affecting the
business of Trey, the Company or the Real Property, other than as
described on Schedule 3.14 hereto, which in the aggregate could
reasonably be expected to cause the Company to incur expenses in
excess of $50,000 for remediation of existing environmental conditions
or for past exposure on-site or off-site of any person or property to
any Hazardous Materials. For purposes of this Section 6.2(f), an
"Environmental Assessment" is an environmental report or reports on
the Real Property by an environmental engineering firm or firms
selected by Buyer.
(g) Opinion of Counsel to Trey, Seller and the Company.
Milburn and Peterson, counsel for Trey, Seller and the Company, shall
have furnished to Buyer its written opinion, dated the Closing Date,
in a form acceptable to Buyer.
(h) Operation. The businesses of Trey and the Company
shall have been operated and maintained substantially in the manner in
which they have been operated and maintained previously in the
ordinary course of business.
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(i) Material Adverse Change. There shall have been no
material adverse change in the Assets or the business assets,
financial condition or results of operations, of Trey or the Company
from the date of this Agreement until the Closing Date.
(j) Facts or Omissions. Buyer shall not have discovered
after the date of this Agreement, any fact or omission materially
adverse to the condition or results of operations or prospects of the
Assets, Trey or the Company.
(k) Non-Competition Agreement. Pool Company Texas Ltd.
and Seller shall have entered into a Non- Competition Agreement in the
form attached hereto as Exhibit C.
(l) Disposition of Certain Assets. The Seller and Trey
shall have completed to the satisfaction of Buyer for the sale of the
assets listed in Schedule 6.2 from Trey to Seller or his designee for
a total purchase price of $1,194,056 payable by Seller on the Closing
Date. It is understood and agreed that in the event such transfer
will expose the Company or Trey to federal income tax liability in
excess of the $162,728 reserve therefore contained in the Company's
Latest Balance Sheet, such excess shall be accrued for by Trey before
Closing and reimbursed by Seller to Buyer at Closing.
(m) Survey. Buyer shall have received, at its own
expense, a survey of the Real Property prepared by a licensed surveyor
which shall (a) reflect the actual dimensions of, and area within, the
Real Property, the location of all easements, set-back lines,
encroachments or overlaps thereon or thereover, and the outside
boundary lines of all improvements, (b) identify all (except solely as
any such exception relates to encroachments constituting Permitted
Encumbrances), easements, set-back lines and other matters referred to
in the title commitment, (c) include the surveyor's registered number
and seal, the date or dates of the survey and a certificate
satisfactory to Buyer of such surveyor, (d) reflect that there is
access to and from the Real Property from a publicly dedicated street
or road, (e) be sufficient to cause the Title Company to delete the
printed exception for "discrepancies, conflicts or boundary lines, or
encroachments, or any overlapping of improvements" from the owner's
title insurance policy to be delivered pursuant to Section 6.2(n)(ix)
hereof (except solely as any such exception relates to encroachments
constituting Permitted Encumbrances), (f) reflect any area that has
been designated by the Federal Insurance Administration, the Army
Corps of Engineers or any other governmental agency or body as being
subject to special or increased flooding hazards, (g) show all items
of record affecting such property, (h) contain a metes and bounds
description of each such parcel of Real Property and (i) in general,
comply with the requirements of an ALTA/ASCM land title survey.
(n) Other Documents. Buyer shall have received the
certificates, instruments and documents listed below:
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(i) The stock certificates representing the Trey
Shares duly endorsed in blank, or accompanied by stock powers
duly executed in blank, and otherwise in form acceptable to
Buyer for transfer on the books of Trey.
(ii) The minute books, stock records and corporate
seals of Trey and the Company certified as complete and
correct as of the Closing Date by the secretary or an
assistant secretary of each of Trey and the Company.
(iii) All of Trey's and the Company's books and
records, including without limitation minute books, corporate
charter, bylaws, stock records, bank account records,
accounting records, computer records and all contracts with
third parties.
(iv) The written resignations of such directors
and officers of Trey and the Company and their Subsidiaries,
if any, as Buyer shall, at least two days prior to the Closing
Date, specify in writing to Trey, such resignations to be
effective concurrently with the Closing on the Closing Date.
(v) A copy of the resolutions of the Boards of
Directors of Trey and the Company authorizing execution,
delivery and performance by the Company of this Agreement and
electing the new officers and directors specified pursuant to
Section 1.3 hereof, certified by the secretary or an assistant
secretary of each of Trey and the Company.
(vi) Certificates from the Secretary of State of
Texas and the Comptroller of Public Accounts of the State of
Texas, each dated not more than five days prior to the Closing
Date, as to the legal existence and good standing,
respectively of Trey and the Company.
(vii) Releases in form and substance satisfactory
to Buyer executed by the Seller releasing Trey and the Company
from any liability or obligation to the Seller.
(viii) A Bill of Sale in the form of Exhibit D
transferring all of the Assets to Buyer or its nominee,
together with all necessary Motor Vehicle Certificates, in all
cases duly executed by the Seller.
(ix) An Owner's Policy of Title Insurance issued
by the Title Company covering the Real Property insuring good
and indefeasible title in Company or Trey and containing no
exception other than the Permitted Exceptions and the standard
printed exceptions.
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(x) Such other certificates, instruments and
documents as may be reasonably requested by Buyer prior to the
Closing Date to carry out the intent and purposes of this
Agreement.
(o) Norton Company shall have executed and delivered a
release of liens against the Shares and certain assets of the Company
in form and substance satisfactory to Buyer and, in connection
therewith, the Company shall have reversed its accrual for
supplemental interest due Norton on the Company's books of account and
recorded the federal income tax liability resulting from such
reversal.
(p) The Company shall have entered into key employee
bonus arrangements with certain employees who will receive in the
aggregate $6,436,020 and the related liability, payroll taxes and
federal income tax receivable associated therewith shall have been
accrued on the Company's books of account.
6.3 Conditions Precedent to the Obligations of the Seller. The
obligations of the Seller under this Agreement are subject to the satisfaction
(or waiver by the Seller) at or prior to the Closing Date of each of the
following conditions:
(a) Accuracy of Representations and Warranties. All
representations and warranties of Buyer contained herein or in any
certificate or document delivered to the Seller pursuant hereto shall
be true and correct on and as of the Closing Date, with the same force
and effect as though such representations and warranties had been made
on and as of the Closing Date, except as contemplated or permitted by
this Agreement.
(b) Performance of Agreements. Buyer shall have
performed all obligations and agreements, and complied with all
covenants and conditions contained in this Agreement to be performed
or complied with by it prior to or at the Closing Date.
(c) Actions and Proceedings. All corporate actions,
proceedings, instruments and documents required to carry out the
transactions contemplated by this Agreement or incidental thereto and
all other related legal matters shall be reasonably satisfactory to
counsel for the Seller, and such counsel shall have been furnished
with such certified copies of such corporate actions and proceedings
and such other instruments and documents as it shall have reasonably
requested.
(d) Opinion of Counsel to Buyer. Gardere Wynne Sewell &
Riggs, L.L.P. to Buyer, shall have furnished to Seller its written
opinion, dated the Closing Date, in a form acceptable to Seller.
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(e) Other Documents. Seller shall have received the
certificates, instruments and documents listed below:
(i) Such certificates, instruments and documents
as may be reasonably requested by Sellers prior to the Closing
Date to carry out the intent and purposes of this Agreement.
(ii) A copy of the resolutions of the Boards of
Director of Buyer authorizing execution, delivery and
performance by Buyer of this Agreement, certified by the
secretary or an assistant secretary of Buyer.
(f) Payment of Consideration. Seller shall have received
the cash set forth in Section 1.2 to be paid at the Closing.
(g) Trey or the Company shall have paid the indebtedness
owed Norton Company in the amount of approximately $1,529,672 and
Steve L. Holifield in the amount of $308,000 by wire transfer or
other agreed method.
7. TERMINATION; AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated and the
transaction contemplated hereby abandoned at any time prior to the Closing in
the following manner:
(a) by mutual written consent of Seller and the Company,
on the one hand, and Buyer, on the other; or
(b) by Seller, if, on the Closing Date, any of the
conditions set forth in Sections 6.1 and 6.3 shall not have been
satisfied and shall not have been waived by Seller;
(c) by Buyer, if, on the Closing Date, any of the
conditions set forth in Sections 6.1 and 6.2 shall not have been
satisfied and shall not have been waived by Buyer; or
(d) by either Sellers or Buyer if the Closing shall not
have occurred on or before September 30, 1997, unless such failure to
close shall be due to a breach of this Agreement by the party seeking
to terminate this Agreement pursuant to this clause.
7.2 Effect of Termination. In the event of the termination of
this Agreement pursuant to Section 7.1 by Seller, on the one hand, or Buyer, on
the other, written notice thereof shall forthwith be given to the other party
specifying the provision hereof pursuant to which such termination is made, and
this Agreement shall become void and have no effect, except that the agreements
contained in this Section and in Section 9.12 shall survive the termination
hereof. Nothing contained in this Section shall relieve any party from
liability for damages actually incurred as a result of any breach of this
Agreement.
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7.3 Amendment. This Agreement may not be amended except by an
instrument in writing signed by or on behalf of all the parties hereto.
7.4 Waiver. Each of Trey, Seller and the Company, on the one
hand, and Buyer, on the other, may (i) waive any inaccuracies in the
representations and warranties of the other contained herein or in any
document, certificate or writing delivered pursuant hereto or (ii) waive
compliance by the other with any of the other's agreements or fulfillment of
any conditions to its own obligations contained herein. Any agreement on the
part of a party hereto to any such waiver shall be valid only if set forth in
an instrument in writing signed by or on behalf of such party. No failure or
delay by a party hereto in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
8. INDEMNIFICATION
8.1 Indemnification by the Seller. Subject to the provisions of
this Section 8, the Seller, shall (without any right of indemnification or
contribution from Trey or the Company) protect, indemnify and hold harmless
Buyer, its subsidiaries and affiliates (including Trey and the Company) and
each officer, director and agent of Buyer, its subsidiaries and affiliates
(including Trey and the Company) and each person who controls Buyer in respect
of any losses, claims, damages, liabilities, deficiencies, delinquencies,
defaults, assessments, fees, penalties or related costs or expenses, including,
but not limited to, court costs and attorneys', and accountants' fees and
disbursements, but reduced by any net amount paid to Buyer on account of such
loss by any insurance policies (collectively referred to herein as "Damages")
to which Buyer or its subsidiaries and affiliates (including Trey and the
Company) may become subject if such Damages arise out of or are based upon the
breach of any of the representations and warranties (whether such breach
occurred as of the date of execution of this Agreement or as of the Closing
Date), covenants or agreements made by Trey, Seller or the Company in this
Agreement, including the Exhibits and Schedules hereto, or in any certificate
or instrument delivered by or on behalf of Trey, Seller or the Company pursuant
to this Agreement, except for the representations and warranties made in
Section 3.16.
8.2 Tax Indemnification by Seller Subject to provisions of this
Section 8, Seller hereby agrees to protect, defend, indemnify and hold harmless
Buyer and the Company from and against, and agrees to pay:
(i) all Damages to which Buyer or its subsidiaries and
affiliates (including Trey and the Company) may become subject if such
Damages arise out of or are based upon the breach of any of the
representations and warranties (whether such breach occurred as of the
date of execution of this Agreement or as of the Closing Date)
contained in Section 3.16 of this Agreement;
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(ii) all Taxes of Trey and the Company with respect to any Tax year
or portion thereof ending on or before the Closing Date, to the extent
such Taxes are not based on the operations of Trey and the Company in
the ordinary course of business for the period from the Latest Balance
Sheet through the Closing Date and are not reflected in the reserve
for Tax Liability excluding any reserve for deferred Taxes established
to reflect timing differences between book and Tax income reflected on
the latest Balance Sheet or not accrued for by Trey and/or the Company
and listed in Schedule 8.2.
8.3 Indemnification by Buyer. Subject to the provisions of this
Section 8, Buyer shall protect, indemnify and hold harmless the Seller, in
respect of any Damages to which Seller may become subject if such Damages arise
out of or are based upon the breach of any of the representations, warranties,
covenants or agreements made by Buyer in this Agreement, including the Exhibits
and Schedules hereto, or in any certificate delivered by or on behalf of Buyer
pursuant to this Agreement.
8.4 Indemnification Procedures. The obligations and liabilities
of each indemnifying party hereunder with respect to claims resulting from the
assertion of liability by the other party or third parties shall be subject to
the following terms and conditions:
(a) If any person shall notify an indemnified party (the
"Indemnified Party") with respect to any matter which may give rise to
a claim for indemnification (a "Claim") against Buyer or Seller (the
"Indemnifying Party") under this Section 8, then the Indemnified Party
shall promptly notify each Indemnifying Party thereof in writing;
provided, however, that no delay on the part of the Indemnified Party
in notifying any Indemnifying Party shall relieve the Indemnifying
Party from any obligation hereunder unless (and then solely to the
extent) the Indemnifying Party thereby is prejudiced.
(b) Any Indemnifying Party will have the right to defend
the Indemnified Party against the Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (i) the
Indemnifying Party notifies the Indemnified Party in writing within 15
days after the Indemnified Party has given notice of the Claim that
the Indemnifying Party will indemnify the Indemnified Party from and
against the entirety (subject to any limitations contained in Section
8) of any Damages the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of or caused by the Claim,
and (ii) the Indemnifying Party conducts the defense of the Claim
actively and diligently and in good faith.
(c) So long as the Indemnifying Party is conducting the
defense of the Claim in accordance with Section 8.4(b) above, (i) the
Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Claim, (ii) the
Indemnified Party will not consent to the entry of any judgment or
enter into any settlement with respect to the Claim without the prior
written consent of the Indemnifying Party (not to be withheld
unreasonably), and (iii) the Indemnifying Party will not consent to
the entry of
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<PAGE> 34
any judgment or enter into any settlement with respect to the Claim
without the prior written consent of the Indemnified Party (not to be
withheld unreasonably).
(d) In the event any of the conditions in Section
8.4(b)(i) above is or becomes unsatisfied, however, (i) the
Indemnified Party may defend against, and consent to the entry of any
judgment or enter into any settlement with respect to, the Claim in
any manner it reasonably may deem appropriate (and the Indemnified
Party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith), (ii) the Indemnifying
Party will remain responsible for any damages the Indemnified Party
may suffer resulting from, arising out of, relating to, in the nature
of, or caused by the Claim to the fullest extent provided in this
Section 8.
(e) In connection with Section 8.2 above, Seller
understands that Buyer will close the books of Trey and the Company
and file 1997 federal and state tax returns therefor and Seller agrees
to reimburse Buyer fifty percent (50%) of the cost (total
reimbursement not to exceed Two Thousand, Five Hundred Dollars
($2,500.00) of the preparation of the Trey and the Company 1997 U.S.
federal income tax return(s). Buyer shall engage an independent public
accounting firm, subject to Seller's concurrence which shall not be
unreasonably withheld, to prepare the Trey and the Company 1997 U.S.
federal income tax return(s). Buyer shall provide Seller, or Seller's
designee, copies thereof for review and suggested changes thereto at
least ten (10) business days prior to the filing due date, including
any extensions, of said Tax Returns. The Buyer will have the final
decision as to the presentation, inclusion, etc. of any Tax Return
item. In the event of a deficiency assessment before any Governmental
entity relating to tax returns for Trey and the Company, Buyer shall
give the Seller, or Seller's designee, prompt written notice of such
deficiency assessment and Seller shall, upon timely written notice to
the Buyer, be entitled to conduct the defense thereof at Seller's
expense and so long as any such defense is not, in any way,
detrimental to the Buyer. The Buyer, at its own expense, may
co-defend any deficiency assessment that the Seller chooses to protest
and defend.
8.5 Limitation on Indemnification. No party shall be required to
make indemnification pursuant to Sections 8.1, 8.2 and 8.3 of this Agreement
unless and until the aggregate of all such indemnification claims against such
party exceeds $250,000 and then only to the extent that such aggregate amount
exceeds $250,000.
8.6 Certain Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, NO PARTY SHALL BE LIABLE TO OR OTHERWISE RESPONSIBLE TO ANY PERSON
UNDER THIS AGREEMENT FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR LOSS OF
PROFITS THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE PERFORMANCE OR
BREACH THEREOF, PROVIDED, IN NO EVENT SHALL ANY LOSSES OR DAMAGES PAYABLE AS A
RESULT OF A THIRD PARTY CLAIM BE CONSIDERED INCIDENTAL OR CONSEQUENTIAL
DAMAGES.
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8.7 Survival. Except as otherwise provided in this Section 8.7,
the representations, warranties, covenants and agreements set forth in Articles
3 and 4 of this Agreement and in any certificate or instrument delivered in
connection herewith shall survive the Closing and continue in full force and
effect until the second anniversary (or in the case of Section 3.16, the third
anniversary) of the Closing Date, following which no party may bring any action
or present any claim for the inaccuracy or breach of such representations,
warranties, covenants and agreements. Notwithstanding the foregoing, Seller's
obligations with respect to the representations and warranties set forth in
Section 3.5 and the indemnity obligations set forth in Section 8.2, shall
survive the Closing and continue in full force and effect thereafter for a
period of six years (subject to any applicable statutes of limitation)
provided, however, Buyer will not extend the Statutes of Limitation for any
taxes reported on any tax return without the written consent of Seller (not to
be withheld unreasonably).
9. MISCELLANEOUS.
9.1 Payment of Certain Fees and Expenses. The Seller shall pay
the fees and expenses incurred by him, the Company and Trey in connection with
the negotiation, preparation, execution and performance of this Agreement,
including, without limitation, brokers' fees, attorneys' fees and accountants'
fees. Buyer shall pay the fees and expenses incurred by it in connection with
the negotiation, preparation, execution and performance of this Agreement,
including, without limitation, brokers' fees, attorneys' fees. and accountants'
fees.
9.2 Notices. All notices, requests, demands and other
communications which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally
or mailed, first class mail, postage prepaid, return receipt requested, as
follows:
(a) If to Trey, the Company and Seller:
Steve L. Holifield
P. O. Box 60910
Midland, Texas 79711
with a copy to:
Robert C. Peterson, Attorney
Milburn & Peterson, P.C.
620 North Grant Street, Suite 1100
Odessa, Texas 79761
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(b) If to Buyer:
Pool Company
10375 Richmond Avenue
Houston, Texas 77042
Attention: President
Facsimile: 713/954-3326
with a copy to:
Pool Company
10375 Richmond Avenue
Houston, Texas 77042
Attention: General Counsel
Facsimile: 713/954-3326
or to such other address as either party shall have specified by notice in
writing to the other party. All such notices, requests, demands and
communications shall be deemed to have been received on the earlier of the date
of delivery or on the fifth business day after the mailing thereof.
9.3 Entire Agreement. This Agreement (including the Exhibits and
Schedules hereto) constitutes the entire agreement between the parties hereto
and supersedes all prior agreements and understandings, oral and written,
between the parties hereto with respect to the subject matter hereof.
9.4 Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
permitted heirs, personal representatives, successors and assigns. Nothing in
this Agreement, expressed or implied, is intended to confer on any person other
than the parties hereto or their respective heirs, personal representatives,
successors and assigns, any rights, remedies, obligations or liabilities under
or by reason of this Agreement.
9.5 Assignability. This Agreement shall not be assignable by the
Sellers without the prior written consent of Buyer or by Buyer without the
prior written consent of the Seller; provided, however, that Buyer shall be
entitled to assign this Agreement to an affiliate without the consent of
Seller.
9.6 Amendment; Waiver. This Agreement may be amended,
supplemented or otherwise modified only by a written instrument executed by the
parties hereto. No waiver by any party of any of the provisions hereof shall
be effective unless explicitly set forth in writing and executed by the
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<PAGE> 37
party so waiving. Except as provided in the preceding sentence, no action
taken pursuant to this Agreement, including without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants, or agreements contained herein, and in any documents
delivered or to be delivered pursuant to this Agreement and in connection with
the Closing hereunder. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.
9.7 Limitation on Interest. Regardless of any provision contained
herein or any other document executed in connection with this Agreement, the
parties hereto shall not be obliged to pay, and the parties hereto shall never
be entitled to charge, reserve, receive, collect or apply, as interest (it
being understood that interest shall be calculated as the aggregate of all
charges that are contracted for, charged, reserved, received, collected,
applied or paid which constitute interest under Applicable Law) payable
hereunder any amount in excess of the maximum non-usurious contract rate of
interest allowed from time to time by Applicable Law, and in the event any of
the parties hereto ever charges, reserves, receives, collects or applies, as
interest, any such excess, at the option of the payor of such interest, such
amount shall be deemed a partial prepayment of the amount payable hereunder or
promptly refunded to the payor of such interest.
9.8 Section Headings; Index. The section headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
9.9 Severability. If any provision of this Agreement shall be
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Agreement shall not be affected and
shall remain in full force and effect.
9.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
9.11 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
9.12 Dispute Resolution. Any dispute, difference or question
("Dispute") between Buyer and Seller ("Disputing Parties"), shall be resolved
in accordance with the following dispute resolution procedures:
(a) Good Faith Negotiations. The Disputing Parties shall
endeavor, in good faith, to resolve the Dispute through negotiations.
If the Parties fail to resolve the Dispute within a reasonable time,
each Party shall nominate a senior officer or officers of its
management to meet at any mutually agreed location to resolve the
Dispute.
(b) Mediation. In the event that the negotiations do not
result in a mutually acceptable resolution, either Disputing Party may
require that the Dispute shall be referred
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<PAGE> 38
to mediation in Houston, Texas. One mediator shall be appointed by
the agreement of the Parties. The mediator shall be suitably
qualified person having no direct or personal interest in the outcome
of the Dispute. Mediation shall be held within thirty (30) days of
referral to mediation. In the event the Disputing Parties are unable
to agree on a mediator, the Parties agree to the appointment of a
mediator pursuant to the Commercial Mediation Rules of the American
Arbitration Association.
(c) Arbitration. In the event the Parties are
unsuccessful in their mediation of the Dispute, or in the event of any
Dispute about the scope of or compliance by a party with the terms of
this Section 9.12, either Disputing Party may initiate a binding
arbitration proceeding by requesting that the Dispute be settled by
arbitration by an arbitrator mutually acceptable to the Disputing
Parties in an arbitration proceeding conducted in the City of Houston,
Texas in accordance with the rules existing at the date hereof of the
American Arbitration Association. If the Disputing Parties hereto
cannot agree on an arbitrator within ten (10) business days of the
initiation of the arbitration proceeding, an arbitrator shall be
selected for the Disputing Parties by the American Arbitration
Association. The Disputing Parties shall use their reasonable best
efforts to have the arbitral proceeding concluded and a judgment
rendered by the arbitrator within forty (40) business days of the
initiation of the arbitration proceeding. The decision of such
arbitrator shall be final, and judgment upon the award rendered by the
arbitration may be entered in any court having jurisdiction thereof,
and the costs (including, without limitation, reasonable fees and
expenses of counsel and experts for the Disputing Parties) of such
arbitration (including the costs to enforce or preserve the rights
awarded in the arbitration) shall be borne by the Disputing Party whom
the decision of the arbitrator is against. If the decision of the
arbitrator is not clearly against one of the disputing Parties or the
decision of the arbitrator is against more than one Disputing Party on
one or more issues, the costs of such arbitration shall be borne
equally by the Disputing Parties.
10. DEFINITIONS.
10.1 Defined Terms. As used in this Agreement, each of the
following terms has the meaning given it below:
"affiliate" means, with respect to any person, any other
person that, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control
with, such person.
"Applicable Law" means any statute, law, rule or regulation or
any judgment, order, writ, injunction or decree of any Governmental
Entity to which a specified person or property is subject.
"Code" means the Internal Revenue Code of 1986, as amended and
in effect on the Closing Date.
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"Encumbrances" means liens, charges, pledges, options,
mortgages, deeds of trust, security interests, claims, restrictions
(whether on voting, sale, transfer, disposition or otherwise),
licenses, sublicenses, easements and other encumbrances of every type
and description, whether imposed by law, agreement, understanding or
otherwise.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"GAAP" means generally accepted accounting principles as in
effect on the date of this Agreement.
"Governmental Entity" means any court or tribunal in any
jurisdiction (domestic or foreign) or any public, governmental or
regulatory body, agency, department, commission, board, bureau or
other authority or instrumentality (domestic or foreign).
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvement
Act of 1976, as amended and the rules and regulations promulgated
thereunder.
"Intellectual Property" means patents, trademarks, service
marks, trade names, copyrights, trade secrets, know-how, inventions,
and similar rights, and all registrations, applications, licenses and
rights with respect to any of the foregoing.
"IRS" means the Internal Revenue Service.
"Knowledge" means (i) with respect to any natural person the
actual knowledge of such natural person in their normal course of
affairs and (ii) with respect to a corporation or other business
entity, the actual knowledge in their normal course of affairs of any
shareholder (other equity owner), officer or director of such
corporation or business entity.
"Permits" means licenses, permits, franchises, consents,
approvals and other authorizations of or from Governmental Entities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, enterprise,
unincorporated organization or Governmental Entity.
"Permitted Encumbrances" shall mean (i) liens for
non-delinquent ad valorem taxes, non-delinquent statutory liens
arising other than by reason of Seller's, Trey's or Company's
default, (ii) liens, leases or security interests in respect of motor
vehicles and transportation equipment used in the ordinary course of
business, and (iii) such liens, minor imperfections of title or
easements on real property, leasehold estates or personalty as do not
in any material respect detract from the value thereof and do not
interfere with the present use of the properties subject thereto.
"Proceedings" means all proceedings, actions, claims, suits,
investigations and inquiries by or before any arbitrator or
Governmental Entity.
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<PAGE> 40
"Real Property" means the Real Property defined in Section 3.6
as further described in Schedule 3.6.
"reasonable best efforts" means a party's best efforts in
accordance with reasonable commercial practice and without the
incurrence of unreasonable expense or the initiation of litigation.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means any corporation more than 30 percent of
whose outstanding voting securities, or any partnership, joint
venture, or other entity more than 30 percent of whose total equity
interests is owned, directly or indirectly, by the Company.
"Taxes" means any income taxes or similar assessments or any
sales, excise, occupation, use, ad valorem, property, production,
severance, transportation, employment, payroll, franchise or other tax
imposed by any United States federal, state or local (or any foreign
or provincial) taxing authority, including any interest, penalties or
additions attributable thereto.
"Tax Return" means any return or report, including any related
or supporting information, with respect to Taxes.
"Treasury Regulations" means one or more treasury regulations
promulgated under the Code by the Treasury Department of the United
States.
10.2 References and Interpretation. All references in this
Agreement to Sections, paragraphs and other subdivisions refer to the Sections,
paragraphs and other subdivisions of this Agreement unless expressly provided
otherwise. The words "this Agreement", "herein", "hereof", "hereby",
"hereunder" and words of similar import refer to this Agreement as a whole and
not to any particular subdivision unless expressly so limited. Whenever the
words "include", "includes" and "including" are used in this Agreement, such
words shall be deemed to be followed by the words "without limitation". Each
reference herein to a Schedule, Exhibit or Annex refers to the item identified
separately in writing by the parties hereto as the described Schedule, Exhibit
or Annex to this Agreement. All Schedules, Exhibits and Annexes are hereby
incorporated in and made a part of this Agreement as if set forth in full
herein. References to any document (including this Agreement) are references
to that document as amended, consolidated, supplemented, novated or replaced by
the parties from time to time in accordance with Section 9.6. References to
any law are references to that law as amended, consolidated, supplemented or
replaced from time to time and all rules and regulations promulgated
thereunder. Nothing in the Schedules shall be deemed adequate to disclose an
exception to a representation or warranty made herein unless the Schedule
identified the exception with reasonable particularity and describes the
relevant facts in reasonable detail. Each representation, warranty and
covenant contained herein shall have independent significance. If any party
has breached any representation, warranty or covenant contained herein, the
fact that there exists another representation, warranty or covenant relating to
the same subject matter (regardless
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<PAGE> 41
of the relative levels of specificity) that such party has not breached shall
not detract from or mitigate the fact that the party is in breach of the first
representation, warranty or covenant. References to time are references to
Houston, Texas time.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement on the date first above written.
POOL COMPANY SELLER
By: \s\ William J Myers \s\ Steve L. Holifield
------------------------ ------------------------
Name: William J Myers STEVE L. HOLIFIELD
----------------------
Title: Group Vice President
---------------------
TREY SERVICES, INC. R & H WELL SERVICE, INC.
By: \s\ Steve L. Holifield By: \s\ Steve L. Holifield
---------------------- ----------------------
Name: Steve L. Holifield Name: Steve L. Holifield
-------------------- --------------------
Title: President Title: President
------------------- -------------------
36
<PAGE> 42
EXHIBIT A
CONSULTING CONTRACT
<PAGE> 43
CONSULTING CONTRACT
THIS CONTRACT executed this 16th day of October, 1997, between Pool
Company Texas Ltd., a Texas limited partnership, hereinafter called the
"Company," and Steve L. Holifield, hereinafter called "Consultant."
WHEREAS, Pool Company, an affiliate of the Company, and Seller as the
sole shareholder of Trey Services, Inc. ("Trey") have entered into an agreement
dated October 10, 1997 providing for the purchase by Pool Company of all of the
capital stock of Trey (the "Purchase Agreement");
WHEREAS, Consultant has served as the Chief Executive Officer of Trey
for in excess of ten (10) years and has the experience and background to assist
Company in its operations of Trey; and
WHEREAS, the Company desires to engage Consultant's services to assist
in the future operation of the business of Trey.
NOW THEREFORE, in consideration of the mutual promises hereinafter set
forth, the parties agree as follows:
1. The Company does hereby engage the services of Consultant as
more specifically described in, and on the terms and conditions set
forth in, this Contract, and Consultant accepts such engagement. The
term of such engagement shall, subject to the provisions of Section 6,
be for a period of three (3) years from the date hereof. Consultant
agrees to make available his services to Company for an average of ten
(10) days per calendar month during the term of this Contract.
2. The services to be rendered hereunder by Consultant and the
compensation to be paid therefor shall be as follows:
(a) Consultant shall assist the Company in policy matters
related to market strategy planning, equipment procurement,
evaluation and recommendation of new business lines or
ventures, relations with employees, customers and the public,
evaluation of equipment and facilities and such other policy
matters as the Company shall from time to time reasonably
request. In performing said services it is understood that
Consultant is not and shall not be an employee of the Company,
and accordingly shall not be entitled to employee benefits
afforded by the Company to its employees. Consultant, as an
independent contractor, shall be under the Company's direction
only with respect to the results to be achieved through his
services and not as to the manner of providing such services.
<PAGE> 44
Consultant shall report directly to and work under the direction of
Company's Group Vice President, U.S. Operations.
(b) Consultant shall be paid for his services at the rate
of One Hundred Fifty Thousand United States Dollars
(US$150,000.00) per annum, payable in equal semi-monthly
installments.
(c) Consultant shall be reimbursed for all reasonable
expenses incurred in the performance of his services pursuant
to this Contract. All such expenses shall be supported by
appropriate documentation in accordance with the Company's
procedures. Consultant shall comply with Company policies and
procedures that apply to travel and entertainment activities.
(d) During the term hereof Consultant shall be provided the
use of his current vehicles (Suburban - pickup) and will upon
termination hereof be afforded the opportunity to purchase same
at the then current book value.
3. Consultant agrees that he will faithfully, industriously and to
the best of his ability and experience and talent, perform all of the
duties that may be required of and from him pursuant to the expressed
and implicit terms hereof to the reasonable satisfaction of the
Company.
4. Consultant shall not, except in the course of the Company's
business or as otherwise instructed by management, in any fashion, form
or manner, either directly or indirectly, divulge, disclose or
communicate to any person, firm or corporation, in any manner
whatsoever, nor shall Consultant in any way utilize, any information of
any kind, nature, or description, concerning any matters affecting or
relating to the Company's business, its manner of operations, its
plans, processes or data of any kind, except such information as the
Company or its affiliated corporations shall have theretofore disclosed
publicly or which is otherwise in the public domain.
5. The Company shall be entitled to the sole benefit and exclusive
ownership of any inventions or improvements in plant, machinery,
processes, rigs, equipment, or other things used in the Company's
business that may be made or discovered by Consultant during the term
hereof and all patents for the same, and Consultant shall do all acts
necessary or required by the Company to give effect to this provision.
6. In the event Consultant shall become ill, injured, or in any
way incapacitated at any time during the term hereof so as to prevent
Consultant from performing the services required of him under this
Contract for a period in excess of one (1) continuous year, (the one
year anniversary of such incapacity being hereafter referred to as the
"Deemed Date of Incapacity"), or in the event Consultant dies during
the term of this Contract, then this Contract shall cease and
terminate, and the Company shall be under no liability to
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<PAGE> 45
Consultant except for payment to Consultant, or to the personal
representative of Consultant's estate in the case of death, of such
compensation payments and expense reimbursements as may be due
Consultant pursuant to Section 2 hereof up to the date of Consultant's
Deemed Date of Incapacity or death.
7. The covenants of Consultant contained herein are unique and any
material breach thereof would cause immediate and irreparable injury to
the Company for which there would be no adequate remedy at law.
Accordingly, this Contract shall be enforceable by injunction as well
as by such other appropriate legal or equitable remedies, either with
or without termination of this Contract.
8. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if delivered in person or if sent by telefax or by mail to the
following respective addresses (or such substitute address as either
party shall hereafter specify by notice to the other):
a) If to Company: Pool Company Texas Ltd.
c/o Pool Company
10375 Richmond Avenue
Houston, Texas 77042
Attention: Mr. W. J Myers
b) If to Consultant: Steve L. Holifield
P. O. Box 60927
Midland, Texas 79711
Notices shall be deemed to have been made when actually
received.
9. This Contract and performance hereunder shall be construed and
enforced in accordance with and pursuant to the laws of the State of
Texas.
10. No waiver or modification of this Contract nor any covenant,
condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith.
11. The parties agree that in the event any of the covenants
contained herein should be held by any court or other constituted legal
authority to be totally void or otherwise unenforceable in any
particular area or jurisdiction, then this Contract shall be deemed to
be amended and modified so as to eliminate herefrom that particular
area or jurisdiction as to which such covenant is so held to be void or
otherwise unenforceable, and, as to all other areas and jurisdictions
covered hereby, the terms and provisions hereof shall remain in full
force and effect as originally written. The parties further agree that
in the event any
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<PAGE> 46
of the covenants set forth herein should be held by any court or other
constituted legal authority to be effective in any particular area or
jurisdiction only if said covenant is modified to limit its duration or
scope, then this Contract shall be deemed to be amended and modified
with respect to that particular area of jurisdiction so as to comply
with the order of any such court or other constituted legal authority,
and, as to all other areas or jurisdictions, the terms and conditions
hereof shall remain in full force and effect as originally written.
12. This Contract shall be binding on and inure to the benefit of
the respective parties hereto and their executors, administrators,
heirs, personal representatives, successors and assigns, except that
this Contract is a personal obligation of Consultant which may not be
assigned by either party without the consent of the other.
IN WITNESS WHEREOF, the parties have duly executed this Contract in
Houston, Texas, as of the day first hereinabove written.
POOL COMPANY TEXAS LTD.
By: Pool Company, General Partner
By:
----------------------------- ---------------------------------
STEVE L. HOLIFIELD
Name:
-----------------------------
Title:
-----------------------------
4
<PAGE> 47
EXHIBIT B
LEASE AGREEMENT
<PAGE> 48
LEASE
THIS LEASE, made and entered into by and between III MILLENNIUM
CORPORATION (hereinafter called "Landlord"), and POOL COMPANY TEXAS LTD.
(hereinafter called "Tenant") this the 16th day of October, 1997.
THAT FOR and in consideration of the covenants and agreements
hereinafter set forth to be kept and performed by Tenant, Landlord hereby
demises and leases to Tenant, and Tenant does hereby take, accept and hire from
Landlord, the following premises:
Approximately 8,500 square feet of the 9930 West Highway 80 Building
("Building") designated as Space E as shown in red on the diagram and
plat attached hereto as Exhibit A.
For the term, at the rental, and subject to and upon the terms,
conditions and agreements herein set forth as follows:
1. DEMISED PREMISES.
(a) The premises demised and leased hereunder (hereinafter
referred to as the "Demised Premises", or "Premises"), are situated in Midland
County, Texas. Said Demised Premises are to be occupied and used by Tenant for
any lawful purpose.
(b) Out of the Demised Premises Tenant agrees to furnish
during the term hereof Steve L. Holifield, Sr. that certain office area that
he currently occupies, including all utilities thereto, containing
approximately 800 square feet, more particularly designated in red on the
diagram attached hereto as Exhibit B.
2. TERM. The term of this lease shall be for a period of five
(5) years commencing on October 16, 1997, and ending on the 15th day of
October, 2002.
3. MINIMUM RENTAL. Tenant has paid in advance the Rental for the
use and occupancy of the Demised Premises, the receipt of which is hereby
acknowledged.
4. ADDITIONAL RENTAL. As Additional Rental Tenant shall pay to
Landlord within ten (10) days upon rendition of a statement for the following:
(a) One-third (1/3) of the Premiums paid for fire and extended
coverage insurance maintained by Landlord on the building and improvements as
described in Paragraph 10(b) below.
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<PAGE> 49
(b) One-third (1/3) of the ad valorem taxes rendered against
the Premises.
(c) Excluding Tenant's obligations for repairs and
maintenance in Paragraph 6, one-third (1/3) of all maintenance and repair costs
for the entire building, lot and surrounding property and supporting
facilities, including landscaping, service areas, mechanical rooms, parking
areas, and driveways.
5. OWNERSHIP OF IMPROVEMENTS. During the term hereof, title to
all structures, improvements and facilities constructed, erected or installed
by Landlord or Tenant upon the Demised Premises shall be vested in Landlord,
except that Landlord or its successors or assigns shall in no way be entitled
to or have the right to use or ownership of the Tenant's trade name during the
term hereof or upon the expiration or termination of this Lease for any reason
whatsoever.
6. REPAIRS AND MAINTENANCE. Tenant shall, at its own expense,
maintain the leased premises and appurtenances in good repair. Tenant shall
also keep in repair or replace the plumbing heating and air conditioning system
and electrical equipment. It is understood that Tenant is not required to
maintain the leased premises in a condition equal to new, but Tenant shall at
all times keep and maintain the premises in such condition as to minimize as
far as is practicable the effects of use, decay and weather. Tenant shall not
be responsible for repairing damages to the exterior or interior of the
building caused by the elements, fire or other causes beyond the control of
Tenant. At the end of the term hereof or any extension thereof, Tenant agrees
to deliver up the leased premises in as good a condition as at the beginning of
the term, natural deterioration by normal use and damage by fire and the
elements excepted. Tenant shall, at its sole cost and expense, make all
repairs and replacements or alterations to the Premises required by any
governmental authority and all necessary repairs and replacements of Tenant's
fixtures required for the proper conduct of Tenant's business. Tenant shall
forthwith, at its own cost and expense, replace with glass of the same quality
any cracked or broken glass including plate glass, other glass or breakable
material used in structural portions and any interior and exterior windows and
doors in the Premises. If Landlord provided Tenant with any warranty or
warranties relating to any system or equipment in the Premises, Tenant shall
comply with all of the terms and conditions of such warranty or warranties.
Tenant shall at all times keep the Premises and the immediate areas in front,
behind and adjacent to it, exterior entrances, exterior walls, all glass and
show windows, moldings and bulkheads, and all partitions, doors, floor
surfaces, fixtures, equipment and appurtenances thereof in good order,
condition and repair, and in a satisfactory condition of cleanliness, including
reasonable periodic painting of the interior and, if applicable, the exterior
of the Premises, damage by unavoidable casualty excepted. Tenant shall be
fully responsible and liable for the maintenance and lighting of all its
exterior signs, and shall periodically repaint metal surfaces that rust or
begin to deteriorate from any causes. Any damage to the exterior walls to
which a sign may be attached, including but not limited to rust stains and
structural cracking of the fascia, caused by Tenant's use of such sign, shall
be repaired by Tenant at its own cost. In addition to the foregoing, Tenant
shall install, repair, replace and
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<PAGE> 50
maintain fire extinguishers and other fire prevention equipment in the Premises
in accordance with the recommendations or requirements of Landlord's fire
engineer or Landlord's fire insurance carrier or in accordance with any future
recommendations of Landlord's fire insurance carrier or fire engineer, and in
accordance with applicable governmental codes.
7. WARRANTIES. Landlord covenants that Tenant paying the rent
herein reserved, and observing, performing and keeping all and singular the
provisions of this Lease to be kept or observed by Tenant, shall and may
lawfully, peacefully and quietly have, hold, use, occupy, possess, and enjoy
the leased premises, for and during the entire term hereto, without any let,
suit, hindrance, eviction, ejection, molestation or interruption whatsoever.
8. UTILITIES SERVICES. The Landlord represents that there is
available to the Tenant upon the Demised Premises facilities for the delivery
to and distribution within the Demised Premises of water, the removal of
sewage, electricity, telephones and for like common utilities. Tenant shall
pay for all utilities furnished to the Demised Premises.
9. INDEMNITY. From and after the date Tenant occupies the
premises, Tenant shall indemnify and hold harmless Landlord from and against
any and all claims arising from Tenant's use of the Demised Premises or the
conduct of its business or from any activity, work, or thing done, permitted or
suffered by Tenant in or about the Demised Premises, and shall further
indemnify and hold Landlord harmless from and against any and all claims
arising from any breach or default in the performance of any obligation on
Tenant's part to be performed under the terms of the Lease, or arising from any
act of negligence of Tenant, or any of its agents. Tenant, as a material part
of the consideration to Landlord, hereby assumes all risk of damage to property
or injury to persons in, upon, or about the Demised Premises from any cause and
Tenant hereby waives all claims in respect thereof against Landlord unless said
damage or injury is caused by negligence of Landlord or its agents.
10. INSURANCE - GENERAL LIABILITY AND PROPERTY DAMAGE.
(a) General liability. Tenant shall at all times during
the term hereof and at its own cost and expense, procure and continue in force
bodily injury liability and property damage liability insurance against
liability for injury to or death of any person in connection with the use,
operation or condition of the Demised Premises. Such insurance at all times
shall be in an amount of not less than One Million ($1,000,000.00) Dollars for
injuries to more than one person in any one accident, not less than Five
Hundred Thousand ($500,000.00) Dollars for injury to any one person, and not
less than Fifty Thousand ($50,000.00) Dollars with respect to damage to
property. Such insurance shall be written by good and responsible companies
reasonably acceptable to Landlord, and there shall be delivered to Landlord
customary certificates evidencing such paid-up insurance, which certificates
are to be issued by the insurance companies. Landlord and any mortgagee shall
be named as additional insureds.
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<PAGE> 51
(b) Property coverage. During the entire Term hereof,
Landlord shall procure and maintain in full force and effect with respect to
the building, a policy or policies of Fire and Extended Coverage Insurance.
Such insurance, at Landlord's election, may include, but is not limited to,
sprinkler leakage, vandalism and malicious mischief coverage, and any other
endorsements required by the holder of any fee or leasehold mortgage.
11. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS. If the improvements
on said premises shall be damaged or rendered untenable, or unusable, by fire
or other casualty, Landlord shall, within sixty (60) days from the date of such
damage or destruction, commence to repair or replace said improvements and the
same shall be completed with due diligence. If such repair or replacement has
not been completed within ninety (90) days of such damage, Tenant may terminate
this Lease, as of the date of such damage, upon thirty (30) days written notice
to Landlord. Landlord covenants and agrees that in the event of destruction or
damage of the building, improvements or any part thereof, and as often as any
building or improvement on said Premises shall be destroyed or damaged by fire,
windstorm or other casualty, Landlord shall rebuild, replace or repair the same
in such manner that the buildings and/or improvements so rebuilt and repaired
shall be of at least the same value as the buildings and/or improvements upon
the Demised Premises immediately prior to such damage or destruction.
Provided, however, anything in this Article to the contrary notwithstanding, in
the case of any damage or destruction occurring during the term hereof, to the
extent of fifty percent (50%) or more of the insurable value of the building,
Landlord may, at Landlord's option, (to be evidenced by notice in writing given
to Tenant with thirty (30) days after the occurrence of such damage or
destruction), in lieu of repairing or replacing such building and related
improvements owned by Landlord, such building and related improvements and any
insurance proceeds shall be retained by Landlord.
12. REMEDIES OF LANDLORD. If the rental provided for in paragraph
No. 3 or the Additional Rental provided for in paragraph No. 4 is not paid by
Tenant on the day when the same shall become due and payable, and shall
continue in default for a period of ten (10) days after written notice thereof
by Landlord to Tenant, or if Tenant shall default in the performance of any of
the other agreements, conditions, covenants or terms herein contained, or if
Tenant shall abandon the Leased Premises for a period of ten (10) days or more,
or if a petition or answer for reorganization of Tenant or the then owner of
Tenant's interest hereunder, shall be approved by any court or judge thereof,
or if Tenant, or the then owner of Tenant's interest hereunder, shall be
adjudicated insolvent or bankrupt, or if Tenant, or the then owner of Tenant's
interest hereunder, shall make a general assignment for the benefit of
creditors, or shall take any benefit under any insolvency or bankruptcy act, or
have a receiver or trustee or other fiduciary appointed for its property, or if
Tenant's leasehold interest shall be taken on execution or other process of
law, or if this lease, or the estate of Tenant hereunder, shall be transferred
or pass to or devolve upon any other person, firm, association or corporation,
except in the manner provided hereunder, then and in any of said events,
Landlord, or those claiming under it, may, immediately, or at any time
thereafter, have the right to terminate and end this Lease, and the term hereby
granted, as well as all of the right, title and interest of Tenant hereunder,
by giving Tenant twenty (20) days
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<PAGE> 52
notice in writing; and it is agreed that upon the expiration of the term fixed
in said notice, if the said non-payment, default or other cause of termination
specified in such notice shall not have been made good or removed, this Lease
and the term hereby granted, as well as all of the right, title and interest of
Tenant hereunder shall at the option of Landlord, or those claiming under it,
wholly cease and expire in the same manner and with the same force and effect
as if the expiration of time specified in such notice were the end of the term
herein originally demised; and Landlord, and those claiming under it, may
immediately, or at any time thereafter, and without further notice and demand,
enter upon the Demised Premises or any part thereof, and repossess the same as
of its first and former estate, and expel Tenant and those claiming under it,
and remove its or their effects without being taken or deemed guilty of any
manner of trespass, and without prejudice to any remedies which might otherwise
be used for arrears of rent or any breach of Tenant's covenants, and that upon
entry as aforesaid, said Lease shall be terminated; and Tenant agrees that,
notwithstanding the termination of this Lease and possession regained by
Landlord, Tenant will indemnify Landlord against all loss of rent which may
accrue to it by reason of such termination, during the remainder of the
original term. In the event Landlord does not exercise the rights provided for
above, it may accept rent from a receiver, trustee or other officer in
possession of the Demised Premises for the term of such occupancy without
impairing or affecting in any way the rights of Landlord against Tenant
hereunder. Any neglect or failure to enforce the right of forfeiture of this
Lease or re- entry upon breach of any of the conditions, covenants, terms and
agreements herein contained, shall not be deemed a waiver of such right upon
any subsequent breach of any such or any other condition, covenant, term and/or
agreement herein contained. If a writ of attachment or execution is levied on
this Lease, Tenant shall have fifteen (15) days in which to cause the
attachment or execution to be removed. If any involuntary proceeding in
bankruptcy is brought against Tenant, or if a receiver is appointed, tenant
shall have sixty (60) days in which to have the involuntary proceeding
dismissed or the receiver removed. If Tenant fails to perform any provision of
this Lease, other than payment of rent when due, and if such failure to perform
is not cured within twenty (20) days after notice has been given by Landlord to
Tenant, Tenant shall be in default. If the default cannot reasonably be cured
within twenty (20) days, Tenant shall not be in default of this Lease if Tenant
commences to cure the default within the twenty (20) day period and diligently
and in good faith continues to cure the default. Notices given under this
Article shall specify the alleged default and the applicable provisions, and
shall demand that Tenant perform the provisions of this Lease or pay the rent
that is in arrears, as the case may be, within the applicable period of time,
or quit the Premises. No such notice shall be deemed a forfeiture or a
termination of this Lease unless Landlord so elects in the notice.
13. ASSIGNMENT AND SUBLETTING. Tenant agrees not to sell, assign,
mortgage, pledge, or in any manner transfer this Lease or any estate or
interest thereunder and not to sublet the Premises or any part or parts thereof
without the previous consent of Landlord in each instance, said consent not to
be unreasonably withheld by Landlord. Any such assignment shall not release
the Tenant from its obligations hereunder.
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<PAGE> 53
14. COMPLIANCE WITH LAW. Tenant shall, at its own cost and
expense, comply with all of the requirements of all municipal, state and
federal authorities now in force, or which may hereafter be in force,
pertaining to the said premises, and shall faithfully observe in the use of the
premises all municipal ordinances and state and federal statutes now in force
or which may hereafter be in force. The judgment of any court of competent
jurisdiction, or the admission of Tenant in any action or proceedings against
Tenant, whether Landlord be a part thereto or not, that Tenant has violated any
such ordinance or statute in the use of the Premises shall be conclusive of
that fact as between Tenant and Landlord.
15. EMINENT DOMAIN. In the event that all or substantially all
the Demised Premises shall be appropriated or taken under the power of eminent
domain by any public or quasi-public authority, this Lease shall terminate and
expire as of the date of such taking and Tenant shall thereupon be released
from any liability thereafter accruing hereunder. "Appropriation or taking" by
eminent domain as used herein also includes a voluntary conveyance under threat
of eminent domain proceedings.
In any eminent domain proceedings, Tenant and Landlord shall be
entitled to prosecute claims in any condemnation proceedings for the value of
their respective interests.
In the event more than twenty percent (20%) of the ground floor area
of the building or more than twenty percent (20%) of the parking area is taken
under the power of eminent domain by any public or quasi-public authority, or
if by reason of any appropriation or taking, regardless of the amount so taken,
the remainder of the building or parking and common area is not one undivided
parcel of property or is not suitable, in Tenant's reasonable judgment, for
operation as a general business, office and warehouse, or if right of ingress
or egress is taken so that the Premises will not be suitable for the purposes
for which it has been leased, then Tenant shall have the right to terminate
this Lease as to such location as of the date of such taking upon giving to
Landlord notice in writing of such election within thirty (30) days after such
appropriation or taking. In the event of such termination, both parties shall
thereupon be released from any liability thereafter accruing hereunder.
Landlord agrees, immediately after it receives information as to the intention
of any such authority to appropriate or take, to give to Tenant notice in
writing thereof.
If this Lease is terminated in either manner herein above provided,
each party shall be entitled to any award made to it in such proceedings but
the rent shall be prorated as of the date of Tenant's quitting occupancy of the
Demised Premises and Landlord agrees to refund to Tenant any unearned rent paid
in advance as to such location.
Each party agrees to execute and deliver to the other all instruments
that may be required to effectuate the provisions of this paragraph.
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<PAGE> 54
16. LIENS. In addition to the statutory landlord's lien, Landlord
shall have at all times a valid contractual lien and/or security interest for
all rentals and other sums of money becoming due hereunder from Tenant, upon
all goods, wares, equipment, fixture, furniture and other personal property of
Tenant situated on the above described premises, and such property shall not be
removed therefrom without the consent of Landlord until all arrearage in rent
as well as any and all other sums of money then due to Landlord hereunder shall
first have been paid and discharged. Upon occurrence of an event of default by
Tenant, Landlord may, in addition to any other remedies provided herein or by
law, enter upon the demised premises and take possessions of any and all goods,
wares, equipment, fixtures, furniture and other personal property of Tenant
situated on the premises without liability for trespass or conversion, and sell
the same with or without notice at public or private sale, with or without
having such property at the sale, at which Landlord or his assigns may
purchase, and apply the proceeds thereof, less any and all expenses connected
with the taking of possession and sale of the property, as a credit against any
sums due by Tenant to Landlord. Any surplus shall be paid to Tenant, and
Tenant agrees to pay any deficiency forthwith.
17. SIGNS. Any sign or signage desired by Tenant shall have prior
approval by Landlord as to size, design and location and shall be at Tenant's
sole cost and expense. Tenant shall remove any such sign upon termination of
the lease and shall return the Premises to their condition prior to the
placement of said sign.
18. NOTICES. Whenever, under this Lease, a provision is made for
any demand, notice or declaration of any kind, or where it is deemed desirable
or necessary by either party to give or serve any such notice, demand or
declaration to the other, it shall be in writing and either served personally
or sent by registered mail or certified mail, return receipt requested, with
postage prepaid, addressed as follows:
To Landlord: III MILLENNIUM CORPORATION
P.O. BOX 60910
MIDLAND, TEXAS 79711
Copy to: MR. ROBERT C. PETERSON, ATTORNEY
MILBURN & PETERSON, P.C.
620 N. GRANT, SUITE 1100
ODESSA, TEXAS 79761
To Tenant: POOL COMPANY TEXAS LTD.
9930 WEST HIGHWAY 80
MIDLAND, TEXAS 79710
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<PAGE> 55
Copy to: POOL COMPANY
10375 RICHMOND AVENUE
HOUSTON, TEXAS 77042
ATTENTION: MR. W. J MYERS
Either party may, by like notice, at any time and from time to time,
designate a different address to which notices shall be sent. Such notices,
demands or declarations shall be deemed sufficiently served or given for all
purposes hereunder at the time they shall be mailed by United States mail, as
aforesaid.
19. CONSENT OF LANDLORD AND TENANT. Wherever in this Lease the
Landlord or Tenant is required to give its consent or approval to any action on
the part of the other, such consent or approval shall not be unreasonably
withheld.
In the event of failure to give any such consent, the other party
shall be entitled to specific performance by law and shall have such other
remedies as are reserved to it under this Lease, but in no event shall Landlord
or Tenant be responsible in monetary damages for such failure to give consent
unless said failure is withheld maliciously or in bad faith.
20. ENTRY BY LANDLORD. Tenant shall permit Landlord and its
authorized representatives to enter the premises at all reasonable times for
the purpose of inspection, maintenance, repairs, making additions or
alterations to the premises.
21. MISCELLANEOUS.
A. One or more waivers of a breach of any covenant, term
or condition of this Lease by either party shall not be construed by the other
party as a waiver of a subsequent breach of the same covenant, term or
condition. The consent or approval of either party to or of any act by the
other party of a nature requiring consent or approval shall not be deemed to
waive or render unnecessary consent to or approval of any subsequent similar
act.
B. Nothing herein contained, either in the method of
computing rent or otherwise, shall create between the parties hereto, or
otherwise, be relied upon by others as creating, any relationship or
partnership, association, joint venture, or otherwise. The sole relationship
of the parties hereto shall be that of Landlord and Tenant.
C. The terms and agreements as contained in this Lease
shall apply to, run in favor of, and shall be binding upon and inure to the
benefit of the parties hereto, and also their respective heirs, executors,
administrators, personal representatives and assigns and successors in
interest.
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<PAGE> 56
D. It is understood that there are no oral agreements or
representations between the parties hereto affecting this Lease, and this Lease
supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements or representations and understandings, if any, between
the parties hereto. All agreements, representations and understandings between
the parties hereto are set forth in this Lease. There are no other
representations or warranties between the parties and all reliance with respect
to representations is solely upon the representations and agreements contained
in this document.
E. Tenant shall, after the last day of the term or any
extension thereof, or upon any earlier termination of such term, surrender and
yield up to Landlord the building, and other improvements on the Demised
Premises in good order, condition and state of repair, reasonable wear and tear
and the provisions of Article 6 hereof excepted.
F. If Tenant continues to occupy the Premises after the
last day of the term hereby created, or after the last day of any extension of
said term, and the Landlord elects to accept said rent thereafter, a tenancy
from month to month only shall be created under and subject to all other
provisions contained herein, at a minimum monthly rent equal to one and
one-half (1-1/2) times the fair rental value during the final year of the lease
as the same may be extended from time to time. The current fair value of the
minimum monthly rental is $5,500.00 per month.
G. The article titles herein are for convenience only
and do not in any way define, limit or construe the contents of such articles.
H. It is agreed that if any provision of this lease
shall be determined to be void by any Court of competent jurisdiction, then
such determination shall not affect any other provision of this Lease and all
such other provisions shall remain in full force and effect; and it is the
intention of the parties hereto that if any provision of this Lease is capable
of two constructions, one of which would render the provision void and the
other of which would render the provision valid, then the provision shall have
the meaning which renders it valid.
I. This Lease shall be construed and interpreted in
accordance with the laws of the State of Texas with venue in Midland County,
Texas. All rentals due hereunder shall be payable at P.O. Box 60910, Midland,
Texas 79711, or at such other place as Landlord may, from time to time,
designate.
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<PAGE> 57
IN WITNESS WHEREOF, the parties do hereunto set their hands to
multiple copies hereof, each of which shall constitute an original, on the day
or days hereinafter set forth.
LANDLORD: TENANT:
- --------- -------
III MILLENNIUM CORPORATION POOL COMPANY TEXAS LTD.
By: Pool Company, General Partner
By: By:
----------------------------------- ---------------------------------
Steve L. Holifield, Sr., President
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<PAGE> 58
EXHIBIT C
Noncompetition Agreement
<PAGE> 59
EXHIBIT C
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (this "Agreement") is made as of
October 16, 1997, by and between Pool Company Texas Ltd., a Texas limited
partnership ("Pool"), and Steve L. Holifield, an individual, residing in
Midland, Texas ("Holifield").
RECITALS
Concurrently with the execution and delivery of this Agreement, an
affiliate of Pool is purchasing from Holifield all of the outstanding shares
(the "Shares") of Trey Services, Inc., a Texas corporation (the "Company"),
pursuant to the terms and conditions of a stock purchase agreement made as of
October 16, 1997 (the "Stock Purchase Agreement"). The Stock Purchase
Agreement requires that a noncompetition agreement be executed and delivered by
Holifield as a condition to the purchase of the Shares by Pool.
AGREEMENT
NOW THEREFORE, in consideration for an allocation of $250,000 out of
the total purchase price (which the parties hereto agree is a reasonable
allocation for Holifield's obligations set forth herein) Pool has agreed to pay
for the Shares in the Purchase Agreement and the covenants set forth herein,
the parties, intending to be legally bound, agree as follows:
1. DEFINITIONS. Capitalized terms not expressly defined
in this Agreement shall have the meanings ascribed to them in the
Stock Purchase Agreement.
2. ACKNOWLEDGMENTS BY Holifield. Holifield acknowledges
that (a) Holifield has occupied a position of trust and confidence
with the Company prior to the date hereof and has become familiar with
the following, any and all of which constitute confidential
information of the Company (collectively the "Confidential
Information"): (i) any and all trade secrets concerning the business
and affairs of the Company, product specifications, data, know-how,
designs, inventions and ideas, customer lists, current and anticipated
customer requirements, price lists, market studies, business plans,
computer software, systems, structures and architectures of the
Company and any other information, however documented, of the Company
that is a trade secret; (ii) any and all information concerning the
business and affairs of the Company (which includes historical
financial statements, financial projections and budgets, historical
and projected sales, capital spending budgets and plans, the names and
backgrounds of key personnel, personnel training and techniques and
materials), however documented; and (iii) any and all notes, analysis,
compilations, studies, summaries, and other material prepared by or
for the Company containing or based, in whole or in part, on any
information included in the foregoing, (b) the business of the
Company is conducted in the state of Texas, (c) the Company's products
and services are marketed in the state of Texas; (d) the Company
competes with other businesses that are or could be located in any
part of the aforesaid area; (e) Pool has required that Holifield make
the covenants set forth in this Agreement as a condition to the Pool's
purchase of the Shares of the Company owned by Holifield; (f) the
provisions of this Agreement are reasonable and necessary to protect
and preserve the Company's business, and (g) the Company would be
irreparably damaged if Holifield were to breach the covenants set
forth in this Agreement.
<PAGE> 60
3. CONFIDENTIAL INFORMATION. Holifield acknowledges and
agrees that all Confidential Information known or obtained by
Holifield, whether before or after the date hereof, is the property of
the Company. Therefore, Holifield agrees that Holifield will not
disclose to any unauthorized Persons or use for his own account or for
the benefit of any third party any Confidential Information, without
Pool's written consent, unless and to the extent that the Confidential
Information is or becomes generally known to and available for use by
the public other than as a result of Holifield's fault. Holifield
agrees to deliver to Pool at the time of execution of this Agreement,
and at any other time Pool may request, all documents, memoranda,
notes, plans, records, reports, and other documentation, models,
components, devices, or computer software, whether embodied in a disk
or in other form (and all copies of all of the foregoing), relating to
the businesses, operations, or affairs of the Company and any other
Confidential Information that Holifield may then possess or have under
Holifield's control as of the termination date of the Agreement.
4. NONCOMPETITION. As an inducement for Pool's
affiliate to enter into the Stock Purchase Agreement and the
consideration to be paid under this Agreement, Holifield agrees that:
(a) Except as may be required under that certain
Consulting Contract between Pool and Holifield dated October
16, 1997, for a period of three (3) years after the Closing
Holifield will not, directly or by his personal efforts
through another entity anywhere in the state of Texas:
(i) engage or invest in, own, manage,
operate, finance, control, or participate in the
ownership, management, operation, or control of, be
employed by, associated with, or in any manner
connected with, lend Holifield's name or any similar
name to, lend Holifield's credit to, or render
services or advice to, any business whose products or
activities compete in whole or in part with the
products or activities of the Company or Pool;
provided, however, that Holifield may purchase or
otherwise acquire up to (but not more than) five
percent of any class of securities of any enterprise
(but without otherwise participating in the
activities of such enterprise) if such securities are
listed on any national or regional securities
exchange or have been registered under Section 12(g)
of the Securities Exchange Act of 1934. Holifield
agrees that this covenant is reasonable with respect
to its duration, geographical area, and scope.
Notwithstanding the above, nothing herein shall be
deemed to prohibit Holifield from maintaining his
ownership interest in and activities related to the
businesses described in Exhibit A, attached hereto so
long as such does not have a significant competitive
impact on Pool or the Company; and
(ii) either for himself or any other
Person, (A) induce or attempt to induce any employee
of Company or Pool to leave the employ of the Company
or Pool, (B) in any way interfere with the
relationship between the Company or Pool and any
employee of the Company or Pool, (C) employ, engage
as an employee or independent contractor, any
employee of the Company or Pool, or (D) induce or
attempt to induce any customer, supplier, licensee,
or business relation of the Company or Pool to cease
doing business
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<PAGE> 61
with the Company or Pool, or in any way interfere
with the relationship between any customer, supplier,
licensee, or business relation of the Company or
Pool; and
(iii) either for himself or any other
Person, solicit the business of any Person known to
Holifield to be a customer of the Company or Pool,
whether or not Holifield had personal contact with
such Person, with respect to products or activities
which compete in whole or in part with the products
or activities of the Company or Pool.
(b) In the event it is finally determined that
Holifield has breached any covenant set forth in Subsection
4(a) of this Agreement, the term of such covenant will be
extended by the period of the duration of such breach; and
(c) Holifield will not, at any time during or
after the three year period, disparage Pool or the Company.
5. REMEDIES. If Holifield breaches the covenants set
forth in Sections 3 or 4 of this Agreement:
(a) Pool shall notify Holifield of any alleged
breach within ten (10) days of its occurrence, or when Pool
should have reasonably discovered such alleged breach, and the
nature and extent of the alleged breach in sufficient detail
for Holifield to be fully apprised of such alleged breach;
(b) Holifield shall have thirty (30) days from
receipt of such notice to cure such alleged breach or
demonstrate that no such breach has occurred;
(c) In the event such alleged breach is not
resolved under Subsection 5(b), then either party may invoke
the Dispute Resolution provisions described in Section 9.12 of
the Purchase Agreement, which provisions are incorporated
herein by reference and made a part hereof as if copied
verbatim herein; and
(d) In the event that it is finally determined
that Holifield has breached this Agreement, Pool and the
Company will be entitled to the following:
(i) Damages from Holifield; and
(ii) In addition to its right to damages
and any other rights it may have, to obtain
injunctive or other equitable relief to
restrain any breach or threatened breach or
otherwise to specifically enforce the
provisions of Sections 3 and 4 of this
Agreement, it being agreed that money damages
alone would be inadequate to compensate the
Pool and the Company and would be an
inadequate remedy for such breach.
The rights and remedies of the parties to this
Agreement are cumulative and not alternative.
3
<PAGE> 62
6. SUCCESSORS AND ASSIGNS. This Agreement will be
binding upon Pool, and Holifield and will inure to the benefit of
Holifield and Holifield's heirs and personal representatives and of
Pool and the Company and their affiliates, successors and assigns as
long as such entities remain in the Pool Energy Services Co. group of
entities controlled by Pool Energy Services Co. and control of Pool
Energy Services Co. remains unchanged.
7. This Agreement shall terminate upon the expiration of
the noncompetition provisions in Section 4.
8. WAIVER. Neither the failure nor any delay by any
party in exercising any right, power, or privilege under this
Agreement will operate as a waiver of such right, power, or privilege,
and no single or partial exercise of any such right, power, or
privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no
claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim
or right unless in writing signed by the party to be charged
therewith; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and
(c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand
as provided in this Agreement.
9. GOVERNING LAW. This Agreement will be governed by
the laws of the State of Texas without regard to conflicts of laws
principles.
10. SEVERABILITY. Whenever possible each provision and
term of this Agreement will be interpreted in a manner to be effective
and valid, but if any provision or term of this Agreement is held to
be prohibited by applicable law or invalid, then such provision or
term will be ineffective only to the extent of such prohibition or
invalidity, without invalidating or affecting in any manner whatsoever
the remainder of such provision or term or the remaining provisions or
terms of this Agreement. If any of the covenants set forth in Section
4 of this Agreement are held to be unreasonable, arbitrary, or against
public policy, such covenants will be considered divisible with
respect to scope, time, and geographic area, and in such lesser scope,
time and geographic area, will be effective, binding and enforceable
against Holifield.
11. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which will be deemed to be an original
copy of this Agreement and all of which, when taken together, will be
deemed to constitute one and the same agreement.
12. SECTION HEADINGS, CONSTRUCTION. The headings of
Sections in this Agreement are provided for convenience only and will
not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections
of this Agreement unless otherwise specified. All words used in this
Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms.
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<PAGE> 63
13. NOTICES. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be
deemed to have been duly given when (a) delivered by hand (with
written confirmation of receipt), (b) sent by facsimile, provided that
a copy is mailed by registered mail, return receipt requested, or (c)
when received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case to the
appropriate addresses and facsimile numbers set forth below (or to
such other addresses and facsimile numbers as a party may designate by
notice to the other parties):
Holifield:
STEVE L. HOLIFIELD
P. O. Box 60927
Midland, Texas 79711
Pool: POOL COMPANY TEXAS LTD.
10375 Richmond Avenue
Houston, Texas 77042
Attention: Group Vice President--U.S. Operations
Facsimile: 713/954-3037
14. ENTIRE AGREEMENT. This Agreement and the relevant
provisions of the Stock Purchase Agreement constitute the entire
agreement between the parties with respect to the subject matter of
this Agreement and supersede all prior written and oral agreements and
understandings between Pool and Holifield with respect to the subject
matter of this Agreement. This Agreement may not be amended except by
a written agreement executed by the party to be charged with the
amendment.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
POOL COMPANY TEXAS LTD.
By: Pool Company, General Partner
By:
----------------------------
----------------------------
STEVE L. HOLIFIELD
Name:
----------------------------
Title:
----------------------------
5
<PAGE> 64
EXHIBIT A
EXCLUDED OWNERSHIP INTERESTS
Texas Heat of the Permian Basin
Chaparral Water Systems
Pharaoh Oil & Gas
Westwind Insurance Agency
Permian Autos, Inc.
Harrison Laboratories, Inc.
Petrosurance Casualty Company
Rueda's, Inc.
AEH Leasing
David Arrington Oil & Gas, Inc.
Taylor Link Operating
Black Badger Oil Co.
Gary Bolen Properties
Gruy Management Co.
Bristol Resources
Three B Oil Co.
MR Drilling Co.
Monahan SWD Inc.
42nd Street SWD Inc.
III Millennium Corporation
<PAGE> 65
EXHIBIT D
BILL OF SALE
<PAGE> 66
BILL OF SALE
EQUIPMENT SOLD: The oil well servicing and associated equipment described in
Schedule A attached hereto (hereinafter the "Equipment")
- --------------------------------------------------------------------------------
NAME OF SELLER: Steve L. Holifield - INTEREST OWNED: 100%
-------------------
- --------------------------------------------------------------------------------
NAME OF BUYER: Pool Company - INTEREST TRANSFERRED: 100%
-------------------
- --------------------------------------------------------------------------------
CONSIDERATION RECEIVED: TEN ($10.00) DOLLARS AND OTHER GOOD AND VALUABLE
CONSIDERATION
- --------------------------------------------------------------------------------
Seller does hereby sell to the Buyer named above, all of its right, title and
interest in the Equipment named above, and hereby grants to the Buyer full
subrogation in and to all of the rights and actions of warranty which the Seller
has or may have against all preceding owners and vendors of the Equipment. TO
HAVE AND TO HOLD the said Equipment unto the said Buyer, its executors,
administrators, successors, and assigns, to the sole and only proper use,
benefit and behalf of the said Buyer, its executors, administrators, successors,
and assigns forever. The said Seller hereby warrants title to the equipment and
hereby warrants and guarantees that the Equipment is free and clear of any and
all liens (whether tort, contract, or arising by operation of law), mortgages,
debts, charges, assessments, privileges, levies or other encumbrances of any
kind or nature whatsoever, whether recorded, secret, state, tax or otherwise, as
of the date and time of the execution of the within instrument and the said
Seller hereby agrees to protect, defend, indemnify, and hold Buyer harmless from
any and all liens (whether tort, contract, or arising by operation of law),
mortgages, debts, charges, assessments, privileges, levies or other encumbrances
of any kind or nature whatsoever, whether recorded, secret, state, tax or
otherwise, which attached or arose against such Equipment prior to the date and
time of the execution of the within instrument. THIS SALE IS MADE ON AN "AS IS,
WHERE IS" BASIS WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR NATURE
WHATSOEVER, EXPRESSED OR IMPLIED, CONCERNING THE CONDITION OF THE EQUIPMENT
HEREIN CONVEYED, AND BUYER HEREBY SPECIFICALLY WAIVES ALL IMPLIED WARRANTIES,
INCLUDING ANY AND ALL WARRANTIES AGAINST VICES OR DEFECTS, OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR USE OR PURPOSE WHATSOEVER.
STEVE L. HOLIFIELD
-----------------------------
DATED: October 16, 1997
----------------------
<PAGE> 1
EXHIBIT 10.3
POOL ENERGY SERVICES CO.
1997 EMPLOYEE SAR/PHANTOM STOCK PLAN
SECTION 1. PURPOSE
The purpose of this Plan is to assist Pool Energy Services Co. (the
"Company") and Affiliates in attracting and retaining, as officers and key
employees of the Company and its Affiliates, persons of training, experience
and ability. A further purpose of the Plan is to provide such key employees
with additional incentive and reward opportunities designed to enhance the
profitable growth of the Company. Accordingly, the Plan provides for granting
Stock Appreciation Rights or Phantom Stock Awards, or any combination of the
foregoing, as is best suited to the circumstances of the particular employee as
deemed appropriate by the Compensation Committee of the Board of Directors of
the Company.
SECTION 2. DEFINITIONS
Unless the context otherwise requires, the following words as used
herein shall have the following meanings:
(a) "Affiliate" means any corporation, partnership or other entity
in which the Company owns, directly or indirectly, an equity interest of at
least thirty five (35%) percent.
(b) "Agreement" means the written agreement evidencing an Award of
Stock Appreciation Rights or Phantom Stock setting forth the terms and
conditions applicable to such Award.
(c) "Award" means a grant to a Participant of Phantom Stock or
Stock Appreciation Rights.
(d) "Beneficial Owner" shall be defined by reference to Rule 13d-3
under the Exchange Act; provided, however, and without limitation, any
individual, corporation, partnership, group, association or other person or
entity which has the right to acquire any voting stock of the Company at any
time in the future, whether such right is contingent or absolute, pursuant to
any agreement, arrangement or understanding or upon exercise of conversion
rights, warrants or options, or otherwise, shall be the Beneficial Owner of
such voting stock.
(e) "Board" means the Board of Directors of the Company as the
same may be constituted from time to time.
(f) "Cause" means (i) the willful and continued failure by the
Participant to substantially perform his duties with the Company or employing
Affiliates (other than any such
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<PAGE> 2
failure resulting from his incapacity due to physical or mental illness), or
(ii) the willful engaging by the Participant in conduct which is injurious to
the Company, monetarily or otherwise. For this purpose, no act or failure to
act shall be deemed willful unless done in other than good faith and without
reasonable belief that the action or omission was in the best interest of the
Company.
(g) "Change in Control" occurs if: (i) any "person" (defined as
such term is used in Sections 13(d) and 14(d)(2) of the Exchange Act, as
amended) becomes the Beneficial Owner, as herein defined, directly or
indirectly, of securities of the Company representing thirty percent (30%) or
more of the combined voting power of the Company's outstanding securities then
entitled to vote for the election of directors in any transaction or series of
related transactions not approved by the Board; or (ii) during any period of
two consecutive years, individuals who at the beginning of such period
constituted the Board cease for any reason to constitute at least a majority
thereof (excluding for purposes of this calculation any director who dies or
ceases to be a director due to disability or reaching the maximum age for
eligibility to serve as a director during such period); or (iii) the
shareholders shall approve the sale of all or substantially all of the assets
of the Company; or (iv) the shareholders shall approve any merger,
consolidation, issuance of securities or purchase of assets, the result of
which would be the occurrence of any event described in clause (i) or (ii) of
this paragraph.
(h) "Change in Control Value" means (i) the per share price
offered to shareholders of the Company in any merger, consolidation,
reorganization, sale of assets or dissolution transaction that constitutes a
Change in Control, (ii) the price per share offered to shareholders of the
Company in any tender offer or exchange offer whereby a Change in Control takes
place, or (iii) if a Change in Control occurs other than pursuant to a merger,
consolidation, reorganization, sale of assets, dissolution or a tender or
exchange offer, as determined by the Committee. In the event that the
consideration offered to shareholders of the Company consists of anything other
than cash, the Committee shall determine the fair cash equivalent of the
portion of the consideration offered which is other than cash.
(i) "Committee" means a committee that consists solely of two or
more persons who are "nonemployee directors" as that term is defined in Rule
16b-3 under the Exchange Act.
(j) "Common Stock" means the common stock, no par value, of the
Company.
(k) "Company" means Pool Energy Services Co., a Texas corporation.
(l) "Employment" shall mean employment with the Company, or any
Affiliate of the Company; a Participant's transfer of Employment from the
Company to an Affiliate, or from an Affiliate to the Company or between
Affiliates of the Company shall not affect continuity of Employment for
purposes hereof.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
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<PAGE> 3
(n) "Fair Market Value" means the fair market value per Share as
determined by the Committee in good faith; provided, however, that if a Share
is listed or admitted for trading on a securities exchange registered under the
Exchange Act, the Fair Market Value per Share shall be the average of the
reported high and low sales prices on the date in question (or if there was no
reported sale on such date, on the last preceding date on which any reported
sale occurred) on the principal securities exchange on which such Share is
listed or admitted to trading, or if a Share is not listed or admitted to
trading on any such exchange but is traded over-the-counter and reported on the
National Association of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or any similar system then in use, the Fair Market Value per Share
shall be the closing sale price on the date in question reported (or if there
was no reported sale on such date, on the last preceding date on which any
reported sale occurred) on such system.
(o) "Participant" means a person who has been granted any type of
Award under the Plan.
(p) "Phantom Stock Award" means an Award granted under Section 7
of the Plan.
(q) "Plan" means this Pool Energy Services Co. 1997 Employee
SAR/Pantom Stock Plan, as amended from time to time.
(r) "Retirement" means an employee's leaving Employment, other
than for Cause, after attaining the age of fifty-five and after having
completed not less than five years Employment.
(s) "Share" means a share of Common Stock.
(t) "Spread" means, in the case of a Stock Appreciation Right, an
amount equal to the excess, if any, of the Fair Market Value of a Share on the
date such right is exercised over the exercise price of such Stock Appreciation
Right.
(u) "Stock Appreciation Right" means an Award granted under
Section 6 of the Plan.
SECTION 3. ADMINISTRATION
(a) The Plan shall be administered by, and the decisions
concerning the Plan shall be made solely by, the Committee. All questions of
interpretation or application of the Plan, or of a grant of an Award, including
questions of interpretation or application of any Agreement, shall be subject
to the determination of the Committee, which determination shall be final and
binding upon all parties.
(b) Subject to the express provisions of the Plan, the Committee
shall have the authority, in its sole and absolute discretion, (i) to adopt,
amend or rescind administrative and interpretive rules and regulations relating
to the Plan; (ii) to make all determinations necessary or advisable for
administering the Plan; (iii) to determine the terms and provisions of
-3-
<PAGE> 4
Agreements (which need not be identical), including provisions defining or
otherwise relating to the effect of termination of Employment upon Awards, and
the effect of approved leaves of absence upon Awards; and (iv) to exercise any
other powers conferred on the Committee under the Plan. The Committee may
correct any defect or supply any omission or reconcile any inconsistency in the
Plan in the manner and to the extent it shall deem expedient to carry it into
effect. The determinations of the Committee on the matters referred to in this
Section 3 shall be final and conclusive.
SECTION 4. ELIGIBILITY
The persons who shall be eligible to receive Awards shall be full-time
salaried employees of the Company or any of its Affiliates including directors
of the Company who are full-time salaried employees.
SECTION 5. GRANT OF AWARDS
The Committee may from time to time grant Awards to one or more
employees determined by it to be eligible for participation in the Plan in
accordance with the provisions of Section 4.
SECTION 6. STOCK APPRECIATION RIGHTS
(a) A Stock Appreciation Right is the right to receive an amount
equal to the Spread with respect to a Share upon the exercise of such Stock
Appreciation Right. Stock Appreciation Rights may be granted in tandem with an
option granted under any other plan maintained by the Company, in which case
the exercise of the Stock Appreciation Rights will result in the surrender of
the right to purchase the shares under the related option and the exercise of
the related option will result in the surrender of the Stock Appreciation
Rights. If Stock Appreciation Rights are granted in tandem with an incentive
stock option ("ISO"), the Stock Appreciation Rights (i) shall expire no later
than the related ISO; (ii) shall be transferable and exercisable only when the
related ISO is transferable and exercisable; (iii) shall have a Spread no
greater than the difference between the exercise price of the related ISO and
the market price (determined when the Stock Appreciation Rights are exercised)
of the stock covered by the related ISO; and (iv) shall be exercisable only
when the market price of the stock covered by the related ISO exceeds the
exercise price of the related ISO. The Spread with respect to a Stock
Appreciation Right shall be payable in cash. Stock Appreciation Rights may not
be exercised earlier than six months from the date of grant.
(b) The term of each Stock Appreciation Right shall be as
specified by the Committee at the date of grant and shall be exercisable in
whole or in such installments and at such times as determined by the Committee.
(c) Stock Appreciation Rights shall terminate when the Employment
of the Participant ceases, except as may be otherwise determined by the
Committee or as set forth in the Award
-4-
<PAGE> 5
at the time of grant, provided, however, that in the event of termination of a
Participant's Employment for Cause all outstanding Stock Appreciation Rights
held by such Participant shall thereupon terminate and may not be exercised.
(d) At the time any Award is made under this Section 6, the
Company and the Participant shall enter into an Agreement setting forth each of
the matters contemplated hereby. The terms and provisions of the respective
Agreements need not be identical.
SECTION 7. PHANTOM STOCK AWARDS
(a) Phantom Stock Awards are rights to receive cash in an amount
equal to the Fair Market Value of a specified number of Shares, which rights
vest over a period of time or upon the occurrence of an event (including,
without limitation, a Change in Control) as established by the Committee,
without payment of any amounts by the Participant (except to the extent
otherwise required by law) or satisfaction of any performance criteria or
objectives. Each Phantom Stock Award may have a maximum value established by
the Committee at the time of such Award.
(b) The Committee shall establish, with respect to and at the time
of each Phantom Stock Award, a period over which or the event upon which the
Award shall vest with respect to the Participant.
(c) In determining a Phantom Stock Award, the Committee shall take
into account an employee's responsibility level, performance, potential, other
Awards and such other considerations as it deems appropriate.
(d) Following the end of the vesting period for a Phantom Stock
Award, the holder of a Phantom Stock Award shall be entitled to receive payment
of an amount, not exceeding the maximum value, if any, of the Phantom Stock
Award, equal to the value of the Award. Payment of a Phantom Stock Award shall
be made in cash, in a lump sum or in installments as prescribed by the
Committee in its sole discretion. Dividend equivalents may be paid in
additional Phantom Stock Awards or in cash during or after the vesting period
with respect to a Phantom Stock Award, as determined by the Committee. If a
payment of cash is to be made on a deferred basis, the Committee shall
establish whether interest shall be credited, the rate thereof and any other
terms and conditions applicable thereto.
(e) A Phantom Stock Award shall terminate if the Participant does
not remain continuously in Employment at all times during the applicable
vesting period, except as may be otherwise determined by the Committee or as
set forth in the Award at the time of grant. The effect of termination of
Employment, including termination involving Retirement, on Phantom Stock Awards
may be determined by the Committee, provided, however, that in the event of
termination of a Participant's Employment for Cause all outstanding Phantom
Stock Awards held by such Participant shall thereupon terminate.
-5-
<PAGE> 6
(f) At the time any Award is made under this Section 7, the
Company and the Participant shall enter into an Agreement setting forth each of
the matters contemplated hereby. The terms and provisions of the respective
Agreements need not be identical.
SECTION 8. CHANGE IN CONTROL
In the event of a Change in Control, outstanding Awards shall
immediately vest. The Committee, in its discretion, may determine that upon
the occurrence of a Change in Control, each Award outstanding hereunder shall
terminate within a specified number of days after notice to the Participant,
and such Participant shall receive, with respect to each Share subject to such
Award, cash in an amount equal to the excess, if any, of the Change in Control
Value. The provisions contained in this paragraph shall not affect any rights
of the Participant to further payments pursuant to any other agreement with the
Company following a Change in Control.
SECTION 9. CHANGES IN COMPANY'S SHARES AND CERTAIN CORPORATE TRANSACTIONS
(a) If at any time while the Plan is in effect there shall be any
increase or decrease in the number of issued and outstanding Shares of the
Company effected without receipt of consideration therefor by the Company,
through the declaration of a stock dividend or any stock split or combination
of Shares, then and in each such event the Committee may, in its discretion,
make an appropriate adjustment in the number of Shares of any Award, to the end
that the same proportion, or such lesser proportion as the Committee
determines, of the Company's issued and outstanding Shares in each such
instance shall remain represented by such Award.
(b) In case of any corporate reorganization, or any consolidation
or merger of another corporation into the Company in which the Company is the
surviving corporation, in which there is a reclassification, change (including
a change to the right to receive cash or other property) or exchange of the
Shares (other than a change in par value, or from par value to no par value, or
as a result of a subdivision or combination of the Shares, but including any
change in such Shares into two or more classes or series of Shares), the
Committee in its sole discretion may provide that each outstanding Award shall
be replaced with an award with respect to such kind and amount of shares of
stock and/or other securities (including those of any new direct or indirect
parent of the Company) or cash as the Committee determines would be appropriate
in order to prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan.
(c) Except as is otherwise expressly provided herein, the issuance
by the Company of shares of its capital stock of any class, or securities
convertible into shares of capital stock of any class, either in connection
with a direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, Shares then subject
to Awards under the Plan. Furthermore, the existence of outstanding Awards
granted under the Plan shall not affect in any manner the right or power of the
Company to make, authorize or consummate (i) any adjustments,
-6-
<PAGE> 7
or power of the Company to make, authorize or consummate (i) any adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business; (ii) any merger or consolidation of the Company;
(iii) any issuance by the Company of debt securities or preferred stock; (iv)
the dissolution or liquidation of the Company; or (v) any other corporate act
or proceeding, whether of a similar character or otherwise.
SECTION 10. EFFECTIVE DATE
The Plan shall become effective as of January 1, 1997.
SECTION 11. AMENDMENT, SUSPENSION OR TERMINATION
The Committee may, at any time, suspend or terminate the Plan and may,
from time to time, amend the Plan, provided that the rights and obligations
under any Award previously granted shall not be adversely affected, of the Plan
without the consent of the Participant, by any suspension, amendment or
termination of the Plan.
SECTION 12. MODIFICATION OF AWARDS
Subject to the terms and conditions of and within the limitations of
the Plan, the Committee may modify, extend or renew outstanding Awards granted
under the Plan, or accept the surrender of Awards outstanding hereunder and
authorize the granting of new Awards hereunder in substitution therefor. No
such modification of an Award granted hereunder shall, without the consent of
the Participant, alter or impair any rights or obligations under any Award
theretofore granted hereunder to such Participant.
SECTION 13. GENERAL
(a) Nothing contained in the Plan or in any Agreement shall confer
upon any Participant the right to continue in the employ of the Company or any
Affiliate, or interfere in any way with the rights of the Company or any
Affiliate to terminate his Employment at any time, with or without Cause.
(b) Neither the members of the Board nor any member of the
Committee shall be liable for any act, omission or determination taken or made
in good faith with respect to the Plan or any Award granted hereunder; the
members of the Board and the Committee shall be entitled to indemnification and
reimbursement by the Company in respect of any claim, loss, damage or expenses
(including counsel fees) arising therefrom to the full extent permitted by law
and under any directors' and officers' liability or similar insurance coverage
that may be in effect from time to time.
(c) Any payment to the Participant, or to his legal
representative, heir, legatee or distributee, in accordance with the provisions
hereof, shall, to the extent thereof, be in full satisfaction of all claims of
such persons hereunder. The Committee may require any
-7-
<PAGE> 8
Participant, legal representative, heir, legatee or distributee, as a condition
precedent to such payment, to execute a release and receipt therefor in such
form as it shall determine.
(d) All expenses incident to the administration, termination or
protection of the Plan, including, but not limited to, legal and accounting
fees, shall be paid by the Company or its Affiliates.
(e) Records of the Company and its Affiliates regarding a person's
period of Employment, termination of Employment and the reason therefor, leaves
of absence, reEmployment and other matters shall be conclusive for all purposes
hereunder, unless determined by the Committee to be incorrect.
(f) An Award shall not be transferable otherwise than by will or
the laws of descent and distribution or pursuant to a domestic relations order,
and shall be exercisable during the Participant's lifetime only by such
Participant or the Participant's guardian or legal representative.
(g) It is intended that the Plan and any grant of an Award made to
a person subject to Section 16 of the Exchange Act meet all of the requirements
of Rule 16b-3. If any provision of the Plan or any such Award would disqualify
the Plan or such Award under, or would otherwise not comply with, Rule 16b-3,
such provision or Award shall be construed or deemed amended to conform to Rule
16b-3.
(h) If any provision of the Plan or any Agreement is held to be
illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining provisions of the Plan or such Agreement, as the case may
be, but such provision shall be fully severable and the Plan or such Agreement,
as the case may be, shall be construed and enforced as if the illegal or
invalid provision had never been included herein or therein.
(i) Whenever any notice is required or permitted hereunder, such
notice must be in writing and may be personally delivered or sent by mail,
telefax or any other means. Any notice required or permitted to be delivered
hereunder shall be deemed to be delivered on the date on which it is actually
received or, whether actually received or not, on the fifth business day after
it is deposited in the United States mail, certified or registered, postage
prepaid, addressed to the person who is to receive it at the address which such
person has theretofore specified by written notice delivered in accordance
herewith. The Company, or any Participant may change, at any time and from
time to time, by written notice to the other, the address that it or he had
theretofore specified for receiving notices. Until changed in accordance
herewith, the Company and each Participant shall specify as its and his address
for receiving notices the address set forth in the Agreement pertaining to the
Shares to which such notice relates.
(j) The titles and headings of Sections and paragraphs are
included for convenience of reference only and are not to be considered in the
construction of the provisions hereof.
-8-
<PAGE> 9
(k) All questions arising with respect to the provisions of the
Plan shall be determined by application of the laws of the State of Texas,
except to the extent Texas law is preempted by Federal law.
(l) Words used in the masculine shall apply to the feminine where
applicable, and wherever the context of the Plan dictates, the plural shall be
read as the singular and the singular as the plural.
# # # #
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