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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
________________
FORM 10-K
(Mark One)
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
---- SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1996
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 1-11953
Willbros Group, Inc.
(Exact name of registrant as specified in its charter)
Republic of Panama 98-0160660
(Jurisdiction of incorporation) (I.R.S. Employer Identification Number)
Edificio Torre Banco Germanico
Calle 50 y 55 Este, Apartado 850048
Panama 5, Republic of Panama
Telephone No.: (50-7) 263-9282
(Address, including zip code, and telephone number, including
area code, of principal executive offices of registrant)
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
---------------------- -------------------------
Common stock, $.05 Par Value New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the Registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein,
and will not be contained, to the best of the Registrant's
knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. X
---
As of March 17, 1997, 14,385,980 shares of the Registrant's
Common Stock were outstanding, and the aggregate market value of
the Common Stock held by non-affiliates was approximately
$80,762,825.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's Annual Report to Stockholders
for the fiscal year ended December 31, 1996, are incorporated by
reference into Parts I and II of this Form 10-K.
Portions of the Registrant's Proxy Statement for the Annual
Meeting of Stockholders to be held May 2, 1997, are incorporated
by reference into Part III of this Form 10-K.
===============================================================
===============================================================
WILLBROS GROUP, INC.
FORM 10-K
YEAR ENDED DECEMBER 31, 1996
TABLE OF CONTENTS
Page
-----
PART I
Items 1.
and 2. Business and Properties 4
Item 3. Legal Proceedings 23
Item 4. Submission of Matters to a Vote of
Security-Holders 23
Item 4A. Executive Officers of the Registrant 23
PART II
Item 5. Market for Registrant's Common Equity
and Related Stockholder Matters 26
Item 6. Selected Financial Data 26
Item 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations 26
Item 8. Financial Statements and Supplementary Data 26
Item 9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure 26
PART III
Item 10. Directors and Executive Officers of
the Registrant 26
Item 11. Executive Compensation 26
Item 12. Security Ownership of Certain Beneficial
Owners and Management 27
Item 13. Certain Relationships and Related Transactions 27
PART IV
Item 14. Exhibits, Financial Statement Schedules,
and Reports on Form 8-K. 27
Signatures 30
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"Forward-Looking" Statements
For purposes of the Private Securities Litigation Reform Act of
1995, statements in this Form 10-K that are not historical in
nature are forward-looking statements. Although the Company
believes the expectations expressed in such forward-looking
statements are based on reasonable assumptions within the bounds
of its knowledge of its business, there can be no assurance that
the Company's current financial goals and other business
objectives will be achieved. Actual results may differ
materially from those currently anticipated if the timely award
of one or more projects is not achieved, if project cost and
scheduled targets are exceeded, if cost recoveries from projects
completed or in progress are not realized within a reasonable
period after completion of the relevant project, if suitable
acquisition targets cannot be identified or acquired on
reasonable terms, if the demand for energy diminishes or if
political circumstances impede the progress of work. For a
discussion of additional factors that may affect such results,
see Management's Discussion and Analysis of Financial Condition
and Results of Operations which is incorporated by reference from
pages 19 to 22 of the Company's 1996 Annual Report to
Stockholders. The Company undertakes no obligation to update
publicly any forward-looking statement, whether as a results of
new information, future events or otherwise.
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PART I
Items 1 and 2. Business and Properties
General
Willbros Group, Inc. (the "Company") is one of the leading
independent contractors serving the oil and gas industry,
providing construction services, engineering services and
specialty services to industry and government entities worldwide.
The Company places particular emphasis on projects in developing
countries where the Company believes its experience gives it a
competitive advantage. The Company's construction services
include the building and replacement of major pipelines and
gathering systems, flow stations, pump stations, gas compressor
stations, gas processing facilities and oil and gas production
facilities; and the construction of piers, dock facilities and
bridges. The Company's engineering services include feasibility
studies; conceptual and detailed design; field services; material
procurement; and overall project management. The Company's
specialty services include dredging; pipe coating; pipe double
jointing; removal and installation of flowlines; the fabrication
and installation of concrete piles and platforms; maintenance and
repair of pipelines, stations and facilities; pipeline
rehabilitation; and transport of oilfield equipment, rigs and
vessels.
The Company provides its services through a large fleet of
equipment comprised of, among other things, marine vessels,
barges, dredges, pipelaying equipment, heavy construction
equipment, transportation equipment and camp equipment. The
Company's equipment fleet is supported by warehouses of spare
parts and tools which are located to maximize availability and
minimize cost.
The Company obtains contracts for its work primarily by
competitive bidding or through negotiations with long-standing
clients. In evaluating bid opportunities, the Company considers
such factors as the client, the geographic location and the
difficulty of the work, the Company's current and projected
workload, including the availability of personnel and Company
owned equipment, the likelihood of additional work, the project's
cost and profitability estimates and the Company's competitive
advantage relative to other likely bidders.
The Company traces its roots to the construction business of
Williams Brothers Company, founded in 1908. Through successors to
that business, Willbros has completed many landmark projects
around the world, including the "Big Inch" and "Little Big
Inch" War Emergency Pipelines (1942-44), the Mid-America
Pipeline (1960), the TransNiger Pipeline (1962-64), the Trans-
Ecuadorian Pipeline (1970-72), the northernmost portion of the
Trans-Alaskan Pipeline System (1974-76), the All American
Pipeline System (1984-86), Colombia's Alto Magdalena Pipeline
System (1989-90) and a portion of the Pacific Gas Transmission
System expansion (1992-93). Willbros has been involved in nine of
the ten largest gas pipeline projects undertaken in the United
States since 1988. See "Willbros Milestones."
Over the years, Willbros has been employed by more than 400
clients to carry out work in over 50 countries. Within the past
10 years, Willbros has worked in Africa, Asia, the Commonwealth
of Independent States ("C.I.S."), the Middle East, North America
and South America. Willbros' relatively steady base of ongoing
construction, engineering and specialty services operations in
Nigeria, Oman, the United States and Venezuela has been enhanced
by major construction and engineering projects in Abu Dhabi,
Colombia, Ecuador, Egypt, Gabon, Indonesia, Kuwait, Morocco,
Nigeria, Oman, Pakistan and the United States.
Representative clients (or affiliates of clients) of the
Company include the Caspian Pipeline Consortium (see "Geographic
Regions-C.I.S."); Royal Dutch Shell; Asamera (Overseas) Limited;
Bilfinger & Berger; Chevron Corp.; Kuwait Oil Company; U.S. Army;
Pacific Gas & Electric; Petroleum Development Oman; Enron Corp.;
Petroleos de Venezuela S.A. ("PDVSA"); Occidental Petroleum;
PanEnergy Corp; Great Lakes Gas Transmission Company; E.N.I.;
Nigerian National Petroleum Corporation ("NNPC"); and the Pak-
Arab Refinery, Ltd. ("PARCO"). Private sector clients such as
Shell have historically accounted for the majority of the
Company's revenues. Government entities and
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agencies, such as Kuwait Oil Company, the U.S.
Army, and PDVSA, have accounted for the remainder. Much of the
Company's success depends on developing and maintaining
relationships with certain major clients and obtaining a share of
contracts from such clients. Ten clients were responsible for
82% of the Company's total revenues in 1996 (78% in 1995 and 69%
in 1994). Operating units of Royal Dutch Shell accounted for 33%
of the Company's total revenues in 1996 (32% in 1995 and 29% in
1994).
The Company maintains its headquarters at Edificio Torre Banco
Germanico, Calle 50 y 55 Este, Panama 5, Republic of Panama; its
telephone number is (50-7) 263-9282. Administrative services for
the Company are provided by Willbros USA, Inc., which is located
at 2431 East 61st Street, Suite 700, Tulsa, Oklahoma 74136-1267;
its telephone number is (918) 748-7000.
Current Market Conditions
Relatively high crude oil and natural gas prices have resulted
in correspondingly strong levels of current and projected capital
expenditures by oil and gas companies to explore for and produce
oil and gas reserves. Accordingly, many significant natural gas,
crude oil and petroleum products pipeline projects and LNG
projects, together with ancillary construction and other
associated projects, are being undertaken, particularly in
developing countries or regions where energy infrastructure
spending has lagged.
The Company believes that certain of these projects will meet
its bidding criteria, and that the Company's worldwide pipeline
construction, engineering and specialty services experience place
it in an advantageous position to compete for such projects. The
Company has approximately 40 bids outstanding with respect to
potential contract awards in Cameroon, Chad, Egypt,
Georgia, Indonesia, Mexico, Nigeria, Oman, Russia, the United
States and Venezuela. The Company is currently preparing bids
with respect to potential contract awards in Bolivia,
Brazil, Georgia, Indonesia, Nigeria, Oman, Russia, the United
States and Venezuela. Finally, the Company expects to prepare
and submit bids with respect to certain other potential
construction and engineering projects in Africa, Asia,
the C.I.S., the Middle East, North America and South America
during 1997.
Business Strategy
The Company seeks to maximize shareholder value by a growth
strategy which encompasses geographic expansion, strategic
alliances, acquisitions and quality improvement, while
maintaining a strong balance sheet. In pursuing this strategy,
the Company relies on its competitive advantage in completing
logistically complex and technically difficult projects in remote
areas with difficult terrain and harsh climatic conditions. The
Company also relies on its experienced multinational work force
of approximately 3,700 employees, of whom more than 80% are
citizens of the respective countries in which they work.
Geographic Expansion. The Company's objective is to maintain
its presence in regions where it has previously developed a
strong base of operations, such as Africa, the Middle East, North
America and South America, and to establish a presence in
additional strategically important locations, such as Russia,
Pakistan, Indonesia, Egypt and Brazil. In pursuing this strategy,
the Company seeks to identify a limited number of long-term niche
markets in which the Company can outperform the competition and
establish an advantageous position.
Strategic Alliances. The Company seeks to establish strategic
alliances with companies whose resources, skills and strategies
are complementary to and are likely to enhance the Company's
business opportunities, including the formation of joint ventures
and consortia to achieve competitive advantage and share risks.
Such alliances have already been established in Australia,
Bolivia, Brazil, Cameroon, Chad, Georgia, Indonesia, Malaysia,
Mexico, Russia, Thailand, the United States and Venezuela. As an
example of this strategy, the Company has entered into a Joint
Development Agreement with a unit of British Gas plc to promote
the utilization of an epoxy-filled pipeline repair sleeve
developed by British Gas and offer a
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full range of pipeline rehabilitation services to the oil and gas
industry, including assessment and rehabilitation construction
services. As a related strategy, the Company may decide to make
an equity investment in a project in order to enhance its
competitive position and/or maximize project returns.
Acquisitions. The Company seeks to identify and acquire
companies which complement its business strategy. For example, in
1994 the Company acquired Construcciones Acuaticas Mondiales,
S.A. ("CAMSA"). CAMSA operates in the Lake Maracaibo area of
Venezuela and its primary expertise is in marine construction and
the fabrication and installation of concrete piles and platforms
for offshore projects. The Company continues to evaluate
acquisition candidates that offer growth opportunities and the
ability to complement the Company's resources and capabilities.
Quality Improvements. The Willbros quality program is
designed to meet the specific needs to its customers through
continuous improvement of all its business processes, at the same
time improving competitiveness and profitability. One important
aspect of the quality program is to obtain ISO 9000 certification
for key operating subsidiaries. ISO 9000 is an internationally
recognized verification system for quality management overseen by
the International Standards Organization based in Geneva,
Switzerland. The ISO 9000 certification is important to the
Company's international operations in that in recent years such
certification has been made a criterion for prequalification of
contractors by certain potential clients, and this trend is
expected to continue. The certification process involves a
rigorous review and audit of the Company's management processes
and quality control procedures. During 1996, five of the
Company's subsidiaries achieved ISO 9000 certification.
Conservative Financial Management. The Company emphasizes the
maintenance of a conservative balance sheet in order to finance
the development and growth of its business. The Company also
seeks to obtain contracts that are likely to result in recurring
revenues in order to mitigate the cyclical nature of its
construction and engineering businesses. For example, the Company
generally seeks to obtain specialty services contracts of more
than one year in duration. Additionally, the Company acts to
minimize its exposure to currency fluctuations through the use of
U.S. dollar-denominated contracts, by limiting payments in local
currency to approximately the amount of local currency expenses,
and otherwise by hedging activities such as purchasing forward
exchange contracts.
Willbros Background
The Company is the successor to the pipeline construction
business of Williams Brothers Company which was started in 1908
by Miller and David Williams. In 1949, the business was
reconstituted and acquired by the next generation of the Williams
family. The resulting enterprise eventually became The Williams
Companies, Inc., a major U.S. interstate natural gas and
petroleum products pipeline company (''Williams'').
In 1975, Williams elected to discontinue its pipeline
construction activities and, in December 1975, sold substantially
all of the non-U.S. assets and entities comprising its pipeline
construction division to a newly formed Panama corporation
(eventually renamed ''Willbros Group, Inc.'') owned by employees
of the division. In 1979, Willbros Group, Inc. retired its debt
incurred in the acquisition by selling a 60% equity stake to
Heerema Holding Construction, Inc. ("Heerema"). In 1986, Heerema
acquired the balance of Willbros Group, Inc., which then operated
as a wholly owned subsidiary of Heerema until April 1992.
In April 1992, Heerema sold Willbros Group, Inc. to a
corporation formed December 31, 1991, in the Republic of Panama
by members of the Company's management, certain private
investment partnerships managed by Dillon, Read & Co., Inc.
("Dillon Read") and persons related to Dillon Read and
Heerema. Subsequently, the original Willbros Group, Inc.
was dissolved into the acquiring corporation which
was renamed ''Willbros Group, Inc.''
In August 1996, the Company sucessfully completed an initial
public offering of its common stock.
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The term "Willbros," as used herein, includes the Company, the
original Willbros Group, Inc. and their predecessors in the
pipeline construction business, as described above. All
references in this Form 10-K to the "Company" refer to Willbros
Group, Inc. ("WGI") and its consolidated subsidiaries.
Willbros Milestones
The following are selected milestones which Willbros has
achieved:
1939 Executed its first international pipeline project in
Venezuela.
1942-44 Principal contractor on the "Big Inch" and "Little
Big Inch" War Emergency Pipelines which delivered U.S.
Gulf Coast crude oil to the Eastern Seaboard.
1947-48 Built the 370 mile (600 kilometer) Camiri to Sucre and
Cochabamba crude oil pipeline in Bolivia.
1951 Completed the 400 mile (645 kilometer) western segment
of the Trans-Arabian Pipeline System in Jordan, Syria
and Lebanon.
1954-55 Built Alaska's first major pipeline system, consisting
of 625 miles (1,000 kilometers) of petroleum products
pipeline, housing, communications, two tank farms, five
pump stations and marine dock and loading facilities.
1956-57 Led a joint venture which constructed the 335 mile (535
kilometer) southern section of the Trans-Iranian
Pipeline, a products pipeline system extending from
Abadan to Tehran.
1958 Constructed pipelines and related facilities for the
world's largest oil export terminal at Kharg Island,
Iran.
1960 Built the first major liquified petroleum gas pipeline
system, the 2,175 mile (3,480 kilometer) Mid-America
Pipeline in the United States, including six delivery
terminals, two operating terminals, 13 pump stations,
communications and cavern storage.
1962 Began operations in Nigeria with the commencement of
construction of the TransNiger Pipeline, a 170 mile
(275 kilometer) crude oil pipeline.
1964-65 Built the 390 mile (625 kilometer) Santa Cruz to Sica
Sica crude oil pipeline in Bolivia. The highest
altitude reached by this line is 14,760 feet (4,500
meters) above sea level, which management believes is
higher than the altitude of any other pipeline in the
world.
1965 Began operations in Oman with the commencement of
construction of the 175 mile (280 kilometer) Fahud to
Muscat crude oil pipeline system.
1967-68 Built the 190 mile (310 kilometer) Orito to Tumaco
crude oil pipeline in Colombia, one of five Willbros
crossings of the Andes mountains, a project notable for
the use of helicopters in high altitude construction.
1969 Completed a gas gathering system and 105 miles (170
kilometers) of 42 inch trunkline for the Iranian Gas
Trunkline Project (IGAT) in Iran to supply gas to the
USSR.
1970-72 Built the Trans-Ecuadorian Pipeline, consisting of 315
miles (505 kilometers) of 20 and 26 inch pipeline,
seven pump stations, four pressure reducing stations
and six storage tanks.
1974-76 Led a joint venture which built the northernmost 225
miles (365 kilometers) of the Trans-Alaskan Pipeline
System.
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1974-76 Led a joint venture which constructed 290 miles (465
kilometers) of pipeline and two pump stations in the
inaccessible western Amazon basin of Peru.
1974-79 Designed and engineered the 500 mile (795 kilometer)
Sarakhs-Neka gas transmission line in northeastern
Iran.
1976-79 Acted as technical leader of a consortium which
designed and supplied six modularized gas compressor
stations totaling 726,000 horsepower for the 56 inch
Urengoy to Chelyabinsk gas pipeline system in western
Siberia.
1982-83 Built the Cortez carbon dioxide pipeline system in the
southwestern United States, consisting of 505 miles
(815 kilometers) of 30 inch pipe.
1984-86 Through a joint venture, constructed the All American
Pipeline System, a 1,240 mile (1,995 kilometer) 30 inch
heated pipeline, including 23 pump stations, in the
southwestern United States.
1984-95 Developed and furnished a rapid deployment fuel
pipeline distribution and storage system for the U.S.
Army which was used extensively and successfully in
Saudi Arabia during Operation Desert Shield/Desert
Storm in 1990/1991 and in Somalia during 1993.
1985-86 Built a 185 mile (300 kilometer) 24 inch crude oil
pipeline from Ayacucho to Covenas in Colombia.
1987 Rebuilt 25 miles (40 kilometers) of the Trans-
Ecuadorian crude oil pipeline within six months after
major portions were destroyed by an earthquake.
1988-92 Performed the project management, engineering,
procurement and field support services to expand the
Great Lakes Gas Transmission System in the northern
United States. The expansion involved modifications to
13 compressor stations and the addition of 660 miles
(1,060 kilometers) of 36 inch pipeline in 50 separate
loops.
1989-90 Built the Alto Magdalena Pipeline System in Colombia,
consisting of 250 miles (400 kilometers) of 20 inch
crude oil pipeline, one pump station and a tank farm.
1989-92 Provided pipeline engineering and field support
services for the Kern River Gas Transmission System, a
36 inch pipeline project extending over 685 miles
(1,100 kilometers) of desert and mountains from Wyoming
to California in the United States.
1992-93 Rebuilt oil field gathering systems in Kuwait as part
of the post-war reconstruction effort.
1992-93 Built 150 miles (240 kilometers) of a 42 inch pipeline
in Oregon to expand the Pacific Gas Transmission
System.
1992-94 Resumed activities in the C.I.S. Selected to develop
export pipeline system for Caspian Pipeline Consortium
from Tengiz field in Kazakstan to Black Sea oil
terminal at Novorossiysk, Russia, and established a
representative office and joint stock company in
Russia.
1994 Re-entered the Venezuela oil service market through the
acquisition of CAMSA.
1995 Entered into a cooperation agreement with a Japanese
trading company providing for the joint development of
projects in selected markets in Southeast Asia and
established an office in Jakarta, Indonesia, to pursue
major projects in the region.
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1995-97 Carrying out two contracts in Pakistan for
construction, material procurement and engineering of
the MFM Pipeline Extension Project, which consists of
225 miles (365 kilometers) of 18 inch and 16 inch multi-
product pipeline and related facilities.
1996 Launched a formal quality program and received ISO
Certification of five operating companies.
1996 Listed shares in an initial public offering of common
stock on tThe New York Stock Exchange under the symbol
"WG".
1996 Began design work on an EPC contract with Asamera
(Overseas) Limited to construct pipelines, flowlines
and related facilities for the Corridor Block Gas
Project located in southern Sumatra, Indonesia.
Lines of Business
The Company operates in a single industry segment, primarily
providing contract services to the oil and gas industry. The main
lines of business within this segment include construction,
engineering and specialty services.
Construction Services
The Company is one of the most experienced contractors serving
the oil and gas industry. The Company's construction capabilities
include the expertise to construct and replace large diameter
cross-country pipelines; to construct oil and gas production
facilities, pump stations, flow stations, gas compressor stations,
gas processing facilities and other related facilities; and
to construct piers, docks and bridges.
Pipeline Construction. World demand for pipelines results
from the need to move millions of barrels of crude oil and
petroleum products and billions of cubic feet of natural gas to
refiners, processors and consumers each day. Pipeline
construction is capital intensive, and the Company owns, operates
and maintains a fleet of specialized equipment necessary for it
to engage in the pipeline construction business. The Company
focuses on pipeline construction activity in remote areas and
harsh climates where it believes its experience gives it a
competitive advantage. Willbros believes that it has constructed
more miles of pipeline than any other private sector company.
The construction of a cross country pipeline involves a number
of sequential operations along the designated pipeline right-of-
way. These operations are virtually the same for all overland
pipelines, but personnel and equipment may vary widely depending
upon such factors as the time required for completion, general
climatic conditions, seasonal weather patterns, the number of
road crossings, the number and size of river crossings, terrain
considerations, extent of rock formations, density of heavy
timber and amount of swamp. Construction often involves separate
crews to perform the following different functions: clear the
right-of-way; grade the right-of-way; excavate a trench in which
to bury the pipe; haul pipe to intermediate stockpiles from which
stringing trucks carry pipe and place individual lengths (joints)
of pipe alongside the ditch; bend pipe joints to conform to
changes of direction and elevation; clean pipe ends and line up
the succeeding joint; perform various welding operations; non-
destructively inspect welds; clean pipe and apply anti-corrosion
coatings; lower pipe into the ditch; backfill the ditch; bore and
install highway and railroad crossings; drill, excavate or dredge
and install pipeline river crossings; tie in all crossings to the
pipeline; install mainline valve stations; conduct
pressure testing; install cathodic protection
system; and perform final clean up.
Special equipment and techniques are required to construct
pipelines across wetlands. From a launching station on dry land,
a section of several joints of pipe which have been welded
together may be pushed into a flooded ditch. By securing floaters
to the pipe it is possible to float the pipe. The next section
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is then welded to the end of the previous section, after which it
is pushed into the flooded ditch. The same method can be used
from a properly secured and anchored barge. Another specialized
swamp pipe laying technique is to lay the pipe from a lay barge
which moves along the right of way, laying one joint at a time;
each joint is aligned and welded, and the weld non-destructively
inspected and coated before being lowered in. The Company uses
swamp pipelaying methods extensively in Nigeria, where most of
its construction operations are carried out in the Niger River
delta. In addition to primary equipment such as laybarges,
dredges and swamp backhoes, the Company has a substantial
investment in support vessels, including tugboats, barges, supply
boats, and houseboats, which are required in order to maintain a
capability in swamp pipeline construction.
Station Construction. Oil and gas companies require various
facilities in the course of producing, processing, storing and
moving oil and gas. The Company is experienced and capable of
constructing facilities such as pump stations, flow stations, gas
processing facilities, gas compressor stations and metering
stations. The Company is capable of building such facilities
onshore, offshore or in swamp locations. The construction of
station facilities, while not nearly as capital intensive as
pipeline construction, is generally characterized by complex
logistics and scheduling, particularly on projects in locations
where seasonal weather patterns limit construction options, and
in countries where the importation process is difficult.
Willbros' capabilities have been enhanced by its experience in
dealing with such challenges in numerous countries around the
world.
Marine Construction. The Company constructs and installs
fixed drilling and production platforms in Venezuela, primarily
in Lake Maracaibo. Because of the extremely corrosive conditions,
concrete, rather than steel, piling is driven deep into the
lakebed to support such platforms. The Company is also capable of
building bridges, docks, jetties and mooring or breasting
dolphins. The Company's marine fleet includes pile driving
barges, derrick barges and other vessels which support marine
construction operations.
Construction services contributed 21%, 31% and 29%,
respectively, of the Company's contract revenues in 1996, 1995
and 1994.
Engineering Services
The Company provides engineering, project management and
material procurement services to the oil and gas industry and
government agencies. To complement its engineering services, the
Company also provides a full range of field services, including
surveying, right-of-way acquisition, material receiving and
control, construction inspection and facilities startup
assistance. Such services are furnished to a number of oil and
gas industry and government clients on a stand-alone basis; and,
in addition, are provided as part of engineering, procurement and
construction contracts undertaken by the Company.
The Company specializes in providing engineering services to
assist clients in constructing or expanding pipeline systems,
compressor stations, pump stations, fuel storage facilities and
field gathering and production facilities. Through experience,
the Company has developed expertise in addressing the unique
engineering issues involved with pipeline systems and associated
facilities to be installed where climatic conditions are extreme,
where areas of environmental sensitivity must be crossed, where
fluids which present extreme health hazards must be transported
and where fluids which present technical challenges regarding
material selection are transported.
Climatic Constraints. In the design of pipelines and
associated facilities to be installed in harsh environments,
special provisions for metallurgy of materials and foundation
design must be addressed. The Company is experienced in designing
pipelines for arctic conditions, where permafrost and
extremely low temperatures are prevalent, and for desert
conditions, mountainous terrain and swamp.
Environmental Impact of River Crossings. The Company has
considerable capability in designing pipeline crossings of rivers
and streams in such a way as to minimize environmental impact.
The Company possesses expertise to determine the optimal crossing
techniques (e.g., open cut, directionally drilled or overhead)
and to develop site specific construction methods to minimize
bank erosion,
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sedimentation and other environmental impacts.
Seismic Design and Stress Analysis. Company engineers are
experienced in seismic design of pipeline crossings of active
faults and areas where liquefaction or slope instability may
occur due to seismic events. They also carry out specialized
stress analyses of piping systems that are subjected to expansion
and contraction due to temperature changes, as well as loads from
equipment and other sources.
Hazardous Materials. Special care must be taken in the design
of pipeline systems transporting sour gas. Sour gas presents not
only challenges regarding personnel safety (hydrogen sulfide
leaks can be extremely hazardous), but material must be specified
to withstand extremely corrosive conditions.
Hydraulics Analysis for Fluid Flow in Piping Systems. The
Company employs engineers with the specialized knowledge
necessary to address properly the effects of both steady state
and transient flow conditions for a wide variety of fluids
transported by pipelines (natural gas, crude oil, refined
petroleum products, natural gas liquids, carbon dioxide and
water). This expertise is important in optimizing the capital
costs of pipeline projects where pipe material costs typically
represent a significant portion of total project capital costs.
Natural Gas Transmission Systems. The expansion of the
natural gas transportation network in the United States in recent
years has been a major contributor to the engineering business of
the Company. The Company believes it has established a strong
position as a leading supplier of engineering services to natural
gas pipeline transmission companies in the United States. Since
1988, Willbros has provided, or is providing, engineering
services for seven major natural gas pipeline projects in the
United States, totaling more than 3,300 miles (5,400 kilometers)
of large diameter pipe for new systems and expansions of existing
systems. During this same period, Willbros was also the
engineering contractor for 15 compressor stations (or additions
to existing stations) for six clients.
Liquids Pipelines and Storage Facility Design. Since the
1970's, when Willbros engineered a number of crude oil and
refined petroleum products systems in the United States,
Colombia, Nigeria, Iran and Peru, Willbros has become recognized
for its expertise in the engineering of systems for the storage
and transportation of petroleum products and crude oil. More
recently, the Company has been responsible for the engineering of
a major expansion of a products pipeline system in the United
States, involving 395 miles (640 kilometers) of pipeline in New
Mexico and Texas. Currently, the Company is providing project
management, engineering and field services for a major expansion
of a crude oil system in Wisconsin and Illinois, involving over
450 miles (725 kilometers) of large diameter pipeline to serve
the upper midwest refineries with Canadian crude oil.
U.S. Government Services. Since 1981, Willbros has
established its position with U.S. government agencies as a
leading engineering contractor for jet fuel storage and aircraft
fueling facilities, having performed the engineering for major
projects at seven U.S. military bases including three air bases
outside the U.S. The award of these projects was based on
contractor experience and personnel qualifications.
Design of Peripheral Systems. The Company's expertise extends
to the engineering of a wide range of project peripherals,
including various types of support buildings and utility systems,
power generation and electrical transmission, communications
systems, fire protection, water and sewage treatment, water
transmission, roads and railroad sidings.
Material Procurement. Because material procurement plays such
a critical part in the success of any project, the Company
maintains an experienced staff to carry out material procurement
activities. Material procurement services are provided to clients
as a complement to the engineering services performed for a
project. On engineering, procurement and construction contracts
undertaken by the Company, material procurement is especially
critical to the timely completion of construction. The Company
maintains a computer-based material procurement, tracking and
control system, which utilizes software enhanced to meet the
Company's specific requirements.
11
<PAGE>
Engineering services contributed 30%, 15% and 23%,
respectively, of the Company's contract revenues in 1996, 1995
and 1994.
Specialty Services
The Company provides a wide range of support and ancillary
services related to the construction, operation, repair and
rehabilitation of pipelines. Frequently, such services require
the utilization of special equipment which is costly and requires
operating expertise. Due to the initial equipment cost and
operating expertise required, many companies contract for the use
of such special equipment and experienced personnel. The Company
owns and operates a variety of the special equipment that is used
to support construction projects and to provide a wide range of
oilfield services. The following is a description of the primary
types of specialty services.
Dredging. The Company conducts dredging operations on its own
projects and as a subcontractor for other companies. Dredging
equipment is required to pump sand to establish a land location
in a swamp and to excavate trenches for pipelines in swamps or
offshore locations and for river crossings. Dredging equipment is
also used to maintain required depth of navigation channels for
barges and other water craft. This maintenance dredging is often
performed on annual or multi-year contracts. The Company owns a
fleet of dredges, including cutter suction dredges and grab
dredges, which are routinely used in Nigeria and can be readily
deployed to other projects in the region.
Pipe Coating. The Company owns and operates coating equipment
which applies a variety of protective anti-corrosion coatings to
the external surface of line pipe. The external coating is
required to protect buried pipe in order to mitigate external
corrosion.
Concrete Weight Coating. Pipelines installed in wetlands or
marine environments must be heavy enough to offset the buoyancy
forces on the buried pipeline to keep the pipeline from floating
out of the ditch. The most effective method of achieving the
required negative buoyancy is concrete coating applied over the
anti-corrosion coating to a calculated thickness. The Company
owns and operates a facility in Nigeria to apply concrete weight
coating to line pipe.
Pipe Double Jointing. Large diameter pipe for onshore
pipeline projects is normally manufactured in 40 foot (12 meter)
nominal lengths (joints) to facilitate ocean transportation. On
long distance, large diameter pipeline projects, it is usually
economical to weld two joints into an 80 foot (24 meter) double
joint at a location or locations along the pipeline route. This
technique reduces the amount of field welding by 50%, and,
because welding is often the critical operation, it may
accelerate construction of the pipeline. The double joint welds
are made with a semi-automatic submerged arc welding process
which produces high quality and consistent welds at lower costs
than field welding. The Company owns two transportable self-
contained double joint plants which can handle 24 inch to 48 inch
pipe and are used on both domestic and international projects.
Piling. The Company's subsidiary in Venezuela specializes in
the fabrication and installation of 36 inch concrete piles up to
220 feet (67 meters) in length. These piles are used to construct
marine facilities such as drilling platforms, production
platforms, bridges, docks, jetties and mooring or breasting
dolphins. The Company also owns barges and pile driving equipment
to install piles in Venezuela and Nigeria.
Marine Heavy Lift Services. The primary equipment used for
oil and gas production facilities is usually manufactured on
skids at the vendor's shop and transported to the production site
by ocean-going water craft. The Company owns a variety of heavy
lift barges and tugboats to transport such equipment
from the receiving country port to the production location and to
install the equipment on the platforms. Other services include
marine salvage and dry-dock facilities for inland water barges.
Transport of Dry and Liquid Cargo. Exploration and production
operations in marine environments require logistical support
services to transport a variety of liquid and dry cargo to the
work sites. The Company owns and operates a diversified fleet of
marine equipment to provide transportation services to
12
<PAGE>
support these operations in Nigeria and Venezuela.
Rig Moves. Derricks used for drilling oil and gas wells and
for well work-overs require heavy transportation equipment to
move such equipment and tanks and storage vessels between well
locations. The Company owns a fleet of heavy trucks and trailers
and provides transportation services to move rigs for clients in
Oman and Venezuela.
Pipeline Rehabilitation Services. The Company and BG
Inspection Services, Inc., the U.S. pipeline inspection unit of
British Gas plc, have executed a Joint Development Agreement to
pursue pipeline repair and rehabilitation projects in North,
Central and South America. The joint effort will promote the
utilization of the British Gas developed ''epoxy-filled repair
sleeve'' and will offer a full range of related pipeline
rehabilitation services related to the oil and gas industry,
including inspection, assessment and rehabilitation construction
services. This repair technique permits permanent repairs to be
made to a pipeline without cutting sections of pipe from the
pipeline and without interruption of service. The Company and
British Gas have also used this rehabilitation procedure for a
client in Oman on approximately 790 miles (1,275 kilometers) of 6
inch through 38 inch crude oil and natural gas pipelines.
Maintenance and Repair Services. The Company provides a wide
range of other services including mechanical, electrical,
instrumentation, civil works, road maintenance and provision of
camp services for operating personnel associated with operation
and maintenance of oil and gas gathering systems and production
equipment.
Specialty services contributed 49%, 54% and 48%, respectively,
of the Company's contract revenues in 1996, 1995 and 1994.
Geographic Regions
The Company currently operates in the following geographic
regions: Africa, Asia, the C.I.S., the Middle East, North America
and South America.
The following table reflects the Company's contract revenues by
geographic region for 1996, 1995 and 1994.
<TABLE>
<CAPTION>
Year Ended December 31,
--------------------------------------------------
1996 1995 1994
------- ------- -------
Amount Percent Amount Percent Amount Percent
------ ------- ------ -------- ------ -------
(Dollar amounts in thousands)
<S> <C> <C> <C> <C> <C> <C>
Africa $ 87,283 44% $ 95,972 43% $ 68,908 47%
Asia 34,209 17 29,728 13 - -
C.I.S. 868 - 1,283 1 540 1
Middle East 23,513 12 21,870 10 23,469 16
North America 32,918 17 52,100 24 48,061 33
South America 18,897 10 19,553 9 4,738 3
-------- ---- -------- ---- -------- ----
$197,688 100% $220,506 100% $145,716 100%
======== ==== ======== ==== ======== ====
</TABLE>
See Note 13 to the Consolidated Financial Statements on Page 33
of the Company's 1996 Annual Report to Stockholders (which is
incorporated by reference herein) for additional information
about the Company's operations in these geographic regions.
13
<PAGE>
Africa
Willbros began serving the petroleum industry in Nigeria in
1962, when it was selected to construct the TransNiger Pipeline
System, and has maintained a continuous operating presence in
Nigeria since that time. Willbros has also completed a
number of major projects in other African countries
including Algeria, Libya, Egypt, Morocco and Gabon, the
most recent being the Peace Vector Project for the U.S.
Army Corps of Engineers in Egypt, which involved procuring
materials for an air base to support F-16 aircraft and
providing onsite technical assistance to Egyptian contractors
building the base. The Company has formed an Egyptian limited
liability company and has established a business development
office in Cairo to pursue work prospects in Egypt.
The Company has management staff resident in Africa, assisted
by engineers, managers and craftsmen with extensive African
experience, capable of providing construction expertise, repair
and maintenance services, dredging operations, pipe coating and
engineering support. Strong local relationships have enabled
Willbros to satisfy the varied needs of its clientele in the
region.
The Company's activities in Nigeria are directed from a fully
staffed operational base near Port Harcourt. This 60 acre
compound includes office and living facilities, equipment and
vehicle repair shops, a marine jetty and warehouses for both
Company and client materials and spare parts. Customized computer
systems are utilized for payroll and personnel, accounting,
estimating, cost and progress control, inventory control,
maintenance management and the health, safety and environmental
program. The Company has diversified its range of services by
adding dredging and pipe coating expertise. Having diverse yet
complementary capabilities has often given the Company a
competitive advantage on projects which contain several distinct
work elements within the project's scope of work. For example,
the Company is the only contractor operating in the Nigerian oil
and gas sector capable, on its own, of executing a pipeline
construction project, which requires yard coating of line pipe,
installation of major water crossings and both swamp and cross
country segments of pipeline.
The Company's current backlog in Nigeria includes the
construction of a 24 inch pipeline crossing of the Bonny River
for Bilfinger & Berger, a 24 inch pipeline crossing of the
Escravos River for NNPC, contracts with Shell to provide dredging
services and swamp flowline maintenance services, a swamp
pipeline construction contract and various pipe coating jobs
related to Shell, Chevron and NNPC projects.
The Company believes that there will be significant
opportunities to expand its business in Africa, particularly
through the development of natural gas projects. There are large
reserves of natural gas in West Africa, extending from Ivory
Coast to Angola, which are potentially exploitable. Depending
upon the world market for natural gas and the availability of
financing, the amount of potential new work could be substantial.
The Company intends to maintain its presence in the region and
seeks to increase its share of available work. The Company is
currently monitoring or bidding major work prospects in Cameroon,
Chad, Egypt, Kenya, Nigeria and Tanzania. The Company
anticipates submitting bids for these prospects.
Asia
In an effort to take advantage of the rapidly growing economies
in Asia, the Company has made this region a priority target
market for geographic expansion. In March 1995, the Company
established an office in Jakarta, Indonesia, to pursue potential
major projects in Asia. In October 1995, the Company entered into
a cooperation agreement with a major Japanese trading company
providing for the joint development of projects in Indonesia,
Malaysia and Thailand. In November 1996, the Company was awarded
a $33 million contract by Asamera (Overseas) Limited to construct
pipelines, flowlines and related facilities for the Corridor
Block Gas Project in southern Sumatra, Indonesia. The Company is
currently monitoring or bidding work prospects in Australia,
China, India, Indonesia, Malaysia, Pakistan, Papua New Guinea,
the Philippines, Thailand and Vietnam.
In January 1995, Pak-Arab Refinery, Ltd. awarded the Company
two contracts, one for the supply of project materials and the
other for the engineering and construction of the MFM Pipeline
Extension Project
14
<PAGE>
in Pakistan. The project scope includes 225 miles (365
kilometers) of 18 and 16 inch petroleum products pipeline
commencing at Mahmood Kot and ending at Machhike. In May 1995,
the Company was awarded an additional part of the MFM project
which consists of the expansion of an existing terminal at
Mahmood Kot (including 267,000 barrels of storage capacity),
addition of a new terminal and pump station at
Faisalabad (including 270,000 barrels of storage), addition of a
storage terminal at Machhike (including 443,000 barrels of
storage) and design of a future pump station at Kot Bahadur Shah.
The Company has a project office in Lahore, Pakistan,
which is managing these projects, which are scheduled to be
completed and commissioned during 1997.
Commonwealth of Independent States (C.I.S.)
The C.I.S. contains vast reserves of oil and gas. The oil
reserves contained in the Tengiz Field, the largest field to be
served by the planned Caspian Crude Oil Export Pipeline System
(the "CPC Pipeline System"), and the gas reserves contained in
the Bovanenkovskoye Field, the anchor field on the gas-rich Yamal
peninsula, are each generally recognized to be among the largest
in the world. These are but two of many fields which are
candidates for significant exploration and production
investments. Many of the Company's clients are major oil and gas
companies which are candidates to participate in the
development of energy resources in the C.I.S. The Company is
prepared to offer its support services to such clients in this
region.
Willbros' activities in this region date back to 1976, when
Willbros was the technical leader of a consortium which was
awarded a major contract to design and supply six modularized gas
turbine compressor stations, housing 42 compressor units with a
total capacity of 726,000 horsepower, for the Urengoy to
Chelyabinsk 56 inch gas pipeline system in western Siberia. Since
the completion of the project in 1979, contacts and relationships
have been maintained with personnel throughout the Russian oil
and gas sector, including members of various technical
institutes. To compete in the Russian market, the Company has
established an Accredited Representative Office in Moscow, as
well as a Russian joint stock company.
In 1992, the Company, in a joint venture with another
contractor, was selected to perform the project development of
the CPC Pipeline System designed to transport oil from the Tengiz
field in Kazakstan approximately 930 miles (1,500 kilometers) to
Russia's Black Sea oil terminal at Novorossiysk which
culminated with the submission of a full set of turnkey contract
documents to the project sponsors. Until ownership interests
have been finalized, it is unlikely that any major contracts will be
awarded, and there is a high probability that there will be a new
round of competitive bidding for the project.
In 1995, the Company was awarded a contract by Transneft, the
Russian oil pipeline monopoly, to perform pipeline routing
studies and other project development activities related to the
Baltic Crude Oil Export System. This proposed multi-billion
dollar project originated in a Conceptual Development Plan
submitted by the Company to Transneft in February 1995. During
1996, the Company acted as Transneft's technical and financial
advisor in the conceptual planning of a project to upgrade and
reverse the flow of the Russian sector of the Baku to Tikhoretsk
oil pipeline system to carry a minimum of 36.5 million barrels
annually of export crude oil from Azerbaijan.
In February 1996, the Company established a formal business
alliance with Giprotruboprovod, a design company based in Moscow
which is a subsidiary of Transneft. The two companies will
cooperate to offer joint technical services to international as
well as Russian companies in respect of pipelines and related
facilities. The Company believes that these alliances will
enhance its long term prospects in the C.I.S. and that it is well
positioned to increase its presence and its level of activity in
the C.I.S.
Middle East
Willbros operations in the Middle East date back to 1948. It
has worked in most of the countries in the region, with
particularly heavy involvement in Iran, Kuwait, Oman and Saudi
Arabia. In Iran, Willbros
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<PAGE>
designed or constructed a substantial portion of the pipelines
and related facilities that exist today. Currently, the Company
has ongoing operations in Oman, where Willbros has been active
for more than 30 years.
The Company maintains a fully staffed facility in Oman with
equipment repair facilities and spare parts on site and offers
construction expertise, repair and maintenance services,
engineering support, oil field transport services, materials
procurement and a variety of related services to its clients.
Current operations in Oman include a multi-year Mechanical
Services Contract and a pipeline maintenance program for
Petroleum Development Oman ("PDO"). Work carried out in Oman
during 1996 included pipeline maintenance, mechanical
services and flowline work for Occidental of Oman and PDO. A
recent major project completed in Oman involved engineering,
procurement and construction services on a turnkey contract for a
gas injection facility in Occidental of Oman's Safah Field. The
project included facilities for gas dehydration, gas compression,
injection gas metering, electrical power generation and
associated support utilities and buildings.
During 1992 and 1993, following the Gulf War, the Company
carried out a significant program of gathering line replacement
in Kuwait to help Kuwait Oil Company restore its production
capacity. Willbros has since established a local company and has
a base of operations from which it can offer additional services.
The Company is aggressively pursuing business opportunities
throughout the Middle East and is currently bidding work or
monitoring prospects in Abu Dhabi, Kuwait, Oman, Qatar, Saudi
Arabia and Yemen.
North America
Willbros has provided services to the U.S. oil and gas industry
for more than 80 years. The Company is recognized as an industry
leader in the United States, for providing state-of-the-art
engineering and construction services. The Company maintains a
staff of experienced management, construction, engineering and
support personnel in the United States.
Among Willbros' significant achievements in the United States
are (a) the construction of the two northernmost segments of the
Trans-Alaskan Pipeline System (1974-76), which consisted of a 225
mile (365 kilometer) crude oil pipeline and a 140 mile (225
kilometer) fuel gas pipeline, (b) a joint venture to build the
All American Pipeline System (1984-86), a 1,240 mile (1,995
kilometer) heated crude oil pipeline with 23 pumping and heating
stations, and (c) Willbros involvement in nine of the ten largest
gas pipeline projects undertaken in the United States since 1988.
The Company was a construction contractor on the Pacific Gas &
Electric-PGT pipeline expansion project in Oregon and the
Tuscarora Gas Transmission project in Nevada and California.
Willbros provided engineering services for the Great Lakes Gas
Transmission Company's system expansion, the Kern River Gas
Transmission System, the Northwest Pipeline System expansion, the
NorAm Line AC pipeline project and the Florida Gas pipeline
project. During the same period, Willbros was the engineering
contractor for 15 compressor stations or station expansions, on
behalf of six different clients in the United States. Currently,
the Company is providing engineering services for the Northern
Border natural gas pipeline extension, the Portland Natural Gas
Transmission project in New England, the KN Energy "Pony Express"
natural gas pipeline from Wyoming to Missouri, and the Lakehead
Pipe Line Company crude oil pipeline expansion project in
Wisconsin and Illinois.
On a recent notable project, the Company was selected to
provide engineering services for the largest grass roots crude
oil storage facility built in the United States in the last
decade. The facility, built in Cushing, Oklahoma, for Plains
Resources, Inc., consists of tankage with 2.0 million barrels of
storage capacity and all related facilities.
Willbros has also provided significant engineering services to
the U.S. Government during the past 15 years, particularly in
fuel storage and distribution systems and aircraft fueling
facilities. Willbros performed
16
<PAGE>
the engineering for major projects on seven U.S. military bases,
four of which were located within the United States. In 1984,
Willbros was selected by the U.S. Army to act as the systems
integration contractor for the Southwest Asia Petroleum
Distribution Operational Project. Willbros was responsible for
developing and procuring a tactical fuel distribution and storage
system to support military operations
worldwide. The system was successfully deployed in Saudi Arabia
during Operation Desert Storm. Willbros acted as the systems
integrator for this project until 1996. Currently, the Company
is executing two multi-year contracts with the U.S. government to
(a) prepare operating and maintenance manuals for fuel
storage depots worldwide, and (b) conduct integrity
assessments and carry out repair of pipeline and fueling
facilities at military installations worldwide.
The Company believes that the United States will continue to be
an important market for all of its lines of business.
Environmental concerns will likely continue to require careful,
thorough and specialized professional engineering and planning
for all new facilities within the oil and gas sector.
Furthermore, the demand for replacement and rehabilitation of
pipelines is expected to increase as pipeline systems in the
United States approach the end of their design lives and
population trends influence overall energy needs.
South America
Willbros' first entry into South America was in Venezuela in
1939. Since then, Willbros has performed numerous major projects
in Venezuela and other South American countries, where its
accomplishments include the construction of five major pipeline
crossings of the Andes Mountains and setting a world altitude
record for constructing a pipeline. Willbros' largest project in
South America was a $134.0 million turnkey project for the
procurement and construction of the Alto Magdalena Crude Oil
Pipeline System in Colombia, awarded to Willbros in 1989 and
completed in 1990.
Venezuela, the largest oil producer in South America with
production of approximately 3.0 million barrels of oil per day,
remains an important market for the Company. Approximately 50%
of Venezuelan crude oil is produced from beneath Lake Maracaibo.
In May 1994, the Company acquired CAMSA, a Venezuelan company
located in the city of Maracaibo whose primary expertise is in
marine construction and the fabrication and installation of 36
inch diameter cylindrical concrete piles up to 220 feet (67
meters) long and platforms for offshore projects. The Company
has added onshore equipment to complement the marine fleet,
enabling it to compete for both onshore and offshore construction
projects, as well as specialty services contracts. The Company
has the ability to furnish marine support services to the oil and
gas industry in the Lake Maracaibo area, along the Venezuelan
coast, and throughout the Caribbean basin.
The Company maintains a fully staffed facility including
offices, equipment yard and dock facilities on a 15 acre
waterfront site on Lake Maracaibo, with resident management
personnel assigned who are responsible for estimating and
tendering bids, providing construction expertise, repair and
maintenance services, marine related services, engineering
support and other needed services. Major clients include
international oil companies such as Shell, Occidental Petroleum,
and Chevron and operating subsidiaries of Petroleos de Venezuela
S.A., including Maraven, Corpoven and Lagoven.
In addition to Venezuela, the Company is aggressively pursuing
business opportunities throughout South America and is currently
bidding work or monitoring prospects in Argentina, Bolivia,
Brazil, Peru and Uruguay. Recent developments involving
political changes and privatization efforts in many of
the South American countries make this region one of high
interest in the immediate future.
Backlog
The Company's backlog (anticipated revenue from the uncompleted
portions of existing contracts and contracts whose award is
reasonably assured) was $108.8 million at December 31, 1996,
compared to $139.4 million at December 31, 1995. The Company
believes the backlog figures are firm, subject only to the
cancellation and modification provisions contained in various
contracts. Historically, a substantial
17
<PAGE>
amount of the Company's revenues in a given year have not been
reflected in its backlog at the beginning of that year; such
revenues may result from contracts of long or short duration
entered into during a year as well as from various contractual
processes, including change orders, extra work, variations in the
scope of work and the effect of escalation or currency
fluctuation formulas. These revenue sources are not added to
backlog until realization of revenue is assured.
The following is a breakdown of the Company's backlog by
geographic region as of December 31, 1996 and 1995:
<TABLE>
<CAPTION>
1996 1995
---------------- ---------------
Amount Percent Amount Percent
------ ------- ------ -------
(Dollar amounts in thousands)
<S> <C> <C> <C> <C>
Africa $ 18,455 17% $ 46,363 33%
Asia 44,354 41 42,212 30
C.I.S. 258 - 832 1
Middle East 7,968 7 37,485 27
North America 25,374 23 10,715 8
South America 12,342 12 1,752 1
-------- ----- -------- -----
Total $108,751 100 % $139,359 100 %
======== ===== ======== =====
</TABLE>
The $30.6 million decrease in backlog is due mainly to work
completed on engineering, procurement and construction contracts
for the MFM Pipeline Extension Project in Pakistan and work
completed and modifications of a speciality services contract in
Oman, offset by the addition of a contract for the construction
of a 24 inch pipeline crossing of the Escravos River for NNPC in
Nigeria, a contract for pipelines, flowlines and related
facilities for Asamera (Overseas) Limited in Indonesia and a
contract for piling for an offshore loading and storage terminal
in Venezuela..
A substantial percentage of the Company's revenues in past
years resulted from contracts entered into during that year or
the immediately preceding year. The following table sets forth
revenues for the years indicated as a percentage of backlog at
the beginning of each such year:
<TABLE>
<CAPTION>
Revenues for
------------
Backlog at Year Ended
---------- ------------ -------
January 1 December 31 Percent
--------- ------------ -------
(Dollar amounts in thousands)
<S> <C> <C> <C>
1992 $146,734 $180,947 123 %
1993 160,565 210,011 131
1994 76,066 145,716 191
1995 97,493 220,506 226
1996 139,359 197,688 142
Average 1992-96 $124,043 $190,974 154 %
</TABLE>
No assurance can be given that future experience will be similar
to historical results in this respect.
18
<PAGE>
Competition
The Company's primary competitors on construction projects in
developing countries include Entrepose (France), Mannesmann
(Germany), CCC (Lebanon), Nippon Kokan (Japan), Saipem (Italy),
Spie-Capag (France), Techint (Argentina), and Bechtel (U.S.). The
Company believes that it is one of the few companies among its
competitors possessing the ability to carry out large projects in
developing countries on a turnkey basis (engineering, procurement
and construction), without subcontracting major elements of the
work. As a result, the Company may be more cost effective than
its competitors in certain instances.
The Company has different competitors in different markets. In
Nigeria, the Company competes for pipe coating work with Bredero
Price (Netherlands), while its dredging competitors include Bos
Kalis Westminster (Netherlands), Dredging International
(Belgium), Bilfinger & Berger (Germany), Nigerian
Dredging & Marine (Netherlands), Phillip Holzmann (Germany) and
HBG (Netherlands). In Oman, competitors in oil field transport
services include Desert Lines, Al Ahram, Hamdam and TruckOman,
all Omani companies; and in construction and the installation of
flowlines and mechanical services, the Company competes with
Taylor Woodrow Towell (Britain), CCC, Dodsal (India), Saipem,
Desert Lines, and Galfar (Oman). In Venezuela, competitors in
marine support services include Raymond de Venezuela, Petrolago,
Flag Instalaciones and Siemogas, all Venezuelan companies. In
Pakistan, major competitors include Saipem and Tekfen (Turkey).
In the United States, the Company's primary construction
competitors on a national basis include Associated, Gregory &
Cook, Henkels & McCoy, Murphy Brothers, H. C. Price, Sheehan, and
Welded. In addition, there are a number of regional competitors.
Primary competitors for engineering services include Bechtel,
Brown and Root, Gulf Interstate, Marmac, Fluor Daniel Williams
Brothers, Mustang Engineering, Stone & Webster, Paragon
Engineering, Trigon Engineering and Universal Ensco.
Contract Provisions and Subcontracting
Most of the Company's revenues are derived from construction,
engineering and specialty services contracts. The Company enters
into four basic types of construction contracts: firm fixed-price
or lump-sum fixed-price contracts providing for a single price
for the total amount of work or for a number of fixed lump sums
for the various work elements comprising the total price; unit-
price contracts which specify a price for each unit of work
performed; time and materials contracts under which personnel and
equipment are provided under an agreed schedule of daily rates
with other direct costs being reimbursable; or a combination of
the above (for example, lump sums for certain items and unit
rates for others).
The Company enters into three types of engineering contracts:
firm fixed-price or lump-sum fixed-price contracts; time and
materials contracts pursuant to which engineering services are
provided under an agreed schedule of hourly rates for different
categories of personnel, and materials and other direct costs are
reimbursable; and cost-plus-fee contracts, common with U.S.
government clients under which income is earned solely from the
fee received. Cost-plus-fee contracts are often used for material
procurement services.
Specialty services contracts generally are unit-price contracts
which specify a price payable per unit of work performed (e.g.,
per cubic meter, per lineal meter, etc.). Such contracts usually
include hourly rates for various categories of personnel and
equipment to be applied in cases where no unit price exists for a
particular work element. Under a services contract, the client is
typically responsible for supplying all materials; a cost-plus-
percentage-fee provision is generally included in the contract to
enable the client to direct the contractor to furnish certain
materials.
The Company usually obtains contracts through competitive
bidding or through negotiations with long-standing clients. The
Company is typically invited to bid on projects undertaken by its
clients who maintain approved bidder lists. Bidders are pre-
qualified by virtue of their prior performance for such
19
<PAGE>
clients, as well as their experience, reputation for quality,
safety record, financial strength and bonding capacity.
In evaluating bid opportunities, the Company considers such
factors as the client, the geographic location and the difficulty
of the work, the Company's current and projected workload, the
likelihood of additional work, the project's cost and
profitability estimates, and the Company's competitive advantage
relative to other likely bidders. The Company uses a computer-
based estimating system. The bid estimate forms the basis of a
project budget against which performance is tracked through a
project cost system, enabling management to monitor projects
effectively. Project costs are accumulated weekly and monitored
against billings and payments to facilitate cash flow management
on the project.
All U.S. government contracts and many of the Company's other
contracts provide for termination of the contract for the
convenience of the client. In addition, many contracts are
subject to certain completion
schedule requirements with liquidated damages in the event
schedules are not met as the result of circumstances within the
control of Willbros. The Company has not been materially
adversely affected by these provisions in the past.
The Company acts as prime contractor on a majority of the
construction projects it undertakes. In its capacity as prime
contractor and when acting as a subcontractor, the Company
performs most of the work on its projects with its own resources
and typically subcontracts only such specialized activities as
hazardous waste removal, non-destructive inspection, tank
erection, catering and security. In the construction industry,
the prime contractor is normally responsible for the performance
of the entire contract, including subcontract work. Thus, when
acting as a prime contractor, the Company is subject to the risk
associated with the failure of one or more subcontractors to
perform as anticipated. The Company has not incurred any
significant loss or liability on work performed by subcontractors
to date.
Employees
The Company believes its employees are its most valuable asset
and that their loyalty, productivity, pioneering spirit, work
ethic and strong commitment in providing quality services have
been crucial elements in the successes Willbros has achieved on
numerous projects in remote, logistically challenging locations
around the world.
At December 31, 1996, the Company employed a multi-national
work force of approximately 3,700 persons, over 80% of whom are
citizens of the respective countries in which they work. Although
the level of activity varies from year to year, Willbros has
maintained an average work force of approximately 2,700 over the
past five years. The minimum employment during that period has
been 1,770 and the maximum 4,140. At December 31, 1996,
approximately 1,511 of the Company's employees were covered by
collective bargaining agreements. The Company believes its
relations with its employees are good.
20
<PAGE>
The following table sets forth an approximate breakdown of the
Company's employees as of December 31, 1996:
<TABLE>
<CAPTION>
Number of
---------
Employees Percent
--------- -------
<S> <C> <C>
Nigeria 1,180 32%
Oman 900 24
Pakistan 580 16
Venezuela 430 12
U.S. Construction 10 -
U.S. Engineering 490 13
U.S. Administration 90 2
Other Countries 20 1
--------- ----
3,700 100%
========= ====
</TABLE>
Equipment
The Company owns and maintains a fleet of generally
standardized construction, transportation and support equipment
and spare parts. In 1996 and 1995, expenditures for capital
equipment and spare parts were $25.0 million and $18.9 million,
respectively. At December 31, 1996, the Company's net book value
of property, plant, equipment and spare parts was $59.2 million.
An estimated breakdown of the Company's major capital equipment
at March 1, 1997, is as follows: heavy construction equipment,
670 units; transportation equipment, 970 units; and support
equipment, 4,030 units.
The Company believes the ownership of equipment is preferable
to leasing to ensure the equipment is available as needed. In
addition, such ownership has historically resulted in lower
equipment costs. The Company attempts to obtain projects that
will keep its equipment fully utilized in order to increase
profitability. All equipment is subject to scheduled maintenance
to maximize fleet readiness. The Company has maintenance
facilities at Port Harcourt, Nigeria; Azaiba, Oman; Maracaibo,
Venezuela; and Broken Arrow, Oklahoma; as well as temporary site
facilities on major jobs to minimize downtime.
Facilities
The Company owns a 14 acre equipment yard/maintenance facility
and an adjoining 39 acre undeveloped industrial site at Broken
Arrow, Oklahoma, a short distance from Tulsa, Oklahoma. The
Company also owns a 4.1 acre commercial building site in Tulsa,
which is currently for sale. In Venezuela, the Company's offices
and construction facilities are located on 15 acres of land,
which it owns, on the shores of Lake Maracaibo. The Company
leases all other facilities used in its operations, including
corporate offices in Panama; administrative and engineering
offices in Tulsa, Oklahoma, and Houston, Texas; and various
office facilities, equipment sites and expatriate housing units
in England, Nigeria, Oman, Pakistan, Russia, Egypt, Kuwait, Saudi
Arabia and Indonesia. The aggregate lease payments made by the
Company for its facilities were $2.1 million in 1996 and $1.9
million in 1995.
Insurance and Bonding
The Company maintains workers' compensation, employers'
liability, general liability, directors' and officers' liability,
automobile liability, aircraft liability, marine liability and
excess liability insurance to provide benefits to employees and
to protect the Company against claims by third parties. Such
insurance is underwritten by A+ or better rated insurance
companies (AM Best rating as to claims paying ability) and,
21
<PAGE>
when possible, in loss-sensitive plans with return premiums for
favorable loss experience. The Company also maintains physical
damage insurance covering loss of or damage to Company property
on a worldwide basis, with special insurance covering loss or
damage caused by political or terrorist risks in locations where
such coverage is deemed prudent. Formal risk management and
safety programs are maintained, which have resulted in favorable
loss ratios and cost savings. The Company believes its risk
management, safety and insurance programs are adequate to meet
its needs.
The Company is often required to provide surety bonds
guaranteeing its performance and/or financial obligations. The
amounts of bonding available depend upon experience and
reputation in the industry, financial condition, backlog and
management expertise, among other factors. The Company maintains
relationships with two top-rated surety companies to provide
surety bonds.
Government Regulations
General
Many aspects of the Company's operations are subject to
government regulations in the countries in which the Company
operates, including those relating to currency conversion and
repatriation, taxation of its earnings and earnings of its
personnel, its use of local employees and suppliers. In addition,
the Company depends on the demand for its services from the oil
and gas industry and, therefore, is affected by changing taxes,
price controls and laws and regulations relating to the oil and
gas industry generally. The ability of the Organization of
Petroleum Exporting Countries to meet and maintain production
targets also influences the demand for the Company's services.
The adoption of laws and regulations by countries in which the
Company operates, curtailing exploration and development drilling
for oil and gas for economic and other policy reasons, could
adversely affect the Company's operations by limiting demand for
its services. The Company's operations are also subject to the
risk of changes in foreign and domestic laws and policies which
may impose restrictions on the Company, including trade
restrictions, which could have a material adverse effect on the
Company's operations. Other types of government regulation which
could, if enacted or implemented, adversely affect the Company's
operations include expropriation or nationalization decrees,
confiscatory tax systems, primary or secondary boycotts directed
at specific countries or companies, embargoes, extensive import
restrictions or other trade barriers,
mandatory sourcing rules and unrealistically high labor rate and
fuel price regulation. The Company cannot determine to what
extent future operations and earnings of the Company may be
affected by new legislation, new regulations or changes in, or
new interpretations of, existing regulations.
Environmental
The Company's operations are subject to numerous environmental
protection laws and regulations which are complex and stringent.
The Company regularly works in and around sensitive environmental
areas such as rivers, lakes and wetlands. Significant fines and
penalties may be imposed for non-compliance with environmental
laws and regulations, and certain environmental laws provide for
joint and several strict liability for remediation of releases of
hazardous substances, rendering a person liable for environmental
damage, without regard to negligence or fault on the part of such
person. In addition to potential liabilities that may be incurred
in satisfying these requirements, the Company may be subject to
claims alleging personal injury or property damage as a result of
alleged exposure to hazardous substances. Such laws and
regulations may expose the Company to liability arising out of
the conduct of operations or conditions caused by others, or for
the acts of the Company which were in compliance with all
applicable laws at the time such acts were performed. The Company
is not aware of any non-compliance with any environmental law
that could have a material adverse effect on the Company's
business or operations.
22
<PAGE>
Item 3. Legal Proceedings
The Company is a party to a number of legal proceedings. The
Company believes that the nature and number of these proceedings
are typical for a firm of its size engaged in the Company's type
of business and that none of these proceedings is material to the
Company's financial position.
Item 4. Submission of Mmatters to a Vote of Security -Holders
No matter was submitted during the fourth quarter of 1996 to a
vote of security holders during the fourth quarter of 1996,
through the solicitation of proxies or otherwise.
Item 4A. Executive Officers of the Registrant
The following table sets forth certain information regarding
the executive officers and key personnel of the Company.
Officers are elected annually by, and serve at the discretion of,
the Board of Directors.
<TABLE>
<CAPTION>
Name Age Position
- ---------------- ---- -------------------------------------
<S> <C> <C>
Larry J. Bump 57 Director, Chairman of the Board of
Directors and Chief Executive Officer
Gary L. Bracken 59 President and Chief Operating Officer
Melvin F. Spreitzer 58 Director, Executive Vice President, Chief
Financial Officer and Treasurer
M. Kieth Phillips 54 Vice President; President, Chief Executive
Officer and Chief Operating Officer of
Willbros International, Inc.
James R. Beasley 54 President, Chief Executive Officer and
Chief Operating Officer of Willbros Engineers,
Inc.
John N. Hove 49 General Counsel and Secretary
David L. Kavanaugh 49 Senior Vice President of Willbros
International, Inc.
Steve W. Shores 47 Senior Vice President of Willbros
Engineers, Inc.
Joel M. Gall 48 Vice President of Willbros International,
Inc.
Arthur J. West 53 Vice President of Willbros International,
Inc.
Adrian P. Wright 50 Vice President of Willbros International,
Inc.
Robert L. Walker 65 Vice President and Chief Operating Officer
of Willbros Energy Services Company
Harold A. Weller 59 Vice President of Willbros Engineering &
Construction Limited
Carlos A. Atik 33 General Manager of Willbros Construction &
Engineering - Egypt, L.L.C.
Monica M. Bagguley 56 Director of Willbros (Overseas) Limited
Gordon D.M. Bishop 45 General Manager of Willbros Middle East,
Inc. - Pakistan Branch
23
<PAGE>
Jack F. Furrh, Jr. 56 General Manager of The Oman Construction
Company, LLC
G. Patrick Riga 41 General Manager of Constructora CAMSA,
C.A.
James K. Tillery 38 Managing Director of Willbros (Nigeria)
Limited
Larry J. Bump joined Willbros in 1977 as President and Chief
Operating Officer and was elected to the Board of Directors. He
was named Chief Executive Officer in 1980 and elected Chairman of
the Board of Directors in 1981. He served as President and Chief
Operating Officer of Willbros until February 1997. He served as
Chairman of the Board of Directors and Chief Executive Officer of
Heerema Holding Company, Inc. ("HHC"), a major marine
engineering, fabrication and installation contractor, the parent
corporation of Heerema Holding Construction, Inc. (the former
majority stockholder of the Company) ("Heerema"), in Geneva,
Switzerland, from 1985 to 1988 while he continued his duties with
Willbros. He has over 33 years international experience in
pipeline construction and contracting industries, all of which
were in management positions.
Gary L. Bracken joined Willbros in 1960 as an engineer and,
excluding a brief period from 1972 through 1974 when he was
employed by another major U.S. pipeline contractor, has served
Willbros for over 34 years. He rejoined Willbros in 1975 and was
promoted to Vice President in 1978. He was elected Executive Vice
President of Willbros Energy Services Company ("WESCO") in 1982
and served as its President from 1988 to 1990. In 1990, Mr.
Bracken was elected Chairman of the Board of Directors and Chief
Executive Officer of Willbros Engineers, Inc. ("WEI") and
served in those capacities through 1992. In late 1992, he was
elected President and Chief Executive Officer of Willbros
Engineering & Construction Limited ("WECL"). In February 1997,
he was elected President and Chief Operating Officer of the
Company and Willbros USA, Inc.
Melvin F. Spreitzer joined Willbros in 1974 as Controller and
was elected Vice President of Finance in 1978. He was elected
Executive Vice President, Chief Financial Officer and Treasurer
in 1987, and a Director in 1992. He was also Secretary from 1987
to 1996. He has over 21 years of corporate finance experience and
is responsible for all aspects of financial management of the
Company.
M. Kieth Phillips joined Willbros in 1978 as Vice President. He
was elected Vice President of Willbros International, Inc.
(''WII'') in 1979 and was promoted to Senior Vice President of
WII in 1980, Executive Vice President of WII in 1983,
President and Chief Operating Officer of WII in 1988 and
Chief Executive Officer of WII in 1990. Most of his more
than 29 years experience in the pipeline construction
industry has been international and in management positions.
James R. Beasley joined Willbros in 1981 when WEI was acquired.
He was elected Vice President of WEI in 1981, Senior Vice
President and General Manager of WEI in 1982, President and Chief
Operating Officer of WEI in 1986 and Chief Executive Officer of
WEI in 1993. Mr. Beasley has more than 26 years of experience in
pipeline engineering and operations.
John N. Hove became General Counsel of Willbros in 1991. He was
elected Secretary of Willbros in 1996. He has more than 25 years
experience as a lawyer and has provided legal assistance to
Willbros since 1973. Prior to 1991, he was a shareholder in a law
firm in Tulsa, Oklahoma, where he concentrated his practice on
international business transactions.
David L. Kavanaugh joined Willbros in 1977 as an engineer
assigned to Saudi Arabia. From 1979 until 1988, he served as
Project Engineer and Project Manager in Nigeria. From 1988 to
1991, he managed construction projects in Gabon and Colombia. In
1991, he was elected Vice President of WII, and in 1995 he was
promoted to Senior Vice President of operations and business
development for WII. Mr. Kavanaugh has over 26 years of pipeline
construction experience.
24
<PAGE>
Steve W. Shores joined Willbros in 1981 when WEI was acquired.
He was elected Vice President of WEI in 1986 and Senior Vice
President of WEI in 1991. Mr. Shores has over 21 years of
pipeline engineering experience.
Joel M. Gall joined Willbros in 1978 as an Office Manager in
the Middle East. He was transferred to Nigeria in 1979 where he
served as Administrative Manager, General Manager and Managing
Director until 1991 when he was elected Vice President of WII.
Since 1994, he has been responsible for business development
activities in Southeast Asia. Mr. Gall has over 26 years of
experience in the international pipeline construction industry.
Arthur J. West joined Willbros in 1962 in North Africa. In
1988, he became Vice President of Willbros Middle East, Inc.
("WMEI") and, in 1992, he was elected Vice President of WII and
became responsible for business development and operations for
WMEI in the Middle East. Mr. West has over 31 years experience in
pipeline construction in the areas of administrative and project
management.
Adrian P. Wright joined Willbros in 1973 as an engineer
assigned to Algeria. From 1974 until 1982, he served as Project
Engineer and Project Manager in Nigeria. From 1982 to 1992, he
served as Project Manager in Oman, Colombia and the United
States. In 1992, he was elected Vice President of WII,
and he is currently responsible for WII's estimating and
technical services. Mr. Wright has over 30 years experience in
the construction industry.
Robert L. Walker joined Willbros in 1981 as Vice President of
U.S. construction operations for WESCO. Prior to joining
Willbros, Mr. Walker was in project management on the Trans-
Alaskan Pipeline System and was Operations Vice President for a
major U.S. contractor. In 1990, he was appointed Chief Operating
Officer of WESCO. Mr. Walker has nearly 36 years experience in
pipeline construction in the areas of estimating, planning,
administration and management.
Harold A. Weller joined Willbros in 1975. From 1976 to 1979, he
was Project Director on a project to design and supply gas
compressor stations for a gas pipeline system in western Siberia.
In 1979, he left Willbros to join a major gas compressor
manufacturer until 1984. Following that he operated a private
consulting business until 1991. In 1991, he returned to Willbros
as Director of Business Development for Willbros (Overseas)
Limited ("WOL"). In 1994, he was elected Vice President of
WECL. Mr. Weller has over 36 years experience in the engineering
and management of petrochemical, oil refinery and pipeline
projects in the oil and gas industry.
Carlos A. Atik joined Willbros in 1991 as an assistant Project
Manager in Egypt. He assumed the duties of Project Manager in
1992 and continued in that role until 1995 when he was named
General Manager of Willbros Construction & Engineering - Egypt,
L.L.C. Mr. Atik has over 12 years of engineering and construction
experience in Africa and the Middle East.
Monica M. Bagguley joined WOL in 1974. Since 1985, she has
served as Director of Personnel and Purchasing for WOL. Ms.
Bagguley has over 21 years experience in international personnel
management and project procurement.
Gordon D.M. Bishop joined Willbros in 1976 as Senior Surveyor.
He has 19 years experience in pipeline construction at various
levels of engineering and project management capacities in Iran,
Nigeria and Oman. He is currently Project Manager of a major
turnkey pipeline construction project in Pakistan.
Jack F. Furrh, Jr. joined Willbros in 1981 as Administrative
Manager. He left Willbros in 1986 to operate his own business. In
1990, he rejoined the Company as Project Manager and in 1991 he
was promoted to General Manager of The Oman Construction Company,
LLC. He has over 26 years experience in the energy-related
industry in contracts, safety and administrative management.
25
<PAGE>
G. Patrick Riga joined Willbros in 1981 in Oman as a
warehouseman. From 1985 to 1988, he served in administrative
capacities in Colombia and Ecuador. From 1989 until 1994, he was
employed by HDI, a horizontal drilling company. He rejoined the
Company in 1994 as Assistant General Manager in Venezuela and, in
1995, was promoted to General Manager of Constructora CAMSA, C.A.
Mr. Riga has over 18 years experience in the pipeline industry,
including operations, quality control and administrative
management.
James K. Tillery joined Willbros in 1983 as a field engineer.
He has over 16 years experience as an Engineer and Project
Manager working in both U.S. and international pipeline
construction. In 1995, he was named Managing Director of Willbros
(Nigeria) Limited.
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters
The information required by this Item is incorporated by
reference from page 36 of the Company's 1996 Annual Report to
Stockholders.
Item 6. Selected Financial Data
The information required by this Item is incorporated by
reference from page 18 of the Company's 1996 Annual Report to
Stockholders.
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations
The information required by this Item is incorporated by
reference from pages 19 through 22 of the Company's 1996 Annual
Report to Stockholders.
Item 8. Financial Statements and Supplementary Data
The information required by this Item is incorporated by
reference from pages 23 through 35 of the Company's 1996 Annual
Report to Stockholders.
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure
None.
PART III
Item 10. Directors and Executive Officers of the Registrant
The information required by this Item with respect to the
Company's directors is incorporated by reference from the
sections of the Company's definitive Proxy Statement for its
1997 Annual Meeting of Stockholders (the "Proxy Statement")
entitled "Election of Directors" and "Section 16(a) Beneficial
Ownership Reporting Compliance." The information required by
this Item with respect to the Company's executive officers
appears at Item 4A of Part I of this Form 10-K.
Item 11. Executive Compensation
The information required by this Item is incorporated by
reference from the section of the Proxy Statement entitled
"Executive Compensation."
26
<PAGE>
Item 12. Security Ownership of Certain Beneficial Owners and
Management
The information required by this Item is incorporated by
reference from the section of the Proxy Statement entitled
"Principal Stockholders and Security Ownership of Management."
Item 13. Certain Relationships and Related Transactions
The information required by this Item is incorporated by
reference from the section of the Proxy Statement entitled
"Certain Transactions."
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on
Form 8-K
(a) (1) Financial Statements:
The financial statements of the Company and its subsidiaries
and report of independent auditors listed below are incorporated
by reference from the following pages of the Company's 1996
Annual Report to Stockholders:
1996
Annual Report
Page(s)
-------------
Report of Independent Auditors 23
Consolidated Balance Sheets as of
December 31, 1996 and 1995 24
Consolidated Statements of Income
for the years ended December 31,
1996, 1995 and 1994 25
Consolidated Statements of Stockholders'
Equity for the years ended December
31, 1996, 1995 and 1994 26
Consolidated Statements of Cash Flows
for the years ended December 31,
1996, 1995 and 1994 27
Notes to Consolidated Financial Statements 28 - 35
1996
Form 10-K
Page
---------
(2) Financial Statement Schedule:
Independent Auditors' Report 31
Schedule II - Consolidated Valuation and
Qualifying Accounts 32
All other schedules are omitted as inapplicable or because the
required information is contained in the financial statements or
included in the footnotes thereto.
(3) Exhibits:
The following documents are included as exhibits to this Form
10-K. Those exhibits below incorporated by reference herein are
indicated as such by the information supplied in the
parenthetical thereafter. If no parenthetical appears after an
exhibit, such exhibit is filed herewith.
3.1 Restated Articles of Incorporation of the Company (Filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-1,
Registration No. 333-5413 (the "S-1 Registration Statement")).
27
<PAGE>
3.2 Restated By-laws of the Company (Filed as Exhibit 3.2 to
the S-1 Registration Statement).
4 Form of stock certificate for the Company's Common Stock,
par value $.05 per share (Filed as Exhibit 4 to the S-1
Registration Statement).
10.1 Credit Agreement dated February 20, 1997, by and among the
Company, certain designated subsidiaries, Credit Lyonnais New
York Branch, as co-agent, certain financial institutions, and ABN
AMRO Bank N.V., as agent.
10.2 Parent Pledge Agreement dated February 20, 1997, by the
Company, in favor of ABN AMRO Bank N.V., as agent.
10.3 Pledge Agreement dated February 20, 1997, by Musketeer Oil
B.V., in favor of ABN AMRO Bank N.V., as agent.
10.4 Pledge Agreement dated February 20, 1997, by Willbros USA,
Inc., in favor of ABN AMRO Bank N.V., as agent.
10.5* Employment Agreement dated January 1, 1996, by and among
Willbros USA, Inc., Larry J. Bump and the Company (Filed as
Exhibit 10.3 to the S-1 Registration Statement).
10.6* Employment Agreement dated January 1, 1996, by and among
Willbros USA, Inc., Melvin F. Spreitzer and the Company
(Filed as Exhibit 10.4 to the S-1 Registration Statement).
10.7* Employment Agreement dated January 1, 1996, by and among
Willbros USA, Inc., Gary L. Bracken and the Company (Filed as
Exhibit 10.5 to the S-1 Registration Statement).
10.8* Employment Agreement dated January 1, 1996, by and among
Willbros USA, Inc., M. Kieth Phillips and the Company (Filed as
Exhibit 10.6 to the S-1 Registration Statement).
10.9* Employment Agreement dated January 1, 1997, by and among
Willbros Engineers, Inc., James R. Beasley and the Company.
10.10* Form of Indemnification Agreement between the Company and
its officers (Filed as Exhibit 10.7 to the S-1 Registration
Statement).
10.11* Form of Indemnification Agreement between the Company and
its directors (Filed as Exhibit 10.16 to the S-1 Registration
Statement).
10.12* Willbros Group, Inc. 1996 Stock Plan (Filed as Exhibit
10.8 to the S-1 Registration Statement).
10.13* Form of Incentive Stock Option Agreement under the
Willbros Group, Inc. 1996 Stock Plan.
10.14* Form of Non-Qualified Stock Option Agreement under the
Willbros Group, Inc. 1996 Stock Plan.
10.15* Willbros Group, Inc. Director Stock Plan (Filed as Exhibit
10.9 to the S-1 Registration Statement).
10.16* Willbros USA, Inc. Executive Benefit Restoration Plan
(Filed as Exhibit 10.10 to the S-1 Registration Statement).
10.17* Willbros Engineers, Inc. Management Incentive Plan dated
January 1, 1996 (Filed as Exhibit 10.17 to the S-1
Registration Statement).
10.18* Willbros USA, Inc. Management Incentive Plan dated
January 1, 1996 (Filed as Exhibit 10.18 to the S-1 Registration
Statement).
28
<PAGE>
10.19* Form of Secured Promissory Note under the Willbros
International, Inc. and Willbros USA, Inc. 1995 Management
Personnel Non-Qualified Stock Ownership Plans (Filed as Exhibit
10.11 to the S-1 Registration Statement).
10.20* Form of Secured Promissory Note under the Willbros
International, Inc. and Willbros USA, Inc. 1992 Employee Non-
Qualified Stock Ownership Plans (Filed as Exhibit 10.12 to the
S-1 Registration Statement).
10.21 Registration Rights Agreement dated April 9, 1992, between
the Company and Heerema Holding Construction, Inc., Yorktown
Energy Partners, L.P., Concord Partners II, L.P., Concord
Partners Japan, Limited and certain other stockholders of the
Company (Filed as Exhibit 10.13 to the S-1 Registration
Statement).
13 Portions of the Company's 1996 Annual Report to
Stockholders.
21 Subsidiaries of the Company (Filed as Exhibit 21 to the S-1
Registration Statement).
23 Consent of KPMG Peat Marwick.
27 Financial Data Schedule
- -------------------------------
* Management contract or compensatory plan or arrangement.
(b) Reports on Form 8-K.
No reports on Form 8-K were filed during the fourth quarter of
1996.
29
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
WILLBROS GROUP, INC.
Date: March 31, 1997 By: /s/ Larry J. Bump
-----------------------------
Larry J. Bump
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons
on behalf of the Registrant and in the capacities and on the
dates indicated:
Signature Title Date
- ------------------ ------ -------
/s/Larry J. Bump Director, Chairman of the March 31, 1997
- ---------------- Board and Chief Executive
Larry J. Bump Officer (Principal Executive
Officer)
/s/Melvin F. Spreitzer Director, Executive Vice March 31, 1997
- ---------------------- President, Chief Financial
Melvin F. Spreitzer Officer and Treasurer (Principal
Financial Officer and Principal
Accounting Officer)
/s/Guy E. Waldvogel Director March 31, 1997
------------------
Guy E. Waldvogel
/s/Bryan H. Lawrence Director March 31, 1997
- --------------------
Bryan H. Lawrence
/s/ Peter A. Leidel Director March 31, 1997
- --------------------
Peter A. Leidel
/s/John H. Williams Director March 31, 1997
- -------------------
John H. Williams
Director
- -------------------
Michael J. Pink
30
<PAGE>
INDEPENDENT AUDITORS' REPORT ON CONSOLIDATED FINANCIAL STATEMENT
SCHEDULE
The Stockholders and Board of Directors
Willbros Group, Inc.:
The audits referred to in our report dated January 31, 1997
included the related consolidated financial statement schedule
for each of the years in the three-year period ended December 31,
1996. This consolidated financial statement schedule is the
responsibility of the Company's management. Our responsibility
is to express an opinion on the consolidated financial statement
schedule based on our audits. In our opinion, such consolidated
financial statement schedule, when considered in relation to the
basic consolidated financial statements taken as a whole,
presents fairly in all material respects the information set
forth therein.
KPMG PEAT MARWICK
Panama City, Panama
January 31, 1997
31
<PAGE>
WILLBROS GROUP, INC.
SCHEDULE II - CONSOLIDATED VALUATION AND QUALIFYING ACCOUNTS
(In thousands)
</TABLE>
<TABLE>
<CAPTION>
Charged
Balance at to Costs Charge Balance
Beginning and Offs and at End
Year Ended Description of Year Expenses Other of Year
- ----------- ------------- --------- -------- ------- -------
<S> <C> <C> <C> <C> <C>
December 31, 1994 Allowance for
bad debts $ 1,352 $ 1,086 $ 4 $2,442
December 31, 1995 Allowance for
bad debts $ 2,442 $ 694 $ (144) $2,992
December 31, 1996 Allowance for
bad debts $ 2,992 $(1,024) $ (849) $1,119
</TABLE>
32
<PAGE>
INDEX TO EXHIBITS
The following documents are included as exhibits to this Form
10-K. Those exhibits below incorporated by reference herein are
indicated as such by the information supplied in the
parenthetical thereafter. If no parenthetical appears after an
exhibit, such exhibit is filed herewith.
Exhibit
Number Description
- ------- ----------------------------------------------------------
3.1 Restated Articles of Incorporation of the Company (Filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-1,
Registration No. 333-5413 (the "S-1 Registration Statement")).
3.2 Restated By-laws of the Company (Filed as Exhibit 3.2 to
the S-1 Registration Statement).
4 Form of stock certificate for the Company's Common Stock,
par value $.05 per share (Filed as Exhibit 4 to the S-1
Registration Statement).
10.1 Credit Agreement dated February 20, 1997, by and among the
Company, certain designated subsidiaries, Credit Lyonnais New
York Branch, as co-agent, certain financial institutions, and ABN
AMRO Bank N.V., as agent.
10.2 Parent Pledge Agreement dated February 20, 1997, by the
Company, in favor of ABN AMRO Bank N.V., as agent.
10.3 Pledge Agreement dated February 20, 1997, by Musketeer Oil
B.V., in favor of ABN AMRO Bank N.V., as agent.
10.4 Pledge Agreement dated February 20, 1997, by Willbros USA,
Inc., in favor of ABN AMRO Bank N.V., as agent.
10.5* Employment Agreement dated January 1, 1996, by and among
Willbros USA, Inc., Larry J. Bump and the Company (Filed as
Exhibit 10.3 to the S-1 Registration Statement).
10.6* Employment Agreement dated January 1, 1996, by and among
Willbros USA, Inc., Melvin F. Spreitzer and the Company
(Filed as Exhibit 10.4 to the S-1 Registration Statement).
10.7* Employment Agreement dated January 1, 1996, by and among
Willbros USA, Inc., Gary L. Bracken and the Company (Filed as
Exhibit 10.5 to the S-1 Registration Statement).
10.8* Employment Agreement dated January 1, 1996, by and among
Willbros USA, Inc., M. Kieth Phillips and the Company (Filed as
Exhibit 10.6 to the S-1 Registration Statement).
10.9* Employment Agreement dated January 1, 1997, by and among
Willbros Engineers, Inc., James R. Beasley and the Company.
10.10* Form of Indemnification Agreement between the Company and
its officers (Filed as Exhibit 10.7 to the S-1 Registration
Statement).
10.11* Form of Indemnification Agreement between the Company and
its directors (Filed as Exhibit 10.16 to the S-1 Registration
Statement).
10.12* Willbros Group, Inc. 1996 Stock Plan (Filed as Exhibit
10.8 to the S-1 Registration Statement).
10.13* Form of Incentive Stock Option Agreement under the
Willbros Group, Inc. 1996 Stock Plan.
10.14* Form of Non-Qualified Stock Option Agreement under the
Willbros Group, Inc. 1996 Stock Plan.
10.15* Willbros Group, Inc. Director Stock Plan (Filed as Exhibit
10.9 to the S-1 Registration Statement).
10.16* Willbros USA, Inc. Executive Benefit Restoration Plan
(Filed as Exhibit 10.10 to the S-1 Registration Statement).
10.17* Willbros Engineers, Inc. Management Incentive Plan dated
January 1, 1996 (Filed as Exhibit 10.17 to the S-1
Registration Statement).
10.18* Willbros USA, Inc. Management Incentive Plan dated
January 1, 1996 (Filed as Exhibit 10.18 to the S-1 Registration
Statement).
10.19* Form of Secured Promissory Note under the Willbros
International, Inc. and Willbros USA, Inc. 1995 Management
Personnel Non-Qualified Stock Ownership Plans (Filed as Exhibit
10.11 to the S-1 Registration Statement).
10.20* Form of Secured Promissory Note under the Willbros
International, Inc. and Willbros USA, Inc. 1992 Employee Non-
Qualified Stock Ownership Plans (Filed as Exhibit 10.12 to the
S-1 Registration Statement).
10.21 Registration Rights Agreement dated April 9, 1992, between
the Company and Heerema Holding Construction, Inc., Yorktown
Energy Partners, L.P., Concord Partners II, L.P., Concord
Partners Japan, Limited and certain other stockholders of the
Company (Filed as Exhibit 10.13 to the S-1 Registration
Statement).
13 Portions of the Company's 1996 Annual Report to
Stockholders.
21 Subsidiaries of the Company (Filed as Exhibit 21 to the S-1
Registration Statement).
23 Consent of KPMG Peat Marwick.
27 Financial Data Schedule
<PAGE>
EXHIBIT 10.1
CREDIT AGREEMENT
among
WILLBROS GROUP, INC.
AND THE DESIGNATED SUBSIDIARIES FROM TIME TO TIME
as Borrowers and Guarantors
THE FINANCIAL INSTITUTIONS NOW OR HEREAFTER PARTIES HERETO
as Lenders
CREDIT LYONNAIS NEW YORK BRANCH
as Co-Agent
and
ABN AMRO BANK N.V.
as Agent
February 20, 1997
<PAGE>
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 20
ARTICLE II AMOUNT AND TERMS OF COMMITMENTS 22
2.1 The Revolving Credit 22
2.2 Loan Accounts 23
2.3 Procedure for Borrowing 23
2.4 Conversion and Continuation Elections 24
2.5 Voluntary Termination or Reduction of Commitments 26
2.6 Optional Prepayments 26
2.7 Notes 26
2.8 Mandatory Prepayments of Loans 27
2.9 Repayment 27
2.10 Interest 27
2.11 Affiliates; Lending Offices 28
2.12 Elections to Participate and Elections to Terminate 28
ARTICLE III LETTERS OF CREDIT 30
3.1 The Letter of Credit Commitment 30
3.2 The Letters of Credit 32
3.3 Issuance of the Letters of Credit 33
3.4 Drawings and Reimbursements 34
3.5 Cash Collateral Account 37
3.6 Role of the Issuing Bank and the Syndicated L/C
Bank 39
3.7 Obligation to Reimburse for, or Participate in,
Letters of Credit 40
3.8 Indemnification by the Banks 41
3.9 Special Provisions Relating to Commercial
Letters of Credit 41
3.10 Additional Costs in Respect of Letters of Credit 42
ARTICLE IV FEES; PAYMENTS; TAXES; CHANGES IN CIRCUMSTANCES 44
4.1 Arrangement Fee 44
4.2 Commitment Fees 44
4.3 Agency Fee 44
4.4 Letter of Credit Fees 44
4.5 Computation of Fees and Interest 46
4.6 Payments by the Borrowers 47
4.7 Payments by the Banks to the Agent 48
4.8 Security and Guarantee 48
4.9 Taxes 49
4.10 Sharing of Payments, Etc. 53
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4.11 Illegality 53
4.12 Increased Costs and Reduction of Return 54
4.13 Funding Losses 56
4.14 Eurodollar Rate Protection 56
4.15 Certificates of Banks 57
4.16 Notices 57
ARTICLE V REPRESENTATIONS AND WARRANTIES 58
5.1 Corporate Existence and Power 58
5.2 Corporate Authorization; No Contravention 58
5.3 Governmental Authorization 59
5.4 Binding Effect 59
5.5 Litigation 59
5.6 No Default 59
5.7 ERISA Compliance 60
5.8 Use of Proceeds; Margin Regulations 61
5.9 Title to Properties 62
5.10 Taxes 62
5.11 Financial Condition 62
5.12 Environmental Matters 63
5.13 Security Documents 64
5.14 No Regulation Limiting Debt 64
5.15 Full Disclosure 64
5.16 No Burdensome Restrictions 64
5.17 Solvency 65
5.18 Labor Relations 65
5.19 Copyrights, Patents, Trademarks and Licenses,
Patents, etc 65
5.20 Subsidiaries 65
5.21 Broker's and Transaction Fees 65
5.22 Insurance 66
ARTICLE VI CONDITIONS PRECEDENT 67
6.1 Conditions Precedent to Initial Loans or Letter
of Credit 67
6.2 Conditions Precedent to all Extensions of Credit 70
6.3 Conditions Precedent to Participation by a
Designated Subsidiary 70
ARTICLE VII AFFIRMATIVE COVENANTS 73
7.1 Financial Statements 73
7.2 Certificates; Other Information 74
7.3 Preservation of Corporate Existence 75
7.4 Maintenance of Property 75
7.5 Insurance 75
7.6 Payment of Obligations 75
7.7 Compliance with Laws 76
7.8 Inspection of Property and Books and Records 76
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7.9 Environmental Laws 76
7.10 Notices 77
7.11 Use of Proceeds 78
7.12 Further Assurances 79
7.13 Certain Obligations Respecting Certain New
Subsidiaries 79
7.14 New First-Tier or U.S. Subsidiaries 80
ARTICLE VIII NEGATIVE COVENANTS 81
8.1 Limitation on Liens 81
8.2 Mergers and Consolidations; Dispositions of
Assets 82
8.3 Acquisitions and Investments 85
8.4 Limitation on Indebtedness 85
8.5 Transactions with Affiliates 86
8.6 Contingent Obligations 86
8.7 Compliance with ERISA 87
8.8 Use of Proceeds 87
8.9 Lease Obligations 88
8.10 Restricted Payments 88
8.11 Funded Debt 89
8.12 Consolidated Net Worth 89
8.13 Leverage Ratio 89
8.14 Interest Coverage Ratio 89
8.15 Indebtedness 89
8.16 Change in Business 89
8.17 Change in Structure 90
8.18 Accounting Changes 90
8.19 Other Contracts 90
8.20 Covenants in Other Agreements 90
ARTICLE IX EVENTS OF DEFAULT 91
9.1 Events of Default 91
9.2 Remedies 94
9.3 Cash Collateral Account 95
9.4 Preservation of Security for Unmatured
Reimbursement Obligations 96
9.5 Rights Not Exclusive 96
ARTICLE X GUARANTY 97
10.1 Definitions 97
10.2 Guaranty 98
10.3 Application 99
10.4 Notification 99
10.5 Amendments, etc. with respect to the Obligations 99
10.6 No Release 101
10.7 Waivers 101
10.8 Guaranty of Payment and Not of Collection 102
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10.9 Obligations Joint and Several with Other
Guaranties 102
10.10 Reinstatement 102
10.11 Representations and Warranties 103
10.12 Joinder of Additional Subsidiaries 103
10.13 Acknowledgement 104
10.14 Primary Obligations 104
10.15 Effect of Stay 104
10.16 Waiver of Diligence, Etc. 104
10.17 Subrogation 104
10.18 Administrative Matters 105
10.19 Survival; Persons Bound 105
10.20 Indemnification 105
10.21 Subordination 106
ARTICLE XI THE AGENT 107
11.1 Appointment and Authorization 107
11.2 Delegation of Duties 107
11.3 Liability of Agent 107
11.4 Reliance by Agent 107
11.5 Notice of Default 108
11.6 Credit Decision 109
11.7 Indemnification 109
11.8 Agent in Individual Capacity 110
11.9 Successor Agent 110
11.10 Collateral Matters 110
ARTICLE XII MISCELLANEOUS 112
12.1 Amendments and Waivers 112
12.2 Notices 112
12.3 No Waiver; Cumulative Remedies 113
12.4 Costs and Expenses 113
12.5 Indemnity 113
12.6 Successors and Assigns 114
12.7 Assignments, Participations, Etc. 115
12.8 Confidentiality 116
12.9 Set-off 117
12.10 Limitation of Interest 118
12.11 Notification of Addresses, Lending Offices,
Etc. 118
12.12 Counterparts 118
12.13 Severability 119
12.14 Governing Law and Jurisdiction; Waivers and
Releases 119
12.15 Construction 121
12.16 ENTIRE AGREEMENT 121
12.17 Conflict with Security Documents 121
12.18 Termination 121
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12.19 Currency Conversion 122
12.20 Limitation of WECL Liability 122
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<PAGE>
EXHIBITS
A Form of Note
B Notice of Borrowing
C Form of Notice of Conversion/Continuation
D Form of Election to Participate
E Form of Election to Terminate
F Form of Syndicated Letter of Credit
G - 1 Form of Application (Standby Letter of Credit)
G - 2 Form of Application (Commercial Letter of Credit)
G - 3 Form of Power of Attorney
H Opinion of Counsel -- Panama
I Opinion of Counsel -- U.S.
J Opinion of Counsel -- Canada
K Opinion of Counsel -- The Netherlands
L Opinion of Counsel -- Agent
M Financial Condition Certificate
N Form of Opinion of Counsel for Designated Subsidiaries
O Form of Assignment and Assumption Agreement
P Form of Notice of Investment
SCHEDULES
Schedule 1.1 Existing Letters of Credit
Schedule 2.1 Commitments
Schedule 5.5 Litigation and Claims
Schedule 5.7 ERISA
Schedule 5.10 Contested Taxes
Schedule 5.12 Environmental Matters
Schedule 5.19 Copyrights, Patents, Trademarks, Licenses,
etc.
Schedule 5.20(a) Subsidiaries
Schedule 5.20(b) Equity Investments
Schedule 8.1 Existing Liens
Schedule 8.4 Indebtedness
Schedule 8.6 Contingent Obligations
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of February
20, 1997, by and among WILLBROS GROUP, INC., a Republic of
Panama corporation (herein referred to as either "WGI" or
the "Company"); the Designated Subsidiaries (as defined
below) from time to time (WGI and such Designated
Subsidiaries collectively, the "Borrowers" and individually,
a "Borrower"); CREDIT LYONNAIS NEW YORK BRANCH, as a Bank
and as Co-Agent; the several financial institutions from
time to time parties to this Agreement (collectively, the
"Banks" and individually, a "Bank"), and ABN AMRO BANK N.V.,
individually ("ABN AMRO") as a Bank and as agent for the
Banks (in such capacity, the "Agent").
The Banks have agreed to make available to the
Borrowers a revolving credit facility and a standby and
commercial letter of credit facility upon the terms and
conditions set forth in this Agreement and the other Credit
Documents (as defined below).
NOW, THEREFORE, in consideration of the mutual
agreements, provisions and covenants contained in this
Agreement, the Borrowers, the Banks and the Agent (the
"Parties") agree as follows:
ARTICLE I
DEFINITIONS
-------------------
1.1 Defined Terms In addition to the terms
defined elsewhere in this Agreement, the following terms
as used in the Credit Documents shall have the following
meanings:
"ABN AMRO" means ABN AMRO Bank N.V., a bank
chartered under the law of The Kingdom of the Netherlands
and having its office at 335 Madison Avenue, 14th Floor,
New York, New York 10017.
"Affiliate" means, as to any Person, any other
Person which, directly or indirectly, is in control of,
is controlled by, or is under common control with, such
Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly
or indirectly, the power to direct or cause the
direction of the management or policies of the other
Person, whether through the ownership of voting
securities, by contract or otherwise. Any director,
executive officer or beneficial owner of five percent (5%)
or more of the equity of a Person shall, for the purposes of
this Agreement, be deemed to control the other Person.
Notwithstanding the foregoing, under no circumstances shall
the Agent or any Bank be deemed to be an Affiliate of any of
the Borrowers or any Subsidiary of the Company.
"Agent" means ABN AMRO in its capacity as agent for
the Banks under the Credit Documents, and any successor agent.
<PAGE>
"Agreement" means this Credit Agreement, as
amended, modified, supplemented and restated from
time to time.
"Alternative Currency" means any currency other
than Dollars which is freely transferable into Dollars.
"Applicable Margin" means, on any day, the per
annum percentage, expressed in basis points, beside the
label "Applicable Margin" in the Pricing Schedule,
determined by finding the intersection of the Company's
EBITDA range for the four fiscal quarters most
recently ended as of such date and the Facility
Utilization on such date. The Applicable Margin shall
be adjusted (a) on the date required by Section 7.1
for the delivery of each of the Company's financial
statements, and (b) on the date of each change in the
Facility Utilization.
"Assignee" has the meaning specified in Section
12.7.
"Assignment and Assumption" has the meaning
specified in Section 12.7.
"Bank" has the meaning specified in the
introduction to this Agreement and shall include each
Issuing Bank and the Syndicated L/C Bank.
"Base Rate" means, for any day, a rate per annum
equal to the higher of (a) the Prime Rate for such day and
(b) the sum of 1/2 of 1% plus the Federal Funds Rate for
such day. Any change in the Base Rate established by ABN
AMRO shall take effect at the opening of business on the day
specified in the public announcement of such change. If for
any reason the Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable to ascertain the Federal Funds Rate for
any reason, including the inability or failure of the Agent
to obtain sufficient bids or publications in accordance with
the terms hereof, the Base Rate shall be the Prime Rate
until the circumstances giving rise to such inability no
longer exist.
"Base Rate Loan" means a Loan that bears interest
at a rate based on the Base Rate.
"Borrowing" means a borrowing consisting of Loans
made to any Borrower on the same day by the Banks pursuant
to Article II.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in New York
City or Chicago, Illinois or any other city in which any
Bank's Lending Office is located are authorized or required
by law to close or, if such day relates to a borrowing of, a
payment or prepayment of principal of or interest on, or an
Interest Period for, a Eurodollar Rate Loan or a notice with
respect to any such borrowing, payment, prepayment or
Interest Period, which is also a day on which dealings
in Dollar deposits are carried out in the London
interbank Dollar market.
2
<PAGE>
"Capital Lease Obligations" means all monetary
obligations of the Company or any of its Subsidiaries under
any leasing or similar arrangement which, in accordance with
GAAP, is classified as a capital lease.
"Cash Collateral Account" has the meaning specified
in Section 3.5.
"Cash Equivalents" means:
(a) securities issued or fully guaranteed or
insured by the government of the U. S. or any agency thereof
and backed by the full faith and credit of the U. S. having
maturities of not more than 12 months from date of issuance;
(b) certificates of deposit, time deposits,
Eurodollar time deposits, or bankers' acceptances having in
each case a tenor of not more than 12 months from date of
issuance issued by any Bank, or by any U.S. commercial bank
or any branch or agency of a non-U.S. bank licensed to
conduct business in the U.S. having combined capital and
surplus of not less than Five Hundred Million Dollars
($500,000,000) whose short term securities are rated at
least A-1 by Standard & Poor's Corporation or P-1 by Moody's
Investors Service, Inc.;
(c) commercial paper of an issuer rated at least
A-1 by Standard & Poor's Corporation or P-1 by Moody's
Investors Service, Inc. and in either case having a tenor of
not more than six months; and
(d) investments in repurchase obligations with a
term of not more than 15 days for underlying securities of
the types described in clause (a) entered into with any
officer of a bank meeting the qualifications of a bank
listed in clause (b).
"CDLC Fee Percentage" means, on any day, the per
annum percentage, expressed in basis points, beside the
label "CDLC" in the Pricing Schedule, determined by finding
the intersection of the Company's EBITDA range for the four
fiscal quarters most recently ended as of such date and the
Facility Utilization on such date. The CDLC Fee Percentage
shall be adjusted (a) on the date required by Section 7.1
for the delivery of each of the Company's financial
statements, and (b) on the date of each change in the
Facility Utilization.
"Change of Control" means any of (a) the
acquisition by any Person or two or more Persons acting as a
group of beneficial ownership of 33% or more of the
outstanding shares of voting stock of the Company or (b) a
majority of the members of the board of directors of the
Company on any date shall not have been members of the board
of directors of the Company as of the end of the most recent
fiscal year of the Company, beginning with the fiscal year
ended December 31, 1996.
"Closing Date" means the date on which all
conditions precedent set forth in Section 6.1 are satisfied
or waived.
3
<PAGE>
"Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute, and the rules,
regulations and interpretations promulgated thereunder by
the Internal Revenue Service (or any entity succeeding to
all or any part of its functions).
"Collateral" means all property and interests in
property and proceeds thereof now owned or hereafter
acquired by the Borrowers and their respective Subsidiaries
in or upon which a Lien now or hereafter exists in favor of
the Banks or the Agent on behalf of the Banks, whether under
this Agreement or under any other documents executed by any
such Persons and delivered to the Agent or the Banks, in
connection with an Election to Participate or otherwise, and
includes Proceeds of Remedies (as defined in Section 9.4).
"Commercial Letter of Credit" means a documentary
letter of credit (including any Existing Letter of Credit)
which is drawable upon presentation of documents evidencing
the sale or shipment of goods, the provision of services, or
both, purchased by any of the Borrowers in the ordinary
course of its business.
"Commitment Fee Percentage" means, on any day, the
per annum percentage, expressed in basis points, beside the
label "Commitment Fee" in the Pricing Schedule, determined
by finding the intersection of the Company's EBITDA range
for the four fiscal quarters most recently ended as of such
date and the Facility Utilization on such date. The
Commitment Fee Percentage shall be adjusted (a) on the date
required by Section 7.1 for the delivery of each of the
Company's financial statements, and (b) on the date of each
change in the Facility Utilization.
"Commitment Percentage" means as to any Bank the
percentage of the aggregate Commitments constituted by such
Bank's Commitment.
"Commitments" means the aggregate Commitments of
the Banks to make Loans under the Revolving Commitments and
to issue and/or participate in Letters of Credit under the
Letter of Credit Commitments, in an aggregate amount not to
exceed $150,000,000, as such amount may be reduced from time
to time pursuant to the terms of this Agreement.
"Commitment Termination Date" means the earlier to
occur of (a) the fifth anniversary of the Closing Date, as
such date may be extended pursuant to Section 2.1(b) and (b)
the date on which the Commitments shall terminate in
accordance with the provisions of this Agreement.
"Consolidated Net Interest Expense" means, at the
end of any fiscal quarter, gross consolidated interest
expense for the four fiscal quarters then ending for the
Company and its Subsidiaries, less interest income for such
four fiscal quarters, as determined in accordance with GAAP.
"Consolidated Net Worth" means, at any time, the
consolidated gross book value of the assets of the Company
and its Subsidiaries less (a) consolidated reserves
4
<PAGE>
applicable thereto and (b) all consolidated liabilities
including accrued and deferred income taxes, all as
determined in accordance with GAAP, as reported in the
financial statements most recently provided pursuant to
Section 7.1(a) or (c).
"Contingent Obligation" means, as applied to any
Person, any direct or indirect liability of or guarantee by
that Person with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation (the "primary
obligations") of another Person (the "primary obligor"), in
any manner, whether directly or indirectly, including any
obligation of that Person, whether or not contingent, (a) to
purchase, repurchase or otherwise acquire such primary
obligations or any property constituting direct or indirect
security therefor, or (b) to advance or provide funds (i)
for the payment or discharge of any such primary obligation,
or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or
cash flow or solvency or any balance sheet item, level of
income or financial condition of the primary obligor, or (c)
to purchase property, assets, securities or services
primarily 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 (d) otherwise to
assure or hold harmless the holder of any such primary
obligation against loss in respect thereof. 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 if indeterminable, the maximum
reasonably anticipated liability in respect thereof.
"Contractual Obligations" means, as to any Person,
any provision of any security issued by such Person or of
any agreement, undertaking, contract, indenture, mortgage,
deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its
property is bound.
"Controlled Group" means the Company and all
Persons (whether or not incorporated) under common control
or treated as a single employer with the Company or any of
its Subsidiaries pursuant to Section 414(b), (c), (m) or (o)
of the Code.
"Conversion Date" means any date on which a
Borrower elects to convert a Base Rate Loan to a Eurodollar
Rate Loan or a Eurodollar Loan to a Base Rate Loan.
"Credit Documents" means this Agreement, the Notes,
the WECL Guaranty, the Security Documents, the financing
statements, each L/C Application, each Letter of Credit,
each Election to Participate, each Notice of Borrowing, and
all documents, instruments, agreements, certificates and
notices at any time executed and/or delivered to the Agent
or any Bank in connection therewith.
"Default" means any of the events specified in
Article IX, whether or not any requirement for the giving of
notice, the lapse of time, or both, or any other condition
has been satisfied.
5
<PAGE>
"Designated Subsidiary" means each of the Permanent
Borrowers (except WGI) and each other Subsidiary of WGI as
to which an Election to Participate shall have been
delivered to the Agent and as to which an Election to
Terminate shall not have been delivered to the Agent and
become effective.
"Dollars", "dollars" and "$" means lawful money of
the United States of America.
"Domestic Lending Office" means, with respect to
each Bank, the office of the Bank designated as such on the
signature pages of this Agreement or such other office of
the Bank as it may from time to time specify to the Company
and the Agent.
"EBIT" means, for any period, for the Company and
its Subsidiaries on a consolidated basis, determined in
accordance with GAAP, the sum of (a) the consolidated net
income (or net loss), plus (b) all amounts treated as
expenses for interest to the extent included in the
determination of such net income (or loss), plus (c) all
income taxes recorded as expenses for income statement
purposes; provided, however, that net income (or loss) shall
be computed for the purposes of this definition without
giving effect to extraordinary losses or extraordinary
gains. EBIT for the second and third quarters of 1996 shall
be computed without deduction of the non-cash stock-based
compensation charges of $6,100,000 for changes in the
redemption value of preferred and common stock recorded in
those quarters. Non-cash charges (other than charges for
depreciation and amortization) for periods after September
30, 1996, shall be excluded in determining EBIT.
"EBITDA" means, for any period, for the Company and
its Subsidiaries on a consolidated basis, determined in
accordance with GAAP, the sum of (a) the consolidated net
income (or net loss), plus (b) all amounts treated as
expenses for interest to the extent included in the
determination of such net income (or loss), plus (c) all
income taxes recorded as expenses for income statement
purposes, plus (d) depreciation, amortization, depletion and
obsolescence of property; provided, however, that net income
(or loss) shall be computed for the purposes of this
definition without giving effect to extraordinary losses or
extraordinary gains. EBITDA for the second and third
quarters of 1996 shall be computed without deduction of the
non-cash stock-based compensation charges of $6,100,000 for
changes in the redemption value of preferred and common
stock recorded in those quarters. Non-cash charges
(other than charges for depreciation and amortization)
for periods after September 30, 1996, shall be
excluded in determining EBITDA.
"Election to Participate" means an Election to
Participate by a Designated Subsidiary, substantially in the
form of Exhibit D. Elections to Participate are discussed,
among other places, in Section 2.12, in Article V, and in
Sections 6.3, 7.14 and 10.12.
"Election to Terminate" means an Election to
Terminate by a Designated Subsidiary, substantially in the
form of Exhibit E. Elections to Terminate are discussed,
among other places, in Section 2.12.
6
<PAGE>
"Eligible Assignee" means (a) a commercial bank
organized under the laws of the United States of America, or
any state thereof, having a combined capital and surplus of
at least One Hundred Million Dollars ($100,000,000); (b) a
commercial bank organized under the laws of any other
country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having combined capital
and surplus of at least One Hundred Million Dollars
($100,000,000); provided that such bank is acting through a
branch or agency located in the country in which it is
organized or another country which is also a member of the
OECD; or (c) a commercial bank organized under the laws of
any country, acceptable to the Agent and the Company (such
acceptability not to be unreasonably withheld or delayed),
or a political subdivision of any such country, and having a
combined capital and surplus of at least One Hundred Million
Dollars ($100,000,000).
"Environmental Claim" means all claims; litigation;
demands; actions; causes of action; suits; liabilities
(including criminal or strict liability); judgments;
governmental or private investigations and testings;
notifications of status of being potentially responsible for
clean-up of any facility or for being in violation or in
potential violation of any Environmental Law; proceedings;
consent or administrative orders, agreements or decrees; or
liens, however asserted, by any Governmental Authority or
other Person alleging potential liability or responsibility
for or otherwise arising in connection with, any actual or
alleged violation of any Environmental Law or for release or
threatened release or injury to the environment, threat to
public health, personal injury (including sickness, disease
or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages
(punitive or otherwise); losses; cleanup, removal, remedial,
or response costs; restitution; civil or criminal penalties;
injunctive relief; diminution in value; expenses (including
attorneys' and experts' fees) or other type of relief,
resulting from or based upon (a) the presence, use,
placement, discharge, emission, release or threatened
release (including intentional and unintentional, negligent
and non-negligent, sudden or non-sudden, accidental or
non-accidental placement, spills, leaks, migration,
leaching, discharges, emissions or releases) or any aspect
of management or handling of any Hazardous Material at, in
or from property, whether or not owned by a Borrower;
(b) improper use or treatment of the environment,
including wetlands, or wildlife or its habitat; or (c)
any other circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means, to the extent
applicable to the Company or any of its Subsidiaries, all
international, federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes,
together with all administrative or other orders, directed
duties, requests, licenses, authorizations and permits of
and agreements with, any Governmental Authority, in each
case relating to environmental, health, safety, Hazardous
Materials, and land use matters, including the Comprehensive
Environmental Response, Compensation, and Liability Act (42
U.S.C. Section 9601 et seq.) ("CERCLA"), the Hazardous
Materials Transportation Act (49 U.S.C. App. 1801 et seq.),
the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.) ("RCRA"), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air
Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances
Control Act (15 U.S.C. Section 2601 et seq.), and the
7
<PAGE>
Occupational Safety and Health Act (29 U.S.C. Section 651 et
seq.) ("OSHA"), as such laws have been or may be amended or
supplemented, and any analogous present or future
international, federal, state or local statutes and the
regulations promulgated thereunder.
"Environmental Permits" has the meaning specified
in Section 5.12(b).
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and any
regulation thereunder promulgated by the Internal Revenue
Service or the Department of Labor (or any entity succeeding
to all or any part of their functions).
"ERISA Affiliate" means any trade or business
(whether or not incorporated) under common control with the
Company or any Subsidiary of the Company within the meaning
of Section 414(b), 414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with
respect to a Qualified Plan or a Multiemployer Plan; (b) a
withdrawal by any member of the Controlled Group from a
Qualified Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer (as defined
in Section 4001(a)(2) of ERISA); (c) a complete or partial
withdrawal by any member of the Controlled Group from a
Multiemployer Plan; (d) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a
termination under Section 4041 or 4041A of ERISA or the
commencement of proceedings by the PBGC to terminate a
Qualified Plan or Multiemployer Plan subject to Title IV of
ERISA; (e) a failure to make required contributions to a
Qualified Plan or Multiemployer Plan; (f) an event or
condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Qualified
Plan or Multiemployer Plan; (g) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon any
member of the Controlled Group; (h) an application for a
funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code with respect to any
Qualified Plan; (i) any member of the Controlled Group
engages in or otherwise becomes liable for a non-exempt
prohibited transaction; or (j) a violation of the
applicable requirements of Section 404 or 405 of ERISA
or the exclusive benefit rule under
Section 401(a) of the Code by any fiduciary with respect to
any Qualified Plan for which the Company or any of its
Subsidiaries may be directly or indirectly liable.
"Eurocurrency Liabilities" has the meaning assigned
to such term in Regulation D of the Federal Reserve Board,
as in effect from time to time, or any successor regulation.
"Eurodollar Lending Office" means with respect to
each Bank the office of such Bank designated as such on the
signature pages of this Agreement or such other office of
such Bank as such Bank may from time to time specify to the
Company and the Agent.
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<PAGE>
"Eurodollar Rate" means, for each Interest Period
for any Eurodollar Rate Loan, an interest rate per annum
(rounded upward, if necessary, to the nearest 1/100th of one
percent), determined pursuant to the following formula:
Eurodollar Rate = LIBOR
-------------------------------------
1.00 - Eurodollar Reserve Percentage
Where
"Eurodollar Reserve Percentage" means for any
Interest Period for Eurodollar Rate Loans the
maximum reserve percentage (expressed as a
decimal, rounded upward, if necessary, to the
nearest 1/100th of one percent) as determined by
the Agent in effect on the date LIBOR for such
Interest Period is determined (whether or not
applicable to any Bank) under regulations issued
from time to time by the Federal Reserve Board for
determining the maximum reserve requirement
(including basic, emergency, supplemental and
other marginal reserve requirements) with respect
to liabilities or assets consisting of or
including Eurocurrency Liabilities having a term
equal to such Interest Period; and
"LIBOR" means for any Interest Period for
Eurodollar Rate Loans, the per annum rate of
interest determined by the Agent to be the
arithmetic mean (rounded upward, if necessary, to
the nearest 1/16th of one percent) of the offered
quotations appearing on Telerate Page 3750 (or if
such Telerate page shall not be available, any
successor or similar service selected by the
Agent). If none of such Telerate Page 3750 or
any successor or similar service is available, the
"LIBOR Rate" applicable to any Interest Period for
Eurodollar Rate Loans shall be the per annum rate
(rounded upward, if necessary, to the nearest
1/100th of one percent) determined by the Agent
based upon rates quoted at approximately 10:00
a.m. (London time) (or as soon thereafter as
practicable) on the day two Business Days prior to
the first day of such Interest Period for the
offering by ABN AMRO to leading dealers in the
London interbank Dollar market of Dollar deposits
for delivery on the first day of such Interest
Period, in immediately available funds and having
a term comparable to such Interest Period and in
an amount comparable to the principal amount of
the respective Eurodollar Rate Loan to which such
Interest Period relates.
Each determination by the Agent of the Eurodollar
Reserve Percentage and LIBOR shall be conclusive and
binding, absent manifest error.
"Eurodollar Rate Loan" means a Loan that bears
interest based on the Eurodollar Rate.
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<PAGE>
"Event of Default" means any of the events
specified in Article IX, provided that any requirement for
the giving of notice, the lapse of time, or both, or any
other condition, event or act specified in Section 9.1 has
been satisfied.
"Existing Letters of Credit" means the letters of
credit described on Schedule 1.1.
"Facility Utilization" means, on any date, the
ratio, expressed as a percentage, of (a) the sum of (i) 100%
of the outstanding principal balance of all Loans on such
date plus (ii) 100% of the outstanding undrawn amount of all
financial letters of credit on such date plus (iii) 66-2/3%
of the outstanding undrawn amount of all non-financial
letters of credit on such date, up to $75,000,000, plus (iv)
100% of the outstanding undrawn amount of all non-financial
letters of credit on such date in excess of $75,000,000, to
(b) the Commitments on such date.
"FDIC" means the Federal Deposit Insurance
Corporation or any successor to all or any part of its
functions.
"Federal Funds Rate" means, for any day, the
weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next
preceding Business Day) on the succeeding 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 the day of such transactions
received by the Agent from three federal funds brokers of
recognized standing selected by it.
"Federal Reserve Board" means the Board of
Governors of the Federal Reserve System or any successor to
all or any part of its functions.
"Financial SBLC Fee Percentage" means, on any day,
the per annum percentage, expressed in basis points, beside
the label "Financial SBLCs" in the Pricing Schedule,
determined by finding the intersection of the Company's
EBITDA range for the four fiscal quarters most recently
ended as of such date and the Facility Utilization on such
date. The Financial SBLC Fee Percentage shall be adjusted
(a) on the date required by Section 7.1 for the delivery of
each of the Company's financial statements, and (b) on the
date of each change in the Facility Utilization.
"Funded Indebtedness" means (a) any indebtedness
for borrowed money, (b) all obligations evidenced by notes,
bonds, debentures or similar instruments, (c) all
reimbursement obligations with respect to any letter of
credit, and (d) all Capital Lease Obligations.
"GAAP" shall mean, as to a particular Person, such
accounting practice as, in the opinion of the independent
accountants of recognized national standing regularly
retained by such Person, conforms at the time to U. S.
generally accepted accounting principles, consistent with
10
<PAGE>
those applied in the preparation of the financial statements
referred to in Section 5.11, together with changes with
which the Company's independent auditors concur and which
are noted in the financial statements provided pursuant to
Section 7.1(a).
"Governmental Authority" means any sovereign
governmental authority, the United States of America, any
State of the U. S. and any political subdivision of any of
the foregoing, and any agency, instrumentality, department,
commission, board, bureau, central bank, authority, court or
other tribunal, in each case whether executive, legislative,
judicial, regulatory or administrative, having jurisdiction
over any Borrower, any Designated Subsidiary. any
Subsidiaries of the Company, any of their respective
property, the Agent or any Bank, and any corporation or
other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Guaranteed Debt" has the meaning specified in
Section 10.1.
"Guarantor" has the meaning specified in Section
10.1.
"Guarantor's Net Worth" has the meaning specified
in Section 10.1.
"Guaranty" has the meaning specified in Section
10.1.
"Hazardous Materials" means all those materials,
wastes or substances which are regulated by, or which may
form the basis of liability under, any Environmental Law,
including (a) all substances identified, listed or
defined under any Environmental Law as a pollutant,
contaminant, waste, solid waste, hazardous waste,
hazardous constituent, special waste, hazardous substance,
hazardous material, or toxic substance and (b) petroleum or
any petroleum derived substance or waste.
"Indebtedness" of any Person means without
duplication (a) all indebtedness for borrowed money; (b) all
obligations issued, undertaken or assumed as the deferred
purchase price of property or services, except trade
payables; (c) all reimbursement obligations with respect to
surety bonds, letters of credit, bankers' acceptances and
similar instruments (in each case, whether or not matured);
(d) all obligations evidenced by notes, bonds, debentures or
similar instruments; (e) all indebtedness created or arising
under any conditional sale or other title retention
agreement or incurred as financing in either case with
respect to property acquired by such Person (even though the
rights and remedies of the seller or bank under such
agreement in the event of default are limited to
repossession or sale of such property); (f) all Capital
Lease Obligations; (g) all indebtedness referred to in
paragraphs (a) through (f) above secured by (or for which
the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or
in property (including accounts and contracts rights) owned
by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness; and (h)
all direct or indirect guaranties in respect of and
obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of
the kinds referred to in paragraphs (a) through (f) above.
11
<PAGE>
"Indebtedness" shall include the obligations of the
Borrowers (both as Borrowers and as Guarantors) in
connection with the Notes, this Agreement and the other
Credit Documents.
"Interest Payment Date" means, with respect to any
Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan, and, with respect to Base Rate
Loans, the last day of each March, June, September and
December, and each date a Loan is converted into a Loan of
another Type; provided, however, that if any Interest Period
for a Eurodollar Rate Loan exceeds three months interest
shall also be paid on the date which falls three months
after the beginning of such Interest Period; and, in all
cases, the Commitment Termination Date.
"Interest Period" means, with respect to any
Eurodollar Rate Loan, the period commencing on the Business
Day the Loan is disbursed or continued or on the Conversion
Date on which the Loan is converted to the Eurodollar Rate
Loan and ending on the date one, two, three or six months
thereafter, as selected by a Borrower in its Notice of
Borrowing or Notice of Conversion/Continuation; provided,
that:
(i) if any Interest Period pertaining to a
Eurodollar Rate Loan would otherwise end on a day
which is not a Business Day, that Interest Period
shall be extended to the next succeeding Business
Day unless the result of such extension would be
to carry such Interest Period into another
calendar month, in which event such Interest
Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period pertaining to a
Eurodollar Rate Loan that begins on the last
Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in
the calendar month at the end of such Interest
Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period;
and
(iii) no Interest Period for any Loan shall
extend beyond the Commitment Termination Date.
"Issuing Bank" means any Bank which shall issue a
Letter of Credit.
"L/C Application" has the meaning specified in
Section 3.3(b).
"L/C Collateral" has the meaning specified in
Section 3.9.
"L/C Related Documents" has the meaning specified
in Section 3.7(a).
"Legal Requirement" means any applicable law,
statute, ordinance, decree, requirement, order, judgment,
rule, regulation (or interpretation by any Governmental
Authority of any of the foregoing) of, and the terms of any
license or permit issued by, any Governmental Authority, in
each case as now or hereafter in effect, including
Environmental Laws.
12
<PAGE>
"Lending Office" means, with respect to any Bank,
the office or offices of the Bank specified as its "Lending
Office" or "Domestic Lending Office" or "Eurodollar Lending
Office", as the case may be, opposite its name on the
signature pages of this Agreement or such other office or
offices of such Bank as it may from time to time specify to
the Company and the Agent.
"Letter of Credit" means a Commercial Letter of
Credit or a Standby Letter of Credit and includes the
Existing Letters of Credit.
"Letter of Credit Commitments" means the
commitments of the Banks to issue or participate in Letters
of Credit in a maximum aggregate amount equal to the
difference between One Hundred Fifty Million Dollars
($150,000,000) and the aggregate outstanding principal
balance of all Loans, as such amount may be reduced from
time to time pursuant to the terms of this Agreement.
"Letter of Credit Facility" means, at any time,
that portion of the Commitments allocated to Letters of
Credit and described in Article III.
"Letter of Credit Obligation" means, in respect of
any Letter of Credit as at any date of determination, the
sum of (a) the maximum aggregate amount which is then
available to be drawn under such Letter of Credit plus (b)
the aggregate amount of all Reimbursement Obligations then
outstanding with respect to such Letter of Credit.
"Leverage Ratio" means on any date the ratio of
Total Liabilities on such date to Tangible Net Worth on such
date.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preference,
priority or other security interest or preferential
arrangement of any kind or nature whatsoever (including
those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the
interest of a lessor under a Capital Lease Obligation, any
financing lease having substantially the same economic
effect as any of the foregoing, or the filing of any
financing statement naming the owner of the asset to which
such lien relates as debtor, under the Uniform Commercial
Code or comparable law of any jurisdiction) and any
contingent or other agreement to provide any of the
foregoing.
"Loan" means an extension of credit by a Bank to a
Borrower pursuant to Article II. Loans may be Base Rate
Loans or Eurodollar Rate Loans.
"Majority Banks" means at any time Banks holding at
least fifty-one percent (51%) of the then aggregate unpaid
principal amount of the Loans and outstanding Letter of
Credit Obligations, or, if no such principal amount and no
Letter of Credit Obligations are then outstanding, Banks
having at least fifty-one percent (51%) of the Commitments.
13
<PAGE>
"Margin Stock" means "margin stock" as such term is
defined in Regulation G, T, U or X of the Federal Reserve
Board.
"Material Adverse Effect" means a material adverse
change in, or a material adverse effect upon, (a) any of the
operations, business, properties, or condition (financial or
otherwise) of the Company and its Subsidiaries on a
consolidated basis; (b) the ability of the Borrowers (as
Borrowers or as Guarantors), or any direct or indirect
Subsidiary of the Company which is not a Borrower but which
at any time executes a Credit Document, taken as a whole, to
perform under any Credit Document; (c) the legality,
validity, binding effect or enforceability of any Credit
Document; (d) the enforceability, perfection or priority of
any Lien granted to the Banks or to the Agent on behalf of
the Banks under any of the Security Documents; or (e) the
liability of any Bank, any Issuing Bank, the Syndicated L/C
Bank or the Agent.
"Material Subsidiary" means, at any time, any
direct or indirect Subsidiary of the Company which at the
end of the preceding fiscal quarter had assets equal to 10%
or more of the total consolidated assets of the Company.
"Maximum Amount" has the meaning specified in
Section 10.1.
"Multiemployer Plan" means a "multiemployer plan"
(within the meaning of Section 4001(a)(3) of ERISA) and to
which any member of the Controlled Group makes, is making,
or is obligated to make contributions or has made, or been
obligated to make, contributions.
"Musketeer" means Musketeer Oil B.V., a Netherlands
corporation and an indirect wholly-owned Subsidiary of the
Company, which owns all of the equity in WUSA.
"New First-Tier or U.S. Subsidiary" means each
Subsidiary of the Company formed, created or acquired after
the date of this Agreement which is either (a) a direct
first-tier Subsidiary of the Company or (b) a direct or
indirect Subsidiary of WUSA, the total consolidated assets
of which constitute 10% or more of the total consolidated
assets of the Company.
"Nonfinancial SBLC Fee Percentage" means, on any
day, the per annum percentage, expressed in basis points,
beside the label "Nonfinancial SBLCs" in the Pricing
Schedule, determined by finding the intersection of the
Company's EBITDA range for the four fiscal quarters most
recently ended as of such date and the Facility Utilization
on such date. The Nonfinancial SBLC Fee Percentage shall
be adjusted (a) on the date required by Section 7.1 for the
delivery of each of the Company's financial statements, and
(b) on the date of each change in the Facility Utilization.
"Non-Qualified Pension Benefit Restoration Plan"
means a compensation program providing for payment to an
employee of an amount equal to the difference between the
14
<PAGE>
statutory benefit limitation imposed by the Code and the
employee's benefit as calculated under the Qualified Plan
applicable to the employee.
"Note" has the meaning specified in Section 2.7.
"Notice of Borrowing" means a notice given by a
Borrower to the Agent pursuant to Section 2.3(a), in
substantially the form of Exhibit B.
"Notice of Conversion/Continuation" means a notice
given by a Borrower to the Agent pursuant to Section 2.4(b),
in substantially the form of Exhibit C.
"Notice of Exclusive Control" has the meaning
specified in Section 3.5.
"Notice of Investment" means a notice given by a
Borrower to the Agent pursuant to Section 2.8(b), in
substantially the form of Exhibit P.
"Notice of Lien" means any "notice of lien" or
similar document intended to be filed or recorded with any
court, registry, recorder's office, central filing office or
other Governmental Authority for the purpose of evidencing,
creating, perfecting or preserving the priority of a Lien
securing obligations owing to a Governmental Authority.
"Obligations" means all Loans, all Letter of Credit
Obligations and other all Indebtedness, advances, debts,
liabilities, obligations, indemnities, covenants and duties
owing by any Borrower or any Guarantor to any Bank, the
Agent, or to any other Person required to be indemnified
under any Credit Document, of any kind or nature, present or
future, whether or not evidenced by any note, guaranty or
other instrument, arising under or in connection with this
Agreement or any other Credit Document or any of the
transactions evidenced by this Agreement or any other Credit
Document, whether or not for the payment of money, whether
arising by reason of an extension of credit, loan, guaranty,
indemnification or in any other manner, whether direct or
indirect (including those acquired by assignment), absolute
or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term
"Obligations" includes all interest, charges, expenses,
fees, attorneys' fees and disbursements (including the
allocated cost of in-house counsel) and any other sum
chargeable to the Borrowers under this Agreement or any
other Credit Document.
"Other Taxes" has the meaning specified in Section
4.9(b).
"Parent Pledge Agreements" means the agreements by
each of WGI and Musketeer under which certain stock is
pledged as security for the Obligations.
"Participant" has the meaning specified in Section
12.7.
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to all or any part of
its functions under ERISA.
15
<PAGE>
"Permanent Borrower" means each of the Company,
WECL, WEI, WESCO, WII, WUSA and each New First-Tier or U.S.
Subsidiary.
"Permitted Acquisitions and Investments" means
acquisitions of and investments (including pipeline project
related equity investments) for which a Subsidiary of the
Company or a joint venture involving a Subsidiary of the
Company is a material contractor in businesses primarily
engaged in energy-related services or water-related
services, including the same or similar services
historically provided by the Company and its Subsidiaries
prior to the date of this Agreement. Permitted Acquisitions
and Investments do not include Project Related Partnerships
and/or Joint Ventures.
"Permitted Liens" has the meaning specified in
Section 8.1.
"Person" means an individual, partnership, limited
liability company, corporation, business trust, joint stock
company, trust, unincorporated association, joint venture or
Governmental Authority.
"Plan" means an employee benefit plan (as defined
in Section 3(3) of ERISA) which the Company or any members
of the Controlled Group sponsors or maintains or to which
the Company or member of the Controlled Group makes or is
obligated to make contributions, and includes any
Multiemployer Plan or Qualified Plan.
"Pledge Agreements" means the WUSA Pledge
Agreement, the Parent Pledge Agreements, and each future
similar agreement with respect to the securities or equity
interests in any Designated Subsidiary.
"Pledged Collateral" has the meaning given to such
term in the Pledge Agreements.
"Pricing Schedule" means the schedule of that name
attached to this Agreement.
"Prime Rate" means the rate of interest publicly
announced by ABN AMRO at its office in Chicago, Illinois
from time to time as its Prime Rate.
"Principal Office" means the principal banking
office of the Agent, presently located at 335 Madison
Avenue, 14th Floor, New York, New York 10017.
"Proceeds of Remedies" has the meaning specified in
Section 9.4.
"Project Related Partnerships and/or Joint
Ventures" means corporations, associations, limited
liability companies, partnerships and/or joint ventures
formed in conjunction with specific work countries or
specific projects to perform services of a type provided by
the Company and its Subsidiaries in the ordinary course of
business, including construction, engineering and specialty
services.
16
<PAGE>
"Qualified Plan" means a pension plan (as defined
in Section 3(2) of ERISA) intended to be tax-qualified under
Section 401(a) of the Code and which any member of the
Controlled Group sponsors, maintains, or to which it makes
or is obligated to make contributions, or in the case of a
multiple employer plan (as described in Section 4064(a) of
ERISA) has made contributions at any time during the
immediately preceding period covering at least five plan
years, but excluding any Multiemployer Plan.
"Regulatory Change" shall mean, with respect to the
Agent or any Bank, any change on or after the date of this
Agreement in any Legal Requirement (including Regulation D
of the Federal Reserve Board) or the adoption or making on
or after such date of any official interpretation,
directive or request applying to a class of banks
including the Agent or such Bank under any Legal
Requirement (whether or not having the force of law)
by any Governmental Authority charged with the
interpretation or administration thereof.
"Reimbursement Obligations" means, in respect of
any Letter of Credit at any date of determination, the
aggregate amount of all drawings under such Letter of Credit
honored by the Issuing Bank or the Syndicated L/C Bank and
not theretofore reimbursed by the Borrowers.
"Reportable Event" means any of the events set
forth in Section 4043(b) of ERISA or the regulations
thereunder, withdrawal from a Plan described in Section 4063
of ERISA, or a cessation of operations described in Section
4062(e) of ERISA.
"Required Banks" means at any time Banks holding at
least sixty-six and two-thirds percent (66-2/3%) of the then
aggregate unpaid principal amount of the Loans and
outstanding Letter of Credit Obligations, or, if no such
principal amount and no such Letter of Credit Obligations
are then outstanding, Banks having at least sixty-six and
two-thirds percent (66-2/3%) of the Commitments.
"Responsible Officer" means the Chief Executive
Officer, the President, any Executive Vice President, or any
Vice President of any Borrower or any Designated Subsidiary
or, with respect to financial matters, the Chief Financial
Officer or the Treasurer of the Company.
"Revolving Commitments" means the commitments of
the Banks to make Loans pursuant to Article II in a maximum
aggregate amount equal to the positive difference between
One Hundred Million Dollars ($100,000,000) and the aggregate
sum of all Letter of Credit Obligations in excess of Fifty
Million Dollars ($50,000,000), as such amount may be reduced
from time to time pursuant to the terms of this Agreement,
and "Revolving Commitment" means for each Bank the
commitment to make Loans in an aggregate amount equal to its
Commitment Percentage of the Revolving Commitments.
"Security Documents" means, collectively, the
Pledge Agreements and all other security agreements,
mortgages, deeds of trust, patent and trademark assignments,
lease assignments, guarantees and other agreements among the
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<PAGE>
Borrowers or their respective Subsidiaries and the Banks or
the Agent on behalf of the Banks now or hereafter delivered
to the Banks or the Agent pursuant to or in connection with
the transactions contemplated hereby, and all financing
statements (or comparable documents) now or hereafter filed
in accordance with the Uniform Commercial Code (or
comparable law) against the Borrowers (as Borrowers or as
Guarantors) or any of their respective Subsidiaries in favor
of the Banks or the Agent on behalf of the Banks, and any
amendments, supplements, modifications, renewals,
replacements, consolidations, substitutions and extensions
of any of the foregoing.
"Senior Debt" means, at a particular date, the
aggregate outstanding principal amount of all Indebtedness
of the Company and its consolidated Subsidiaries, including
any extensions, renewals or replacements thereof, other than
Subordinated Debt, on such date.
"Solvent" means, as to any Person at any time, that
(a) the fair value of the property of such Person at such
time is greater than the amount of such Person's liabilities
at such time (including disputed, contingent and
unliquidated liabilities) as such value is established and
liabilities evaluated for purposes of Section 101(31) of the
United States Bankruptcy Code (12 U.S.C. 101 et seq.); (ii)
the present fair saleable value of the property of such
Person at such time is not less than the amount that will be
required to pay the probable liability of such Person on its
debts as they become absolute and matured; (iii) such Person
at such time is able to realize upon its property and pay
its debts and other liabilities (including disputed,
contingent and unliquidated liabilities) as they mature in
the normal course of business; (iv) such Person at such time
does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature; and (v) such Person at
such time is not engaged in business or a transaction, and
is not about to engage in business or a transaction, for
which such Person's property would constitute unreasonably
small capital.
"Standby Letter of Credit" means any letter of
credit (including an Existing Letter of Credit) which is not
a Commercial Letter of Credit.
"Subordinated Debt" means any Indebtedness of the
Company or any of its Subsidiaries which includes
subordination and other provisions acceptable to the
Required Banks.
"Subsidiary" of a Person means any corporation,
association, partnership, joint venture or other business
entity of which forty-nine percent (49%) or more of the
voting stock or other equity interests is owned or
controlled directly or indirectly by such Person or by one
or more other subsidiaries or parent entities of such Person
or by any combination of the foregoing. For purposes of
this Agreement, The Oman Construction Company L.L.C.,
Willbros Kuwait Gas & Oil Field Services Co. (KCSC),
Willbros Far East Sdn. Bhd., Willbros (Nigeria) Limited and
Willbros Al-Rushaid Limited will be treated as wholly-owned
Subsidiaries of WII.
"Syndicated L/C Bank" shall mean ABN AMRO.
"Tangible Net Worth" means, at any time, the
consolidated gross book value of the assets of the Company
and its Subsidiaries (exclusive of goodwill, patents,
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trademarks, tradenames, organization expense, treasury
stock, unamortized debt discount and expense, deferred
charges and other like intangibles) less (a) consolidated
reserves applicable thereto and (b) all consolidated
liabilities including accrued and deferred income
taxes, all as determined in accordance with GAAP,
as reported in the financial statements most recently
provided pursuant to Section 7.1(a) or (c).
"Taxes" has the meaning specified in Section
4.9(a).
"Total Capitalization" means, at any date, the sum
of (a) Funded Indebtedness of the Company on such date plus
(b) common equity and preferred stock of the Company on such
date.
"Total Liabilities" means, at any date, the total
consolidated liabilities of the Company and its Subsidiaries
on such date, determined in accordance with GAAP.
"Transferee" has the meaning specified in Section
12.8.
"Type" refers to the interest rate option
applicable to any Loan, i.e., Base Rate or Eurodollar Rate.
"Unfunded Pension Liabilities" means the excess of
a Plan's accrued benefits, as defined in Section 3(23) of
ERISA, over the current value of that Plan's assets, as
defined in Section 3(26) of ERISA.
"UCP" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber
of Commerce Publication No. 500 (and any subsequent revision
thereof approved by a Congress of the International Chamber
of Commerce).
"U.S." means the United States of America.
"Vintondale" means Vintondale Corporation N.V, a
Netherlands Antilles corporation and the owner of all of the
outstanding equity in Musketeer.
"WECL" means Willbros Engineering & Construction
Limited, a corporation organized under the laws of the
Province of Ontario, Canada.
"WECL Guaranty" means the Guaranty, dated the date
of this Agreement, executed and delivered by WECL in favor
of the Agent and the Banks with respect to the Obligations
of WGI as Guarantor.
"WEI means Willbros Engineers, Inc., a Delaware
corporation.
"WESCO" means Willbros Energy Services Company, a
Delaware corporation.
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"WII" means Willbros International, Inc., a
corporation organized under the laws of the Republic of
Panama.
"Withdrawal Liabilities" means, as of any
determination date, the aggregate amount of the liabilities,
if any, pursuant to Section 4201 of ERISA if the Controlled
Group made a complete withdrawal from all Multiemployer
Plans and any increase in contributions pursuant to Section
4243 of ERISA.
"WUSA" means Willbros USA, Inc., a Delaware
corporation.
"WUSA Pledge Agreement" means the agreement by WUSA
under which all of the stock of WESCO and WEI is pledged as
security for the Obligations.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified herein or therein,
all terms defined in this Agreement shall have the defined
meanings when used in any other Credit Document or in any
certificate or other document made or delivered pursuant to
any Credit Document.
(b) All accounting terms not expressly defined in
this Agreement shall be construed, except where the context
otherwise requires, and all financial computations required
under this Agreement shall be made, in accordance with GAAP.
(c) Unless otherwise provided or the context
otherwise requires, the words "hereof", "herein" and
"hereunder" and words of similar import when used in this
Agreement or any other Credit Document shall refer to this
Agreement or such Credit Document as a whole and not to any
particular provision of this Agreement or such other Credit
Document, and section, schedule and exhibit references are
to this Agreement unless otherwise specified. The meaning
of defined terms shall be equally applicable to the singular
and plural forms of the defined terms.
(d) In the computation of periods of time from a
specified date to a later specified date, the word "from"
means "from and including"; the words "to" and "until" each
mean "to but excluding"; and the word "through" means "to
and including".
(e) References to statutes or regulations are to
be construed as including all statutory and regulatory
provisions consolidating, amending or replacing the statute
or regulation.
(f) The captions and headings of this Agreement
and the other Credit Documents are for convenience of
reference only and shall not affect the construction of this
Agreement or the other Credit Documents.
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(g) Unless otherwise expressly provided, any
accounting concept and all financial covenants shall be
determined on a consolidated basis, and financial
measurements shall be computed without duplication.
(h) Wherever the term "including" or any of its
correlatives appears in the Credit Documents, it shall be
read as if it were written "including (by way of example and
without limiting the generality of the subject or concept
referred to)".
(i) References in any Credit Document to Section
numbers are references to the Sections of such Credit
Document. References in any Credit Document to Exhibits,
Schedules, Annexes and Appendices are to the Exhibits,
Schedules, Annexes and Appendices to such Credit Document,
and they shall be deemed incorporated into such Credit
Document by reference.
(j) Except as otherwise provided herein, any term
defined in the Credit Documents which refers to a particular
agreement, instrument or document shall also mean, refer to
and include all modifications, amendments, supplements,
restatements, renewals, extensions and substitutions of the
same; provided that nothing in this subsection shall be
construed to authorize any such modification, amendment,
supplement, restatement, renewal, extension or substitution
except as may be permitted by other provisions of the Credit
Documents.
(k) Unless otherwise provided or the context
otherwise requires, all times of day used in the Credit
Documents mean local time in New York, New York.
(l) Defined terms may be used in the singular or
plural, as the context requires, and whenever the singular
number is used, the same shall include the plural where
appropriate, and vice versa. The masculine and neuter
genders used in this Agreement each includes the masculine,
feminine and neuter genders.
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<PAGE>
ARTICLE II
AMOUNT AND TERMS OF COMMITMENTS
-----------------------------------------------------------
2.1 The Revolving Credit.
(a) Each Bank severally agrees, on the terms and
subject to the conditions set forth in this Agreement, to
make Loans to any Borrower from time to time, on any
Business Day during the period from the Closing Date to the
Commitment Termination Date, in an aggregate amount for all
Borrowers not to exceed at any time outstanding the amount
set forth opposite such Bank's name in Schedule 2.1 (such
amount, as the same may be reduced pursuant to Section 2.5
or as a result of one or more assignments pursuant to
Section 12.7, such Bank's "Revolving Commitment"); provided,
however, that, after giving effect to any Borrowing of
Loans, the aggregate principal amount of all Loans then
outstanding shall not exceed the aggregate of the Revolving
Commitments; and provided further, that (i) the aggregate
principal amount of all Loans, together with all Letter of
Credit Obligations, outstanding at any time shall not exceed
the Commitments; (ii) the aggregate principal amount of all
Loans outstanding at any time shall not exceed $100,000,000;
and (iii) the aggregate principal amount available to be
borrowed at any time in connection with acquisitions and
investments shall not exceed the difference between (A)
$50,000,000 and (B) the aggregate amount of all Loans
previously borrowed (regardless of whether repaid) and all
financial Letters of Credit (and all Letters of Credit which
are part of the deferred purchase price of any such
acquisition) previously issued (in each case, regardless of
whether outstanding, drawn or expired) in connection with
Permitted Acquisitions and Investments. Within the limits
of each Bank's Revolving Commitment, the Borrowers may
borrow under this Section 2.1, prepay pursuant to Section
2.6 and reborrow pursuant to this Section 2.1.
(b) Upon the written request of the Company,
received by the Agent on or about the first, second or third
anniversary of the Closing Date and subject to the consent
of each Bank willing to grant such request, the Commitment
Termination Date shall be extended for an additional one
year commencing on the then current Commitment Termination
Date. The Agent shall transmit such request to each Bank
promptly upon receipt. The Company shall provide such
information as the Agent or any Bank through the Agent may
reasonably request in connection with evaluating such
request. The Banks shall respond through the Agent to any
such request of the Company within 30 days of the date of
the Company's request. Any Bank not responding within 30
days shall be deemed to have declined the request. If such
request is not approved by the Majority Banks, it shall be
deemed to have been withdrawn. At the option of the
Company, the Commitment of any Bank not consenting to the
Company's request to extend such Bank's Commitment may be
assumed, in whole or in part, by one or more existing Banks
or other banks acceptable to the Company and the Agent, upon
compliance with Section 12.7; provided that, in such event,
unless otherwise agreed by the assuming Bank or bank, the
Company shall pay the $2,500 processing fee required by
Section 12.7(a). If any such Commitment is not so replaced
within 30 days of the Banks' response, then, at
the Company's option, either (i) the Commitments shall
terminate on the then current Commitment Termination Date or
(ii) the Company shall give prompt notice of termination of
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the Commitment not so replaced to each and every Bank that
has not consented to the extension (to the extent its
Commitment has not been assumed), with a copy to the Agent,
and shall prepay the Loans of such Banks on five Business
Days' prior notice to such Banks and the Agent, which shall
reduce the Revolving Commitment accordingly (to the extent
not assumed), and the Commitment Termination Date shall be
extended in accordance with this Section 2.1 for the
remaining Commitments and Schedule 2.1 shall be amended
accordingly. Any declining Bank that has not been replaced
as provided in this Agreement will continue to be obligated
pursuant to Article III and Section 11.7 with respect to any
Letters of Credit issued prior to the date its Commitment
was terminated.
2.2 Loan Accounts. Each Bank, with respect to amounts
payable to it under the Credit Documents, and the Agent,
with respect to all amounts payable under the Credit
Documents, shall maintain on its books in accordance with
its usual practice, loan accounts and control accounts,
respectively, setting forth each Loan, the applicable
interest rate and the amounts of principal, interest and
other sums paid and payable from time to time under the
Credit Documents with respect thereto; provided, however,
that the failure, error or omission by a Bank or the Agent
to maintain an account or ledger or to record any
information therein shall not diminish or otherwise affect
any of the Obligations of the Borrowers under any Credit
Document. In the case of any dispute, action or proceeding
relating to any amount payable under any Credit Document,
the entries in each such account shall constitute conclusive
evidence of the accuracy of the information so recorded in
the absence of manifest error. In case of a discrepancy
between the entries in the Agent's books and any Bank's
books, such Bank's books shall be considered correct in the
absence of manifest error.
2.3 Procedure for Borrowing.
(a) Each Borrowing of Loans shall be made upon
the written notice of a Borrower in the form of a Notice of
Borrowing (which notice must be received by the Agent at its
Principal Office prior to 12:00 noon (New York City time)
three Business Days prior to the requested borrowing date,
in the case of Eurodollar Rate Loans, and one Business Day
prior to the requested borrowing date, in the case of Base
Rate Loans), specifying:
(A) the amount of the Borrowing, which shall
be in an aggregate minimum principal amount of One
Million Dollars ($1,000,000) or any multiple of
Five Hundred Thousand Dollars ($500,000) in excess
thereof;
(B) the requested borrowing date, which
shall be a Business Day;
(C) whether the Borrowing is to be comprised
of Eurodollar Rate Loans or Base Rate Loans;
(D) the duration of the Interest Period
applicable to such Loans included in such notice,
subject to the definition of "Interest Period";
and
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<PAGE>
(E) whether such Loan is to be used directly or
indirectly for acquisitions or investments.
(b) Upon receipt of the Notice of Borrowing, the
Agent shall promptly notify each Bank thereof and of the
amount of such Bank's Commitment Percentage of the
Borrowing.
(c) Each Bank will make the amount of its
Commitment Percentage of the Borrowing available to the
Agent for the account of the Borrower at the Principal
Office in New York, New York for payment by 2:00 p.m. (New
York City time) on the borrowing date requested by the
Borrower in funds immediately available to the Agent.
Unless any applicable condition specified in Article VI has
not been satisfied, the proceeds of all such Loans will then
be made available to the Borrower by the Agent at such
Principal Office by crediting the account of the Borrower
specified in the Notice of Borrowing with the aggregate of
the amounts made available to the Agent by the Banks and in
like funds as received by the Agent.
(d) The provisions of Section 2.3(a)
notwithstanding, if a Borrower shall not have given a timely
notice of a Borrowing to be made on the last day of any
Interest Period for outstanding Loans, then, unless the
Agent shall have received notice that the Borrower elects
not to make a Borrowing on such day (such notice to have
been received at least two Business Days prior to such day),
the Agent shall be deemed to have received a Notice of
Borrowing from the Borrower requesting Base Rate Loans to be
made on such day in an amount equal to the amount of such
outstanding Loans (reduced to the extent necessary to
reflect any reductions of the Commitments on or prior to
such day).
(e) The Borrowers may request a maximum of two
Borrowings of Loans to be made on the same date, provided
that each Borrowing is in the minimum amount required under
paragraph (A) of Section 2.3(a).
2.4 Conversion and Continuation Elections.
(a) Each Borrower may, upon irrevocable written
notice to the Agent as provided below:
(i) elect to convert, on any Business Day,
any Base Rate Loans (or any part thereof in an
amount not less than One Million Dollars
($1,000,000) or an integral multiple of Five
Hundred Thousand Dollars ($500,000) in excess
thereof) into Eurodollar Rate Loans;
(ii) elect to convert, on any Interest
Payment Date, any Eurodollar Rate Loans maturing
on such Interest Payment Date (or any part thereof
in an amount not less than One Million Dollars
($1,000,000) or an integral multiple of Five
Hundred Thousand Dollars ($500,000) in excess
thereof), into Base Rate Loans; or
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<PAGE>
(iii) elect to renew, on any Interest Payment
Date therefor, any Eurodollar Rate Loans (or any
part thereof in an amount not less than One
Million Dollars ($1,000,000) or an integral
multiple of Five Hundred Thousand Dollars
($500,000) in excess thereof);
provided, that if the aggregate amount of Eurodollar Rate
Loans shall have been reduced, by payment, prepayment, or
conversion of part thereof, to be less than One Million
Dollars ($1,000,000), all such Eurodollar Rate Loans shall
automatically convert into Base Rate Loans; and on and after
such date the right of the Borrowers to continue such Loans
as Eurodollar Rate Loans shall terminate.
(b) A Borrower shall deliver by telecopier,
confirmed immediately in writing, a Notice of
Conversion/Continuation to be received by the Agent not
later than 12:00 noon (New York City time) at least (i)
three Business Days in advance of the Conversion Date or
continuation date, if the Loans are to be converted into or
continued as Eurodollar Rate Loans, and (ii) one Business
Day in advance of the Conversion Date or continuation date,
if the Loans are to be converted into or renewed as Base
Rate Loans, specifying:
(A) the proposed Conversion Date or
continuation date;
(B) the aggregate amount of Loans to be
converted or continued;
(C) the Type into which such Loans are to be
converted or continued; and
(D) the duration of the requested Interest
Period, subject to the definition of "Interest
Period".
(c) If upon the expiration of any Interest Period
applicable to Eurodollar Rate Loans, a Borrower has failed
to select a new Interest Period to be applicable to such
Eurodollar Rate Loans in accordance with this Agreement, or
if any Default shall then have occurred and be continuing,
such Borrower shall be deemed to have elected to convert
such Eurodollar Rate Loans into Base Rate Loans effective as
of the expiration date of such Interest Period.
(d) Upon receipt of a Notice of
Conversion/Continuation, the Agent shall promptly notify
each Bank thereof. All conversions and continuations shall
be made pro rata according to the respective outstanding
principal amounts of the Loans held by each Bank with
respect to which such notice was given.
(e) Notwithstanding any other provision contained
in this Agreement, after giving effect to any conversion or
continuation of any Loans, there shall not be more than five
different Interest Periods in effect.
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<PAGE>
2.5 Voluntary Termination or Reduction of Commitments.
The Borrowers may, upon not less than three Business Days'
prior notice to the Agent, terminate the Commitments or
permanently reduce the Commitments by an aggregate minimum
amount of One Million Dollars ($1,000,000) or any multiple
of Five Hundred Thousand Dollars ($500,000) in excess
thereof; provided, that no such reduction or termination
shall be permitted if, after giving effect thereto and to
any prepayments of the Loans made on the effective date
thereof, the then outstanding principal amount of the Loans
would exceed the Revolving Commitments or the then
outstanding principal amount of Loans and all Letter of
Credit Obligations would exceed the Commitments then in
effect; and provided further, that once reduced in
accordance with this Section 2.5, the Commitments may not be
increased. Any reduction of the Commitments shall be
applied pro rata to each Bank's Commitment in accordance
with such Bank's Commitment Percentage. If the Commitments
are terminated in their entirety, all accrued commitment
fees to, but not including, the effective date of such
termination shall be due on the effective date of such
termination without any premium or penalty. Such notice
shall not thereafter be revocable by the Borrowers, and the
Agent shall promptly notify each Bank thereof and of such
Bank's Commitment Percentage of such prepayment.
2.6 Optional Prepayments. Subject to Section 4.13, the
Borrowers may, at any time or from time to time, upon at
least three Business Days' prior notice to the Agent,
ratably prepay Loans in whole or in part, in amounts of One
Million Dollars ($1,000,000) or any multiple of Five Hundred
Thousand Dollars ($500,000) in excess thereof. Such notice
of prepayment shall specify the date and amount of such
prepayment and whether such prepayment is of Base Rate Loans
or Eurodollar Rate Loans, or any combination thereof. Such
notice shall not thereafter be revocable by the Borrowers,
and the Agent shall promptly notify each Bank thereof and of
such Bank's Commitment Percentage of such prepayment. If
such notice is given, the Borrowers shall make such
prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein,
together with accrued interest to each such date on the
amount prepaid and the amounts required pursuant to Section
4.13.
2.7 Notes. The Loans made by each Bank shall be
evidenced by a single promissory note of each Borrower, in
substantially the form of Exhibit A (each, together with all
renewals, extensions, modifications and replacements thereof
and substitutions therefor, a "Note"), payable to the
order of such Bank in a principal amount equal to the
Revolving Commitment of such Bank as originally in
effect and otherwise duly completed. Each Bank is hereby
authorized by each Borrower to endorse on the schedule
(or a continuation thereof) attached to the Note of such
Bank executed by such Borrower, to the extent
applicable, the date, amount and Type of each Loan made by
such Bank to such Borrower hereunder, and each continuation
thereof, each conversion of all or a portion thereof to
another Type, the date and amount of each payment or
prepayment of principal thereof received by such Bank and,
in the case of Eurodollar Rate Loans, the length of each
Interest Period; provided, that any failure by any Bank to
make any such endorsement shall not affect the obligations
of the Borrower under such Note or this Agreement in respect
of such Loan.
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<PAGE>
2.8 Mandatory Prepayments of Loans.
(a) If on any date, the aggregate outstanding
principal balance of Loans shall exceed the lesser of
$100,000,000 or the aggregate Revolving Commitments, or if
the aggregate outstanding principal balance of the Loans and
the aggregate of all outstanding Letter of Credit
Obligations shall exceed the Commitments then in effect, the
Borrowers shall on such date prepay Loans in an aggregate
amount equal to such excess together with any amount
required to be paid in connection therewith pursuant to
Section 4.13.
(b) Upon any Permitted Acquisition and Investment
which, together with all other Permitted Acquisitions and
Investments since the later of (i) the Closing Date or (ii)
the date of the most recent Notice of Borrowing or L/C
Application, shall cause the aggregate amount of Loans
borrowed and all financial Letters of Credit (and all
Letters of Credit which are part of the deferred purchase
price of any such acquisition) issued in Permitted
Acquisitions and Investments to exceed $10,000,000, the
Borrowers (through the Company) will promptly send to the
Agent a Notice of Investment. The aggregate amount of all
proceeds of all Loans used in connection with such
acquisition or investment shall be repaid in equal quarterly
installments, the first of which shall be due on the last
Business Day of the second fiscal quarter of the Company
following the closing of the acquisition or the completion
of the project associated with such investment which causes
the aggregate amount described in the first sentence of this
Section 2.8(b) to exceed $10,000,000 and the remainder of
which shall fall due in their order, one each on the last
Business Day of each succeeding fiscal quarter thereafter
prior to the Commitment Termination Date.
(c) Any prepayments pursuant to this Section 2.8
made on a day other than an Interest Payment Date for any
Loan shall be applied first to any Base Rate Loans then
outstanding and then to Eurodollar Rate Loans with the
shortest Interest Periods remaining; provided, however, that
if the amount of Base Rate Loans then outstanding is not
sufficient to satisfy the entire prepayment requirement, the
Borrowers may, at their option, place any amounts which
would otherwise be required to be used to prepay Eurodollar
Rate Loans on a day other than the last day of the Interest
Period therefor in an interest-bearing account pledged to
the Agent on behalf of the Banks until the end of such
Interest Period at which time such pledged amounts will
be applied to repay such Eurodollar Rate Loans.
2.9 Repayment. Each Borrower agrees to
repay to the Agent, on or before the Commitment
Termination Date, at the Principal Office of the Agent
in New York, New York, for the account of the Banks,
the unpaid principal balance of all Loans made to
such Borrower.
2.10 Interest.
(a) Subject to Section 2.10(c), each Loan shall
bear interest on the outstanding principal amount thereof
from the date when made until it becomes due at a rate per
annum equal to the Eurodollar Rate or the Base Rate, as the
case may be, plus the Applicable Margin.
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<PAGE>
(b) Interest on each Loan shall be payable in
arrears on each Interest Payment Date and on each Conversion
Date in respect thereof; provided, however, that, as to any
Loan with an Interest Period of six months, such Borrower
shall also pay interest on the date which is three months
after the date of such Loan. Interest shall also be due on
the date of any prepayment of Loans pursuant to Sections 2.5
and 2.6 for the portion of the Loans so prepaid and upon
payment (including prepayment) in full thereof. After the
occurrence and during the continuation of any Event of
Default or after acceleration, interest shall be due on
demand.
(c) During the continuation of any Event of
Default or after acceleration, the Borrowers shall pay
interest (after as well as before judgment to the extent
permitted by law) on the unpaid principal balance of all
Loans at a rate per annum equal to the otherwise applicable
rate plus the Applicable Margin then in effect plus two
percent (2%) per annum; provided, however, that, on and
after the expiration of the Interest Period applicable to
any Loan outstanding on the date of occurrence of such Event
of Default or acceleration, the principal amount of such
Loan shall, during the continuation of such Event of Default
or after acceleration, bear interest at a rate per annum
equal to the Base Rate plus three percent (3%) until paid.
2.11 Affiliates; Lending Offices.
(a) Any Bank may, if it so elects, fulfill its
lending or payment obligations by causing a branch, foreign
or otherwise, or an Affiliate of such Bank to make such Loan
or payment and may transfer and carry such Loan at, to or
for the account of any branch office or Affiliate of such
Bank; provided, that in such event, for the purposes of this
Agreement, such Loan shall be deemed to have been made by
such Bank and the obligation of the Borrowers to repay such
Loan shall nevertheless be to such Bank and shall be deemed
to be held by such Bank, to the extent of such Loan, for the
account of such branch or Affiliate.
(b) Notwithstanding any provision of this
Agreement to the contrary, each Bank shall be entitled to
fund and maintain its funding of all or any part of its
Loans in any manner it sees fit.
2.12 Elections to Participate and Elections to
Terminate. Each Election to Participate and each Election
to Terminate shall be duly executed on behalf of the
electing Subsidiary and each Guarantor in such number of
copies as the Agent may request. Upon the delivery of an
Election to Terminate, and as a condition precedent to the
effectiveness thereof, on the effective date of such
Election to Terminate all Obligations of the Subsidiary with
respect to which such Election to Terminate was delivered
shall have been paid in full. Upon the delivery of any
Election to Terminate, the Commitment of each Bank to lend
to or to issue Letters of Credit for the account of such
Subsidiary shall terminate. If on any date any Borrower or
Designated Subsidiary shall cease for any reason to be a
Subsidiary of the Company, all Obligations in respect of
such Borrower or Designated Subsidiary shall automatically
become due and payable on such date and thereafter no
further Loans may be borrowed by, and no Letter of Credit
may be issued for the account of, such Borrower or such
Designated Subsidiary. No Permanent Borrower may deliver an
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Election to Terminate, and no Election to Terminate with
respect to any Permanent Borrower shall be effective for any
purpose. The Agent shall promptly give notice to the Banks
of the receipt of any Election to Participate or Election to
Terminate.
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ARTICLE III
LETTERS OF CREDIT
-----------------------------
3.1 The Letter of Credit Commitment.
(a) From time to time, on any Business Day during
the period from the Closing Date to the Commitment
Termination Date, on the terms and subject to the conditions
set forth in this Agreement, any Borrower, on its own behalf
or on behalf of any of its Subsidiaries, may request any one
of the Banks to become the Issuing Bank with respect to a
fronted Letter of Credit. If such request is accepted by a
Bank, and such Borrower does not then object to such Bank's
terms, that Bank shall become the Issuing Bank, and, on the
terms and subject to the conditions set forth in this
Agreement, the Issuing Bank shall issue, and each Bank
severally agrees to participate in, fronted Standby Letters
of Credit and Commercial Letters of Credit for the account
of a Borrower; provided, however, that: (i) the Issuing Bank
shall not be obligated to issue any Letter of Credit, nor
shall any Bank be obligated to participate in the same, if,
after giving effect to such issuance, the aggregate amount
of all Loans and all Letter of Credit Obligations then
outstanding would exceed the Commitments; (ii) no Bank shall
be obligated to issue or participate in any Letter of Credit
if, at the time of its requested issuance, the amount set
forth opposite such Bank's name in Schedule 2.1, as the same
may be reduced pursuant to Section 2.5 or as a result of one
or more assignments pursuant to Section 12.7, is less than
the aggregate amount of such Bank's proportionate share of
all outstanding Loans and Letter of Credit Obligations
incurred by the Borrowers after giving effect to such
proposed issuance or participation; (iii) no Bank shall be
obligated to issue a Letter of Credit if an Event of Default
has occurred and is continuing; (iv) the Issuing Bank shall
not be obligated to issue any Letter of Credit, nor shall
any Bank be obligated to participate in any Letter of Credit
(other than the Existing Letters of Credit), if such Letter
of Credit, the application therefor, and any customary
instruments and agreements relating thereto are not
satisfactory in form and substance to the Agent; and (v)
each participating Bank shall participate in each Letter of
Credit (including the Existing Letters of Credit) in a
proportion equal to the ratio that such Bank's Commitment
bears to the Commitments.
(b) Concurrently with the issuance of each Letter
of Credit by the Issuing Bank (and on the date of this
Agreement with respect to all Existing Letters of Credit),
each Bank (other than the Issuing Bank) shall be deemed to
have purchased, and hereby agrees to purchase, irrevocably
and unconditionally, from the Issuing Bank, without
recourse, an undivided interest and participation in the
related Letter of Credit Obligation in an amount equal to
the product of (i) its Commitment Percentage and (ii) the
face amount of such Letter of Credit.
(c) Subject to Section 3.1(a), if no Bank shall
agree to become the Issuing Bank, or if a Borrower shall
elect not to request a fronted Letter of Credit, any
Borrower may ask the Syndicated L/C Bank, with respect to
Standby Letters of Credit only, to issue a syndicated
Standby Letter of Credit on behalf of the Banks on a several
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basis, in substantially the form of Exhibit F, subject to
the terms and conditions set forth in Section 3.1(a).
(d) For purposes of Section 4.2, each issuance of
a Letter of Credit (and the Existing Letters of Credit)
shall be deemed to utilize the Commitments for each Bank's
percentage share of the face amount of the Letter of Credit.
(e) The Issuing Bank and the Syndicated L/C Bank
shall not be obligated to issue any Letter of Credit under
this Agreement if such issuance would conflict with, or
cause any Borrower, the Issuing Bank, the Syndicated L/C
Bank or any Bank participating in a Letter of Credit to be
in violation of any Legal Requirement, including any
prohibition of the foreign assets control regulations of the
United States Treasury Department, or after any Bank has
promptly notified the Agent, the Issuing Bank or the
Syndicated L/C Bank that it cannot, for any reason, issue or
participate in a Letter of Credit. If a Letter of Credit
will not be issued because of either of the reasons stated
in the preceding sentence and the failure to issue was not
due to such issuance's directly resulting in any of the
Borrowers' or any Bank's violation of any Legal Requirement,
the Borrowers may obtain such letter of credit from a third
party; provided, however, that the aggregate face amount of
all such letters of credit for all Borrowers, together with
all Indebtedness outstanding pursuant to the exception in
Section 8.4(c), shall never at any one time exceed twenty
percent (20%) of Tangible Net Worth. The Company may from
time to time request in writing to the Agent exceptions to
the limit expressed in the preceding sentence. Any such
request must be approved by the Agent and the Majority Banks
and may be rejected by the Agent or any Bank in its sole
discretion.
(f) Letters of Credit issued from time to time by
an Issuing Bank may, in some cases, be backed by one or more
letters of credit or other financial accommodations extended
to the Issuing Bank by other financial institutions for the
account of Persons other than the Company and its
Subsidiaries. In such event, (i) the nature, terms, amount
and tenor of, and the obligor on, any such letter of credit
or other financial accommodations shall be satisfactory to
the Issuing Bank in its sole discretion, (ii) the Issuing
Bank shall bear the entire risk with respect to that portion
of each such Letter of Credit equal to the amount of any
such letter of credit or other financial accommodations,
(iii) the interest and participation in the Letter of Credit
Obligations related to each such Letter of Credit which each
Bank (other than the Issuing Bank) shall be obligated to
purchase pursuant to Section 3.1(b) shall be in an amount
equal to the product of such Bank's Commitment Percentage
times that portion of such Letter of Credit in excess of the
amount of any such letter of credit or other financial
accommodations, and (iv) the Commitments shall be deemed
used only to the extent of that portion of each such Letter
of Credit in excess of the amount of any such letter of
credit or other financial accommodations. Such Letters of
Credit shall otherwise be subject to all of the terms and
conditions, and entitled to all of the benefits, of this
Agreement and the other Credit Documents. Concurrently with
the issuance of each Letter of Credit of the type described
in this Section 3.1(f), the Issuing Bank shall notify
the Agent of that portion of such Letter of Credit which is
in excess of any such letter of credit or other financial
accommodations.
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3.2 The Letters of Credit.
(a) Any Borrower may request the Syndicated L/C
Bank on behalf of the Banks to issue or the Issuing Bank to
issue, and the other Banks to participate in, Standby
Letters of Credit denominated in Dollars or any Alternative
Currency for the following purposes: (i) to provide
guarantees such as bid, advance payment, retention release,
customs, warranty and performance guarantees for a maximum
term (subject to Section 3.2(c)) of three years, (ii) to
provide counter guarantees in support of bank guarantees
issued outside the U. S. for the purposes set forth in
Section 3.2(a)(i), (iii) to support local currency
borrowings outside the U. S. for a maximum term (subject to
Section 3.2(c)) of two years, (iv) to support judicial
proceedings, (v) for any other purpose in the ordinary
course of business, and (vi) for any other purpose agreed to
by the Required Banks.
(b) Any Borrower may further request the Issuing
Bank to issue, and the other Banks to participate in,
Commercial Letters of Credit denominated in Dollars or any
Alternative Currency in support of trade obligations
incurred in the ordinary course of business for a maximum
term (subject to Section 3.2(c)) of one year.
(c) No Letter of Credit shall have an expiration
date (including all rights of renewal) later than the
Commitment Termination Date.
(d) For the purpose of ensuring compliance with
the maximum amount of the Letter of Credit Commitments, the
Agent may (but shall not be obligated to) at any time
determine the equivalent in Dollars of the face amount of
each Letter of Credit denominated in an Alternative Currency
by using the quoted spot rate at which ABN AMRO's office in
Chicago, Illinois offers to sell Dollars for such
Alternative Currency in Chicago at 2:00 p.m. (New York City
time) on any such determination date. If no such spot rate
is quoted, the Agent may use a spot quote determined by any
other reasonable method.
(e) In the event that the Agent determines, based
on its computation made in accordance with Section 3.2(d),
that the sum of all Letter of Credit Obligations exceeds the
Letter of Credit Commitments, the Agent may (and, at the
request of the Majority Banks, shall) give notice to the
Company of such fact and the amount by which the sum of all
Letter of Credit Obligations exceeds the Letter of Credit
Commitments. Upon such notice, one or more of the Borrowers
shall forthwith prepay its Loans in an aggregate amount
equal to such excess together with any amount required to be
paid in connection therewith pursuant to Section 4.13. Any
prepayments pursuant to this Section 3.2(e) shall be applied
first to any Base Rate Loans then outstanding, second to
Eurodollar Rate Loans with an Interest Payment Date on the
date of such prepayment and third, to the extent that the
aggregate amount of Base Rate Loans then outstanding plus
the amount of Eurodollar Rate Loans with an Interest Payment
Date on the date of such prepayment is not sufficient to
satisfy the entire prepayment requirement or there are no
Loans outstanding on the date such prepayment would be
required, the remaining amount of such prepayment or the
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amount by which the sum of all Letter of Credit Obligations
still exceeds the Letter of Credit Commitments shall be
deposited in the Cash Collateral Account and shall become
subject to the terms and provisions of Sections 3.5(b), (c),
(d) and (e).
3.3 Issuance of the Letters of Credit.
(a) Each Letter of Credit shall be issued upon
the request of a Borrower, on its own behalf or on behalf of
any of its Subsidiaries, received by (i) the Issuing Bank or
(ii) the Syndicated L/C Bank, each with a copy to the Agent
delivered by such Borrower, not later than 3:00 p.m. (New
York City time) three Business Days prior to the date of
issuance; provided, however, that if a requested syndicated
Letter of Credit is not substantially identical to Exhibit
F, then such notice shall require a minimum of eight
Business Days' notice. Upon receipt of such request, the
Issuing Bank or the Syndicated L/C Bank will request the
Agent to determine that after giving effect to the issuance
of the Letter of Credit so requested, the aggregate amount
of all Loans and all Letter of Credit Obligations then
outstanding will not exceed the Commitments, and the Agent
will promptly notify the Issuing Bank or the Syndicated L/C
Bank of such determination. The Agent will promptly notify
each Bank of each request for issuance of a Letter of
Credit.
(b) Each request for issuance of a Letter of
Credit shall be made in writing by telecopier and confirmed
by delivery (not more than one Business Day thereafter) of a
Letter of Credit Application and Agreement, in the case of a
Standby Letter of Credit, in the form of Exhibit G-1, and,
in the case of a Commercial Letter of Credit, in the form of
Exhibit G-2 (each, an "L/C Application"). Each request for
issuance of a Letter of Credit shall specify, among other
things: (i) the proposed date of issuance (which shall be a
Business Day); (ii) the Person on whose behalf the Letter of
Credit is to be issued; (iii) the face amount of the Letter
of Credit; (iv) the date of expiration of the Letter of
Credit; (v) the name and address of the beneficiary thereof;
(vi) the documents to be presented by the beneficiary of the
Letter of Credit in case of any drawing thereunder;
(vii) the full text of any certificate to be presented
by the beneficiary in case of any drawing thereunder;
(viii) other proposed terms of such Letter of Credit;
and (ix) the nature of the transaction proposed to be
supported by such Letter of Credit. The Borrower making
such request shall furnish such additional information
regarding such transaction as the Agent or such
Issuing Bank through the Agent may reasonably request in
writing.
(c) Each Bank shall provide the Agent with a
power of attorney in order to expedite the issuance of any
syndicated Letter of Credit on behalf of the Banks, in the
form of Exhibit G-3.
(d) The Issuing Bank or the Syndicated L/C Bank
shall notify the Agent of each issuance of a Letter of
Credit on the date such Letter of Credit is issued and on
the date of such issuance inform the Agent by telecopier of
the type, amount and expiration date of such Letter of
Credit. The Agent shall promptly notify the Banks of each
issuance of a Letter of Credit by the Issuing Bank or by the
Syndicated L/C Bank.
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(e) Any request for an amendment to any
previously issued Letter of Credit shall be received by the
Agent and either the Syndicated L/C Bank or the Issuing
Bank, as the case may be, not later than 3:00 p.m. (New York
City time) two Business Days prior to the date of the
proposed amendment in writing by telecopier and a copy
thereof shall be delivered by the requesting Borrower to the
Agent; provided that, for a syndicated Letter of Credit, the
requesting Borrower shall provide five Business Days' prior
notice. Each written request for an amendment to a
previously issued Letter of Credit made by telecopier shall
be signed by the Borrower requesting such amendment and
shall not request an extension beyond the Commitment
Termination Date. The Issuing Bank or the Syndicated L/C
Bank, as the case may be, shall notify the Agent by
telecopier of each amendment to any Letter of Credit on the
date of such amendment. The Agent shall notify the Banks,
promptly, of each such amendment. Any amendment that would
require a vote of all the Banks pursuant to Section 12.1
(other than a change in the shipping date or in the face
amount or expiry date of a Letter of Credit) shall require
the approval of all Banks prior to the execution of the
amendment by the Issuing Bank or the Syndicated L/C Bank.
If the Issuing Bank or Syndicated L/C Bank does not execute
the amendment on or before the date specified in the
requesting Borrower's written request, the request for such
amendment shall be deemed to have been denied.
(f) Notwithstanding any provision of any L/C
Application to the contrary, in the event of any conflict
between the terms of any such L/C Application and the terms
of this Agreement, the terms of this Agreement shall control
with respect to provisions relating to events of default,
representations and warranties, and covenants in the
respective documents, except that such L/C Application may
provide for further warranties relating specifically to the
transaction or affairs underlying such Letter of Credit.
(g) Each Letter of Credit shall be subject to the
UCP and, to the extent not inconsistent therewith, the laws
of the State of New York.
3.4 Drawings and Reimbursements.
(a) If, in accordance with its standard operating
procedures, the Syndicated L/C Bank or the Issuing Bank,
respectively, determines that a demand for payment under a
Letter of Credit conforms to the terms and conditions of
such Letter of Credit, the Syndicated L/C Bank or the
Issuing Bank, respectively, shall, as soon as reasonably
practicable, give notice to the Borrower which requested
such Letter of Credit and to the Agent of the date the
Issuing Bank or the Banks, as the case may be, will make
payment in connection with such Letter of Credit in
accordance with the terms thereof. The Agent shall promptly
notify the Banks of such date. Each Bank and each Borrower
acknowledges that the Issuing Bank or the Syndicated L/C
Bank shall have no greater responsibility in the operation
of the Letters of Credit than is specified in the UCP. If at
any time the Issuing Bank thereof shall have made a payment
to a beneficiary of a Letter of Credit in respect of a
drawing or in respect of an acceptance created in connection
with a drawing under such Letter of Credit, such Issuing
Bank shall promptly notify the Company and each Bank, and
each Bank will pay to the Agent for the account of such
Issuing Bank immediately upon demand by such Issuing Bank
through the Agent at any time during the period commencing
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after such payment until reimbursement thereof in full by
the Company, an amount equal to such Bank's Commitment
Percentage of such payment, together with interest on such
amount for each day from the date of demand for such payment
(or, if such demand is made after 11:00 a.m. New York City
time on such date, from the next succeeding Business Day) to
the date of payment by such Bank of such amount at a rate of
interest per annum equal to the Federal Funds Rate from time
to time in effect during such period. Nothing herein shall
be deemed to require any Bank to pay to the Agent for the
account of any Issuing Bank any amount as reimbursement for
any payment made by such Issuing Bank to acquire (discount)
for its own account prior to maturity thereof any acceptance
created under a Letter of Credit.
(b) Each Borrower unconditionally and irrevocably
agrees to reimburse the Syndicated L/C Bank or the Issuing
Bank for each payment made by the Syndicated L/C Bank or the
Issuing Bank under any Letter of Credit issued at the
request of such Borrower, on the date the Syndicated L/C
Bank or the Issuing Bank makes such payment, together with
(i) if applicable, interest on the amount paid by the
Syndicated L/C Bank or the Issuing Bank from the date such
payment was made until such reimbursement becomes due at a
rate per annum equal to the Base Rate plus one percent (1%)
per annum and (ii) if such reimbursement is not made when
due (whether directly, by means of Loans as provided in
Section 3.4(c) or by application of any funds or any
financial assets, security entitlements or securities
accounts then contained in the Cash Collateral Account),
interest on the amount so paid by the Syndicated L/C Bank or
the Issuing Bank from the date such payment became due to
the date the Syndicated L/C Bank or the Issuing Bank is
reimbursed therefor at a rate per annum equal to the
Base Rate plus three percent (3%) per annum. With respect
to its reimbursement and interest payment obligations, each
Borrower is irrevocably and unconditionally obligated
forthwith to reimburse the Issuing Bank or the Syndicated
L/C Bank for any amount paid by such Bank under any Letter
of Credit requested by such Borrower, without presentment,
demand, protest or other formalities of any kind, all of
which are hereby expressly WAIVED by each Borrower.
(c) Unless an Event of Default shall have
occurred, and subject to the terms and conditions of this
Agreement, each Borrower may satisfy its Reimbursement
Obligation by borrowing Base Rate Loans in accordance with
Section 2.3(a), the proceeds of which Loans will be used to
reimburse the Syndicated L/C Bank or the Issuing Bank for
the amount of any disbursement made by it under a Letter of
Credit. If a Borrower shall fail to deliver a timely Notice
of Borrowing pursuant to Section 2.3(a) and shall fail to
otherwise reimburse or cause the Syndicated L/C Bank or the
Issuing Bank to be reimbursed directly or by request to the
Agent to apply funds contained in the Cash Collateral
Account on the same day the Syndicated L/C Bank or the
Issuing Bank honors a drawing under a Letter of Credit (or,
if the notice was given to a Borrower after 11:00 a.m. (New
York City time) on such date, on the Business Day next
following the date of notice), the Syndicated L/C Bank or
the Issuing Bank shall promptly notify the Agent and the
Agent shall promptly notify the other Banks thereof. If on
the date of such notification there shall not exist any
Event of Default, and subject to the terms and conditions of
this Agreement, the Borrower for whose account the Letter of
Credit was issued shall be deemed to have requested that
Loans, which shall be Base Rate Loans, be made by the Banks
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to be disbursed on the date of payment by the Issuing Bank
or Syndicated L/C Bank under the Letter of Credit. Such
conditions precedent having been satisfied, in the event
that any Bank fails to make available to the Syndicated L/C
Bank or the Issuing Bank the amount of such Bank's Loan on
the date payment is made under the Letter of Credit, the
Syndicated L/C Bank or the Issuing Bank shall be entitled to
recover such amount on demand from such Bank together with
interest thereon at the Federal Funds Rate.
(d) If any Reimbursement Obligation of any
Borrower is not repaid directly when due and cannot be
repaid by means of a borrowing under the Revolving
Commitments and there shall not then be sufficient funds
available for the payment due to the Syndicated L/C Bank or
the Issuing Bank in the Cash Collateral Account, each Bank
will, upon notice by the Agent, promptly pay to the
Syndicated L/C Bank or such Issuing Bank the amount of its
participation in such Reimbursement Obligation determined in
accordance with Section 3.1(c).
(e) Upon and only upon receipt by the Issuing
Bank or the Syndicated L/C Bank of funds from, or on behalf
of, a Borrower, (i) in reimbursement of any payment made
under any Letter of Credit with respect to which any Bank
has theretofore made a payment to the Syndicated L/C Bank or
the Issuing Bank pursuant to Section 3.4 (c) or (d), or (ii)
in payment of interest thereon, the Issuing Bank or the
Syndicated L/C Bank will pay to each Bank through the Agent,
in the same funds as those received by the Syndicated L/C
Bank or the Issuing Bank, such Bank's pro rata share of such
funds.
(f) If the Syndicated L/C Bank or an Issuing Bank
is required at any time to return to a Borrower or to a
trustee, receiver, liquidator, custodian or other similar
official any portion of the payments made by such Borrower
to such Issuing Bank or the Syndicated L/C Bank in
reimbursement of a payment made under any Letter of Credit
or interest thereon, each Bank shall, on demand of the
Agent, forthwith return to the Syndicated L/C Bank or such
Issuing Bank its Commitment Percentage of any amounts so
returned by the Syndicated L/C Bank or such Issuing Bank,
plus interest thereon from the date such demand is made to
the date such amounts are returned by such Bank to the
Syndicated L/C Bank or such Issuing Bank at a rate per annum
equal to the Federal Funds Rate.
(g) If any Borrower ever alleges gross
negligence or willful misconduct by an Issuing Bank or the
Syndicated L/C Bank, or that an Issuing Bank or the
Syndicated L/C Bank has honored a Letter of Credit in
violation of applicable law, the full amount of
reimbursement provided for in this Section 3.4 shall
nonetheless be paid upon demand, subject to later adjustment
or reimbursement at such time, if any, as a court of
competent jurisdiction enters a final judgment as to the
extent and effect of any alleged gross negligence or willful
misconduct. Each Issuing Bank or the Syndicated L/C Bank
will pay to the Agent for the account of each Bank such
Bank's Commitment Percentage of all amounts received from
any Borrower for application in payment, in whole or in
part, of the Reimbursement Obligation in respect of any
Letter of Credit, but only to the extent such Bank has made
payment to such Issuing Bank or the Syndicated L/C Bank in
respect of such Letter of Credit.
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3.5 Cash Collateral Account.
(a) Upon the occurrence of an Event of Default,
one or more of the Borrowers shall, at the request of the
Agent, consistent with the provisions of Article X, provide
a letter of credit in form and substance satisfactory to the
Required Banks or promptly pay to the Agent in immediately
available funds an amount equal to the maximum amount then
available to be drawn under all Letters of Credit then
outstanding. Any amounts received by the Agent shall be
deposited by the Agent in one or more (at the request of the
Required Banks) deposit accounts (such deposit accounts,
together with any financial assets, security entitlements or
security accounts acquired or maintained in connection
therewith, shall be the "Cash Collateral Account")
maintained by ABN AMRO for the benefit of the Issuing Bank,
the Agent, the Issuing Banks, the Syndicated L/C Bank and
the Banks.
(b) For the benefit of the Banks, and as security
for the payment of all Letter of Credit Obligations and for
all other Obligations (including Loans), each
Borrower hereby grants, conveys, assigns, pledges, sets over
and transfers to the Agent, and creates in the Agent's favor
a Lien on, and security interest in, the Cash Collateral
Account and all money, instruments, securities, security
entitlements, and securities accounts at any time held in or
acquired in connection with the Cash Collateral Account,
together with all proceeds thereof, all of which shall be
under the sole dominion and control of the Agent. The
Borrowers shall have no right to withdraw or to cause ABN
AMRO or the Agent to withdraw any funds deposited in, or
transfer any financial assets or security entitlements in,
the Cash Collateral Account. ABN AMRO recognizes the Agent
as the sole party entitled to give any instructions with
respect to the Cash Collateral Account and agrees to comply
with the Agent's instructions and entitlement orders. ABN
AMRO will not agree with any third party that ABN AMRO will
comply with entitlement orders concerning the Cash
Collateral Account originated by such third party without
the prior written consent of the Agent and Borrowers. Upon
any adoption of revised Uniform Commercial Code Article 8 by
the State of New York, ABN AMRO will treat all property held
by it in the Cash Collateral Account as financial assets
under such Article 8.
(c) At any time and from time to time, upon the
Agent's request, each Borrower promptly shall execute and
deliver any and all such further instruments and documents
as may be necessary, appropriate or desirable in the Agent's
judgment to obtain the full benefits (including perfection
and priority) of the security interest created or intended
to be created by this Section 3.5 and of the rights and
powers granted in this Agreement and the other Credit
Documents. The Borrowers shall not create or suffer to
exist any Lien on any amounts or investments held in the
Cash Collateral Account other than the Lien granted under
this Section 3.5 and Liens permitted pursuant to Sections
8.1(a) and (c).
(d) The Agent shall (i) apply any funds in the
Cash Collateral Account deposited pursuant to Section 3.5(a)
above on account of Reimbursement Obligations when the same
become due and payable if and to the extent that the
Borrowers shall then fail directly to pay such Reimbursement
Obligations and (ii) after the date on which the Commitments
shall have terminated, apply any such funds remaining in the
Cash Collateral Account first, to pay any unpaid Obligations
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then outstanding and then, to refund any remaining amount to
the Borrowers. If sufficient funds have not been deposited
in the Cash Collateral Account, the Agent may cause ABN AMRO
to liquidate any securities or financial assets securing the
Letter of Credit Obligations or any other Obligations
(including Loans), regardless of their maturity date or of
any penalties associated therewith.
(e) Except as otherwise provided herein, the
Company, no more than once in any calendar month, may direct
ABN AMRO to invest the funds held in the Cash Collateral
Account (so long as the aggregate amount of such funds
exceeds any relevant minimum investment requirement as
determined by the Agent) in one or more types of Cash
Equivalents with maturities no longer than 30 days, pending
application of such funds on account of Letter of Credit
Obligations or on account of other Obligations, as the case
may be. In the absence of any such direction from the
Company, ABN AMRO shall invest the funds received from
WUSA or any of its Subsidiaries in securities issued or
fully guaranteed by the U.S. Government. The balance of the
funds shall be invested in Eurodollar time deposits
constituting Cash Equivalents. ABN AMRO shall neither
accept nor comply with any entitlement order from any
Borrower withdrawing any financial assets from the Cash
Collateral Account nor deliver any such financial assets to
any Borrower nor pay any amounts owing from ABN AMRO to any
Borrower with respect to the Cash Collateral Account without
the specific prior written consent of the Agent. ABN AMRO
will comply with entitlement orders originated by the Agent
concerning the Cash Collateral Account without further
consent by any Borrower and regardless of whether an Event
of Default shall have occurred.
(f) At such time as the Agent delivers a written
notice to ABN AMRO which states that an Event of Default has
occurred and is continuing and that the Agent is thereby
exercising exclusive control over the Cash Collateral
Account (the "Notice of Exclusive Control"), ABN AMRO will
immediately cease complying with instructions or entitlement
orders concerning the Cash Collateral Account originated by
any Borrower or any of their representatives until such time
as ABN AMRO receives written notice from the Agent that the
rights of Borrowers to effect trades from the Cash
Collateral Account have been reinstated by the Agent. ABN
AMRO shall have no responsibility or liability to any
Borrower for complying with a Notice of Exclusive Control or
complying with entitlement orders concerning the Cash
Collateral Account originated by the Agent. ABN AMRO shall
have no duty to investigate or make any determination as to
whether an Event of Default exists and shall comply with a
Notice of Exclusive Control even if it believes that an
Event of Default does not exist. Neither this Agreement nor
any other Credit Document imposes or creates any obligation
or duty on ABN AMRO other than those expressly set forth
herein.
(g) All investments of funds held in the Cash
Collateral Account shall be made in the Agent's name for the
account of the Banks. The Borrowers recognize that any
losses or taxes with respect to such investments shall be
borne solely by the Borrowers, and each Borrower agrees to
indemnify the Agent, the Issuing Bank, the Syndicated L/C
Bank and the Banks for, and hold each such Person harmless
from and against, any such losses or taxes other than losses
arising from the gross negligence or willful misconduct of
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the Agent, the Issuing Bank, the Syndicated L/C Bank or any
Bank. The Agent may liquidate any investment held in the
Cash Collateral Account in order to apply the proceeds of
such investment on account of Letter of Credit Obligations
(or on account of other Obligations then due and payable, as
the case may be) without regard to whether such investment
has matured and without liability for any penalties or other
fees incurred (with respect to which each Borrower hereby
agrees to reimburse the Agent) as a result of such
application. All items of income, gain, expense and loss
recognized in the Cash Collateral Account for U.S. persons
shall be reported to the Internal Revenue Service and all
state and local taxing authorities under the name and
taxpayer identification number of the appropriate Borrower.
(h) The Agent will advise the Company on a
monthly basis of the results of the investments of the funds
held in the Cash Collateral Account based on the daily
activity thereof.
(i) The Borrowers shall pay to ABN AMRO the
fees customarily charged by ABN AMRO with respect to the
maintenance of accounts similar to the Cash Collateral
Account.
(j) This Agreement supplements any deposit
agreement or similar agreement which any one or more of the
Borrowers and ABN AMRO have entered or may enter into,
notwithstanding any integration clause therein. In the
event of a conflict between this Agreement and any other
agreement between a Borrower and ABN AMRO relating to the
Cash Collateral Account, the terms of this Agreement will
prevail. Regardless of any provision in such deposit or
similar agreement, New York shall be deemed to be ABN AMRO's
location for the purposes of this Agreement and the
perfection and priority of the Agent's security interest in
the Cash Collateral Account. All matters relating to the
Cash Collateral Account shall be governed by the laws of the
State of New York.
(k) The rights and powers granted herein to the
Agent have been granted in order to perfect its security
interests, are powers coupled with an interest, and will
neither be affected by the bankruptcy of any Borrower nor by
the lapse of time.
3.6 Role of the Issuing Bank and the Syndicated L/C
Bank.
(a) Each of the Issuing Bank and the Syndicated
L/C Bank will exercise and give the same care and attention
to the Letters of Credit issued by it as it gives to other
letters of credit issued by it.
(b) Each Bank agrees that, in paying any drawing
under any Letter of Credit, the Issuing Bank and the
Syndicated L/C Bank shall not have any responsibility to
obtain any document (other than any document expressly
required by the terms of such Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any
document or the authority of the Person delivering any
document. None of the Issuing Bank, the Syndicated L/C Bank
or any of their representatives, officers, employees or
agents shall be liable to any Bank for: (i) any action taken
or omitted in connection herewith at the request or with the
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approval of the Required Banks; (ii) any action taken or
omitted in the absence of gross negligence or willful
misconduct; or (iii) any action taken or omitted affecting
the execution, effectiveness, genuineness, validity or
enforceability of any Letter of Credit or any other document
contemplated hereby or thereby.
(c) All Letters of Credit issued by any Issuing
Bank or the Syndicated L/C Bank pursuant to this Agreement
shall be evidenced by entries in records maintained by the
Issuing Bank or the Syndicated L/C Bank, respectively, which
records shall be conclusive evidence, absent manifest error,
of all of the Letter of Credit Obligations and the
Reimbursement Obligations. Failure by the Issuing Bank or
the Syndicated L/C Bank to record the issuance of any Letter
of Credit or any payment or reimbursement with respect
thereto or any error in so recording any such fact, shall
not, however, limit or otherwise affect any of the Letter of
Credit Obligations or Reimbursement Obligations.
(d) So long as the Issuing Bank or the Syndicated
L/C Bank shall have acted in good faith, the Issuing Bank
and Syndicated L/C Bank, respectively, shall not be
responsible to any Borrower for, and such Bank's right to
reimbursement, indemnification, and other payments under
this Agreement and the other Credit Documents shall not be
impaired by, (i) any act or omission for which banks are
relieved of responsibility under the UCP, (ii) any
recommendation or failure to recommend the inclusion or
exclusion of any term or wording in a Letter of Credit, or
(iii) honor or dishonor or refusal of any demand under a
Letter of Credit following any Borrower's refusal to confirm
that such demand is entitled to be honored or that such Bank
is entitled to be reimbursed therefor. No Bank shall be
liable for any special, indirect or consequential damages in
connection with any Letter of Credit.
3.7 Obligation to Reimburse for, or Participate in,
Letters of Credit. Each Borrower's obligation to reimburse
the Syndicated L/C Bank or any Issuing Bank for payments and
disbursements made by the Syndicated L/C Bank or such
Issuing Bank under any Letter of Credit requested by such
Borrower honoring a demand for payment by the beneficiary
thereunder, and each Bank's obligation to participate in
such payments and disbursements in accordance with this
Agreement, shall be irrevocable, absolute and unconditional
under any and all circumstances, including the following
circumstances:
(a) any lack of validity or enforceability of
this Agreement, any Letter of Credit, any L/C Application,
or any other agreement or instrument relating thereto
(collectively, the "L/C Related Documents");
(b) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
obligations of any Borrower in respect of any Letter of
Credit or any other amendment or waiver of or any consent to
or departure from all or any of the L/C Related Documents;
(c) the existence of any claim, set-off, defense
or other right that any of the Borrowers may have at any
time against any beneficiary or any transferee of any Letter
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of Credit (or any Person for whom any such beneficiary or
any such transferee may be acting), the Agent, such Issuing
Bank, the Syndicated L/C Bank or any other Person,
whether in connection with this Agreement or any
other Credit Document, the transactions contemplated by the
L/C Related Documents or any unrelated transaction;
(d) any draft, certificate, statement or 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 other than if such payment resulted from the gross
negligence or willful misconduct of the Agent, the
Syndicated L/C Bank or the Issuing Bank;
(e) payment by the Agent, the Syndicated L/C Bank
or the Issuing Bank under any Letter of Credit against
presentation of a draft or certificate that does not comply
with the terms of any Letter of Credit other than if such
payment resulted from the gross negligence or willful
misconduct of the Agent, the Syndicated L/C Bank or the
Issuing Bank;
(f) any exchange, release or non-perfection of
any collateral or Lien, or any release or amendment or
waiver of or consent to departure from any guaranty, for all
or any of the obligations of any Borrower, in respect of any
Letter of Credit; or
(g) any other circumstance or happening
whatsoever whether or not similar to any of the foregoing,
including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any
Borrower or any account party other than a circumstance
constituting gross negligence or willful misconduct on the
part of the Agent, the Syndicated L/C Bank, or the Issuing
Bank.
3.8 Indemnification by the Banks. The Banks severally
agree to indemnify the Agent, the Syndicated L/C Bank, the
Issuing Bank and each officer, director, employee, agent and
Affiliate of the Agent, the Syndicated L/C Bank or the
Issuing Bank ratably according to their respective
Commitment Percentages, to the extent not reimbursed by the
Borrowers, from and against any and all actions, causes of
action, suits, losses, liabilities, damages, expenses,
attorneys' fees and costs which may at any time (including,
at any time following the payment of any of the
Reimbursement Obligations) be imposed on, incurred by or
asserted against such Person in any way relating to or
arising out of the issuance of, transfer of, or payment or
failure to pay under any Letter of Credit or the use of
proceeds of any payment made under any Letter of Credit;
provided, however, that no Bank shall be liable for the
payment of any portion of such actions, causes of action,
suits, losses, liabilities, damages and expenses which a
court of competent jurisdiction finally shall have
determined in a final proceeding to have arisen solely by
reason of such Person's gross negligence or willful
misconduct.
3.9 Special Provisions Relating to Commercial Letters
of Credit.
(a) The Borrowers will obtain, or cause to be
obtained, insurance on all goods which are the subject of
any Commercial Letter of Credit. Such insurance will
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cover fire and other usual insurable risks and such
additional risks as the Issuing Bank may reasonably request.
The Borrowers irrevocably authorize and empower the Issuing
Bank to collect the proceeds of any of the aforementioned
insurance which would be payable to any of the Borrowers and
apply such proceeds, to the extent any of the Borrowers is a
loss payee or otherwise has the right to collect the
proceeds of such insurance, against such Borrower's
Reimbursement Obligations to the Banks with respect to the
Commercial Letter of Credit to which such proceeds relate.
(b) Except as disclosed in writing to the Agent
concurrently with the delivery of the relevant L/C
Application, each Borrower represents and warrants to the
Banks that it has obtained all import and export licenses
and other governmental approvals required for the goods and
the documents described in any Commercial Letter of Credit.
(c) (i) Each Borrower hereby grants to the Agent
for the benefit of the Banks a security interest in such
Borrower's right, title and interest in and to the following
described property, whether now owned or hereafter acquired
by the Borrowers (the "L/C Collateral"):
(A) All goods and documents described in any
Commercial Letter of Credit;
(B) All negotiable and nonnegotiable
documents of title covering any of the above
described property;
(C) All rights under contracts of insurance
covering any of the above-described property;
(D) All deposit accounts now or hereafter
maintained by such Borrower with any Bank with
respect to any Commercial Letter of Credit; and
(E) All proceeds of any of the above
described property.
(ii) The L/C Collateral secures and will secure
all obligations and liabilities of such Borrower to the
Banks with respect to any Commercial Letter of Credit,
whether now existing or hereafter incurred or created,
whether due or to become due, and whether absolute or
contingent.
3.10 Additional Costs in Respect of Letters of
Credit. If there shall be imposed, modified or deemed
applicable any tax, reserve, special deposit or similar
requirement against or with respect to or measured by
reference to Letters of Credit issued or to be issued under
this Agreement or participations in such Letters of Credit,
and the result shall be to increase the cost to the Issuing
Bank, the Syndicated L/C Bank or any other
Bank of issuing or maintaining any Letter of Credit or any
participation therein, or reduce any amount receivable by
the Issuing Bank, the Syndicated L/C Bank or any other
Bank in respect of any Letter of Credit or any
participation therein (which increase in cost, or
reduction in amount receivable, shall be the result of
such Issuing Bank's, the Syndicated L/C Bank's or such other
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Bank's reasonable allocation of the aggregate of such
increases or reductions resulting from such event), such
Issuing Bank, the Syndicated L/C Bank or such other Bank
shall notify the Company through the Agent, and upon demand
therefor by such Issuing Bank, the Syndicated L/C Bank or
such other Bank through the Agent, each Borrower shall pay
to the Issuing Bank, the Syndicated L/C Bank or such other
Bank, from time to time as specified by the Issuing Bank,
the Syndicated L/C Bank or such other Bank, such additional
amounts as shall be sufficient to compensate the Issuing
Bank, the Syndicated L/C Bank or such other Bank for such
increased costs or reductions in amount. Before making such
demand pursuant to this Section 3.10, the Issuing Bank, the
Syndicated L/C Bank or such other Bank will designate a
different available Lending Office for the Letter of Credit
or participation or take such other action as the Company
may reasonably request, if such designation or action would
avoid the need for, or reduce the amount of, such
compensation and would not, in the sole opinion of the
Issuing Bank, the Syndicated L/C Bank or such other Bank, be
disadvantageous to the Issuing Bank, the Syndicated L/C Bank
or such other Bank. A statement as to such increased costs
or reductions in amount incurred by the Issuing Bank, the
Syndicated L/C Bank or such other Bank, submitted by the
Issuing Bank, the Syndicated L/C Bank or such other Bank to
the Company, shall be conclusive as to the amount thereof,
absent manifest error, and may be prepared using any
reasonable averaging and attribution method.
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ARTICLE IV
FEES; PAYMENTS; TAXES; CHANGES IN CIRCUMSTANCES
- ------------------------------------------------------------
4.1 Arrangement Fee. The Borrowers jointly and
severally agree to pay to the Agent an aggregate arrangement
fee for the Agent's own account in an amount and at the
times set forth in a letter agreement between the Company
and the Agent dated November 27, 1996.
4.2 Commitment Fees. In consideration of the
Commitments, the Borrowers further jointly and severally
agree to pay to the Agent for the account of each Bank a
commitment fee for each day computed by multiplying the
Commitment Fee Percentage in effect on such day by the
unused portion of such Bank's Commitment on such day. Such
commitment fee shall accrue from the Closing Date to the
Commitment Termination Date and shall be due quarterly in
arrears on the last day of each March, June, September and
December commencing on March 31, 1997, and on the Commitment
Termination Date.
4.3 Agency Fee. The Borrowers jointly and severally
agree to pay to the Agent for the Agent's own account on the
last Business Day of each March following the Closing Date
an aggregate agency fee in the amount set forth in a letter
agreement between the Company and the Agent dated November
27, 1996.
4.4 Letter of Credit Fees.
(a) Each Borrower requesting a Letter of Credit
agrees to pay to the Agent for the account of each Bank a
Letter of Credit fee as follows:
(i) in the case of each nonfinancial Standby
Letter of Credit, a fee computed by multiplying
the Nonfinancial SBLC Fee Percentage in effect on
each day by the face amount of such Standby Letter
of Credit in effect on such day and, in the case
of each financial Standby Letter of Credit, a fee
computed by multiplying the Financial SBLC Fee
Percentage in effect on each day by the face
amount of such Standby Letter of Credit in effect
on such day; and
(ii) in the case of each Commercial Letter of
Credit, a fee computed by multiplying the CDLC Fee
Percentage in effect on each day by the face
amount of such Commercial Letter of Credit in
effect on such day.
All such fees shall accrue on the outstanding amount
available under each such Letter of Credit from its issuance
(or, in the case of Existing Letters of Credit, from the
Closing Date) until the date such Letter of Credit expires,
taking into account any extensions of the expiration date
beyond the initial expiration date, and shall be due
quarterly in arrears on the last day of each March,
June, September and December and on the date such Letter
of Credit expires or is fully drawn.
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In addition, each Borrower promises to pay all fees,
charges, commissions and taxes of entities engaged by any
Bank with the permission of the Company to perform services
related to the Letters of Credit.
(b) Each Borrower requesting a Letter of Credit
agrees to pay to the Agent for the account of the Issuing
Bank, in connection with the issuance of each Standby Letter
of Credit requested by it, including any Standby Letter of
Credit which is an Existing Letter of Credit, an issuance
fee equal to .125% per annum of the face amount of such
Standby Letter of Credit issued by that Issuing Bank,
subject to a minimum of $300. Such issuance fee shall
accrue on the outstanding amount available under such Letter
of Credit from the issuance date of such Standby Letter of
Credit (or, in the case of Standby Letters of Credit which
are also Existing Letters of Credit, from the Closing Date)
to the date such Standby Letter of Credit expires, taking
into account any extensions of the expiration date beyond
the initial expiration date, and shall be due quarterly in
arrears on the last day of each March, June, September and
December and on the date such Standby Letter of Credit
expires or is fully drawn.
(c) Each Borrower requesting a Letter of Credit
agrees to pay to the Agent for the account of the Issuing
Bank, in the case of each Commercial Letter of Credit
requested by it, an issuance fee in an amount equal to 0.10%
times the face amount of such Commercial Letter of Credit,
such issuance fee to be due at the time such Commercial
Letter of Credit is issued (and payment thereof to be a
condition precedent to the issuance of any such Commercial
Letter of Credit) (or, in the case of Commercial Letters of
Credit which are Existing Letters of Credit, from the
Closing Date), and on each anniversary of the date such
Commercial Letter of Credit is issued, and a negotiation fee
in an amount to be agreed between the Issuing Bank and the
Borrower requesting such Commercial Letter of Credit,
subject to a minimum of $300, due on the day of negotiation
of documents causing such drawings to be made.
(d) If at any time after the date of issuance
thereof the stated amount of any Letter of Credit is
increased, the Borrower requesting such increase agrees to
pay to the Agent:
(i) in the case of each Standby Letter of
Credit, (A) an additional fee for the account of
each Bank equal to the applicable percentage rate
determined in accordance with Section 4.4(a)(i)
and (B) for the account of the Issuing Bank an
additional issuance fee equal to the applicable
percentage rate set forth in Section 4.4(b), each
such fee computed on the amount of such increase
times the number of days included in the period
from the date of such increase to the then stated
date of expiration of such Standby Letter of
Credit, taking into account any extensions of such
expiration date beyond the then-stated date of
expiration, each such fee to be due quarterly in
arrears on the last day of each March, June,
September and December and on the date such
Standby Letter of Credit expires or is fully
drawn; and
(ii) in the case of each Commercial Letter of
Credit, an additional fee for the account of each
Bank equal to the applicable percentage rate
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determined in accordance with Section 4.4 (a)(ii),
each such fee computed on the amount of such
increase times the number of days included in the
period from the date of such increase to the then
stated date of expiration of such Commercial
Letter of Credit, taking into account any
extensions of such expiration date beyond the then-
stated date of expiration, each such fee to be due
quarterly in arrears on the last day of each
March, June, September and December and on the
date such Commercial Letter of Credit expires or
is fully drawn.
(e) On the date of any amendment to or transfer
of any Letter of Credit, the Borrower requesting such Letter
of Credit agrees to pay to the Agent for the account of the
Syndicated L/C Bank or the Issuing Bank an amendment fee or
transfer fee equal to the Syndicated L/C Bank's or the
Issuing Bank's standard amendment or transfer fee on such
date.
4.5 Computation of Fees and Interest.
(a) All computations of interest payable in
respect of Base Rate Loans (to the extent determined by
reference to the Base Rate) and fees with respect to Letters
of Credit (except issuance and negotiation fees in respect
of Commercial Letters of Credit, which are flat) shall be
made on the basis of the actual number of days elapsed in a
year of 365 or 366 days, as the case may be. All other
computations of fees and interest under this Agreement and
the other Credit Documents shall be made on the basis of the
actual number of days elapsed in a year of 360 days.
Interest and fees shall accrue during each period during
which interest or such fees are computed from and including
the first day thereof to but excluding the last day thereof.
For the purposes of this Agreement and the other Credit
Documents, whenever interest is calculated on the basis of a
year of 360 days, each rate of interest determined pursuant
to such calculation expressed as an annual nominal rate for
the purposes of the Interest Act (Canada) is equivalent to
such rate as so determined multiplied by the number of days
in the calendar year in which the same is to be ascertained
and divided by 360. The Parties further agree that for the
purposes of the Interest Act (Canada), (i) the principle of
deemed reinvestment of interest shall not apply to any
interest calculation under this Agreement or the other
Credit Documents, and (ii) the rates of interest stipulated
in this Agreement are intended to be nominal rates and not
effective rates or yields.
(b) The Agent shall, as soon as practicable,
notify the Company and the Banks of each determination of a
Eurodollar Rate; provided, however, that any
failure to do so shall not relieve any Borrower or any Bank
of any liability under this Agreement or any other Credit
Document. Any change in the interest rate on a Loan
resulting from a change in the Eurodollar Reserve
Percentage, Eurocurrency Liabilities or the Base Rate shall
become effective as of the opening of business on the day on
which such change in the Eurodollar Reserve Percentage,
Eurocurrency Liabilities or the Base Rate shall become
effective. The Agent shall, as soon as practicable, notify
the Company and the Banks of the effective date and the
amount of each such change; provided, however, that any
failure to do so shall not relieve any Borrower or any Bank
of any liability under this Agreement or any other Credit
Document.
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(c) Each determination of an interest rate by the
Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrowers and the Banks in the
absence of manifest error.
4.6 Payments by the Borrowers.
(a) All payments (including prepayments) to be
made by the Borrowers on account of principal, interest and
fees shall be made without deduction, withholding, set-off
or counterclaim and shall be made to the Agent, for the
account of the Banks (except as otherwise provided in
Section 4.1, 4.3, 4.4 or 4.10), at the Principal Office of
the Agent in New York, New York, in Dollars and in
immediately available funds no later that 12:00 noon (New
York City time). The Agent shall distribute such payments
to each Bank pro rata according to the amount of their
respective Commitment Percentages of such principal,
interest, fees or other amounts, promptly upon receipt in
like funds as received; provided, that no Bank shall be
entitled to receive a distribution from the Agent of such
portions of principal, interest, or fees to the extent that,
at such time of payment by the Borrowers, such portion
exceeds such Bank's share of the interests in the Loan or
Letter of Credit to which such principal, interest, or fee
relates. Any payment which is received by the Agent after
12:00 noon (New York City time) shall be deemed to have been
received on the next succeeding Business Day. The Borrowers
shall, at the time any of them makes each payment under this
Agreement or any other Credit Document, specify to the Agent
in detail the Loans or other amounts payable by the
Borrowers to which such payment is to be applied (and in the
event that it fails so to specify, after reasonable efforts
to contact the Company such payment shall be applied as the
Agent may designate to the Loans or other amounts then due
and payable); provided that if no Loans or other amounts are
then due and payable or an Event of Default has occurred and
is continuing, the Agent may apply any payment to the
Obligations in such order as it may elect in its sole
discretion, but subject to the other terms and conditions of
this Agreement.
(b) Whenever any payment under this Agreement or
any other Credit Document shall be stated to be due on a day
other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time
shall in such case be included in the computation of
interest or fees, as the case may be, at the rate in effect
on such due date; provided, however, that if such extension
would cause payment of interest on or principal of
Eurodollar Rate Loans to be made in the next following
calendar month, such payment shall be due on the
immediately preceding Business Day.
(c) Unless the Agent shall have received notice
from the Company, prior to the date on which any payment is
due to the Banks under this Agreement or any other Credit
Document, that the Borrowers will not make such payment in
full, the Agent may assume that the Borrowers have made such
payment in full to the Agent on such date and the Agent may,
but shall not be so required, in reliance upon such
assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If
and to the extent the Borrowers shall not have made such
payment in full to the Agent, each Bank shall repay to the
Agent forthwith on demand such amount distributed to such
Bank, together with interest thereon for each day from the
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date such amount is distributed to such Bank until the date
such Bank repays such amount to the Agent at the Federal
Funds Rate as in effect on such date. Any such sums not
timely paid by such Bank shall accrue interest daily at a
rate per annum equal to the Federal Funds Rate in effect on
such date plus 2%.
4.7 Payments by the Banks to the Agent.
(a) Each Bank shall make available to the Agent
at the Principal Office of the Agent in New York, New York,
in Dollars and in immediately available funds for the
account of the Borrower requesting a Borrowing the amount of
its Commitment Percentage of any Borrowing.
(b) Unless the Agent shall have received notice
from a Bank on the Closing Date or, with respect to each
Borrowing after the Closing Date, at least one Business Day
prior to the date of any proposed Borrowing that such Bank
will not make available to the Agent for the account of the
requesting Borrower the amount of that Bank's Commitment
Percentage of the Borrowing, the Agent may assume that each
Bank has made such amount available to the Agent on the
borrowing date and the Agent may (but shall not be required
to), in reliance upon such assumption, make available to the
requesting Borrower on such date a corresponding amount. If
and to the extent any Bank shall not have made its full
amount available to the Agent and the Agent in such
circumstances has made available to any Borrower such
amount, such Bank shall, within two Business Days following
the date of such Borrowing, make such amount available to
the Agent, together with interest at the Federal Funds Rate
for each day during such period. A certificate of the Agent
submitted to any Bank with respect to amounts owing under
this Section 4.7(b) shall be conclusive, absent manifest
error. If such amount is so made available, such payment to
the Agent shall constitute such Bank's Loan on the date of
Borrowing for all purposes of this Agreement. If such
amount is not made available to the Agent within two
Business Days following the date of such Borrowing, the
Agent shall notify the Company of such failure to fund and,
upon demand by the Agent, the Borrower to which such Loans
were extended shall repay to the Agent such amount, together
with interest thereon for each day elapsed since the
date of such Borrowing at a rate per annum equal to the
interest rate applicable at the time to the Loans comprising
such Borrowing.
(c) The failure of any Bank to make any Loan on
any date of Borrowing shall not relieve any other Bank of
the obligation under this Agreement to make a Loan on the
date of such Borrowing, but no Bank shall be responsible for
the failure of any other Bank to make the Loan to be made by
such other Bank on the date of any Borrowing.
4.8 Security and Guarantee. All Obligations of the
Borrowers under this Agreement and all other Credit
Documents shall be secured in accordance with the Security
Documents and guaranteed as provided in Article X.
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4.9 Taxes.
(a) Subject to Section 4.9(g), any and all
payments by any Borrower or any Guarantor to any Bank or the
Agent under the Credit Documents shall be made free and
clear of, and without deduction or withholding for, any and
all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank and the Agent,
such taxes (including income taxes or franchise taxes) as
are imposed on or measured by such Bank's or the Agent's net
income by the jurisdiction under the laws of which such Bank
or the Agent, as the case may be, is organized or maintains
a Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being herein referred
to as "Taxes").
(b) In addition, each Borrower shall pay any
present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies which
arise from any payment made under any Credit Document or
from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other
Credit Document (herein referred to as "Other Taxes").
(c) Subject to Section 4.9(g), each Borrower
shall indemnify and hold harmless each Bank and the Agent
for the full amount of Taxes or Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 4.9) paid by the Bank or the
Agent and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days from the date
any Bank or the Agent makes written demand therefor.
(d) If any Borrower shall be required by law to
deduct or withhold any Taxes or Other Taxes from or in
respect of any sum payable under this Agreement or any other
Credit Document to any Bank or the Agent, then, subject to
Section 4.9(g):
(i) the sum payable shall be increased
as necessary so that after making all required
deductions (including deductions applicable to
additional sums payable under this Section 4.9
and, notwithstanding any exclusion from Taxes in
Section 4.9(a) for net income taxes of the Banks,
including in the case of non-U.S. withholding tax
imposed at rates of 5% or greater, any U.S. tax,
including taxes on net income, attributable to
such increase) such Bank or the Agent, as the case
may be, receives an amount equal to the sum it
would have received had no such deductions been
required;
(ii) the Borrower shall make such
deductions; and
(iii) the Borrower shall pay the
full amount deducted to the relevant taxation
authority or other authority in accordance
with applicable law.
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(e) Within 30 days after the date of any payment
by a Borrower of Taxes or Other Taxes, such Borrower shall
furnish to the Agent the original or a certified copy of a
receipt evidencing payment thereof, or other evidence of
payment satisfactory to the Agent.
(f) Each Bank which is a foreign Person (i.e., a
person other than a United States person for U. S. Federal
income tax purposes) agrees that:
(i) It shall, no later than the Closing
Date (or, in the case of a Bank which becomes a
Party pursuant to Section 12.7 after the Closing
Date, the date upon which the Bank becomes a
Party) deliver to the Company through the Agent:
(A) if any Lending Office is
located in the U. S., two accurate and
complete signed originals of Internal
Revenue Service Form 4224 ("Form 4224")
and Internal Revenue Service Form W-9
("Form W-9") or any successor thereto,
and
(B) if any Lending Office is
located outside the U. S., two accurate
and complete signed originals of
Internal Revenue Service Form 1001
("Form 1001") and Internal Revenue
Service Form W-8 ("Form W-8") or any
successor thereto,
in each case indicating that the Bank is on the
date of delivery thereof entitled to receive
payments of principal, interest and fees for the
account of such Lending Office or Offices under
this Agreement free from withholding of U. S.
Federal income tax.
(ii) If at any time a Bank changes its
Lending Office or Offices or selects an additional
Lending Office as herein provided, it shall, at
the same time or reasonably promptly thereafter,
deliver to the Company through the Agent in
replacement for, or in addition to, the forms
previously delivered by it under this Agreement:
(A) if such changed or
additional Lending Office is located in
the U. S., two accurate and complete
signed originals of Form 4224 and Form
W-9, or
(B) otherwise, two accurate
and complete signed originals of Form
1001 and Form W-8,
in each case indicating that the Bank is on the
date of delivery thereof entitled to receive
payments of principal, interest and fees for the
account of such changed or additional Lending
Office or Offices under this Agreement free from
withholding of U. S. Federal income tax.
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(iii) It shall, before or promptly
after the occurrence of any event (including the
passing of time but excluding any event mentioned
in clause (ii) above) requiring a change in the
most recent Form 4224 and Form W-9 or Form 1001
and Form W-8 previously delivered by the Bank and
if the delivery of the same be lawful, deliver to
the Borrowers through the Agent two accurate and
complete original signed copies of Form 4224 and
Form W-9 or Form 1001 and Form W-8 in replacement
for the forms previously delivered by the Bank.
(iv) It shall, promptly upon the
Borrowers' reasonable request to that effect,
deliver to the Company (through the Agent) such
other forms or similar documentation as may be
required from time to time by any applicable law,
treaty, rule or regulation in order to establish
such Bank's tax status for withholding purposes.
(v) If such Bank claims exemption from
withholding tax under a U. S. tax treaty by
providing a Form 1001 and Form W-8 and such Bank
sells or grants a participation of all or part of
its rights under this Agreement, such Bank shall
notify the Agent of the percentage amount in which
it is no longer the beneficial owner under this
Agreement. To the extent of this percentage
amount, the Agent shall treat such Bank's Form
1001 as no longer in compliance with this Section
4.9(f). In the event a Bank claiming exemption
from U. S. withholding tax by filing Form 4224 and
Form W-9 with the Agent, sells or grants a
participation in its rights under this Agreement,
such Bank agrees to undertake sole responsibility
for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of
the Code.
(vi) Without limiting or restricting any
Bank's right under Section 4.9(d) to increased
amounts from the Borrowers upon satisfaction of
such Bank's obligations under the provisions of
this Section 4.9(f), if such Bank is entitled to a
reduction in the applicable withholding tax, the
Agent may withhold from any interest to such Bank
an amount equivalent to the applicable withholding
tax after taking into account such reduction. If
the forms or other documentation required by
subparagraph (i) are not delivered to the Agent,
then the Agent may withhold from any interest
payment to the Bank not providing such forms or
other documentation an amount equivalent to the
applicable withholding tax. In addition, the
Agent may also withhold against periodic payments
other than interest payments to the extent United
States withholding tax is not eliminated by
obtaining Form 4224 and Form W-9 or Form 1001 and
Form W-8.
(vii) if the Internal Revenue
Service or any authority of the U.S. or any other
jurisdiction asserts a claim that the Agent or any
Borrower did not properly withhold tax from
amounts paid to or for the account of any Bank
(for example only, because the appropriate form
was not delivered, was not properly executed, or
because such Bank failed to notify the Agent of a
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change in circumstances which rendered the
exemption from withholding tax ineffective), such
Bank shall indemnify the Agent and/or such
Borrower, fully for all amounts paid, directly or
indirectly, by the Agent and/or such Borrower, as
tax or otherwise, including penalties and
interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Agent
or such Borrower under this Section 4.9(f),
together with all costs, expenses and attorneys'
fees (including allocated costs for in-house staff
counsel).
(g) The Borrowers will not be required to pay any
additional amounts in respect of U. S. Federal income tax
pursuant to Section 4.9(d) to any Bank for the account of
any Lending Office of such Bank:
(i) if the obligation to pay such
additional amounts would not have arisen but for a
failure by such Bank to comply with its
obligations under Section 4.9(f) in respect of
such Lending Office;
(ii) if such Bank shall have delivered
to the Company a Form 4224 in respect of such
Lending Office pursuant to Section 4.9(f)(i)(A),
and the Bank shall not at any time be entitled to
exemption from deduction or withholding of U. S.
Federal income tax in respect of payments by the
Borrowers under this Agreement and the other Credit
Documents for the account of such Lending Office
for any reason other than a change in U. S. law or
regulations or in the official interpretation of
such law or regulations by any Governmental
Authority charged with the interpretation or
administration thereof (whether or not having the
force of law) after the date of delivery of such
Form 4224 and Form W-9; or
(iii) if such Bank shall have
delivered to the Company a Form 1001 and Form W-8
in respect of such Lending Office pursuant to
Section 4.9(f)(i)(B), and such Bank shall not at
any time be entitled to exemption from deduction
or withholding of United States Federal income tax
in respect of payments by the Borrowers under this
Agreement and the other Credit Documents for the
account of such Lending Office for any reason
other than a change in United States law or
regulations or any applicable tax treaty or
regulations or in the official interpretation of
any such law, treaty or regulations by any
Governmental Authority charged with the
interpretation or administration thereof (whether
or not having the force of law) after the date of
delivery of such Form 1001 and Form W-8.
(h) If, at any time, any Borrower requests any
Bank to deliver any forms or other documentation pursuant to
Section 4.9(f)(iv), then such Borrower shall, on demand of
such Bank through the Agent, reimburse such Bank for any
costs or expenses reasonably incurred by such Bank in the
preparation or delivery of such forms or other
documentation.
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(i) If a Borrower is required to pay additional
amounts to any Bank or the Agent pursuant to Section 4.9(d),
then such Bank shall use reasonable efforts (consistent with
legal and regulatory restrictions) to change the
jurisdiction of its Lending Office so as to eliminate any
such additional payment by the Borrowers which may
thereafter accrue if such change in the judgment of such
Bank is not otherwise disadvantageous to such Bank.
(j) The agreements and obligations of the
Borrowers contained in this Section 4.9 shall survive the
payment in full of all Obligations.
4.10 Sharing of Payments, Etc. If, other than as
provided in Sections 3.10, 4.9 and 4.12, any Bank shall
obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on
account of the Loans made by it or the Letter of Credit
Obligations in excess of its Commitment Percentage of the
Obligations, such Bank shall forthwith purchase from the
other Banks such participations in the Loans or the Letter
of Credit Obligations made by them as shall be necessary to
cause such purchasing Bank to share the excess payment
ratably with each of them; provided, however, that if all or any portion
of such excess payment is thereafter recovered from such
purchasing Bank, such purchase by such Bank from each other
Bank shall be fully or partially rescinded and each other
Bank shall repay to the purchasing Bank the purchase price
paid thereto to the extent of such repaying Bank's recovery,
together with an amount equal to such paying Bank's
Commitment Percentage (according to the proportion of (a)
the amount of such paying Bank's required repayment to (b)
the total amount so recovered from the purchasing Bank) of
any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered.
Each Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to the provisions
of this Section 4.10 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right
of set-off) with respect to such participation as fully as
if such Bank were the direct creditor of such Borrower in
the amount of such participation.
4.11 Illegality.
(a) If any Bank shall determine that any Legal
Requirement or any change therein or in the interpretation
or administration thereof has made it unlawful, or that any
central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its Lending Office to
make Eurodollar Rate Loans, then, on notice thereof by such
Bank to the Company through the Agent, the obligation of
such Bank to make Eurodollar Rate Loans shall be suspended
until the notifying Bank shall have notified the Agent and
the Company that the circumstances giving rise to such
determination no longer exist, and during such suspension
period such Bank shall make Base Rate Loans.
(b) If any Bank shall determine that it is
unlawful to maintain any Eurodollar Rate Loan, the Borrowers
shall prepay in full all Eurodollar Rate Loans of such Bank
then outstanding, together with interest accrued thereon,
either on the last day of the Interest Period thereof if
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such Bank may lawfully continue to maintain such Eurodollar
Rate Loans to such day, or immediately, if such Bank may not
lawfully continue to maintain such Eurodollar Rate Loans,
together with any amounts required to be paid in connection
therewith pursuant to Section 4.12.
(c) If any Borrower is required to prepay any
Eurodollar Rate Loan immediately as provided in Section
4.11(b), then, concurrently with such prepayment, such
Borrower shall borrow from the affected Bank, in the amount
of such repayment, a Base Rate Loan having as its Interest
Payment Date the same Interest Payment Date as the
Eurodollar Rate Loan which was prepaid.
(d) Before giving any notice to the Agent
pursuant to this Section 4.11, the affected Bank shall
designate a different Lending Office with respect to its
Eurodollar Rate Loans if such designation will avoid the
need for giving such notice or making such demand and will
not, in the judgment of such Bank, be illegal or otherwise
disadvantageous to such Bank.
4.12 Increased Costs and Reduction of Return.
(a) Increased Costs. If any Bank shall determine
that, due to either (i) the introduction of or any change
(other than any change by way of imposition of or increase
in reserve requirements included in the Eurodollar Reserve
Percentage) in or in the interpretation of any law,
regulation or other Legal Requirement (including changes in
reserve, special deposit or similar requirements imposed by
a Governmental Authority) or (ii) the compliance with any
guideline or request from any central bank or other
Governmental Authority (whether or not having the force of
law), there shall be any increase in the cost to such Bank
of agreeing to make or making, funding or maintaining any
Eurodollar Rate Loans, then the Borrowers shall be jointly
and severally liable for, and shall from time to time, upon
demand therefor by such Bank (with a copy of such demand to
the Agent), jointly and severally pay to the Agent for the
account of such Bank, additional amounts as are sufficient
to compensate such Bank for such increased costs.
(b) Capital Adequacy. If any Bank shall have
determined that
(i) the adoption after the date of this Agreement
or the effectiveness after the date of this Agreement
(regardless of whether previously announced) of any
applicable Legal Requirement or treaty regarding
capital adequacy, or
(ii) any change after the date of this Agreement
in any existing or future Legal Requirement or treaty
regarding capital adequacy, or
(iii) any change after the date of this Agreement
in the interpretation or administration of any existing
or future Legal Requirement or treaty regarding capital
adequacy by any Governmental Authority or comparable
agency charged with the interpretation or
administration thereof, or
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(iv) compliance by any Bank (or its Lending
Office) with any request or directive after the date of
this Agreement regarding capital adequacy (whether or
not having the force of law) of any such Governmental
Authority or comparable agency has or would have the
effect of reducing the rate of return on the capital of
such Bank (or any holding company of which such Bank is
a part) as a consequence of its obligations under this
Agreement and the other Credit Documents to a level
below that which such Bank or holding company could
have achieved but for such adoption, change or
compliance by an amount deemed by such Bank or holding
company to be material, then, from time to time, on
demand by such Bank (with a copy to the Agent),
the Borrowers shall pay to such Bank such additional amount
or amounts as will compensate such Bank or holding company
for such reduction. The certificate of any Bank setting
forth such amount or amounts as shall be necessary to
compensate it and the basis therefor shall cover amounts
accruing under this Section 4.12 shall be conclusive and
binding, absent manifest error. The Company shall pay
the amount shown as due on any such certificate
upon delivery of such certificate. In preparing such
certificate, a Bank may take into consideration such Bank's
and such holding company's policies with respect to capital
adequacy, employ such assumptions and allocations of costs
and expenses as it shall in good faith deem reasonable, and
use any reasonable averaging and attribution method.
(c) Taxation. The Borrowers shall pay to the
Agent, on demand, for the account of such Bank, from time to
time such amounts as any Bank may reasonably determine to be
necessary to compensate it for any costs incurred by such
Bank which such Bank reasonably determines are attributable
to its making or maintaining any Loan hereunder or its
obligation to make or maintain any such Loan hereunder, or
any reduction in any amount receivable by such Bank
hereunder in respect of any of such Loans or such
obligation, in each case resulting from any Regulatory
Change which:
(i) subjects such Bank (or makes it apparent
that such Bank is subject) to the imposition of
(or any increase in) any tax (including any U. S.
interest equalization tax), levy, impost, duty,
charge, or fee (and all liabilities with respect
to the foregoing), or any deduction or withholding
for any Taxes on or from the payment due under any
Letter of Credit or Loan or other amounts due
hereunder (other than income and franchise taxes
of the jurisdiction (or any subdivision thereof)
in which such Bank has an office or a Lending
Office); or
(ii) changes the basis of taxation of any
amounts payable to such Bank under this Agreement
or any Credit Document in respect of any of such
Letters of Credit or Loans, other than changes
which affect taxes measured by or imposed on the
overall net income or franchise taxes of such Bank
or of its Lending Office for any of such Letters
of Credit or Loans by the jurisdiction (or any
subdivision thereof) in which such Bank has an
office or such Applicable Lending Office; or
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(iii) imposes any other condition materially
affecting this Agreement (or any of such
extensions of credit or liabilities).
Each Bank will notify the Company through the Agent of any
event occurring after the date of this Agreement which will
entitle such Bank to compensation pursuant to this Section
as promptly as practicable after it obtains knowledge
thereof and determines to request such compensation.
4.13 Funding Losses. Each Borrower agrees jointly
and severally to reimburse each Bank and to hold each Bank
harmless from any loss or expense which such Bank may
sustain or incur as a consequence of the following:
(a) the failure of any Borrower to make any
payment or prepayment of principal of any Eurodollar Rate
Loan when due (including payments made after any
acceleration thereof);
(b) the failure of any Borrower to borrow,
continue or convert a Loan after such Borrower has given (or
is deemed to have given) a Notice of Borrowing or a Notice
of Conversion/Continuation;
(c) the failure of any Borrower to make any
prepayment after such Borrower has given a notice in
accordance with Section 2.6; or
(d) the prepayment of a Eurodollar Rate Loan on a
day which is not the last day of the Interest Period with
respect thereto;
including any such loss or expense arising from the
liquidation or reemployment of funds obtained by it to
maintain its Eurodollar Rate Loans or from fees payable to
terminate the deposits from which such funds were obtained.
This covenant shall survive payment in full of all
other Obligations and the termination of the Credit
Documents.
4.14 Eurodollar Rate Protection. In the event
that (a) the Agent shall have determined (which
determination shall be conclusive and binding upon the
Borrowers) that for any reason adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Loan
that a Borrower has requested be made as a Eurodollar Rate
Loan, or (b) the Agent shall have determined (which
determination shall be conclusive and binding upon the
Borrowers) that the Eurodollar Rate applicable pursuant to
Section 2.9 for any requested Interest Period with respect
to a proposed Loan that a Borrower has requested be made as
a Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Bank of funding such Loan, the
Agent shall forthwith give notice of such determination to
the Company and each Bank at least one day prior to the
proposed borrowing date for such Eurodollar Rate Loan. If
such notice is given, any requested Eurodollar Rate Loan
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shall be made as a Base Rate Loan. Until such notice has
been withdrawn by the Agent, no further Eurodollar Rate
Loans may be requested by the Borrowers and on the Interest
Payment Date of any Eurodollar Rate Loan then outstanding
and so affected such outstanding Loan shall be converted
into a Base Rate Loan.
4.15 Certificates of Banks. Any Bank claiming
reimbursement or compensation pursuant to this Article IV
shall deliver to the Company and the Agent a certificate
setting forth in reasonable detail the computation of the
amount payable to such Bank under this Agreement and such
certificate shall be conclusive and binding on the Borrowers
in the absence of manifest error.
4.16 Notices. Notices to the Agent of any termina
tion or reduction of the Commitments, of prepayments of
Loans and of the duration of Interest Periods, and each
Notice of Borrowing, each L/C Application and each Notice of
Conversion/Continuation shall be irrevocable, and any such
notice shall be effective only if timely received by the
Agent.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
--------------------------------------------------------
The Borrowers jointly and severally represent and
warrant to the Agent and each Bank (and each Designated
Subsidiary and each New First-Tier or U.S. Subsidiary shall
be deemed by execution and delivery of its Election to
Participate to have represented and warranted as of the date
of such delivery) to the Agent and each Bank that:
5.1 Corporate Existence and Power. Each of the
Borrowers and the Designated Subsidiaries and each
Subsidiary of WGI executing any Credit Document:
(a) is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its incorporation; provided, however, that,
with respect to WECL only, such representation and warranty
shall be only that WECL is a corporation duly incorporated
under the laws of the Province of Ontario, Canada, and
validly subsisting under such laws;
(b) has the power and authority and all
governmental licenses, authorizations, consents and
approvals to own, pledge, mortgage and operate its property,
to lease the property it operates as lessee and to conduct
the business in which it is currently engaged;
(c) is duly qualified as a foreign corporation,
licensed and in good standing, under the laws of each
jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such
qualification, license or payment; and
(d) is in compliance with all Legal Requirements;
except, in each case referred to in clause (c) or clause
(d), to the extent that the failure to do so could not have
a Material Adverse Effect.
5.2 Corporate Authorization; No Contravention. The
execution, delivery and performance by each Borrower and
each Designated Subsidiary and each Subsidiary of WGI
executing any Credit Document of this Agreement and any
other Credit Document to which such Person is a party:
(a) are within such Person's corporate power and
authority and have been duly authorized by all necessary
corporate action on the part of such Person, including any
shareholder action that is required on the part of any
shareholder of such Person;
(b) do not and will not contravene the terms of
that Person's certificate of incorporation, bylaws, other
organizational document or any amendment of any thereof;
(c) do not and will not conflict with, or result
in any breach or contravention of, or the creation of any
Lien (other than Liens under this Agreement and the other
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Credit Documents) under, any indenture, agreement, lease,
instrument, Contractual Obligation, injunction, order,
decree or undertaking to which such Person is a party; and
(d) do not and will not violate any Legal
Requirement.
5.3 Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority (except for
recordings or filings in connection with the Liens granted
to the Agent under the Security Documents or this Agreement)
or, to the knowledge of the Borrowers, any other Person, is
necessary or required in connection with the execution,
delivery, performance or enforcement against any Borrower or
any Designated Subsidiary or any Subsidiary of the Company
executing any Credit Document of this Agreement or any other
Credit Document or any other instrument or agreement
required under this Agreement or any other Credit Document
to be made by any Borrower or any Designated Subsidiary or
any Subsidiary of the Company or for the validity or
enforceability thereof.
5.4 Binding Effect. This Agreement and each other
Credit Document to which any Borrower or any Designated
Subsidiary or any Subsidiary of the Company executing any
Credit Document is a party constitute the legal, valid and
binding obligations of such Borrower or Designated
Subsidiary or any Subsidiary of the Company to the extent it
is a party thereto, enforceable against such Person in
accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally or
by equitable principles relating to enforceability.
5.5 Litigation. Except as set forth in Schedule 5.5,
there are no actions, suits, proceedings, claims or disputes
pending, or to the knowledge of any Borrower or any
Designated Subsidiary, threatened or contemplated at law, in
equity, in arbitration or before any Governmental Authority
against the Company or any of its Subsidiaries or any of
their respective properties:
(a) with respect to this Agreement, any Credit
Document or any of the transactions contemplated hereby or
thereby; or
(b) which, if determined adversely to the Company
or such Subsidiary could reasonably be expected to have a
Material Adverse Effect.
No injunction, writ, temporary restraining order or order of
any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the
execution, delivery and performance of this Agreement or any
Credit Document or directing that the transactions provided
for herein or therein not be consummated as herein or
therein provided.
5.6 No Default. No Default or Event of Default exists
or would result from the incurring of obligations by any
Borrower or any Designated Subsidiary or any other
Subsidiary of the Company under this Agreement or any other
Credit Document. Neither the Company nor any of its
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Subsidiaries is in default under or with respect to any
Contractual Obligation in any respect which, individually or
together with all such defaults, could reasonably be
expected to have a Material Adverse Effect.
5.7 ERISA Compliance.
(a) Schedule 5.7 lists all Plans maintained or
sponsored by the Company or any of its Subsidiaries (or to
which the Company or any of its Subsidiaries is obligated to
contribute), and separately identifies Plans intended to be
Qualified Plans and Multiemployer Plans. Each of such Plans
or written descriptions thereof provided to the Agent is
true and complete in all material respects.
(b) Each such Plan is in compliance in all
material respects with the applicable provisions of ERISA,
the Code and other Legal Requirements, including all
requirements under the Code or ERISA for filing reports
(which are true and correct in all material respects as of
the date filed), and all benefits have been paid in
accordance with the provisions of each such Plan.
(c) Each such Qualified Plan has been determined
by the Internal Revenue Service to qualify under Section 401
of the Code, and the trusts created thereunder have been
determined to be exempt from tax under the provisions of
Section 501 of the Code, and, to the knowledge of the
Borrowers, nothing has occurred which would cause the loss
of such qualification or tax-exempt status.
(d) Except as set forth in Schedule 5.7, there is
no outstanding liability under Title IV of ERISA with
respect to any Plan maintained or sponsored by the Company
or any of its Subsidiaries or any ERISA Affiliate (as to
which the Company or any of its Subsidiaries is or may be
liable), nor with respect to any Plan to which the Company
or any of its Subsidiaries or any ERISA Affiliate (wherein
the Company or any of its Subsidiaries is or may be liable)
contributes or is obligated to contribute.
(e) Except as set forth in Schedule 5.7, none of
the Qualified Plans subject to Title IV of ERISA has any
Unfunded Pension Liability (as to which the Company or any
of its Subsidiaries is or may be liable).
(f) Except as set forth in Schedule 5.7, no Plan
maintained or sponsored by the Company or any of its
Subsidiaries provides medical or other welfare benefits or
extends coverage relating to such benefits beyond the date
of a participant's termination of employment with the
Company or any of its Subsidiaries, except to the extent
required by Section 4980B of the Code and at the sole
expense of the participant or the beneficiary of the
participant to the fullest extent permissible under such
Section of the Code. The Company and its Subsidiaries have
complied in all material respects with the notice and
continuation coverage requirements of Section 4980B of the
Code.
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(g) Except as set forth in Schedule 5.7, no ERISA
Event has occurred or is reasonably expected to occur with
respect to any Plan maintained or sponsored by the Company
or any of its Subsidiaries or to which the Company or any of
its Subsidiaries is obligated to contribute.
(h) There are no pending or, to the knowledge of
the Company, threatened claims, actions or lawsuits, other
than routine claims for benefits in the usual and ordinary
course, asserted or instituted against (i) any Plan
maintained or sponsored by the Company or any of its
Subsidiaries or its assets, (ii) any member of the
Controlled Group with respect to any Qualified Plan of the
Company or any of its Subsidiaries, or (iii) any fiduciary
with respect to any Plan for which the Company or any of its
Subsidiaries may be directly or indirectly liable, through
indemnification obligations or otherwise.
(i) Except as set forth in Schedule 5.7, neither
the Company nor any of its Subsidiaries has incurred nor
reasonably expects to incur (i) any liability (and no event
has occurred which, with the giving of notice under Section
4219 of ERISA, would result in such liability) under Section
4201 or 4243 of ERISA with respect to a Multiemployer Plan
or (ii) any liability under Title IV of ERISA (other than
premiums due and not delinquent under Section 4007 of ERISA)
with respect to a Plan.
(j) Except as set forth in Schedule 5.7, neither
the Company nor any of its Subsidiaries has transferred any
Unfunded Pension Liability outside of the Controlled Group
or otherwise engaged in a transaction that could be subject
to Section 4069 or 4212(c) of ERISA.
(k) Neither the Company nor any of its
Subsidiaries has engaged, directly or indirectly, in a
non-exempt prohibited transaction (as defined in Section
4975 of the Code or Section 406 of ERISA) in connection with
any Plan which has a reasonable likelihood of having a
Material Adverse Effect.
5.8 Use of Proceeds; Margin Regulations. The Borrowers
intend to use the proceeds of the Loans, and the Letters of
Credit, solely for the purposes set forth in Section 7.11
and not for any purpose prohibited by Section 8.8. The
Borrowers intend that no portion of the Loans and none of
the Letters of Credit will be used, directly or indirectly,
(a) to purchase or carry any Margin Stock, (b) to repay or
otherwise refinance indebtedness of any Borrower or any
Designated Subsidiary incurred to purchase or carry any
Margin Stock, or (c) to extend credit for the purpose of
purchasing or carrying any Margin Stock. The Borrowers
intend that no portion of the Loans, and no Letter of
Credit, will be used directly or indirectly for repurchases
of stock or acquisitions or investments; provided, however,
that the Borrowers intend that proceeds of Loans may be used
for repurchases of stock, acquisitions and investments
permitted under Sections 8.3(a), (b), (d), (e), (f) and (g)
and 8.10; provided, further, that the Borrowers intend that
the aggregate amount of all Loans borrowed (regardless of
whether repaid) and all financial Letters of Credit (and all
Letters of Credit which are part of the deferred purchase
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price of any such acquisition) issued (in each case,
regardless of whether outstanding, drawn or expired) in
connection with Permitted Acquisitions and Investments shall
not exceed $50,000,000.
5.9 Title to Properties. Each Borrower and each
Designated Subsidiary has good record and marketable title
in fee simple to or valid leasehold interests in all
property reflected in its financial statements, except for
such defects in title as could not, individually or in the
aggregate, have a Material Adverse Effect. All such
property is free and clear of any security interest, Lien or
right of others, except for Permitted Liens.
5.10 Taxes. The Borrowers and the Designated
Subsidiaries have filed all U.S. and all other material tax
returns and reports required to be filed and have paid all
U. S. and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable,
except those which are being contested in good faith by
appropriate proceedings and for which adequate reserves have
been provided in accordance with GAAP, and no notice of tax
lien has been filed or recorded (such proceedings, reserves
and taxes being described on Schedule 5.10). To the
knowledge of the Borrowers, there is no proposed tax
assessment against any Borrower or any Designated Subsidiary
which could, if the assessment were made, have a Material
Adverse Effect. The proceedings described in Schedule 5.10
will not, if determined adversely to any Borrower or any
Designated Subsidiary, have a Material Adverse Effect.
5.11 Financial Condition.
(a) The audited consolidated financial statements
of WGI and its Subsidiaries dated December 31, 1995, and the
related consolidated statements of operations, stockholders'
equity and cash flows for the fiscal year ended on that
date, and the unaudited consolidated financial statements of
WGI and its Subsidiaries dated September 30, 1996, and
the related consolidated statements of operations,
stockholders' equity and cash flows for the year to
date ended on that date:
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein
and except, in the case of the quarterly financial
statements, for the absence of footnotes and subject to
year-end adjustments;
(ii) fairly present the financial condition
of the Company and its Subsidiaries as of the date
thereof and results of operations for the period
covered thereby; and
(iii) show all material indebtedness and
other liabilities, direct or contingent, of the Company
and its Subsidiaries as of the date thereof (including
liabilities for taxes and material commitments) that
would be customarily included in a balance sheet
prepared in accordance with GAAP.
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(b) Since September 30, 1996, there has been no
event, occurrence, circumstance or condition which has had
or which could reasonably be expected to have a Material
Adverse Effect.
5.12 Environmental Matters.
(a) Except as specifically identified in Schedule
5.12, the operations of each of the Company and its
Subsidiaries and any facility or property owned, operated,
leased, or controlled by any of them comply in all respects
with all Environmental Laws, except where any such
non-compliance could not reasonably be expected to result in
liabilities in the aggregate in excess of Three Million
Dollars ($3,000,000).
(b) Except as specifically identified in Schedule
5.12, the Company and each of its Subsidiaries has obtained
all material permits, licenses, certificates, registration
numbers, identification numbers, applications, consents,
approvals, notices of intent and exemptions (collectively,
"Environmental Permits") required under applicable
Environmental Laws for their operations, and all such
Environmental Permits are in effect, and the Company and
each of its Subsidiaries is in material compliance with all
terms and conditions of such Environmental Permits except
where any such non-compliance could not reasonably be
expected to result in liabilities in the aggregate in excess
of Three Million Dollars ($3,000,000).
(c) Except as specifically identified in Schedule
5.12, neither the Company, any of its Subsidiaries, any of
the facilities or properties owned, operated, leased, or
controlled by any of them, nor any of their respective
operations, is subject or over the period within any
applicable statute of limitations (not exceeding five years)
has been subject to any pending or threatened Environmental
Claim which could reasonably be expected to have a Material
Adverse Effect.
(d) Except as specifically identified in Schedule
5.12, there are, to the knowledge of the Borrowers, no
conditions or circumstances which could reasonably be
expected to give rise to any Environmental Claim arising
from the operations, properties or facilities of the Company
or any of its Subsidiaries, including Environmental Claims
associated with any operations, properties or facilities of
the Company or any of its Subsidiaries, with a potential
liability in the aggregate in excess of Three Million
Dollars ($3,000,000). Without limiting the generality of
the foregoing, (i) neither the Company nor any of its
Subsidiaries has any underground storage tanks (x) that are
not properly registered or permitted under applicable
Environmental Laws or (y) that are leaking or releasing
Hazardous Materials, and (ii) neither the Company nor any or
its Subsidiaries is aware of any requirements of
Environmental Law which during the term of this Agreement
could reasonably be expected to have a Material Adverse
Effect.
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5.13 Security Documents.
(a) The provisions of each of the Security
Documents are effective to create in favor of the Agent, on
behalf of the Banks, a legal, valid and enforceable security
interest in all right, title and interest of the Person
granting the Collateral described therein; and financing
statements have been filed (or will be filed within 10 days
from the date of such Security Document) in the offices in
all of the jurisdictions listed in the schedules to the
respective Pledge Agreements. No other action is necessary
to perfect the security interests created in the Security
Documents except for possession of the share certificates
and letters of the Corporate Secretary; and
(b) Assuming the filing or possession referred to
in Section 5.13(a), the provisions of the Security Documents
are effective to create, in favor of the Agent on behalf of
the Banks, a legal, valid and enforceable Lien on or
security interest in all of the Collateral described
therein, and the Pledged Collateral has been duly delivered
to the Agent or its nominee in accordance with law. Upon
such filing or possession, each such Pledge Agreement will
constitute a fully perfected first security interest in all
right, title and interest of WGI, Musketeer and WUSA, as the
case may be, and each other Person granting Collateral, in
the Collateral described therein, prior and superior to all
other Liens except for Permitted Liens.
5.14 No Regulation Limiting Debt. Neither (a) any
Borrower, (b) any Designated Subsidiary, nor (c) any Person
controlling any Borrower or any Designated Subsidiary is (i)
an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or (ii) subject to
regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act, or
any public utility act or other Legal Requirement limiting
its ability to incur indebtedness.
5.15 Full Disclosure. All factual information
heretofore or contemporaneously furnished in writing by or
on behalf of any Borrower or any Subsidiary of any Borrower
in writing to the Agent or any Bank (including all
information contained in the Credit Documents) for purposes
of or in connection with this Agreement or any other Credit
Document or any transaction contemplated by this Agreement
or any other Credit Document is, and all other such factual
information hereafter furnished in writing by or on behalf
of any Borrower or any Subsidiary of any Borrower in writing
to the Agent 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 shall not, taken as a whole, omit
to state any fact necessary to make such information not
misleading at such time in light of the circumstances under
which such information was provided.
5.16 No Burdensome Restrictions. None of the
Borrowers and none of the Designated Subsidiaries and none
of their respective Subsidiaries is a party to or bound by
any Contractual Obligation or subject to any charter or
corporate restriction or any Legal Requirement which
materially adversely affects or (insofar as any Borrower or
any Designated Subsidiary may reasonably foresee) may so
affect, the rights of the Agent or any Bank under any Credit
Document, or which impairs or may impair the ability of any
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Borrower or any Designated Subsidiary to perform or observe
its obligations under this Agreement or any other Credit
Document.
5.17 Solvency. Each Borrower and each Designated
Subsidiary is Solvent.
5.18 Labor Relations. Neither the Company nor any
of its Subsidiaries is engaged in any unfair labor practice
that could have a Material Adverse Effect. No significant
unfair labor practice complaint is pending against the
Company or any of its Subsidiaries, or, to the knowledge of
any Borrower or any Designated Subsidiary, threatened
against the Company or any of its Subsidiaries, by or before
the National Labor Relations Board or any other Governmental
Authority, and no significant grievance or significant
arbitration proceeding arising out of or under any
collective bargaining agreement is pending against the
Company or any of its Subsidiaries or, to the knowledge of
any Borrower or any Designated Subsidiary, threatened
against the Company or any of its Subsidiaries. No
significant strike, labor dispute, slowdown or stoppage is
pending against the Company or any of its Subsidiaries or,
to the knowledge of any Borrower or any Designated
Subsidiary, threatened against the Company or any of its
Subsidiaries. To the knowledge of the Company, no union
representation question exists with respect to any employees
of the Company or any of its Subsidiaries and, to the
knowledge of any Borrower or any Designated Subsidiary, no
union organizing activity is taking place, except (with
respect to any matter specified in the preceding three
sentences) such as could not, individually or in the
aggregate, have a Material Adverse Effect.
5.19 Copyrights, Patents, Trademarks and Licenses,
Patents, etc. Except as specifically set forth in Schedule
5.19, the Company and each of its Subsidiaries owns or is
licensed or otherwise has full legal right to use all of the
patents, trademarks, service marks, trade names, copyrights,
franchises, authorizations and other rights that are
reasonably necessary for the operation of its business,
without conflict with the rights of any other Person with
respect thereto. To the knowledge of any Borrower or any
Designated Subsidiary, no slogan or other advertising
device, product, process, method, substance, part or other
material employed or contemplated to be employed by the
Company or any of its Subsidiaries infringes upon any rights
of any other Person, no claim or litigation regarding any of
the foregoing is pending or threatened, and no patent,
invention, device, application, principle or any statute,
law, rule, regulation, standard or code is pending or, to
the knowledge of any Borrower or any Designated Subsidiary,
proposed, which, in either case, could reasonably be
expected to have a Material Adverse Effect.
5.20 Subsidiaries. As of the Closing Date WGI has
no Subsidiaries other than those listed on Schedule 5.20(a)
and has no equity investments in excess of $100,000 in any
other Person other than the Persons listed on Schedule
5.20(b). Each of WECL, WEI, WESCO, WII and WUSA is a wholly-
owned Subsidiary of WGI.
5.21 Broker's and Transaction Fees. No Borrower
and no Subsidiary of any Borrower has any obligation to any
Person in respect of any finder's, broker's or investment
banker's fee in connection with the transactions
contemplated by the Credit Documents.
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5.22 Insurance. The properties of each of the
Borrowers and their respective Subsidiaries are insured with
financially sound and reputable insurance companies, in such
amounts and covering such risks as is customarily carried by
companies engaged in similar businesses and owning similar
properties in localities where such Borrower or such
Subsidiary operates.
5.23 Chief Executive Offices. The chief executive
office of each of WUSA, WESCO and WEI is located in the
State of Oklahoma. The chief executive office of each of
WGI and WII is located in Panama City, Panama. Musketeer
maintains no office.
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ARTICLE VI
CONDITIONS PRECEDENT
------------------------------------
6.1 Conditions Precedent to Initial Loans or Letter of
Credit. The obligation of each Bank to make the first Loan
or of the Issuing Bank or the Syndicated L/C Bank to issue
the first Letter of Credit, whichever is earlier requested,
is subject to the conditions precedent that the Agent shall
have received on or before the date of such Loan or the
issuance of such Letter of Credit all of the following, in
form and substance satisfactory to the Agent and its counsel
and the Banks and (except for the certificates representing
Pledged Shares as defined in the Pledge Agreements of even
date herewith) in sufficient copies for each Bank:
(a) Credit Agreement and Elections to
Participate. This Agreement, duly executed and delivered by
a Responsible Officer of the Company, together with
Elections to Participate, duly executed and delivered by a
Responsible Officer of WECL, WEI, WESCO, WII and WUSA
respectively.
(b) Notes. The Notes, one for each Borrower,
each payable to the order of each Bank, each in the amount
of the initial Revolving Commitment, duly executed and
delivered by a Responsible Officer of such Borrower.
(c) Resolutions. Certified copies of the
resolutions of the Boards of Directors (or, in the case of
the Company, of the Executive Committee of the Board of
Directors) of each Borrower and of the managing director of
Musketeer and of the sole stockholder of Musketeer approving
and authorizing the execution, delivery and performance by
such Person of this Agreement and the other Credit Documents
to which it is a party and the transactions contemplated
hereby, authorizing the borrowing of the Loans, the
applications for Letters of Credit, the pledging of
securities and the other actions to be taken by such Person
and approving and authorizing the execution, delivery and
performance by Musketeer of its Parent Pledge Agreement,
certified as of the Closing Date by the Secretary or an
Assistant Secretary of each Borrower or of Musketeer, as the
case may be, together with, in the case of the Company, the
resolutions of the Company's Board of Directors
establishing, empowering and appointing the Executive
Committee of the Company's Board of Directors, also
certified as of the Closing Date by the Secretary or an
Assistant Secretary of the Company.
(d) Incumbency. A certificate of the Secretary
or an Assistant Secretary of each Borrower and of Musketeer
certifying the names and true signatures of the officers of
such Borrower and of Musketeer authorized to execute and
deliver this Agreement and all other Credit Documents to be
executed and delivered by such Borrower or by Musketeer.
(e) Articles of Incorporation; Bylaws and Good
Standing. Each of the following documents:
(i) the articles or certificate of
incorporation of each Borrower and the articles of
association of Musketeer, each as in effect on the
Closing Date, each certified by the appropriate
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Governmental Authorities in the jurisdiction of
its incorporation or organization as of a recent
date; the bylaws of each Borrower in effect on the
Closing Date, certified by the Secretary or an
Assistant Secretary of such Borrower as of the
Closing Date; and
(ii) a certificate of status for WECL from
the appropriate authorities of the Province of
Ontario, Canada, a good standing certificate for
each of WGI, WII, WUSA, WESCO, WEI and Musketeer
from the appropriate authorities of its
jurisdiction of incorporation, and a good standing
certificate from the State of Oklahoma as to WUSA,
WESCO and WEI, all as of a recent date.
(f) Pledge Agreements and Financing Statements.
Pledge Agreements, in form and substance satisfactory to the
Agent, duly executed by WGI, Musketeer, and WUSA,
respectively, together with:
(i) certificates representing the Pledged
Shares referred to therein;
(ii) undated irrevocable stock transfer
powers executed in blank with signatures
guaranteed or authenticated as the Agent may
specify; and
(iii) UCC financing statements, duly executed
by each Borrower;
(iv) evidence satisfactory to the Agent that
all other actions necessary or, in the opinion of
the Agent, desirable to grant, perfect and protect
the first priority security interests created by
such Pledge Agreements have been taken; and
(v) the executed consent of the sole
shareholder of Musketeer.
(g) WECL Guaranty. The WECL Guaranty, duly
executed and delivered by a Responsible Officer of WECL.
(h) Legal Opinions.
(i) an opinion of Arias, Fabrega & Fabrega,
Panamanian counsel to WII and WGI, and addressed
to the Agent and the Banks, substantially in the
form of Exhibit H;
(ii) an opinion of Conner & Winters, A
Professional Corporation, U.S. counsel to the
Borrowers, substantially in the form of Exhibit I;
(iii) an opinion of Blake, Cassels & Graydon,
Ontario counsel to WECL, substantially in the form
of Exhibit J;
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(iv) an opinion of Clifford Chance,
Netherlands counsel to the Agent, substantially
in the form of Exhibit K; and
(v) an opinion of Liddell, Sapp, Zivley,
Hill & LaBoon, L.L.P., special counsel to the
Agent, substantially in the form of Exhibit L.
(i) Payment of Fees. Evidence satisfactory to
the Agent that the Borrowers have paid all costs, accrued
and unpaid fees and expenses (including legal fees and
expenses) referred to in Sections 4.1, 4.2, 4.3, 4.4 and
12.4 to the extent due and payable on the Closing Date.
(j) Financial Statements. A copy of the
financial statements of the Company and its Subsidiaries
referred to in Section 5.11(a).
(k) Insurance Policies. Certificates of
insurance with respect to insurance policies or other
instruments or documents evidencing insurance coverage on
the property of the Borrowers in accordance with Section
7.5.
(l) Financial Condition Certificate. A
certificate from a Responsible Officer of the Company, in
substantially the form of Exhibit M, to the effect that, as
of the Closing Date, and after giving effect to the
transactions contemplated by this Agreement and the other
Closing Documents, each of the Borrowers is Solvent.
(m) Counterparts. Counterparts of each of the
Credit Documents duly executed and delivered by or on behalf
of each of the parties thereto (or, in the case of any Bank
as to which the Agent shall not have received such a
counterpart, the Agent shall have received evidence
satisfactory to it of the execution and delivery by such
Bank of a counterpart of this Agreement).
(n) Consents. Evidence satisfactory to the Agent
in its discretion that all consents of each Governmental
Authority and of each other Person, if any, required in
connection with the Loans and Letters of Credit or the
execution, delivery and performance of the Credit Documents
have been received and remain in full force and effect.
(o) Termination of Existing Credit Facility. A
notice from Bank of America National Trust and Savings
Association stating that the commitments of the banks set
forth in the Credit Agreement dated September 16, 1993, as
amended, have been terminated and all obligations
thereunder, other than Letters of Credit, have been repaid.
(p) Acknowledgment from CT Corporation System
with respect to its irrevocable appointment by each Borrower
pursuant to Section 12.14(e).
(q) A power of attorney, duly executed and
delivered by each Bank, in the form of Exhibit G-3, pursuant
to Section 3.3(e).
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(r) The stock register of WII.
(s) Other Documents. Such other consents,
approvals, opinions or documents as the Agent or any Bank
through the Agent may reasonably request.
6.2 Conditions Precedent to all Extensions of Credit.
The obligation of each Bank to make any Loan or to issue or
participate in any Letter of Credit (including the initial
Loan or Letter of Credit) is subject to the satisfaction of
the following conditions precedent on the relevant borrowing
date:
(a) Notice of Borrowing or L/C Application. The
Agent shall have received, with a counterpart for each Bank,
a Notice of Borrowing as required by Section 2.3, or an L/C
Application and request for issuance of a Letter of Credit
as required by Section 3.3.
(b) Continuation of Representations and
Warranties. The representations and warranties made by the
Borrowers and the Designated Subsidiaries contained in
Article V shall be true and correct on and as of such
borrowing date with the same effect as if made on and as of
such borrowing date.
(c) No Existing Default. No Default or Event of
Default shall have occurred and be continuing under any
Credit Document on the borrowing date with respect to such
Loan or Letter of Credit or after giving effect to the Loans
to be made or Letter of Credit to be issued on such
borrowing date.
(d) No Violation. The making of such Loan or the
issuance of such Letter of Credit shall not be prohibited
by, or subject the Agent or any Bank to any penalty under,
any Legal Requirement applicable to the Agent or such Bank.
The borrowing of the initial Loans and the issuance of
the initial Letter of Credit and each Notice of Borrowing
and each L/C Application shall constitute and include a
representation and warranty by the applicable Borrower to
the effect set forth in subsections (a) through (c) (if
applicable) of this Section 6.2 (both as of the date of such
notice and, unless the Agent is otherwise notified prior to
the date of such borrowing or issuance, as of the date of
such borrowing or issuance). Except in the case of Loans
and Letters of Credit made or issued on the date of this
Agreement, such representation and warranty shall be
accompanied by a certificate of a Responsible Officer of the
Company setting forth in reasonable detail the calculations
of the Company in making such representation and warranty.
6.3 Conditions Precedent to Participation by a
Designated Subsidiary. The obligation of each Bank to
accept a Designated Subsidiary as a Borrower under this
Agreement is subject to the satisfaction of the following
conditions precedent before the effectiveness of such
Designated Subsidiary's Election to Participate:
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(a) Notes; Election to Participate. The Agent
shall have received a Note payable to the order of each
Bank, and an Election to Participate, each duly executed by
such Designated Subsidiary.
(b) Opinion of Counsel. The Agent shall have
received an opinion of counsel for such Designated
Subsidiary acceptable to the Agent, substantially in the
form of Exhibit N, and covering such additional matters
relating to such Designated Subsidiary or the transactions
contemplated hereby as the Required Banks may reasonably
request.
(c) Documents; Authorizations. The Agent shall
have received documents evidencing the authority for,
consent to and validity of the Election to Participate of
such Designated Subsidiary and this Agreement, including
documents of the type listed in Sections 6.1(c), (d), (e),
(l) and (n), and any other documents it may reasonably
request, all in form and substance satisfactory to the Agent
and the Required Banks.
(d) Pledge Agreement. The Agent shall have
received security agreements, pledge agreements, or other
appropriate agreements, and related financing statements,
duly executed by the owner or owners of (except as may
otherwise be permitted by Sections 7.13 and 7.14) all of the
issued and outstanding capital stock or other equity
interest of such Designated Subsidiary, or amendments to
existing agreements, together with:
(i) certificates or other writings
representing such shares or other equity
interests;
(ii) undated irrevocable stock transfer
powers or other instruments of similar effect
executed in blank with signatures guaranteed and
authenticated as the Agent may specify; and
(iii) evidence satisfactory to the Agent that
all other actions necessary or, in the opinion of
the Agent, desirable to grant, perfect,
protect and realize upon the first priority
security interests created by such security
agreements, pledge agreements, or other
appropriate agreements, have been taken.
(f) Evidence of Appointment of Agent for Service.
Evidence satisfactory to the Agent that such Designated
Subsidiary has irrevocably appointed an agent for service of
process in the City of New York in connection with the
Credit Documents and that such agent has accepted such
appointment.
(g) Continuation of Representations and
Warranties. The representations and warranties contained in
Article V shall be true and correct with respect to such
Designated Subsidiary on and as of the effective date of
such Election to Participate with the same effect as if made
on and as of such effective date.
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Upon the satisfaction of the foregoing conditions
precedent, such Designated Subsidiary shall become a
Borrower and a Guarantor in accordance with Article X for
all purposes of this Agreement and the other Credit
Documents.
Each Borrowing by a Borrower and each request by a
Borrower for the issuance of a Letter of Credit shall
constitute a representation and warranty by each Borrower
and each Designated Subsidiary as of the date of each such
Borrowing or issuance that all conditions in Sections 6.1,
6.2 and 6.3 and all requirements set forth in Sections 7.13
and 7.14 have been satisfied.
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ARTICLE VII
AFFIRMATIVE COVENANTS
--------------------------------------
The Borrowers and the Designated Subsidiaries jointly
and severally covenant to and agree with the Agent and each
Bank that until the termination of this Agreement in
accordance with Section 12.18 (unless and only to the extent
that the Banks required by Section 12.1 shall waive
compliance in writing):
7.1 Financial Statements. The Company shall deliver to
the Agent in form and detail satisfactory to the Agent, with
copies for each Bank in form and substance satisfactory to
them:
(a) as soon as available, but not later than 90
days after the end of each fiscal year of the Company, a
copy of the audited consolidated balance sheet of the
Company and its Subsidiaries as at the end of such year and
the related consolidated statements of income, stockholders'
equity and cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous
year, accompanied by the opinion of KPMG Peat Marwick or
another nationally recognized independent public accounting
firm which report shall state that, in the opinion of such
firm, such consolidated financial statements present fairly,
in all material respects, the financial position of WGI and
its Subsidiaries as of the date of such consolidated
financial statements and the results of their operations and
their cash flows for the periods indicated in conformity
with GAAP;
(b) as soon as available, but in any event not
later than 90 days after the end of each fiscal year of the
Company, the unaudited consolidating balance sheet of the
Company showing (i) the Company, (ii) WUSA consolidated,
(iii) WII consolidated and (iv) WECL consolidated, each as
at the end of such fiscal year and the related consolidating
statement of income and stockholders' equity (excluding cash
flows) for such fiscal year, all in reasonable detail and
certified by an appropriate Responsible Officer of the
Company as having been prepared in connection with the
financial statements referred to in paragraph (a) of this
Section 7.1;
(c) as soon as available, but in any event not
later than 60 days after the end of each of the first three
quarters of each fiscal year, a copy of the unaudited
consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter and the related
consolidated statements of income, stockholders' equity and
cash flows for the period commencing on the first day of the
fiscal quarter and ending on the last day of such quarter,
all in reasonable detail and certified by an appropriate
Responsible Officer as fairly presenting, in accordance with
GAAP, except without GAAP footnotes and subject to year-end
adjustments, the financial position and the results of
operations of the Company and its consolidated Subsidiaries;
and
(d) promptly upon any request therefor by the
Agent, but not sooner than 60 days after the end of each of
the first three quarters of each fiscal year or 90 days
after the fourth quarter of any fiscal year, the
unaudited consolidating balance sheet of the Company
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described in Section 7.1(b) and the related consolidating
statements of income and stockholders' equity (excluding
cash flows) for the preceding quarter, all certified by an
appropriate Responsible Officer of the Company as having
been prepared in connection with the financial statements
referred to in paragraph (c) of this Section 7.1.
7.2 Certificates; Other Information. The Company shall
furnish to the Agent with sufficient copies for each Bank:
(a) concurrently with each delivery of financial
statements referred to in Section 7.1(a), (i) a certificate
of the independent certified public accountants reporting on
such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such
certificate, and (ii) a certificate of a Responsible Officer
(A) stating that, to the best of such officer's knowledge,
each Borrower during such period has observed or performed
all of its covenants and other agreements, and satisfied
every condition, contained in this Agreement and the other
Credit Documents to be observed, performed or satisfied by
it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as
specified in such certificate, (B) showing the amounts
subject to limitation by Sections 8.1(j), 8.3(b), 8.3(c),
8.3(e), 8.3(g) and 8.4(c) which are outstanding on such date
and (C) showing in detail the calculations supporting such
statement in respect of Sections 8.11, 8.12, 8.13 and 8.14;
(b) concurrently with each delivery of financial
statements referred to in Section 7.1(c), a certificate of a
Responsible Officer (i) stating that, to the best of such
officer's knowledge, each Borrower during such period has
observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this
Agreement and the other Credit Documents to be observed,
performed or satisfied by it, and that such Responsible
Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate, and (ii)
showing in detail the calculations supporting such statement
in respect of Sections 8.11, 8.12, 8.13 and 8.14;
(c) promptly after the same are sent, copies of
all financial statements and reports which the Company sends
to its stockholders, and promptly after the same are filed,
copies of all financial statements, registration statements,
proxy statements, and regular, periodical or special reports
which the Company may make to, or file with, the Securities
and Exchange Commission or any successor or analogous
Governmental Authority;
(d) promptly after any request therefor by the
Agent, copies of any contract between any Borrower and any
third party that the Agent may reasonably request;
(e) promptly, such additional financial and other
information as the Agent at the request of any Bank may from
time to time reasonably request; and
(f) concurrently with each delivery of financial
statements referred to in Sections 7.1(a) and (c), a project
status report.
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7.3 Preservation of Corporate Existence. Each Borrower
and each Designated Subsidiary shall:
(a) preserve and maintain in full force and
effect its corporate existence and good standing under the
laws of the State or jurisdiction of incorporation;
(b) preserve and maintain in full force and
effect all rights, privileges, qualifications, permits,
licenses and franchises necessary or desirable in the normal
conduct of its business except in connection with
transactions permitted by Section 8.2; and
(c) use its reasonable efforts, in the ordinary
course and consistent with past practice, to preserve its
business organization and preserve the goodwill and business
with the customers, suppliers and others having business
relations with it.
7.4 Maintenance of Property. The Company shall
maintain and preserve and shall cause each of its
Subsidiaries to maintain and preserve all its property which
is used or useful in its business in good working order and
condition, consistent with prior practice, ordinary wear and
tear typical in the industry excepted, and make all
necessary repairs thereto and renewals and replacements
thereof, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect, or
as permitted by Section 8.2.
7.5 Insurance. In addition to the insurance
requirements set forth in the Security Documents, the
Company shall maintain, and shall cause each of its
Subsidiaries to maintain, with financially sound and
reputable insurers, insurance with respect to its properties
and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are
customarily carried under similar circumstances by such
other Persons, including workers' compensation insurance,
public liability and property and casualty insurance, flood,
and political risk insurance, and shall not reduce the
political risk insurance maintained by the Company or any
Subsidiary of the Company by more than 20% in any fiscal
year (excluding reductions attributable to the sale,
retirement or transfer of property in the ordinary course of
business). The Company shall provide the Agent on request a
certificate of the Company's insurance broker(s) stating
that no such insurance shall be cancelled without 30 days'
prior notice to the Agent. Upon request of the Agent, the
Company shall furnish the Agent, with copies for each Bank,
at reasonable intervals (but not more than once per calendar
year) a certificate of a Responsible Officer of the Company
(and, if requested by the Agent, any one or more insurance
brokers of the Company) setting forth the nature and extent
of all insurance maintained by the Company and its
Subsidiaries in accordance with this Section 7.5 or
any Security Document (and which, in the case of a
certificate of a broker, were placed through such broker).
7.6 Payment of Obligations. The Company shall, and
shall cause each of its Subsidiaries to, pay and discharge
as the same shall become due and payable all their
respective obligations and liabilities, including:
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(a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Company or such
Subsidiary; and
(b) all lawful claims which, if unpaid, might by
law become a Lien upon its property, except such as may be
contested in good faith by appropriate proceedings and with
respect to which adequate reserves in accordance with GAAP
are being maintained.
7.7 Compliance with Laws. The Company shall comply
with, and shall cause each of its Subsidiaries to comply
with, in all material respects, all Legal Requirements of
any Governmental Authority having jurisdiction over it or
its business, except such as may be contested in good faith
or as to which a bona fide dispute may exist.
7.8 Inspection of Property and Books and Records. The
Company shall maintain, and shall cause each of its
Subsidiaries to maintain, proper books of record and
account, in which entries in conformity with the generally
accepted principles of accounting applicable to the Company
or such Subsidiary consistently applied shall be made of all
financial transactions and matters involving the assets and
business of the Company and such Subsidiaries. The Company
will permit, and will cause each of its Subsidiaries to
permit, representatives of the Agent or any Bank to visit
and inspect any of their respective facilities or properties
which any of them may own, lease, manage or control, to
examine their respective corporate, financial and operating
records and make copies thereof or abstracts therefrom, and
to discuss their respective affairs, finances and accounts
with their respective directors, officers, employees and
independent public accountants, all at the reasonable
expense of the Company and at such reasonable times during
normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Company;
provided, however, after the occurrence and during the
continuation of an Event of Default, the Agent or any Bank
may visit and inspect at the expense of the Company such
properties at any time during business hours and without
advance notice.
7.9 Environmental Laws.
(a) The Company shall, and shall cause each of
its Subsidiaries to, conduct its operations and keep and
maintain its property and facilities which it may
own, lease, manage or control in compliance in all material
respects with all Environmental Laws.
(b) The Company shall conduct, and cause to be
conducted, the ongoing operations of the Company and its
Subsidiaries in a manner that will not give rise to the
imposition of liability, or require expenditures, under or
in connection with any Environmental Law, except for any
liabilities or expenditures which, in the aggregate, could
not reasonably be expected to have a Material Adverse
Effect.
(c) Upon written request of the Agent or any
Bank, the Company shall submit and cause each of its
Subsidiaries to submit, to the Agent and such Bank, at the
Company's sole cost and expense at reasonable intervals, a
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report providing an update of the status of any
environmental, health or safety compliance, hazard or
liability issue identified in any notice or report required
pursuant to Section 7.10(d) and any other environmental,
health or safety compliance obligation, remedial obligation
or liability, that could, individually or in the aggregate,
reasonably be expected to result in liabilities in the
aggregate in excess of Three Million Dollars ($3,000,000).
7.10 Notices. The Company shall promptly give
notice to the Agent and each Bank:
(a) of the occurrence of any Default or Event of
Default accompanied by a certificate specifying the nature
of such Default or Event of Default, the period of existence
thereof and the action that the Company or any Subsidiary of
the Company has taken or proposes to take with respect
thereto;
(b) of any (i) breach or non-performance of, or
any default under any Contractual Obligation of the Company
or any of its Subsidiaries which could result in a Material
Adverse Effect; or (ii) material dispute, litigation,
investigation, proceeding or suspension which may exist at
any time between the Company or any of its Subsidiaries and
any Governmental Authority;
(c) of the commencement of, or any material
development in, any litigation or proceeding affecting the
Company or any of its Subsidiaries (i) in which the amount
of damages claimed is Five Million Dollars ($5,000,000) (or
its equivalent in another currency or currencies) or more;
(ii) in which injunctive or similar relief is sought and
which, if adversely determined, could reasonably be expected
to have a Material Adverse Effect; (iii) in which the relief
sought is an injunction or other stay of the performance of
this Agreement or any other Credit Document or the
operations of the Company or any of its Subsidiaries; or
(iv) which otherwise could reasonably be expected to have a
Material Adverse Effect;
(d) upon, but in no event later than 10 days
after, becoming aware of (i) any enforcement, cleanup,
removal or other governmental or regulatory actions
instituted, commenced by or threatened against the Company
or any of its Subsidiaries or with respect to any of
the properties or facilities which they may own, lease,
manage or control pursuant to any applicable Environmental
Laws which could reasonably be expected to have a
Material Adverse Effect, (ii) any other Environmental
Claim which could reasonably be expected to have a
Material Adverse Effect, and (iii) any environmental
or similar condition on any real property adjoining or in
the vicinity of the property or facilities which any of the
Company or its Subsidiaries may own, lease, operate or
control that could reasonably be expected to cause such
property or facility or any part thereof to be subject to
any restrictions on the ownership, occupancy,
transferability or use of such property or facility under
any Environmental Laws which could be reasonably be expected
to have a Material Adverse Effect;
(e) promptly after reporting the same to the
Securities and Exchange Commission or other similar
Governmental Authority, any other litigation or proceeding
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affecting the Company or any of its Subsidiaries which the
Company would be required to report to the Securities and
Exchange Commission pursuant to the Securities Exchange Act
of 1934, as amended, or such other similar Governmental
Authority;
(f) within 10 days after the occurrence of any
ERISA Event affecting the Company or any member of its
Controlled Group, notice thereof, together with (i) a
certificate of the Company setting forth the details of such
ERISA Event and the action which the Company or such member
proposes to take with respect thereto; or (ii) any notice
delivered by the PBGC to the Company or any member of its
Controlled Group with respect to such ERISA Event;
(g) promptly following receipt by the Company of
any notice of default from any holder of Subordinated Debt,
a copy of such notice;
(h) promptly upon becoming aware of any Material
Adverse Effect subsequent to the date of the most recent
audited financial statements of the Company delivered to the
Banks pursuant to Section 7.1(a), notice thereof;
(i) promptly upon becoming aware of any Change of
Control, notice thereof, together with a statement of the
details;
(j) promptly following any change in the
accounting policies of the Company or any of its
Subsidiaries not required by GAAP, notice thereof and a
reasonably detailed description of such change and the
reasons therefor;
(k) promptly upon becoming aware thereof, notice
of any labor controversy resulting in or threatening to
result in any strike, work stoppage, boycott, shutdown or
other labor disruption against or involving the Company or
any of its Subsidiaries which could reasonably be expected
to have a Material Adverse Effect; and
(l) prior to 30 days before any change in name,
jurisdiction of incorporation or organization, or location
of the chief executive office or principal place of business
of any Borrower, any Designated Subsidiary or any Subsidiary
of the Company executing a Credit Document, notice of the
new name, jurisdiction or location, as the case may be.
Each notice pursuant to this Section 7.10 shall be
accompanied by a statement by a Responsible Officer of the
Company setting forth details of the occurrence referred to
therein and stating what action the Company or its
Subsidiary proposes to take with respect thereto.
7.11 Use of Proceeds. The Borrowers will use the
proceeds of the Loans for working capital and other general
corporate purposes, including third party financial support
of bids for contracts as well as trade finance, restricted
payments permitted under Section 8.10 and, subject to the
other provisions of this Agreement, for any action permitted
by Section 8.3, including Permitted Acquisitions and
Investments as permitted under Sections 2.1(a) and 8.3 which
are reflected in a Notice of Borrowing or an L/C
Application.
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7.12 Further Assurances.
(a) The Company shall ensure that all written
information, exhibits and reports furnished to the Banks do
not and will not contain any untrue statement of a material
fact and do not and will not omit to state any material fact
or any fact necessary to make the statements contained
therein not misleading in light of the circumstances in
which made, and will promptly disclose to the Banks and
correct any defect or error that may be discovered therein
or in any Credit Document or in the execution,
acknowledgment or recordation thereof.
(b) Promptly upon request by the Agent or the
Required Banks, the Company shall, and shall cause its
Subsidiaries to, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register, any and
all such further acts, deeds, conveyances, security
agreements, mortgages, assignments, estoppel certificates,
financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates,
consents, confirmations, assurances and other writings and
instruments as the Agent or any Bank (through the Agent) may
reasonably require from time to time in order (i) to carry
out more effectively the purposes of this Agreement or any
other Credit Document, (ii) to subject to the Liens created
by any of the Security Documents any of the properties,
rights or interests covered by any of the Security
Documents, (iii) to perfect and maintain the validity,
effectiveness and priority of any of the Security Documents
and the Liens intended to be created thereby, or (iv) to
better assure, convey, grant, assign, transfer, preserve,
protect and confirm to the Agent and the Banks the rights
granted or now or hereafter intended to be granted to the
Agent and the Banks under any Credit Document or under any
other instrument executed in connection therewith.
7.13 Certain Obligations Respecting Certain New
Subsidiaries. The Company will, and will cause each of its
Subsidiaries to, take such action from time to time as shall
be necessary to ensure that the Company or one of its
Subsidiaries which has executed and delivered to the Agent
an appropriate Credit Document pursuant to Section 7.14 at
all times retains the right to vote all of the issued and
outstanding shares of each class of stock of or other equity
interest owned by the Company or any of its Subsidiaries in
each New First-Tier or U. S. Subsidiary. Without limiting
the generality of the foregoing, neither the Company nor any
Subsidiary of the Company shall sell, transfer or otherwise
dispose of any shares of stock or other equity interest in
or any right to vote any shares of stock or other equity
interest in any New First-Tier or U.S. Subsidiary owned by
it, nor permit any New First-Tier or U.S. Subsidiary to
issue any shares of stock of any class whatsoever or other
equity interest to any Person which would reduce the
percentage of equity of such New First-Tier or U.S.
Subsidiary owned by the Company or any of its Subsidiaries.
In the event that any such additional shares of stock or
other equity interest shall be issued by any New First-Tier
or U.S. Subsidiary to the Company or any Subsidiary of the
Company, the Company shall forthwith deliver or cause to be
delivered to the Agent pursuant to a pledge agreement (or
other Credit Document of similar effect) all certificates
and other writings evidencing such shares of stock or other
equity interest, accompanied by undated stock powers (or
other instruments of similar effect) executed in blank, and
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shall take or cause to be taken all such other action as the
Agent shall request to create, perfect, protect and realize
upon the security interest created therein pursuant to the
pledge agreement (or other Credit Document of similar
effect).
7.14 New First-Tier or U.S. Subsidiaries. Within
45 days after the creation, formation or acquisition by the
Company or any of its Subsidiaries of any interest in any
New First-Tier or U.S. Subsidiary, the Company shall:
(a) execute and deliver, and cause each of the
Company's Subsidiaries owning any of the outstanding capital
stock or other equity interest of such New First-Tier or
U.S. Subsidiary to execute and deliver, to the Agent on
behalf of the Banks an agreement, substantially similar to
the Pledge Agreements, with such changes as shall be
necessary in the circumstances, pursuant to which all of the
outstanding capital stock or other equity interest of such
New First-Tier or U.S. Subsidiary owned by the Company and
its Subsidiaries shall be irrevocably pledged to the Agent
on behalf of the Banks, together with certificates or other
writings representing all shares of such stock or other
equity interest and for each such certificate an undated
irrevocable stock power or other similar instrument executed
in blank with signatures guaranteed and authenticated as the
Agent may specify;
(b) cause such New First-Tier or U.S. Subsidiary to
execute and deliver to the Agent on behalf of the Banks an
Election to Participate, an L/C Application and a Note
payable to the order of each Bank, all of which shall be
irrevocable;
(c) deliver or cause to be delivered to the Agent on
behalf of the Banks all agreements, documents, instruments
and other writings described in Sections 6.3(b), (c) and (f)
with respect to such New First-Tier or U.S. Subsidiary; and
(d) deliver or cause to be delivered to the Agent on
behalf of the Banks all such information regarding the
condition (financial or otherwise), business and operations
of such New First-Tier or U.S. Subsidiary as the Agent or
any Bank through the Agent may reasonably request.
Upon completion of the foregoing requirements, each
such New First-Tier or U.S. Subsidiary shall be a Designated
Subsidiary, a Borrower and a Guarantor in accordance with
Article X for all purposes of this Agreement and the other
Credit Documents.
7.15 Change of Offices. If any Borrower or
Musketeer intends to change the location of or to establish
its chief executive office, it shall give the Agent written
notice of its new address no later than one week before such
event and shall furnish, together with such notice, an
executed financing statement or other appropriate notice to
be publicly filed in the jurisdiction in which such new
office is located.
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ARTICLE VIII
NEGATIVE COVENANTS
----------------------------------
The Borrowers jointly and severally covenant to and
agree with the Banks and the Agent that until the
termination of this Agreement in accordance with Section
12.18 (unless and only to the extent that the Banks required
by Section 12.1 shall waive compliance in writing):
8.1 Limitation on Liens. No Borrower shall, or shall
permit any of its Subsidiaries to, directly or indirectly,
make, create, incur, assume or suffer to exist any Lien upon
or with respect to any part of its property or assets,
including real estate, whether now owned or hereafter
acquired, or offer or agree to do so, other than the
following ("Permitted Liens"):
(a) any Lien created under any Credit Document;
(b) any Lien (other than Liens on the Collateral)
existing on the property of the Company or its Subsidiaries
on the Closing Date and specifically set forth in Schedule
8.1 securing Indebtedness outstanding on such date;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or which
remain payable without penalty, or to the extent that
non-payment thereof is permitted by Section 7.6, provided
that no Notice of Lien has been filed or recorded;
(d) Carriers', warehousemen's, mechanics',
landlords', materialmen's, repairmen's or other similar
Liens arising in the ordinary course of business which are
not delinquent or remain payable without penalty or which
are being contested in good faith and by appropriate
proceedings;
(e) Liens (other than any Lien imposed by ERISA)
on the property of the Company or any of its Subsidiaries
incurred, or pledges or deposits required, in connection
with worker's compensation, unemployment insurance and other
social security legislation;
(f) Liens on the property of the Company or any
of its Subsidiaries securing (i) the performance of bids,
trade contracts (other than for borrowed money), leases or
statutory obligations, (ii) obligations on surety and appeal
bonds, and (iii) other obligations of a like nature incurred
in the ordinary course of business, provided that all such
Liens in the aggregate have no reasonable likelihood of
causing a Material Adverse Effect;
(g) Easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary course
of business which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from
the value of the property subject thereto or interfere with
the ordinary conduct of the businesses of the Company
and its Subsidiaries;
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(h) Purchase money Liens or purchase money
security interests on any property acquired or held by the
Company or its Subsidiaries in the ordinary course of
business, other than the Collateral, securing Indebtedness
incurred or assumed for the purpose of financing all or any
part of the cost of acquiring such property, provided that
any such Lien attaches to such property concurrently with or
within 30 days after the acquisition thereof and provided
that the principal amount of the Indebtedness secured by any
such purchase money Liens or purchase money security
interests shall not exceed Three Million Dollars
($3,000,000);
(i) Liens on any property (other than the
Collateral) securing Indebtedness permitted pursuant to
Section 8.9(c); and
(j) Liens on any property (other than the
Collateral) not otherwise permitted by the foregoing
provisions of this Section 8.1 securing Indebtedness or
obligations not exceeding 10% of Tangible Net Worth in
principal amount at any one time outstanding.
8.2 Mergers and Consolidations; Dispositions of Assets.
No Borrower shall, or shall permit any of its
Subsidiaries to, in any one transaction or series of
transactions, directly or indirectly:
(a) Sale of Less than Substantially All Assets.
Sell, exchange, transfer or otherwise dispose of part, but
less than all or substantially all, of its assets, unless
(1) such sale, exchange, transfer or other
disposition is made in the ordinary course of business of
such Borrower or Subsidiary; or
(2) after giving effect to such sale, exchange,
transfer or other disposition, the aggregate net book value
of (i) all assets of the Company and its Subsidiaries sold,
exchanged, transferred or otherwise disposed of (excluding
assets sold, exchanged, transferred or otherwise disposed of
in the ordinary course of business pursuant to
Section 8.2(a)(1)) since the Closing Date and (ii) the
assets of all Subsidiaries of the Company, the stock of
which has been sold or otherwise disposed of pursuant to
Section 8.2(b)(2) since the Closing Date, shall not exceed
10% of the consolidated total assets of the Company and its
Subsidiaries as of the end of the most recent fiscal quarter
then ended.
(b) Sale of Stock or Indebtedness of
Subsidiaries. Sell, assign, pledge, transfer or otherwise
dispose of, or part with control of, any shares of stock of
or equity in, or any Indebtedness or obligations of any
character of, the Company or any Subsidiary of the Company,
except (1) to a Permanent Borrower or to a wholly-owned
Subsidiary of a Permanent Borrower and (2) that all
shares of stock of any Subsidiary of the Company at the
time owned by the Company and its Subsidiaries may be
sold as an entirety for a consideration which represents
the fair market value (determined by the Company in good
faith) at the time of sale of the shares of stock so
sold; provided, that, for purposes of this exception
(2), the net book value of the assets of such Subsidiary
together with (x) the net book value of the assets of
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all other Subsidiaries of the Company the stock of which
was sold since the Closing Date and (y) the net book
value of the assets of the Company and all Subsidiaries
of the Company sold, exchanged, transferred or otherwise
disposed of pursuant to Section 8.2(a)(2) since the Closing
Date does not represent more than 10% of the consolidated
total assets of the Company and its Subsidiaries as of the
end of the most recent fiscal quarter then ended; provided
further that, at the time of such sale, assignment, pledge,
transfer or other disposition such Subsidiary shall not own,
directly or indirectly, any shares of stock of the Company
or any other Subsidiary of the Company unless all of the
shares of stock of such other Subsidiary of the Company
owned, directly or indirectly, by the Company and its
Subsidiaries are simultaneously being sold as permitted by
the exception described in this Section 8.2(b).
(c) Merger and Sale of All or Substantially All Assets.
Convey, exchange, transfer or otherwise dispose of all or a
substantial part of its assets (i.e., assets which could not
otherwise be disposed of pursuant to Section 8.2(a)(2)) to
any Person, or merge or consolidate with or into any other
Person, except that
(1) any wholly-owned Subsidiary of the Company
may merge with the Company (provided, that the Company shall
be the continuing or surviving corporation) or with any one
or more other wholly-owned Subsidiaries of the Company;
(2) any Subsidiary of the Company may sell,
exchange, transfer or otherwise dispose of any of its assets
to the Company or to a wholly-owned Subsidiary of the
Company;
(3) any Subsidiary of the Company may sell,
exchange, transfer or otherwise dispose of all or
substantially all of its assets subject to the conditions
and provisions specified in Sections 8.2(a)(2);
(4) any Subsidiary of the Company may merge into
or consolidate with any Person which does not thereupon
become a Subsidiary of the Company, subject to the
conditions and provisions specified in Section 8.2(b) with
respect to a sale or other disposition of the stock of such
Subsidiary;
(5) any Subsidiary of the Company may permit any
Person to be merged into such Subsidiary or may consolidate
with or merge into a Person which thereupon becomes a
Subsidiary of the Company; provided that immediately after
any such merger or consolidation, no Default shall have
occurred and be continuing and the Company shall be in
compliance with Section 8.15;
(6) the Company may permit any Person to be
merged into the Company (such that the Company shall be the
continuing or surviving corporation); and
(7) the Company may permit any corporation to
consolidate with the Company;
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provided that for purposes of Sections 8.2(c)(6) and (7)
immediately after such merger or consolidation, and after
giving effect thereto, (x) such successor Person could incur
at least $1.00 of additional Indebtedness without violation
of Section 8.15, and (y) no Default shall have occurred and
be continuing. As soon as practicable, and in any event at
least 30 days prior to the proposed consummation date of any
merger or consolidation, the Company shall give written
notice thereof to the Agent describing in reasonable detail
the proposed transaction, the date on which it is proposed
to be consummated and the identity, jurisdiction of
organization, and geographic composition of assets of the
proposed successor corporation.
(d) Issuance of Stock by Subsidiaries. Permit
any of its Subsidiaries to, either directly or indirectly,
by the issuance of rights or options for, or securities
convertible into, such shares, or otherwise, issue, sell or
otherwise dispose of any shares of any authorized but
unissued or treasury class of the stock of any Subsidiary of
the Company (other than directors' qualifying shares) except
to a Permanent Borrower or a wholly-owned Subsidiary of a
Permanent Borrower.
(e) Sale and Leaseback. Enter into any sale and
leaseback transaction unless:
(1) the net sales proceeds received by the
Company or its Subsidiary in respect of the assets sold
pursuant to such sale and leaseback transaction are greater
than or equal to the fair market value of the assets sold
and such proceeds are concurrently applied to (A) the
purchase, acquisition, development or construction of assets
having a value at least equal to such net proceeds, and to
be used in the Company's or such Subsidiary's business;
provided that no Liens shall at any time exist on such
assets which secure any Indebtedness except as permitted by
Section 8.1; or (B) the prepayment in accordance with this
Agreement of any aggregate principal amount of all the
Obligations plus accrued interest thereon and all other
amounts due in connection with such prepayment in accordance
with this Agreement in an amount at least equal to the
amount of such net proceeds; or
(2) the sale and leaseback transaction involves
the sale of assets by a Permanent Borrower to another
Permanent Borrower or to a wholly-owned Subsidiary of a
Permanent Borrower or by a Subsidiary of a Permanent
Borrower to a Permanent Borrower or to another wholly-owned
Subsidiary of a Permanent Borrower; provided that
if a Borrower is the seller under any such sale and
leaseback transaction, its lease obligations thereunder
shall be subordinated to the Obligations upon terms
satisfactory to the Agent and the Majority Banks.
(f) Partnerships and Joint Ventures. Enter into
any joint venture or partnership with any Person, except
(i) the Company or any of its Subsidiaries
may enter into Project Related Partnerships and/or
Joint Ventures; and
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(ii) the Company or any of its Subsidiaries
may enter into partnerships and joint ventures
other than Project Related Partnerships and/or
Joint Ventures, but only to the extent permitted
under Section 8.3.
8.3 Acquisitions and Investments. No Borrower shall,
or shall permit any of its Subsidiaries to, directly or
indirectly, purchase or acquire, or make any commitment to
purchase or acquire, any capital stock of, equity interest
in, or a substantial portion of the assets of another
Person, or make any advance, loan, extension of credit or
capital contribution to, or any other investment in, any
Person, including any Affiliate of the Company, except:
(a) investments in Cash Equivalents;
(b) advances to employees for business-related
purposes in an aggregate amount not greater than $1,000,000;
(c) loans to employees for the purposes of
purchasing stock pursuant to employee stock ownership plans
in an aggregate amount not greater than $3,500,000;
(d) investments in or loans to the Company or in
or to wholly-owned Subsidiaries of the Company, so long as
the Company does not reduce its ownership interest in such
Subsidiary;
(e) investments in or loans to the Company or in
or to Subsidiaries of the Company which are controlled by
the Company but which are neither wholly-owned Subsidiaries
of the Company nor Project Related Partnerships and/or Joint
Ventures, in an aggregate amount for all such Persons not to
exceed $2,000,000;
(f) investments and capital contributions in or
loans to Project Related Partnerships and/or Joint Ventures
in the ordinary course of business; and
(g) Permitted Acquisitions and Investments not to
exceed $62,500,000 in the aggregate.
8.4 Limitation on Indebtedness. No Borrower shall, or
shall permit any of its Subsidiaries to, create, incur,
assume, guarantee, suffer to exist, or otherwise become or
remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to the Credit
Documents;
(b) Indebtedness existing on the Closing Date and
specifically set forth in Schedule 8.4;
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(c) Indebtedness not otherwise permitted under
this Section 8.4 which, together with all letters of credit
outstanding pursuant to Section 3.1(e), does not in the
aggregate exceed twenty percent (20%) of Tangible Net Worth;
(d) Indebtedness permitted pursuant to Section
8.9;
(e) Indebtedness in connection with hedging
transactions for foreign currency and interest rate
exposures of the Company and its Subsidiaries, all as
incurred in the ordinary course of their business
operations;
(f) Indebtedness secured by Liens permitted by
Section 8.1(h);
(g) Indebtedness incurred or assumed by the
Company or any of its Subsidiaries for the purpose of
financing all or any part of the cost of acquiring personal
property in an aggregate amount not to exceed Three Million
Dollars ($3,000,000); and
(h) Indebtedness consisting of obligations in
connection with loans and investments permitted by Section
8.3.
8.5 Transactions with Affiliates. No Borrower shall,
or shall permit any of its Subsidiaries to, enter into any
transaction with any Affiliate of such Borrower or of any
such Subsidiary except as contemplated by the Credit
Documents or in the ordinary course of business and pursuant
to the reasonable requirements of the business of such
Borrower or such Subsidiary and upon fair and reasonable
terms no less favorable to such Borrower or such Subsidiary
than would obtain in a comparable arm's-length transaction
with a Person not an Affiliate of such Borrower or such
Subsidiary. For purposes of this Section 8.5 only, the term
"Affiliate" shall not be deemed to include wholly-owned
Subsidiaries of the Company.
8.6 Contingent Obligations. No Borrower shall, or
shall permit any of its Subsidiaries to, create, incur,
assume or suffer to exist any Contingent Obligations,
except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Contingent Obligations with respect to
Indebtedness permitted under Section 8.4;
(c) Contingent Obligations created by or arising
in connection with the Credit Documents;
(d) Contingent Obligations of the Company and its
Subsidiaries existing as of the Closing Date and listed in
Schedule 8.6;
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(e) Guarantees of, or surety bonds issued with
respect to, performance by the Company's wholly-owned
Subsidiaries of contracts entered into, or bids submitted,
by or on behalf of such Subsidiaries in the normal course of
business;
(f) Contingent Obligations among the Permanent
Borrowers and their wholly-owned Subsidiaries; and
(g) joint venture obligations, to the extent and
only to the extent permitted under Section 8.2.
8.7 Compliance with ERISA. No Borrower shall, or shall
permit any ERISA Affiliate to, directly or indirectly, (i)
terminate any Plan subject to Title IV of ERISA so as to
result in any material (in the opinion of the Required Banks
and greater than Three Million Dollars ($3,000,000))
liability to the Company or any ERISA Affiliate, (ii) permit
to exist any ERISA Event or any other event or condition
which presents the risk of a material (in the opinion of the
Required Banks and greater than Three Million Dollars
($3,000,000)) liability of the Company or any ERISA
Affiliate, (iii) make a complete or partial withdrawal
(within the meaning of ERISA Section 4201) from any
Multiemployer Plan so as to result in any material (in the
opinion of the Required Banks and greater than Three Million
Dollars ($3,000,000)) liability of the Company or any ERISA
Affiliate, (iv) enter into any new Plan or modify any
existing Plan so as to increase the aggregate obligations of
all Borrowers under all Plans by an amount which could
reasonably be expected to result in any material (in the
opinion of the Required Banks and greater than Five Million
Dollars ($5,000,000)) liability of the Company or any ERISA
Affiliate except in the ordinary course of business
consistent with past practice and except that the Company
may establish and maintain employee stock ownership plans
and Non-Qualified Pension Benefit Restoration Plans, or (v)
permit the present value of all nonforfeitable accrued
benefits under each Plan (using the actuarial assumptions
utilized by the Company as provided by its independent
actuaries upon termination of a Plan) to materially (in the
opinion of the Required Banks and greater than Three
Million Dollars ($3,000,000)) exceed the fair market value
of Plan assets allocable to such benefits, all determined as
of the most recent valuation date for each such Plan.
8.8 Use of Proceeds. None of the proceeds of the
Loans, and no Letter of Credit, shall be used for any
purpose other than the purposes set forth in Section 7.11.
No portion of the Loans and none of the Letters of Credit
will be used, directly or indirectly, (a) to purchase or
carry any Margin Stock, (b) to repay or otherwise refinance
indebtedness of any Borrower or any Designated Subsidiary
incurred to purchase or carry any Margin Stock, or (c) to
extend credit for the purpose of purchasing or carrying any
Margin Stock. No portion of the Loans, and no Letter of
Credit, will be used directly or indirectly for repurchases
of stock or acquisitions or investments; provided, however,
that Loans may be used for repurchases of stock,
acquisitions and investments permitted under Sections
8.3(a), (b), (d), (e), (f) and (g) and Section 8.10;
provided, further, that the aggregate amount of all Loans
borrowed (regardless of whether repaid) and all financial
Letters of Credit (and all Letters of Credit which are part
of the deferred purchase price of the acquisition) issued
(in each case, regardless of whether outstanding, drawn or
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expired) in connection with Permitted Acquisitions and
Investments shall not exceed $50,000,000.
8.9 Lease Obligations. No Borrower shall, or shall
permit any of its Subsidiaries to, create or suffer to exist
any obligations for the payment of rent for any property
under lease or agreement to lease, except for
(a) leases of the Company and its Subsidiaries in
existence on the Closing Date and any renewal, extension or
refinancing thereof;
(b) after the Closing Date, any leases entered
into by the Company or any of its Subsidiaries in the
ordinary course of business in a manner and to an extent
consistent with past practice;
(c) after the Closing Date, any lease entered
into by the Company or any of its Subsidiaries, provided
that:
(i) immediately prior to giving effect
to such lease, the property or asset subject to
such lease was sold by the Company or any such
Subsidiary to the lessor under such lease at a
price not less than its fair market value; and
(ii) no Default or Event of Default
would occur as a result of such sale and
subsequent lease; and
(d) after the Closing Date, capital leases other
than those permitted under clauses (a), (b) and (c) of this
Section 8.9 entered into by the Company or any of its
Subsidiaries to finance the acquisition of equipment;
provided that the aggregate amount of all long term
operating lease payments per annum (excluding any month to
month equipment rentals) of the Company and its Subsidiaries
shall not exceed at any one time ten percent (10%) of
Tangible Net Worth.
8.10 Restricted Payments. The Company shall not
declare, accrue or make any dividend payment or other
distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any
class of its capital stock or purchase, redeem or otherwise
acquire for value (or permit any of its Subsidiaries to do
so) any shares of its capital stock or any warrants, rights
or options to acquire such shares, now or hereafter
outstanding, except as permitted under Section 8.3 and
except that the Company may (a) declare and make dividend
payments or other distributions (i) in an aggregate amount
not to exceed in any fiscal year the greater of $0.25 per
share (without adjustment for splits or other divisions of
shares) or 25% of the consolidated net income of the Company
and its Subsidiaries for such fiscal year, or (ii) payable
solely in its capital stock; (b) purchase, redeem or
otherwise acquire shares of its capital stock or warrants or
options to acquire any such shares with the proceeds
received from the substantially concurrent issue of new
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shares of its capital stock; (c) repurchase stock
beneficially owned by its employees (including Affiliates)
in connection with the Company's, WII's or WUSA's
non-qualified employee stock ownership plans; or (d)
repurchase in accordance with all applicable Legal
Requirements in any one fiscal year of the Company (i) not
more than 5% of its total issued and outstanding shares of
capital stock as of January 1 of such fiscal year, or (ii)
shares of its capital stock having an aggregate market value
at time of purchase not exceeding $7,500,000 (as adjusted
annually to equal 5% of the total market value of all of the
Company's outstanding shares of capital stock as of the
preceding January 1); provided, that immediately after
giving effect to such proposed actions described in clauses
(a), (b), (c) and (d), no Default or Event of Default would
exist.
8.11 Funded Debt.
(a) The Company shall not permit the ratio of its
Funded Indebtedness to Total Capitalization to exceed 0.50
to 1.00 at the end of any fiscal quarter.
(b) The Company shall not permit the ratio of its
Funded Indebtedness at the end of any fiscal quarter to
EBITDA for the four fiscal quarters then most recently ended
to exceed 5.00 to 1.00.
8.12 Consolidated Net Worth. The Company shall
not permit its Consolidated Net Worth to be less than the
sum of (a) Seventy Million Dollars ($70,000,000) plus (b)
fifty percent (50%) of the Company's cumulative net income
for the calendar year-to-date (without deduction for net
losses) at the end of each fiscal quarter, starting with the
fiscal quarter beginning January 1, 1996.
8.13 Leverage Ratio. The Company shall not permit
the Leverage Ratio to be greater than 2.00 to 1.00 at the
end of any fiscal quarter.
8.14 Interest Coverage Ratio. The Company shall
not permit the ratio of (a) EBIT for the immediately
preceding four quarters to (b) Consolidated Net Interest
Expense for the immediately preceding four quarters to be
less than 2.50 to 1.00 at the end of any fiscal quarter.
8.15 Indebtedness. The Company shall not at any
time (whether at the end of a fiscal quarter or otherwise)
create, incur, assume or suffer to exist any Indebtedness if
immediately after such creation, incurrence, assumption or
sufferance and after giving effect to it, (a) the ratio of
the Company's Funded Indebtedness at such time to the Total
Capitalization of the Company at such time would exceed 0.50
to 1.00, or (b) the ratio of the Company's Funded
Indebtedness at such time to EBITDA for the four fiscal
quarters most recently ended at such time would exceed 5.00
to 1.00.
8.16 Change in Business. Except as permitted by
Section 8.3, the Company shall not, and shall not permit any
of its Subsidiaries to, engage in any material line of
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business substantially different from (a) those lines of
business historically carried on by them prior to the date
of this Agreement, or (b) energy-related services or water-
related services.
8.17 Change in Structure. Except as permitted
under Section 8.3, the Company shall not, and shall not
permit any of the Borrowers to, make any changes in their
capital structure (including in the terms of their
outstanding stock) or amend their certificates of
incorporation, bylaws or other similar instrument or
agreement in a manner which could reasonably be expected to
have a Material Adverse Effect.
8.18 Accounting Changes. The Company shall not,
and shall not permit any of its Subsidiaries to, make any
significant change in accounting policies, except as
required or permitted by GAAP, or change the fiscal year of
the Company or any of its Subsidiaries.
8.19 Other Contracts. The Company shall not, and
shall not permit any of its Subsidiaries to, enter into any
employment contract or other arrangement the terms of which,
including salaries, benefits and other compensation, are not
normal and customary in the industries in which the Company
or such Subsidiary operates.
8.20 Covenants in Other Agreements. The Company
shall not, and shall not permit any of its Subsidiaries to,
become a party to or agree that it or any of its property is
bound by any indenture, mortgage, deed of trust or any other
agreement or instrument directly or indirectly:
(a) restricting any loans, advances or any other
investments to or in the Company by any of its Subsidiaries;
(b) restricting the ability of any Subsidiary of
the Company to make tax payments or management fee payments
to the Company;
(c) restricting the capitalization structure of
any Subsidiary of the Company;
(d) restricting the ability or capacity of any
Subsidiary of the Company to make dividend payments or
distributions to the Company; or
(e) restricting the ability or capacity of the
Company or any of its Subsidiaries to grant Liens covering
any of its property other than as contemplated by the Credit
Documents;
provided, however, that the Company and its Subsidiaries
may, without violation of this Section 8.20, maintain and
establish joint venture agreements containing restrictions
of the type otherwise prohibited by this Section 8.20
provided that the aggregate of the restrictions of the type
otherwise prohibited by this Section 8.20 in all such joint
venture agreements could not reasonably be expected to have
a Material Adverse Effect.
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ARTICLE IX
EVENTS OF DEFAULT
------------------------------
9.1 Events of Default. Any of the following events or
circumstances shall constitute an Event of Default:
(a) Non-Payment. Any Borrower or any Guarantor
shall fail to pay when due any amount of principal of any
Loan or any Reimbursement Obligation or fail to make any
mandatory prepayment under this Agreement when due, or shall
fail to pay any portion of accrued and unpaid interest or
fees or any other amount due under any Credit Document
before the earlier of (i) five days after the same shall
become due in accordance with the terms of such Credit
Document, or (ii) in the event that a principal or interest
payment shall be due under the terms of any Subordinated
Debt within such five day period, one day prior to such
payment date; or
(b) Representation or Warranty. Any
representation or warranty made or deemed made by any
Borrower or any Designated Subsidiary or by any Subsidiary
of the Company which is a party to any Credit Document in
this Agreement or in any other Credit Document or which is
contained in any certificate, document or financial or other
statement furnished at any time in connection with this
Agreement or any other Credit Document shall prove to have
been incorrect in any material respect on or as of the date
made or deemed made; or
(c) Specific Defaults. Any Borrower or any
Designated Subsidiary shall fail to perform or observe any
term, covenant or agreement contained in Sections 7.1, 7.8,
7.10, 7.11, 7.13, 7.14 or Article VIII; or
(d) Other Defaults. Any Borrower, any Designated
Subsidiary or any Subsidiary of the Company which is a party
to any Credit Document shall fail to perform or observe any
other term or covenant contained in this Agreement or any
other Credit Document, and such default shall continue
unremedied for a period of 30 days after the earlier of (i)
the date upon which a Responsible Officer of such Person
knew or should have known of such failure, or (ii) the date
upon which written notice thereof has been given to the
Company by the Agent or any Bank (through the Agent); or
(e) Cross-Default. Any Borrower or any
Designated Subsidiary shall (i) fail to make any payment in
respect of any Indebtedness (including Subordinated Debt) or
Contingent Obligation in excess of an aggregate amount of
Two Million Dollars ($2,000,000) when due (whether by
scheduled maturity, required prepayment, acceleration,
demand, or otherwise), or (ii) fail to perform or observe
any other condition or covenant or any other event shall
occur or condition exist under any agreement or instrument
relating to any such Indebtedness or Contingent Obligation,
if the effect of such event or condition is to cause, or to
permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Indebtedness (or a
trustee oragent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving
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of notice if required, such Indebtedness to be declared
to be due and payable prior to its stated maturity or
such Contingent Obligation to become due and payable; or
(f) Bankruptcy or Insolvency. Any Borrower, any
Designated Subsidiary, or any Subsidiary of the Company
other than Musketeer which is a party to any Credit Document
shall become insolvent or shall voluntarily cease to conduct
its business in the ordinary course substantially as it is
conducted on the date of this Agreement or on the Closing
Date (except that WECL may cease to do business in the
Commonwealth of Independent States and WESCO may cease to do
business in the U.S.); or any Borrower, any Designated
Subsidiary, any Subsidiary of the Company which is a party
to any Credit Document or any Material Subsidiary shall (i)
generally fail to pay, or admit in writing its inability to
pay, its debts as they become due, subject to applicable
grace periods, if any, whether at stated maturity or
otherwise, (ii) commence any proceeding, file any petition
or answer, or seek any other relief under any bankruptcy,
reorganization, arrangement, insolvency, or other similar
law, of any jurisdiction relating to the relief of debtors,
(iii) acquiesce in the appointment of a receiver, trustee,
custodian, liquidator or other similar official for itself
or a substantial portion of its property, assets or business
or effect a plan or other arrangement with its creditors,
(iv) admit the material allegations of a petition filed
against it in any bankruptcy, reorganization, arrangement,
insolvency or other proceeding, in any jurisdiction,
relating to the relief of debtors, or (v) take action to
effectuate any of the foregoing; or
(g) Involuntary Proceedings. Involuntary
proceedings or any involuntary petition shall be commenced
or filed against any Borrower, any Designated Subsidiary,
any Subsidiary of the Company which is a party to any Credit
Document, or any Material Subsidiary under any bankruptcy,
reorganization, arrangement, insolvency or other similar law
of any jurisdiction or seeking the dissolution, liquidation
or reorganization of such Borrower, such Designated
Subsidiary or such other Subsidiary or the appointment of a
receiver, trustee, custodian, liquidator or other similar
official for such Borrower, such Designated Subsidiary or
such other Subsidiary or a substantial part of its property,
or any writ, judgment, warrant of attachment, execution or
similar process shall be issued or levied against a
substantial part of the assets of any Borrower, any
Designated Subsidiary, any Subsidiary of the Company which
is a party to any Credit Document or any Material
Subsidiary, and any such proceedings or petition shall not
be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated
or fully bonded, within 60 days after commencement, filing
or levy; or
(h) ERISA. The Company, any of its Subsidiaries
or any ERISA Affiliate shall fail to pay when due an amount
or amounts which it shall have become liable to pay under
Title IV of ERISA and which in the aggregate exceed Three
Million Dollars ($3,000,000); or notice of intent to
Pension Liabilities in the aggregate in excess of Three
Million Dollars ($3,000,000) shall be filed under Title IV
of ERISA; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate a Plan or Plans having
aggregate Unfunded Pension Liabilities in excess of Three
Million Dollars ($3,000,000); or a proceeding shall be
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instituted by a fiduciary of any such Plan or Plans against
any such Person to enforce Section 515 of ERISA to collect
contributions which in the aggregate exceed Three Million
Dollars ($3,000,000); or a condition shall exist and shall
continue unremedied for a period of 30 days by reason of
which the PBGC would be entitled under Section 4042 of ERISA
to obtain a decree adjudicating that a Plan or Plans having
Unfunded Pension Liabilities which in the aggregate exceed
Three Million Dollars ($3,000,000) must be terminated; or
(i) Monetary Judgments. One or more final
judgments, orders or decrees shall be entered against any
Borrower or any Material Subsidiary involving in the
aggregate a liability at any point in time (to the extent
not paid or fully covered by insurance less any deductible)
in an amount equal to or exceeding Three Million Dollars
($3,000,000) and the same shall not have been vacated,
satisfied, discharged, stayed or bonded pending appeal
within 10 days from the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary
judgment or order or decree that could reasonably be
expected to have a Material Adverse Effect shall be rendered
against any Borrower or any Subsidiary of any Borrower with
respect to which (i) enforcement proceedings shall have been
commenced by any Person upon such judgment or order or (ii)
there shall be any period of 10 consecutive days during
which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in
effect; or
(k) Collateral.
(i) any provision of any Security
Document shall for any reason cease to be valid
and binding on or enforceable against any Borrower
or any Subsidiary of the Company (other than
Musketeer) which is a party to any Security
Document, or any Borrower or any Subsidiary of any
Borrower or Vintondale shall so state in writing
or bring an action to limit its obligations or
liabilities thereunder; or
(ii) the Security Documents (other than
the Musketeer Parent Pledge Agreement) shall for
any reason (other than pursuant to the terms
thereof) cease to create a valid security interest
in the Collateral purported to be covered thereby
or such security interest shall for any reason
cease to be a perfected and first priority
security interest; or
(l) Change of Control. Any Change of Control
shall occur; or
(m) Environmental Liabilities. A final judgment,
settlement, decree or order, or series of judgments,
settlements, decrees or orders, shall be rendered against or
entered into by the Company or any of its Subsidiaries
requiring the Company or such Subsidiary to perform or
undertake the clean-up, removal, decontamination,
remediation, abatement, investigation, or monitoring of
Hazardous Substances, which performance or undertaking could
reasonably be expected to require the payment of money in an
amount per occurrence (net of any insured or indemnified
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amount) which exceeds Three Million Dollars ($3,000,000) and
a stay of execution thereof shall not be procured, within
the appeal time provided by law from the date of entry
thereof, or the Company or such Subsidiary shall not, within
said appeal time, or such longer period during which
execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed
during such appeal; or
(n) Expropriation, Nationalization, Etc. Any
Governmental Authority shall adopt, impose or change any
Legal Requirement (or adopt, make or change any official
interpretation of or directive or request with respect to
any Legal Requirement) which (a) limits or could reasonably
be expected to limit foreign ownership of any of the
Collateral, or (b) expropriates, nationalizes or seizes (or
could reasonably be expected to result in the expropriation,
nationalization or seizure of) assets which (together with
all other assets of the Company and its Subsidiaries with
respect to which such an event shall have occurred since the
Closing Date) constitute more than 20% of the total
consolidated assets of the Company and its Subsidiaries as
of the end of the most recent fiscal quarter then ended (in
each case, net of proceeds of any political risk insurance
which are reasonably expected to be paid within nine months
of such expropriation, nationalization or seizure in
connection with such expropriation, nationalization or
seizure).
9.2 Remedies. If any Event of Default shall occur:
(a) the Agent shall, at the request of, or may,
with the consent of, the Majority Banks, declare the
Commitments of each Bank to make Loans or to issue Letters
of Credit to be terminated, whereupon such Commitments shall
forthwith be terminated; and
(b) the Agent shall, at the request of, or may,
with the consent of, the Majority Banks, declare the unpaid
principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, all fees and all other
Obligations (except Obligations consisting of Letter of
Credit Obligations other than Reimbursement Obligations)
under this Agreement and the other Credit Documents
(including all Reimbursement Obligations) to be immediately
due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly
WAIVED by each Borrower; and
(c) if any Letter of Credit shall be then
outstanding, the Agent shall, at the request of, and may,
with the consent of, the Majority Banks, make demand upon
the Borrowers to, and forthwith upon such demand, the
Borrowers will, provide to the Agent a letter of credit
issued by an issuer acceptable to each of the Agent, the
Syndicated L/C Bank, each Issuing Bank and the Majority
Banks in their respective sole discretion, in form and
substance satisfactory to the Agent, the Syndicated L/C
Bank, each Issuing Bank and the Majority Banks in their sole
discretion, in an amount equal to 100% of the aggregate
Letter of Credit Obligations which remain outstanding, which
letter of credit shall have an expiry no earlier than 90
days after the expiry of the last Letter of Credit to expire
and shall permit the Agent, the Syndicated L/C Bank, each
Issuing Bank, or any of them, to draw upon the issuer of
such letter of credit at any time without condition except
the presentation of a written certificate that such amounts
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have been drawn under a Letter of Credit; or pay to the
Agent in same day funds at the office of the Agent
designated in such demand, for deposit in the Cash
Collateral Account, an amount equal to the maximum amount
available to be drawn under the Letters of Credit then
outstanding; and
(d) the Agent may, in its sole discretion,
without notice to any Borrower except as required by law,
and at any time and from time to time, apply any proceeds of
the Cash Collateral Account and all cash proceeds received
in respect of any sale of, collection from or other
realization upon, all or any part of the Cash Collateral
Account in accordance with Section 3.5(d); and
(e) subject to the Security Documents, the Agent
shall, at the request of, and may, with the consent of, the
Majority Banks, exercise all rights and remedies available
to it under the Security Documents or any other agreement;
and
(f) each Bank may, to the fullest extent not
prohibited by applicable law, exercise its rights of offset
against each account and all other property of any Person
liable on any of the Obligations in the possession of such
Bank, which right is hereby granted by each Borrower to the
Banks; and
(g) the Agent and each Bank may exercise any and
all other rights pursuant to the Credit Documents, at law
and in equity;
provided, however, that, upon the occurrence of any event
specified in Section 9.1(f) or (g) (in the case of Section
9.1(g), upon the expiration of the 60 day period mentioned
therein), the obligation of each Bank to make Loans and to
issue Letters of Credit shall automatically terminate, and
the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, all fees and all other
Obligations (including Reimbursement Obligations) shall
automatically become due and payable, all without any
further act of the Agent or any Bank.
9.3 Cash Collateral Account. Each Borrower agrees
that, in the event of a prepayment in full of the Loans and
the termination of the Commitments, it shall, if
requested by the Agent or the Required Banks (through the
Agent), either (at the election of such Borrower) either (a)
pay to the Agent an amount in immediately available funds
equal to 100% of its then aggregate amount of Letter of
Credit Obligations which remain outstanding, which funds
shall be held by the Agent in the Cash Collateral Account,
or (b) provide to the Agent a letter of credit issued by an
issuer acceptable to each of the Agent, the Syndicated L/C
Bank, each Issuing Bank and the Majority Banks in their
respective sole discretion, in form and substance
satisfactory to the Agent, the Syndicated L/C Bank, each
Issuing Bank and the Majority Banks in their sole
discretion, in an amount equal to 100% of the aggregate
Letter of Credit Obligations which remain outstanding, which
letter of credit shall have an expiry no earlier than 90
days after the expiry of the last Letter of Credit to expire
and shall permit the Agent, the Syndicated L/C Bank, each
Issuing Bank, or any of them, to draw upon the issuer of
such letter of credit at any time without condition except
the presentation of a written certificate that such amounts
have been drawn under a Letter of Credit.
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9.4 Preservation of Security for Unmatured
Reimbursement Obligations. In the event that, following (a)
the occurrence of an Event of Default and the exercise of
any rights available to the Agent under the Credit
Documents, and (b) payment in full of the principal amount
then outstanding of and the accrued and unpaid interest on
the Loans and Reimbursement Obligations and all fees and all
other Obligations, any Letter of Credit shall remain
outstanding and undrawn upon, the Agent shall be entitled to
hold (and each Borrower hereby assigns to the Agent on
behalf of the Banks and grants and conveys to the Agent a
security interest in and to) all cash or other property
("Proceeds of Remedies") realized or arising out of the
exercise by the Agent of any rights available to it under
the Credit Documents, at law or in equity, including the
proceeds of any foreclosure, in the Cash Collateral Account
(subject to Section 3.5) as collateral for the payment of
any amounts due or to become due under or in respect of such
Letters of Credit; provided, that the aggregate amount so
held shall not exceed 100% of all Letter of Credit
Obligations then outstanding. Such Proceeds of Remedies
shall be held for the ratable benefit of the Banks issuing
such Letters of Credit and Banks holding participations
therein and the Syndicated L/C Bank. Such Proceeds of
Remedies shall constitute "Collateral" for all purposes
under the terms and provisions of the Security Documents,
and the rights, titles, benefits, privileges, duties and
obligations of the Agent with respect thereto shall be
governed by the terms and provisions of this Agreement
(including Section 3.5) and, to the extent not inconsistent
with this Agreement, the Security Documents.
Notwithstanding anything herein to the contrary, such
Proceeds of Remedies shall be applied solely to
Reimbursement Obligations arising in respect of any such
Letters of Credit and/or the payment of any Bank's or the
Syndicated L/C Bank's obligations under any such Letter of
Credit when such Letter of Credit is drawn upon. Each
Borrower hereby agrees to execute and deliver to the Agent
and the Banks such security agreements, pledges or other
documents as the Agent or any of the Banks may, from time to
time, require to create, perfect, protect and realize upon
the assignment, pledge, lien and security interest in and to
any such Proceeds of Remedies provided for in this Section
9.4. Upon the payment or expiry of all Letter of Credit
Obligations, all Proceeds of Remedies shall be released to
the Company in due form at the Company's cost.
9.5 Rights Not Exclusive. The rights provided for in
this Agreement and the other Credit Documents are cumulative
and are not exclusive of any other rights, powers,
privileges or remedies provided by law or in equity or under
any other instrument, document or agreement.
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ARTICLE X
GUARANTY
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10.1 Definitions. As used in this Article X
(sometimes in this Article X called "this Guaranty"), a
"Guarantor" and the "Guarantors" means a Borrower and the
Borrowers, respectively, and the following terms shall have
the following meanings:
"Guaranteed Debt" means, as to any Guarantor, the
Maximum Amount with respect to such Guarantor less the
amounts, if any, of payments of the Guaranteed Debt made by
such Guarantor and clearly identified as such in a notice
accepted in writing by the Agent confirming the payment and
reduction of the Guaranteed Debt as to such Guarantor.
"Guarantor's Net Worth" means, as to any Guarantor,
as of any date of determination thereof: (a) the aggregate
fair saleable value of the assets of such Guarantor as of
such date (including the fair saleable value of the amounts
received or receivable by such Guarantor pursuant to its
rights to subrogation, contribution and indemnity), minus
(b) the amount of all liabilities of such Guarantor,
contingent or otherwise, as of such date (but excluding all
contingent liabilities under this Guaranty), minus (c) One
Dollar ($1.00). It is agreed that a Guarantor's Net Worth
may fluctuate from time to time after the date it becomes a
Guarantor, as it is determined on each Determination Date
(as defined in the definition of "Maximum Amount").
"Maximum Amount" means, with respect to any
Guarantor except WGI, the greater of (a) all proceeds
(without duplication) of the Obligations directly or
indirectly (by intercompany loan, advance, capital
contribution, such Guarantor's ownership interest in any
Person receiving the proceeds of the Obligations, or
otherwise) advanced to or for the account of, or used by or
for the benefit of, such Guarantor; (b) ninety percent (90%)
of such Guarantor's Net Worth from time to time; or (c) the
amount that in a legal proceeding brought within the
applicable limitations period is determined by the final,
non-appealable order of a court having jurisdiction over the
issue and the applicable parties to be the amount of value
given by the Agent and the Banks, or received by such
Guarantor, in exchange for the obligations of such Guarantor
under this Guaranty; provided, however, that the Maximum
Amount, with respect to any Guarantor, shall not exceed the
maximum amount which such Guarantor could pay or be liable
for under this Guaranty without having such payment or
liability set aside as a fraudulent conveyance or fraudulent
transfer or other similar action under any applicable
bankruptcy, insolvency or other similar law of any
jurisdiction. If on the date of any Loan made or Letter of
Credit issued after the date hereof (any such date being
herein called a "Determination Date"), ninety percent (90%)
of such Guarantor's Net Worth is greater than either of the
amounts described in clauses (a) and (c) above, the Maximum
Amount shall be deemed to have increased through and as of
such Determination Date to ninety percent (90%) of such
Guarantor's Net Worth as determined on such Determination
Date (and the Guaranteed Debt as to such Guarantor shall
have correspondingly increased), without further action
by or agreement between the Agent and such Guarantor,
and any subsequent reduction or diminution of such
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Guarantor's Net Worth after such Determination Date
will not reduce the Guaranteed Debt as to such Guarantor.
Notwithstanding anything to the contrary contained in this
definition of "Maximum Amount" or in any other provision of
this Guaranty, but subject to the proviso in the first
sentence of this definition, "Maximum Amount" shall never be
less than the amount referred to in clause (a) above. The
Banks and each Guarantor acknowledge and agree that, for the
purposes of this Guaranty and any legal proceeding brought
within the applicable limitations period before a court
having jurisdiction over the issue and the applicable
parties, the amount of value given by the Agent and the
Banks in connection with the Obligations is presumed to be
equal to, without duplication, all funds, all matured and
contingent obligations assumed by Agent and/or the Banks
(e.g., Letter of Credit Obligations), property, and proceeds
that are directly or indirectly (e.g., by intercompany loan,
advance, capital contribution, such Guarantor's ownership
interest in any Person receiving the proceeds of the
Obligations, or otherwise) advanced to or for the account
of, or used by or for the benefit of, such Guarantor in
connection with the transactions and events relating to the
Obligations.
10.2 Guaranty.
(a) In order to induce the Banks and the Agent to
execute and deliver this Agreement and the other Credit
Documents, to make or maintain the Loans and to issue and
maintain the Letters of Credit, and in consideration
thereof, each Guarantor, as a primary obligor and not as a
surety, unconditionally, jointly and severally, guarantees
to the Agent and the Banks the full, prompt and punctual
payment and performance of the Obligations of each other
Borrower when due (whether at stated maturity, by
acceleration or otherwise) in accordance with the Credit
Documents. This Guaranty is irrevocable, unconditional and
absolute, and if for any reason all or any portion of the
Obligations shall not be paid when due, Guarantors, jointly
and severally, agree immediately to pay the Obligations to
the Agent or other Person entitled to them, in Dollars,
regardless of (i) any defense, right of set-off or
counterclaim which any Guarantor may have or assert which
would otherwise discharge a guarantor under applicable law,
(ii) whether the Agent or any other such Person shall have
taken any steps to enforce any rights against any Borrower,
any other Guarantor or any other Person to collect any of
the Obligations, and (iii) any other circumstance, condition
or contingency (other than a defense of full and timely
payment or performance of the Obligations) which
constitutes, or might be construed to constitute, an
equitable or legal discharge of any Borrower for any of the
Obligations, or of such Guarantor under the guarantee
contained in this Article X, in bankruptcy or in any other
instance.
(b) NOTWITHSTANDING THE FOREGOING, to the extent
that in a legal proceeding brought within the applicable
limitations period it is determined by the final,
non-appealable order of a court having jurisdiction
over the issue and the applicable parties that any Guarantor
(except WGI) received less than a reasonably equivalent
value in exchange for such Guarantor's incurrence of its
obligations under this Guaranty, then and only then the
liability of such Guarantor for all Obligations shall be
limited in amount to the Guaranteed Debt of such Guarantor.
The foregoing limitation as it applies to a particular
Guarantor shall not affect or excuse the liability or
obligations of any other Guarantor, nor may it be raised as
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a defense to any action or claim against such other
Guarantor. The Agent shall have the right to determine and
designate from time to time, without notice to or assent of
any Guarantor, which portions of the Obligations such
limitation applies to, and each Guarantor acknowledges that
such determination and designation shall be conclusive on
all parties. This Guaranty shall not fail or be ineffective
or invalid or be considered too indefinite or contingent
with respect to any Guarantor because the Guaranteed Debt
applicable to such Guarantor may fluctuate from time to time
or for any other reason. The guarantee contained in this
Article X, subject to Section 10.10, shall remain in full
force and effect until the time provided in Section 10.8
(except for any obligations expressly stated to survive such
termination), notwithstanding that from time to time prior
thereto any Borrower may be free from any Obligations. The
obligations of WECL under this Article X are limited as
provided in Section 12.20.
10.3 Application. Each Guarantor agrees that any
payment or prepayment by a Guarantor or any other Person
against the Obligations (other than payments made by a
Guarantor in accordance with the procedures described in the
definition of "Guaranteed Debt" and then only with respect
to such Guarantor's liability under this Guaranty) shall be
deemed paid first against that portion of the Obligations
not included in "Guaranteed Debt" or determined for any
reason not to be a part of "Guaranteed Debt," and then shall
be paid against any portion of the Obligations that is
Guaranteed Debt, in such order and manner as the Agent shall
determine in its sole discretion. Article IV of this
Agreement, including Sections 4.6 and 4.9, shall apply to
all payments by Guarantors under this Article X. Any
payment by any Guarantor under this Article X shall reduce
pro tanto any intercompany obligation of such Guarantor to
the other Borrowers.
10.4 Notification. Each Guarantor agrees that
whenever, at any time, or from time to time, it shall make
any payment to the Agent on account of its liability under
this Article X, it will notify the Agent in writing that
such payment is made under the guarantee contained in this
Article X. No payment or payments made by any Borrower or
any other Person or received or collected by the Agent or
any Bank from any Borrower or any other Person by virtue of
any action or proceeding or any setoff or appropriation or
application, at any time or from time to time, in reduction
of or in payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of
any Guarantor under this Article X which, notwithstanding
any such payment or payments, shall remain liable for the
unpaid and outstanding Obligations until, subject to Section
10.10, the Obligations are paid in full and the Commitments
are terminated.
10.5 Amendments, etc. with respect to the
Obligations. Each Guarantor shall remain obligated under
this Article X notwithstanding that, without any reservation
of rights against such Guarantor, and without notice to or
further assent by such Guarantor, (a) any demand for payment
of or reduction in the principal amount of any of the
Obligations made by the Agent or any Bank through the Agent
is rescinded by the Agent or such Bank, (b) any of the
Obligations is continued, (c) any of the Obligations, or the
liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of
offset with respect thereto, is, from time to time, in whole
or in part, renewed, extended (including the possible
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extension of the Commitment Termination Date pursuant to
Section 2.1(b)), amended, modified, accelerated,
compromised, waived, surrendered or released by the Agent or
any Bank. This Agreement and any other Credit Documents may
from time to time be amended, modified, supplemented or
terminated, in whole or in part, in accordance with their
terms, and any collateral security, guarantee or right of
offset at any time held by the Agent or any Bank for the
payment of the Obligations may be sold, exchanged, waived,
surrendered or released, all without in any way releasing,
diminishing, reducing, impairing or otherwise affecting the
obligations of each Guarantor under this Article X. Neither
the Agent nor any Bank shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as
security for the Obligations or for the guarantees contained
in this Article X or any property subject thereto. Specific
written agreements among the Banks, any Issuing Bank, the
Syndicated L/C Bank, and the Agent, or any of them, on the
one hand, and any one or more of the Borrowers, on the other
hand, made in accordance with this Agreement and the other
Credit Documents and entered into prior to Default, shall
not discharge any Guarantor or release, diminish, reduce,
impair or otherwise affect the obligations of any Guarantor
under this Article X, except that such agreements shall,
insofar and only insofar as the Obligations of one or more
Borrowers are changed thereby, change to that extent and to
that extent only the obligations of the Guarantors in their
capacity as guarantors of such Obligations.
Each Guarantor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or
upon such Guarantor or any other Borrower with respect to
the Obligations. The guarantee contained in this Article X
shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the
validity or enforceability of this Agreement or any other
Credit Document, any of the Obligations or any collateral
security therefor or any guarantee or right of offset with
respect thereto at any time or from time to time held or
purported to be held by the Agent or any Bank, (b) the
legality under applicable Legal Requirements of repayment by
the relevant Borrower of any of the Obligations or the
adoption of any Legal Requirement purporting to render any
such Obligations of a Borrower null and void, (c) any
defense, setoff or counterclaim (other than a defense of
payment or performance by the applicable Borrower) which may
at any time be available to or be asserted by such Guarantor
against the Agent or any Bank, or (d) any other circumstance
whatsoever (with or without notice to or knowledge of such
Guarantor or any Borrower) (other than a defense of full
payment and performance of all of the Obligations) which
constitutes, or might be construed to constitute, an
equitable or legal discharge of any Borrower for any
of the Obligations, or of such Guarantor under the
guarantee contained in this Article X, in bankruptcy
or in any other instance. The Agent or any Bank may,
but shall be under no obligation to, pursue such
rights and remedies as it may have against any Borrower or
any other Guarantor or any other Person or against any
collateral security or guarantee for the Obligations or any
right of offset with respect thereto, and any failure by the
Agent or any Bank to pursue such other rights or remedies or
to collect any payments from any Borrower or any other
Guarantor or any such other Person or to realize upon any
such collateral security or guarantee or to exercise any
such right of offset, or any release of any Borrower or any
other Guarantor or any such other Person or of any such
collateral security, guarantee or right of offset, shall not
relieve any Guarantor of any liability under this Article X
and shall not impair or affect the rights and remedies,
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whether express, implied or available as a matter of law, of
the Agent or any Bank against any Guarantor.
10.6 No Release. Each Guarantor's covenants,
agreements and obligations under this Article X shall in no
way be released, diminished, reduced, impaired or otherwise
affected by reason of the happening from time to time of any
of the following things, for any reason, whether by
voluntary act, operation of law or order of any competent
Governmental Authority and whether or not such Guarantor is
given any notice or is asked for or gives any further
consent (all requirements for which, however arising, each
Guarantor hereby WAIVES):
(a) voluntary or involuntary liquidation,
dissolution, sale of any collateral, marshaling of assets
and liabilities, change in corporate or organizational
status, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt or other similar
proceedings of or affecting any Borrower or any other
Guarantor or any of the assets of any Borrower or any other
Guarantor, even if any of the Obligations is thereby
rendered void, unenforceable or uncollectible.
(b) occurrence or discovery of any lack of
genuineness, irregularity, invalidity or unenforceability of
any of the Obligations or Credit Documents or any defect or
deficiency in any of the Obligations or Credit Documents.
(c) failure by any Bank, the Agent or any other
Person to notify--or timely notify--any Guarantor of any
default, event of default or similar event (however
denominated) under any of the Credit Documents, or of any
other action taken or not taken by any Bank or the Agent
against any Borrower, any other Guarantor or any other
Person, or any other event or circumstance. Neither the
Agent nor any Bank shall have any duty or obligation to give
any Guarantor any notice of any kind under any circumstances
whatsoever with respect to or in connection with this
Guaranty.
(d) occurrence of any event or circumstance which
might otherwise constitute a defense available to, or a
discharge of, any Borrower or any other Guarantor (other
than a defense of full payment and performance), including
failure of consideration, fraud by or affecting any Person,
usury, forgery, breach of warranty, failure to satisfy any
requirement of the statute of frauds, running of any statute
of limitation, accord and satisfaction and any defense based
on election of remedies of any type.
(e) receipt and/or application of any proceeds,
credits or recoveries from any source, including any
proceeds, credits, or amounts realized from exercise of any
rights, remedies, powers or privileges of any Bank or the
Agent under the Credit Documents, by law or otherwise
available to any Bank or the Agent (other than an
application which results in full payment and performance of
all Obligations).
10.7 Waivers. Each Guarantor hereby WAIVES and
RELEASES all right to require marshalling of assets and
liabilities, sale in inverse order of alienation, notice of
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acceptance of this Guaranty and of any liability to which it
applies or may apply, notice of the creation, accrual,
renewal, increase, extension, modification, amendment or
rearrangement of any part of the Obligations, presentment,
demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of intent to accelerate, notice of
acceleration and all other notices and demands, collection
suit and the taking of any other action by any Bank or the
Agent.
10.8 Guaranty of Payment and Not of Collection.
This is an absolute guaranty of payment and not of
collection, and an absolute guaranty of performance of all
of the obligations of each Borrower under the Credit
Documents, and each Guarantor WAIVES any right to require
that any action be brought against any Borrower, any other
Guarantor or any other Person, or that any Bank or the Agent
be required to enforce, attempt to enforce or exhaust any
rights, benefits or privileges of any Bank or the Agent
under any of the Credit Documents, by law or otherwise;
provided that nothing herein shall be construed to prevent
any Bank or the Agent from exercising and enforcing at any
time any right, benefit or privilege which any Bank or the
Agent may have under any Credit Document or by law from time
to time, and at any time, and each Guarantor agrees that
each Guarantor's obligations hereunder are--and shall be--
absolute, independent, unconditional, joint and several
under any and all circumstances. Should any Bank or the
Agent seek to enforce any Guarantor's obligations by action
in any court, each Guarantor WAIVES any requirement,
substantive or procedural, that (a) the Agent pursue any
foreclosure action, realize or attempt to realize on any
security (including the Cash Collateral Account) or preserve
or enforce any deficiency claim against any Borrower, any
other Guarantor or any other Person after any such
realization, (b) a judgment first be sought or rendered
against any Borrower, any other Guarantor or any other
Person, (c) any Borrower, any other Guarantor or any other
Person be joined in such action or (d) a separate action be
brought against any Borrower, any other Guarantor or any
other Person. Each Guarantor's obligations under this
Guaranty are several from those of any other Borrower or
any other Person, and are primary obligations concerning
which such Guarantor is the principal obligor. All
waivers in this Agreement or any of the other Credit
Documents shall be without prejudice to the right of any
Bank or the Agent at its option to proceed against any
Borrower, any other Guarantor or any other Person,
whether by separate action or by joinder. Each Guarantor
agrees that this Guaranty shall not be discharged
except by payment of the Obligations in full, expiration of
all Letters of Credit, complete performance of all
obligations of each Borrower under the Credit Documents and
termination of each Bank's obligation--if any--to make any
further advances or extend other financial accommodations to
any Borrower under the Credit Documents.
10.9 Obligations Joint and Several with Other
Guaranties. If any other Person makes any guaranty of any
of the obligations guaranteed hereby or gives any security
for them, each Guarantor's obligations under this Article X
shall be joint and several with the obligations of such
other Person pursuant to such agreement or other papers
making the guaranty or giving the security.
10.10 Reinstatement. Each Guarantor agrees that,
if at any time all or any part of any payment previously
applied by the Agent or any Bank to the Obligations is or
must be returned by any Bank or the Agent--or recovered from
any Bank or the Agent--for any reason (including the order
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of any bankruptcy court), this Guaranty shall automatically
be reinstated to the same effect as if the prior application
had not been made, and, in addition, each Guarantor hereby
agrees to indemnify each Bank and the Agent against, and to
save and hold each Bank and the Agent harmless from, any
required return by any Bank or the Agent--or recovery from
any Bank or the Agent--of any such payment because of its
being deemed preferential under applicable bankruptcy,
receivership or insolvency laws, or for any other reason.
The provisions of this Section 10.10 shall survive the
termination of this Guaranty and any satisfaction and
discharge of any Borrower by virtue of any payment, court
order or other Legal Requirement.
10.11 Representations and Warranties. Each
Guarantor warrants and represents as follows: It has
determined that its liability and obligation under this
Guaranty may reasonably be expected to substantially benefit
it directly or indirectly, and its board of directors (or
such board's duly authorized and appointed designee) or
other equivalent body has made that determination. Each
Guarantor is closely related legally and economically to
every other Guarantor, each deriving benefits from the
other. The maintenance and improvement of each Guarantor's
financial condition is vital to sustaining each other
Guarantor's business, and the transactions contemplated in
this Agreement produce distinct and identifiable financial
and economic direct or indirect benefits to each Guarantor.
Such identifiable benefits include: (a) the availability to
each Borrower of the proceeds of the Loans on an as-needed
basis either directly or indirectly by way of intercompany
loans and/or capital contributions for general
corporate or other purposes and (b) the general improvement
of each Guarantor's financial and economic condition. Each
Guarantor has had full and complete access to the underlying
papers relating to the Obligations and all other papers
executed by any Borrower or any other Person in connection
with the Obligations, has reviewed them and is fully aware
of the meaning and effect of their contents. Such Guarantor
is fully informed of all circumstances which bear upon the
risks of executing this Guaranty and which a diligent
inquiry would reveal. Each Guarantor has adequate means to
obtain from the other Borrowers on a continuing basis
information concerning such Borrowers' financial condition,
and is not depending on the Agent or any Bank to provide
such information, now or in the future. Each Guarantor
agrees that neither the Agent nor any Bank shall have an
obligation to advise or notify it or to provide it with any
data or information. Such Guarantor is Solvent and will not
be rendered not Solvent by virtue of its execution and
delivery of this Agreement and the other Credit Documents.
10.12 Joinder of Additional Subsidiaries. It is
contemplated by each Guarantor that additional Subsidiaries
of the Company may from time to time become Guarantors
hereunder (as required by the terms of this Agreement,
including Sections 6.3 and 7.14)) and a party to this
Agreement, by their execution and delivery to the Agent on
behalf of the Banks of an Election to Participate. Each
Guarantor agrees, consents and acknowledges that upon the
execution and delivery to the Agent by any such Designated
Subsidiary of an Election to Participate, such Designated
Subsidiary shall become a Guarantor hereunder for all
purposes, jointly and severally liable hereunder (to the
extent and subject to the limitations set forth in this
Guaranty) as if such Designated Subsidiary had originally
been a party to this Guaranty, without notice to any
Guarantor or any other Person. Delivery of an Election to
Participate to any Guarantor or any other Person is not
required for the Designated Subsidiary executing and
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delivering such Election to Participate to become a
Guarantor hereunder and a party to this Agreement.
10.13 Acknowledgement. Each Guarantor agrees that
the Obligations guaranteed by such Guarantor under this
Guaranty may at any time and from time to time exceed such
Guarantor's Maximum Amount without impairing this Guaranty
or affecting the rights and remedies of the Agent or the
Banks under this Guaranty.
10.14 Primary Obligations. The obligations of each
Guarantor under this Guaranty are those of a primary
obligor, and not merely a surety, and are independent of the
obligations of each other Guarantor. A separate action or
actions may be brought against any Guarantor whether or not
an action is brought against any other Guarantor or other
obligor in respect of the Obligations or whether any other
Guarantor or any other obligor in respect of the Obligations
is joined in any such action or actions.
10.15 Effect of Stay. If an event permitting the
acceleration of any of the Obligations shall at any time
have occurred and be continuing and such acceleration
shall at such time be prevented by reason of the pendency
against one or more of the Borrowers of a case or proceeding
under any bankruptcy or insolvency law, each Guarantor
agrees that, for purposes of this Guaranty and its
obligations hereunder, the Obligations shall be deemed to
have been accelerated and such Guarantor shall forthwith pay
such Obligations (including interest which but for the
filing of such petition in bankruptcy would accrue on such
Obligations), and the other obligations hereunder, without
any further notice or demand.
10.16 Waiver of Diligence, Etc. To the extent
permitted by applicable law, each Guarantor hereby WAIVES
promptness, diligence, notice of acceptance and any and all
other notices with respect to any of the Obligations and
this Guaranty and any requirement that the Agent or any Bank
protect, secure, perfect or insure any security interest in
or any Lien on any property subject thereto or exhaust any
right to take any action against any Borrower or any other
Person or any collateral or security or any balance of any
deposit account or credit on the books of any Bank in favor
of any Borrower or any other Guarantor.
10.17 Subrogation. Each Guarantor expressly WAIVES
any and all rights of subrogation, reimbursement,
contribution, exoneration and indemnity, contractual,
statutory or otherwise, against the Agent and the Banks
individually and collectively, including any claim or right
of subrogation under the Bankruptcy Code (Title 11 of the
U.S. Code) or any successor or similar Legal Requirement
arising from the existence or performance of this Guaranty,
until the termination of this Article X in accordance with
Section 10.8, and until such termination each Guarantor
irrevocably WAIVES any right to enforce any remedy which the
Agent and the Banks or any one or more of them now have or
may hereafter have against any Borrower or any other
Guarantor and the benefit of and any right to participate in
any security now or hereafter held by the Agent or the Banks
or any one or more of them. Until such termination, if any
amount shall be paid by or on behalf of any Borrower or any
other Person to any Guarantor on account of any of the
rights waived in this Section 10.17, such amount shall be
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held by such Guarantor in trust, segregated from other funds
of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor
to the Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as
the Agent may determine. The provisions of this Section
10.17 shall survive the term of the guarantee contained in
this Article X, the payment in full of the Obligations and
the termination of the Commitments.
10.18 Administrative Matters. If, in the exercise
of any of its rights and remedies, the Agent or any Bank
shall forfeit any of its rights or remedies, including its
right to enter a deficiency judgment against any Borrower or
any other Guarantor, for any reason, each Guarantor hereby
consents to such action, even if such action by the Agent or
such Bank shall result in a full or partial loss of any
rights of subrogation which such Guarantor might otherwise
have had but for such action by the Agent or such
Bank. Any election of remedies which results in the denial
or impairment of the right of the Agent or such Bank to seek
a deficiency judgment against any Borrower or any other
Guarantor shall not impair such Guarantor's obligation to
pay the full amount of the Obligations. In the event the
Agent or any Bank shall bid at any foreclosure or trustee's
sale or at any private sale permitted by law or under the
Credit Documents, the Agent or such Bank may bid all or less
than the amount of the Obligations and the amount of such
bid need not be paid by the Agent or such Bank but shall be
credited against the Obligations. The amount of the
successful bid at any such sale, whether the Agent or such
Bank or any other party is the successful bidder, shall be
conclusively deemed to be the fair market value of the
Collateral and the difference between such bid amount and
the remaining balance of the Obligations shall be
conclusively deemed to be the amount of the Obligations
guaranteed under this Guaranty, notwithstanding that any
present or future law or court decision or ruling may have
the effect of reducing the amount of any deficiency claim to
which the Agent or any Bank might otherwise be entitled but
for such bidding at any such sale.
10.19 Survival; Persons Bound. The obligation of
each Guarantor under this Guaranty is a continuing guaranty
and shall (a) remain in full force and effect until payment
in full (after the termination of the Commitments and
expiration of all outstanding Letters of Credit) of the
Obligations and all other amounts payable under this
Guaranty; (b) be binding upon such Guarantor, its successors
and assigns; and (c) inure, together with the rights and
remedies of the Agent and the Banks under this Guaranty, to
the benefit of the Agent, the Banks and their respective
successors, transferees and assigns. Without limiting the
generality of the foregoing, the Agent or any Bank may
assign or otherwise transfer its rights and obligations
under this Agreement and the other Credit Documents to any
other Person or entity, and such other Person or entity
shall thereupon become vested with all the benefits in
respect thereof granted to the Agent or any Bank in this
Guaranty or otherwise, all as provided in, and to the extent
set forth in, Section 12.7.
10.20 Indemnification. Guarantors agree that while
their respective obligations to the Agent and the Banks
under this Agreement and the other Credit Documents are
joint and several as to the Banks and the Agent (subject to
the limits expressed therein), each Guarantor shall be
liable as among other Guarantors with respect to any
particular Loan, Reimbursement Obligation or other portion
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of the Obligations only for its Proportionate Share of such
Loan, Reimbursement Obligation or other portion of the
Obligations calculated as of the time such Loan,
Reimbursement Obligation or other portion of the Obligations
was incurred. If at any time any Guarantor (the
"Indemnified Guarantor") makes any payment to the Agent or
any of the Banks or otherwise pays any amount (collectively,
the "Indemnified Outlay") with respect to any such Loan,
Reimbursement Obligation or other particular portion of the
Obligations by virtue of any demand therefor pursuant to the
Guaranty or otherwise pursuant to the exercise by Agent or
any Bank of their respective other rights under the Credit
Documents, the Indemnified Guarantor shall have the right to
make demand on any or all of the other Guarantors (each an
"Indemnifying Guarantor") for the payment to the Indemnified
Guarantor of the amount (the "Excess Amount") by which the
Indemnified Outlay exceeds the Indemnified Guarantor's
Proportionate Share of the Indemnified Outlay and thereupon
the Indemnifying Guarantors upon which demand has so been
made shall pay to the Indemnified Guarantor the Excess
Amount; provided, that no Indemnifying Guarantor shall be
liable to pay to Indemnified Guarantor more than the
Indemnifying Guarantor's Proportionate Share of the Excess
Amount; and further provided, that payment to the Agent or
any Bank by an Indemnified Guarantor shall not give rise to
any right by way of subrogation in favor of the Indemnified
Guarantor to any of the Banks' or the Agents' rights against
any Indemnifying Guarantor with respect to such payment.
The term "Proportionate Share" at any time shall mean with
respect to any Guarantor the percentage derived by dividing
(a) the net worth of such Guarantor by (b) the consolidated
net worth of all Guarantors, all as of such time.
10.21 Subordination. Each Guarantor hereby
expressly covenants and agrees for the benefit of the Agent
and the Banks that all obligations and liabilities of each
other Guarantor and its Subsidiaries to such Guarantor of
whatsoever description (including all intercompany
receivables of such Guarantor from each of the other
Guarantors) shall be subordinated and junior in right of
payment to the Obligations. Following the occurrence and
during the continuation of a Default, no Guarantor shall
accept any payment on any indebtedness of any of the other
Guarantors to such Guarantor until the termination of this
Guaranty, shall in no circumstance whatsoever attempt to set-
off or reduce any obligations because of such indebtedness
and shall, if the Agent shall so request, collect and
receive such indebtedness as trustee for the Agent and the
Banks and pay over all sums so collected to the Agent and
the Banks on account of the Obligations but without reducing
or affecting in any manner the liability of such Guarantor
under this Guaranty.
10.22 Intent of the Parties. It is not the
intention of the Parties that this Article X have any effect
whatsoever on the rights or defenses of any Guarantor in its
capacity as a Borrower (as opposed to a Guarantor). In no
event shall this Article X be interpreted in any manner such
that any Guarantor's rights or defenses in its capacity as a
Borrower (as opposed to a Guarantor) under this Agreement or
applicable law are in any way reduced, restricted, limited
or otherwise diminished.
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ARTICLE XI
THE AGENT
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11.1 Appointment and Authorization. Each Bank
hereby irrevocably appoints, designates and authorizes the
Agent to take such action on its behalf under the provisions
of this Agreement and each other Credit Document and to
exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or
any other Credit Document, together with such powers as are
reasonably incidental thereto. As used in this Article XI,
Agent shall include reference to its Affiliates and its own
and its Affiliates' officers, directors, employees and
agents. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Credit
Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein,
or any fiduciary or trustee relationship with any Bank, and
no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement
or any other Credit Document or otherwise exist against the
Agent.
11.2 Delegation of Duties. The Agent may execute
any of its duties under this Agreement or any other Credit
Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent
shall not be responsible for the negligence or misconduct of
any agent or attorney-in-fact that it selects with
reasonable care. Without in any way limiting any of the
foregoing (or imposing any liability upon the Agent), each
Bank acknowledges that the Agent shall have no greater
responsibility in the operation of the Letters of Credit
than is specified in the UCP.
11.3 Liability of Agent. Neither the Agent nor
any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (i) liable for any
action taken or omitted to be taken by any of them under or
in connection with this Agreement or any other Credit
Document (except for its own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the
Banks for any recital, statement, representation or warranty
made by any Borrower, Musketeer or any Designated Subsidiary
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 Agent under or in connection with, this
Agreement or any other Credit Document or for the value of
any Collateral or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other
Credit Document or for any failure of any Borrower,
Musketeer, or any other party to any Credit Document to
perform its obligations hereunder or thereunder. The Agent
shall not 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 Company or any of its
Subsidiaries.
11.4 Reliance by Agent.
(a) The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter,
telegram, telecopy, telex or telephone message, statement or
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other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any Borrower),
independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any
other Credit Document unless it shall first receive such
advice or concurrence of the Required Banks as it deems
appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Banks against any and
all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other
Credit Document in accordance with a request or consent of
the Required Banks (or such other number of Banks as shall
be required under the terms of the Credit Documents) and
such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Banks and all
future holders of the Loans and the other Obligations.
Regarding any enforcement, litigation or collection
proceedings hereunder or under any Credit Document, the
Agent shall in all cases be fully justified in failing or
refusing to act under the Credit Documents unless it shall
have received further assurances to its satisfaction by the
Banks of their indemnification obligations under Section
11.7 against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any
such action.
(b) For purposes of determining compliance with
the conditions specified in Sections 6.1, 6.2 and 6.3, each
Bank shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other
matter required thereunder to be consented to or approved by
or acceptable or satisfactory to the Banks unless an officer
of the Agent responsible for the transactions contemplated
by the Credit Documents shall have received actual notice
from the Bank prior to the initial Borrowing specifying its
objection thereto and either such objection shall not have
been withdrawn by notice to the Agent to that effect or the
Bank shall not have made available to the Agent the Bank's
ratable portion of such Borrowing.
11.5 Notice of Default. The Agent shall not be
deemed to have knowledge or notice of the occurrence of any
Default or Event of Default, except with respect to defaults
in the payment of principal, interest and fees due to the
Agent for the account of the Banks, unless the Agent shall
have received written notice from a Bank or the Company or
any Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is
a "notice of default". In the event that the Agent receives
such a notice, the Agent shall give prompt notice thereof to
the Banks. The Agent shall take such action with respect to
such Default or Event of Default as shall be requested by
the Required Banks in accordance with Article XI; provided,
however, that unless and until the Agent shall have received
any such request, the Agent may (but shall not be
obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests
of the Banks, and shall be fully protected under Section
11.7 for such action or inaction.
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11.6 Credit Decision. Each Bank expressly
acknowledges that neither the Agent nor any of its
affiliates nor any officer, director, employee, agent,
attorney-in-fact of any of them has made any representation
or warranty to it and that no act by the Agent hereafter
taken, including any review of the affairs of the Company
and its Subsidiaries or any Borrower shall be deemed to
constitute any representation or warranty by the Agent to
any Bank. Each Bank represents to the Agent that it has,
independently and without reliance upon the 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
Company and its Subsidiaries and made its own decision to
enter into this Agreement and extend credit to the Borrowers
and the Designated Subsidiaries. Each Bank also represents
that it will, independently and without reliance upon the
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 Company and its Subsidiaries or any
Borrower. Except for notices, reports and other documents
expressly required to be furnished to the Banks by the
Agent, the Agent shall not have any duty or responsibility
to provide any Bank with any credit or other information
concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the
Company and its Subsidiaries or any Borrower which may come
into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or
Affiliates.
11.7 Indemnification. The Banks agree to
indemnify the Agent (to the extent not reimbursed by or on
behalf of a Borrower or any Designated Subsidiary and
without limiting the obligation of the Borrowers or the
Designated Subsidiaries to do so), ratably according to (but
not limited by) the respective amounts of their outstanding
Loans, or, if no Loans are outstanding, their Commitments,
from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of any kind whatsoever
which may at any time (including at any time following the
repayment of the Loans) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising
out of this Agreement or any other Credit Document or any
document contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any
action taken or omitted by the Agent under or in connection
with any of the foregoing; provided, however, that no Bank
shall be liable for the payment to the Agent of any portion
of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank shall
reimburse the Agent promptly upon demand for its ratable
share of any costs or out-of-pocket expenses (including fees
and expenses of counsel and the allocated cost of in-house
counsel) incurred by the Agent in connection with the
preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this
Agreement, any other Credit Document, or any document
contemplated by or referred to in this Agreement or any
other Credit Document to the extent that the Agent is not
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reimbursed for such expenses by or on behalf of any Borrower
or any Designated Subsidiary. If the issue of the
Borrowers' liability has not yet been resolved, or is in
dispute, or if such liability has not yet been satisfied,
each Bank shall nonetheless advance to the Agent (as
security for such Bank's obligations pursuant to this
Section 11.7, and not in payment of its obligation) on
demand its ratable share of any funds owed by the Borrowers
and/or required to be advanced by the Banks by the terms of
this Section 11.7 were the question of the Borrowers'
liability to be resolved against the Agent and the Banks;
provided, however, that any funds so advanced by a Bank
shall be returned to it, without interest, when, if and to
the extent that the Borrowers make any required
reimbursement to Agent. The obligations of the Banks under
this Section 11.7 shall survive the termination of this
Agreement.
11.8 Agent in Individual Capacity. ABN AMRO and
its Affiliates may make loans to, issue letters of credit
for the account of, accept deposits from and generally
engage in any kind of business with the Company and its
Subsidiaries as though ABN AMRO were not the Agent under
this Agreement and the other Credit Documents, and ABN AMRO
and its Affiliates may accept fees and other consideration
from the Company, any other Borrower or their Affiliates (in
addition to the fees heretofore agreed to between the
Company and the Agent and its Affiliates) for services in
connection with this Agreement or otherwise, all without
having to account for the same to the Banks. With respect
to its Loans and any Letters of Credit issued by it, ABN
AMRO shall have the same rights and powers under this
Agreement and the other Credit Documents as any other Bank
and may exercise the same as though it were not the Agent,
and the terms "Bank" and "Banks" shall include ABN AMRO in
its individual capacity.
11.9 Successor Agent. The Agent may, and at the
request of the Required Banks shall, resign as Agent upon 30
days' notice to the Banks. If the Agent shall resign as
Agent under this Agreement and the other Credit Documents,
the Required Banks shall appoint from among the Banks a
successor agent for the Banks which successor agent shall be
subject to approval by the Company, which approval will not
unreasonably be withheld or delayed. If no successor Agent
is appointed prior to the effective date of the resignation
of the Agent, the Agent shall appoint, after consulting with
the Banks and the Company, a successor agent from among the
Banks. Upon the acceptance of its appointment as successor
agent under this Agreement and the other Credit Documents,
such successor agent shall succeed to all the rights, powers
and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties, obligations and
liabilities as Agent under the Credit Documents. After
any retiring Agent's resignation as Agent, the
provisions of this Article XI and Sections 12.4 and 12.5
shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was
Agent under this Agreement and the other Credit
Documents. Any successor Agent shall be a bank which
has an office in the United States and a combined
capital and surplus of at least $250,000,000 and
with its deposits insured by the FDIC.
11.10 Collateral Matters.
(a) The Agent is authorized on behalf of all the
Banks, without the necessity of any notice to or further
consent from the Banks, from time to time, to take any
action with respect to any Collateral or Security Documents
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which may be necessary to perfect and maintain perfected the
security interest in and Liens upon the Collateral granted
pursuant to the Security Documents. The Agent is further
authorized on behalf of all the Banks, without the necessity
of any notice to or further consent from the Banks, from
time to time, to take any action in exigent circumstances as
may be reasonably necessary to preserve any rights or
privileges of the Banks under the Credit Documents or
applicable law.
(b) The Banks irrevocably authorize the Agent, at
its option and in its discretion, to release any Lien
granted to or held by the Agent upon any Collateral (i) upon
termination of the Commitments and payment in full of all
Loans and expiration of the Letters of Credit and all other
Obligations payable under this Agreement and under any other
Credit Document; (ii) constituting property sold or to be
sold or disposed of as part of or in connection with any
disposition permitted under this Agreement or the other
Credit Documents; (iii) constituting property in which the
Company or any Subsidiary of the Company owned no interest
at the time the Lien was granted or at any time thereafter;
(iv) constituting property leased to the Company or any
Subsidiary of the Company under a lease which has expired or
been terminated in a transaction permitted under this
Agreement or is about to expire and which has not been, and
is not intended by the Company or such Subsidiary to be,
renewed or extended; (v) consisting of an instrument
evidencing Indebtedness or other debt instrument, if the
indebtedness evidenced thereby has been paid in full; or
(vi) if approved, authorized or ratified in writing by the
Required Banks or all the Banks, as the case may be, as
provided in Section 12.1(f). Upon request by the Agent at
any time, the Banks will confirm in writing the Agent's
authority to release particular types or items of Collateral
pursuant to this Section 11.10(b).
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ARTICLE XII
MISCELLANEOUS
-------------------------
12.1 Amendments and Waivers. No amendment or
waiver of any provision of this Agreement or any other
Credit Document and no consent with respect to any departure
by any Borrower therefrom shall be effective unless the same
shall be in writing and signed by the Required Banks, and
then such waiver shall be effective only in the specific
instance and for the specific purpose for which given;
provided, however, that no such waiver, amendment, or
consent shall, unless in writing and signed by all the
Banks, do any of the following:
(a) increase the Commitment or Revolving
Commitment of any Bank or subject any Bank to any additional
obligations;
(b) postpone or delay any date fixed for any
payment of principal, interest, fees or other amounts due
under this Agreement or any other Credit Document;
(c) reduce the principal of, or the rate of
interest on any Loan, any Letter of Credit Obligation or of
any fees or other amounts payable under this Agreement or
any other Credit Document;
(d) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Loans or
Letter of Credit Obligations which shall be required for the
Banks or any of them to take any action under this Agreement
or any other Credit Document;
(e) release any Guarantor from all or
substantially all of its Obligations under Article X;
(f) amend this Section 12.1 or Section 4.10; or
(g) release all or substantially all of the
Collateral except as otherwise provided in the Security
Documents or except where the consent of the Required Banks
only is specifically provided for;
and, provided further, that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition
to the Required Banks, affect the rights or duties of the
Agent under this Agreement or any other Credit Document.
12.2 Notices. All notices, requests and other
communications provided for in this Agreement or any other
Credit Document shall be in writing (including telegraphic,
telex, facsimile transmission or cable communication and
confirmed in original writing) and mailed, telegraphed,
telexed, telefaxed, cabled or delivered, if to the Company
to its address specified on the signature pages hereof; if
to another Borrower or a Designated Subsidiary, to the
Company; if to any Bank, to its Domestic Lending Office;
and if to the Agent, to its address specified on the
signature pages hereof; or, if to the Company or the
Agent, to such other address as shall be designated
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by such Party in a written notice to the other Parties,
and as to each other Party at such other address as
shall be designated by such Party in a written notice to the
Company and the Agent. All such notices and communications
shall be effective (i) if mailed, on the fifth day after
being deposited in the United States Postal Service, (ii) on
the next day after being delivered to a service for
overnight delivery, (iii) if telegraphed, telecopied, cabled
or telexed, on the day delivered to the telegraph company,
transmitted by telecopier, confirmed by telex answerback or
delivered to the cable company, respectively, or (iv) if
delivered, upon delivery, except that notices pursuant to
Article II or IX shall not be effective until received by
the Agent. Actual notice shall always be effective.
12.3 No Waiver; Cumulative Remedies. No failure
to exercise and no delay in exercising, on the part of any
Agent or any Bank, any right, remedy, power or privilege
under this Agreement or any other Credit Document shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege under this
Agreement or any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers
and privileges provided in this Agreement and the other
Credit Documents are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
12.4 Costs and Expenses. Each Borrower agrees
(a) to pay or reimburse the Agent on demand for
all its reasonable costs and expenses incurred in connection
with the development, preparation, delivery, administration
and execution of, and any amendment, supplement, waiver or
modification to, this Agreement, any other Credit Document
and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions
contemplated hereby and thereby, including the reasonable
costs and expenses of counsel to the Agent (and the
reasonable allocated cost of internal counsel) with respect
thereto;
(b) to pay or reimburse each Bank and the Agent
on demand for all reasonable costs and expenses incurred by
them in connection with the enforcement or preservation of
any rights (including in connection with any "workout" or
restructuring regarding the Loans or Letters of Credit)
under this Agreement, any other Credit Document, and any
such other documents, including reasonable fees and expenses
of counsel (and the reasonable allocated cost of internal
counsel) to the Agent and to each of the several Banks; and
(c) to pay or reimburse the Agent on demand for
all reasonable appraisal, audit, search and filing fees,
incurred or sustained by the Agent in connection with the
matters referred to under paragraphs (a) and (b) above.
12.5 Indemnity.
(a) Each Borrower shall pay, indemnify, and hold
each Bank, each Issuing Bank, the Syndicated L/C Bank and
the Agent and each of their respective officers, directors,
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employees, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all
liabilities, Environmental Claims, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
charges, expenses or disbursements (including reasonable
fees and expenses of counsel and the reasonable allocated
cost of internal counsel) of any kind or nature whatsoever
with respect to the execution, delivery, enforcement,
performance and administration of this Agreement and any
other Credit Documents or the transactions contemplated
herein and therein, and with respect to any investigation,
litigation or proceeding related to this Agreement or any
other Credit Document or the Loans or Letters of Credit or
the use of the proceeds thereof (whether or not any
Indemnified Person is a party thereto) (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that
the Borrowers shall have no obligation under this Section
12.5 to any Indemnified Person with respect to Indemnified
Liabilities which are determined in a final judgment by a
court of competent jurisdiction to have resulted from the
gross negligence, bad faith or willful misconduct of such
Indemnified Person. The agreements in this Section 12.5
shall survive repayment of all other Obligations and the
termination of this Agreement.
(b) No action taken by legal counsel chosen by
the Agent or any Bank in defending against any such
investigation, litigation or proceeding or in any requested
remedial, removal or response action shall vitiate or any
way impair the Borrowers' obligation and duty under this
Agreement to indemnify and hold harmless the Agent and each
Bank.
(c) In no event shall any site visit,
observation, or testing by the Agent or any Bank be a
representation that Hazardous Materials are or are not
present in, on, or under any property or facility owned,
operated, leased or controlled by any of the Borrowers or
any of their Subsidiaries or that there has been or shall be
compliance with any Legal Requirement pertaining to
Hazardous Materials or any other applicable Legal
Requirement. No Borrower nor any other Person is entitled
to rely on any site visit, observation, or testing by the
Agent or any Bank. Neither the Agent nor any Bank owes any
duty of care to protect any Borrower or any other Person
against, or to inform any Borrower or any other Person of,
any Hazardous Materials or any other adverse condition
affecting any property or facility owned, operated, leased
or controlled by any Borrower or any Subsidiary of any
Borrower. Neither the Agent nor any Bank shall be obligated
to disclose to any Borrower or any other Person any report
or findings made as a result of, or in connection with, any
site visit, observation, or testing by the Agent or any
Bank.
12.6 Successors and Assigns. The provisions of
this Agreement and the other Credit Documents shall be
binding upon and inure to the benefit of the Parties and
their respective successors and assigns, except that no
Borrower (as a Borrower or as a Guarantor) may assign or
transfer any of its rights or obligations under this
Agreement or any other Credit Document without the prior
written consent of each Bank.
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12.7 Assignments, Participations, Etc.
(a) Any Bank may, with the written consent of the
Company, the Agent and each Issuing Bank, which shall not be
unreasonably withheld or delayed, at any time assign and
delegate to one or more Eligible Assignees or assign to any
of its wholly owned Affiliates (each of such Eligible
Assignees or Affiliates, an "Assignee") all or any part of
the Loans, the Letter of Credit Obligations or the
Commitments or any other rights or obligations of such Bank
under this Agreement and the other Credit Documents in a
minimum amount of Ten Million Dollars ($10,000,000);
provided, however, that the Borrowers and the Agent shall be
entitled to continue to deal solely and directly with such
Bank in connection with the interests so assigned to an
Assignee until (i) written notice of such assignment,
together with payment instructions, addresses and related
information with respect to the Assignee, shall have been
given to the Company and the Agent by such Bank and the
Assignee and (ii) such Bank and its Assignee shall have
delivered to the Company and the Agent an Assignment and
Assumption in the form of Exhibit O (an "Assignment and
Assumption"), together with any Note or Notes subject to
such assignment; and (iii) a processing fee of Two Thousand
Five Hundred Dollars ($2,500) shall have been paid to the
Agent by the Assignee.
(b) From and after the date that the Agent
notifies the assignor Bank that it has received the
Assignment and Assumption, (i) the Assignee thereunder shall
be a party to this Agreement and, to the extent that rights
and obligations under this Agreement and the other Credit
Documents have been assigned to it pursuant to such
Assignment and Assumption, shall have the rights and
obligations of a Bank under the Credit Documents, and (ii)
the assignor Bank shall, to the extent that rights and
obligations under this Agreement and the other Credit
Documents have been assigned by it pursuant to such
Assignment and Assumption, relinquish its rights and be
released from its obligations under the Credit Documents.
(c) Immediately upon each Assignee's making its
payment under the Assignment and Assumption, this Agreement
shall be deemed to be amended to the extent, but only to the
extent, necessary to reflect the addition of the Assignee
and the resulting adjustment of the Commitments arising
therefrom. The Commitments allocated to each Assignee shall
reduce such Commitments of the assigning Bank pro tanto.
(d) Any Bank may, with the written consent of the
Company, which shall not be unreasonably withheld or
delayed, at any time sell to one or more banks or other
entities (a "Participant") participating interests in any
Loans, any Letter of Credit Obligations, the Commitments of
that Bank or any other interest of that Bank under this
Agreement and the other Credit Documents; provided, however,
that (i) the Bank's obligations under this Agreement and the
other Credit Documents shall remain unchanged, (ii) the Bank
shall remain solely responsible for the performance of such
obligations, (iii) the Borrowers and the Agent shall
continue to deal solely and directly with the Bank in
connection with the Bank's rights and obligations under this
Agreement and the other Credit Documents, and (iv) no Bank
shall transfer or grant any participating interest under
which the Participant shall have rights to approve any
amendment to, or any consent or waiver with respect to this
Agreement or any other Credit Document except to the extent
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such amendment, consent or waiver would require unanimous
consent as described in the first proviso to Section 12.1.
In the case of any such participation, the Participant shall
not have any rights under this Agreement or any of the other
Credit Documents, and all amounts payable by any Borrower
under the Credit Documents shall be determined as if such
Bank had not sold such participation, except that each
Borrower agrees that if amounts outstanding under this
Agreement or any other Credit Document are due and unpaid,
or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each
Participant shall have the right of set-off in respect of
its participating interest in amounts owing under this
Agreement and the other Credit Documents to the same extent
as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement and the other
Credit Documents.
(e) In the event of an assignment, the Agent
shall request that each beneficiary of a Letter of Credit
issued by the Syndicated L/C Bank agree to the amendment of
such Letter of Credit to add the Assignee and to modify the
percentage share of the assignor Bank on such Letter of
Credit. Until such time as all such beneficiaries have
consented to such amendment, the Assignee shall be deemed to
have purchased a percentage share in the assignor Bank's
share of the Letter of Credit to the extent of the
Assignee's interest.
12.8 Confidentiality. The Agent and each Bank
agree:
(a) to use the same level of precaution as is
used to protect their own valuable confidential information
to keep any information delivered or made available to it by
any Borrower or any Designated Subsidiary or by the Agent on
behalf of any Borrower or Designated Subsidiary (including
any information obtained pursuant to Section 7.1)
(collectively, the "Information") confidential from anyone
other than Persons entitled or permitted to receive the same
pursuant to this Section 12.8;
(b) not to use the Information other than for the
purposes of evaluating, structuring, negotiating,
documenting, syndicating, participating, administering,
performing and enforcing the Credit Documents and
Obligations of the Borrowers and conducting due diligence
activities with respect to the Borrowers and their
Subsidiaries;
(c) to inform their respective directors,
officers, employees, agents, auditors, legal counsel,
internal analysts, compliance personnel and other
representatives (collectively, the "representatives") of the
confidential nature of the Information and to be responsible
for any violation of this Section 12.8 by any of their
respective representatives;
(d) not to engage in any securities transactions
relating to the Company's securities in violation of the
restrictions imposed on it by applicable federal securities
laws, or to assist others in doing so (understanding that
trading in the Company's securities while in possession of
the Information could under certain circumstances constitute
such a violation); and
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(e) in the event it is requested or required in a
legal or administrative proceeding by subpoena, civil
investigative demand, interrogatories, requests for
information or other similar process to disclose any of the
Information, to (unless prohibited from doing so) provide
the Company with prompt notice of such request(s) so that
the Company may seek an appropriate protective order and/or
waive compliance with this Section 12.8;
provided, however, that nothing in this Section 12.8 shall
prevent the Agent, any Bank, any representative of the Agent
or any Bank or any Transferee from disclosing the
Information (i) to any other Bank, (ii) pursuant to subpoena
or upon the order of any Governmental Authority or as
required by any applicable Legal Requirement, (iii) upon the
request or demand of any regulatory agency or authority
having jurisdiction over the Agent or such Bank, (iv) which
is or becomes generally available to the public, other than
as a result of a violation of this Section 12.8 by the
Agent, any Bank or any representative of the Agent or any
Bank, (v) to the extent reasonably required in connection
with any litigation to which the Agent, any Bank, or their
respective Affiliates or representatives may be a party,
(vi) to the extent reasonably required in connection with
the exercise of any remedy hereunder or under any other
Credit Document, at law or in equity, or (vii) to the
Agent's or such Bank's representatives.
The Company and each other Borrower, for themselves and
their Subsidiaries, irrevocably authorize the Agent, each
Bank, and their respective representatives to disclose to
any Participant or Assignee (each, a "Transferee"), to any
such Transferee's representatives, to any prospective
Transferee and to the representatives of any prospective
Transferee such financial and other information concerning
the Company and its Subsidiaries which has been or may at
any time be delivered to the Agent or any Bank or any such
representative pursuant to this Agreement or any other
Credit Document or which has been or may at any time be
delivered to the Agent or any Bank or any such
representative by the Company or any of its Subsidiaries or
any representative of the Company or any of its
Subsidiaries; provided that such Transferee agrees to
keep such information confidential to the same extent
required of the Banks under this Agreement and the other
Credit Documents.
The Company shall be entitled to equitable relief by
way of injunction if the Agent, any Bank or any
representative of the Agent or any Bank breached or
threatens to breach any of the provisions of this Section
12.8.
12.9 Set-off. In addition to any rights and
remedies of the Banks provided by law, upon the occurrence
and during the continuation of any Event of Default each
Bank is hereby authorized at any time and from time to time,
without prior notice to any Borrower, any such notice being
expressly WAIVED by each Borrower to the fullest extent
permitted by applicable law, to set-off and apply any and
all deposits (general or special, time or demand,
provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the
credit or the account of the Borrowers or any of them
against any and all Obligations of the Borrowers or any of
them now or hereafter existing under this Agreement or any
other Credit Document and any Loan held by such Bank,
including Obligations of the Borrowers as Guarantors under
Article X, irrespective of whether the Agent or such Bank
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shall have made demand under this Agreement or any other
Credit Document and although such Obligations may be
contingent or unmatured. Each Bank agrees promptly to notify
the Company and the Agent after any such set-off and
application made by the Bank; provided, however, that the
failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Bank under
this Section 12.9 are in addition to the other rights and
remedies (including other rights of set-off) which such Bank
may have.
12.10 Limitation of Interest. The Borrowers and
the Banks intend to strictly comply with all applicable
laws, including applicable usury laws. Accordingly, the
provisions of this Section 12.10 shall govern and control
over every other provision of this Agreement or any other
Credit Document which conflicts or is inconsistent with this
Section 12.10, even if such provision declares that it
controls. As used in this Section 12.10, the term
"interest" includes the aggregate of all charges, fees,
benefits or other compensation which constitute interest
under applicable law; provided, that, to the maximum extent
permitted by applicable law, (a) any non-principal payment
shall be characterized as an expense and not as interest,
and (b) all interest at any time contracted for, reserved,
charged or received shall be amortized, prorated, allocated
and spread, in equal parts during the full term of the
Obligations. In no event shall any Borrower or any other
Person be obligated to pay, or the Agent or any Bank have
any right or privilege to reserve, receive or retain, any
interest in excess of the maximum amount of nonusurious
interest permitted under applicable law. None of the terms
and provisions contained in this Agreement or in any other
Credit Document which directly or indirectly relate to
interest shall ever be construed without reference to this
Section 12.10, or be construed to create a contract to pay
interest at a rate in excess of the maximum nonusurious rate
permitted by applicable law. If for any reason any Bank at
any time, including the stated maturity, is owed or receives
(and/or has received) interest in excess of interest
calculated at the maximum nonusurious rate permitted by
applicable law, then and in any such event all of any such
excess interest shall be cancelled automatically as of the
date of such acceleration, prepayment or other event which
produces the excess, and, if such excess interest has been
paid to such Bank, it shall be credited pro tanto against
the then-outstanding principal balance of the Obligations to
such Bank, effective as of the date or dates when the event
occurs which causes it to be excess interest, until such
excess is exhausted or all of such principal has been fully
paid and satisfied, whichever occurs first, and any
remaining balance of such excess shall be promptly refunded
to its payor.
12.11 Notification of Addresses, Lending Offices,
Etc. Each Bank shall notify the Agent in writing of any
changes in the address to which notices to the Bank should
be directed, of addresses of its Eurodollar Lending Office
and its Domestic Lending Office, of payment instructions in
respect of all payments to be made to it under this
Agreement or the other Credit Documents and of such other
administrative information as the Agent shall reasonably
request.
12.12 Counterparts. This Agreement and the other
Credit Documents may be executed by one or more of the
parties to them in any number of separate counterparts, each
of which, when so executed, shall be deemed an original, and
all of said counterparts taken together shall be deemed to
constitute but one and the same agreement. Copies of this
Agreement and each other Credit Document signed by all
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Parties shall be lodged with the Company and the Agent.
12.13 Severability. The illegality or
unenforceability of any provision of this Agreement or any
other Credit Document or any instrument or agreement
required by this Agreement or any other Credit Document
shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement
or any other Credit Document or any instrument or agreement
required by this Agreement or any other Credit Document.
12.14 Governing Law and Jurisdiction; Waivers and
Releases.
(a) THIS AGREEMENT AND EACH OTHER CREDIT DOCUMENT
AND EACH ISSUE ARISING HEREUNDER OR THEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK (EXCLUDING ITS CONFLICTS OF LAWS
PRINCIPLES), EXCEPT TO THE EXTENT PROVIDED IN SECTION
12.14(b) AND TO THE EXTENT THAT THE FEDERAL LAWS OF THE
UNITED STATES OF AMERICA MAY OTHERWISE APPLY. THE PARTIES
AGREE THAT THIS CHOICE OF NEW YORK LAW HAS BEEN MADE
PURSUANT TO SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK.
(b) NOTWITHSTANDING ANYTHING IN SECTION 12.14(a)
TO THE CONTRARY, NOTHING IN THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT SHALL BE DEEMED TO CONSTITUTE A WAIVER OF
ANY RIGHT WHICH THE AGENT OR ANY OF THE BANKS MAY HAVE UNDER THE NATIONAL BANK
ACT OR OTHER APPLICABLE FEDERAL LAW.
(c) 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 LOCATED IN
THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES OF AMERICA
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH PARTY TO THIS AGREEMENT
HEREBY SUBMITS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
TO THE JURISDICTION OF THOSE COURTS. EACH PARTY TO THIS
AGREEMENT HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT. EACH PARTY TO THIS AGREEMENT WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK
LAW.
(d) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
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ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED BY ANY CREDIT DOCUMENT.
(e) Each Borrower and each Designated Subsidiary
has irrevocably appointed CT Corporation System (the
"Process Agent"), with an office on the date hereof at 1633
Broadway, New York, New York, as its agent to receive on its
behalf and on behalf of its property service of copies of
any summons or complaint or any other process which may be
served in any action. Such service may be made by mailing
or delivering a copy of such process to such Borrower or
Designated Subsidiary in care of the Process Agent at the
Process Agent's above address, and each Borrower and each
Designated Subsidiary hereby irrevocably authorizes and
directs the Process Agent to accept such service on its
behalf. As an alternative method of service, each Borrower
and each Designated Subsidiary also irrevocably consents to
the service of any and all process in any such action or
proceeding by the mailing of copies of such process to it at
the address specified for it on the signature pages of this
Agreement or in its Election to Participate.
(f) Nothing in this Section 12.14 shall affect
the right of the Agent or any other Bank to serve legal
process in any other manner permitted by law or affect the
right of the Agent or any other Bank to bring any action or
proceeding against any Borrower (as a Borrower or as a
Guarantor) or any Designated Subsidiary in the courts of any
other jurisdiction.
(g) To the extent any Borrower or any Designated
Subsidiary has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with
respect to itself or its property, such Borrower or such
Designated Subsidiary hereby irrevocably WAIVES such
immunity in respect of its obligations under this Agreement
and the other Credit Documents.
(h) AS REGARDS THE SERVICE OF PROCESS, THE
DISCOVERY PROCESS, AND ANY JUDICIAL, QUASI-JUDICIAL, OR
SIMILAR PROCEEDING, EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED
BY LAW, ALL PRIVILEGES, RIGHTS, AND LEGAL RESTRICTIONS
BENEFITTING IT THAT DO NOT ACCRUE TO SUCH PARTY (AND THAT
WOULD NOT ACCRUE TO SUCH PARTY WERE ALL RELEVANT
CIRCUMSTANCES TO HAVE OCCURRED IN NEW YORK AMONG NEW YORK
RESIDENTS) UNDER THE LAWS OF NEW YORK (EXCLUDING ITS
CONFLICTS OF LAWS RULES). WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, THE PARTIES AGREE THAT, TO THE EXTENT
APPLICABLE LAW PERMITS WAIVER, ANY REQUIREMENTS OR
LIMITATIONS IMPOSED UNDER THE HAGUE CONVENTION ON THE
SERVICE ABROAD OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS, THE
HAGUE CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL
OR COMMERCIAL MATTERS, CANADIAN LAW OR PANAMANIAN LAW ARE
WAIVED BY EACH PARTY.
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(i) To the extent, but only to the extent, such matters
relate to this Agreement or the other Credit Documents or
the transactions evidenced or contemplated by any of the
foregoing, each of the Borrowers (as a Borrower and as a
Guarantor) hereby releases, discharges and acquits forever
the Agent, the Banks and their respective officers,
directors, trustees, agents, employees and counsel (in each
case, past, present or future) from any and all Claims
existing as of the date hereof (or the date of actual
execution hereof by the applicable person or entity, if
later). As used herein, the term "Claim" shall mean any and
all liabilities, claims, defenses, demands, actions, causes
of action, judgments, deficiencies, interest, liens, costs
or expenses (including court costs, penalties, attorneys'
fees and disbursements and amounts paid in settlement) of
any kind and character whatsoever, including claims for
usury, breach of contract, breach of commitment, negligent
misrepresentation or failure to act in good faith, in each
case whether now known or unknown, suspected or unsuspected,
asserted or unasserted or primary or contingent, and whether
arising out of written documents, unwritten undertakings,
course of conduct, tort, violations of laws or regulations
or otherwise.
12.15 Construction. The Parties agree that this
Agreement and the other Credit Documents were negotiated
agreements and accordingly no presumption shall attach based
on the identity of the drafting party.
12.16 ENTIRE AGREEMENT. THIS AGREEMENT TOGETHER
WITH THE OTHER CREDIT DOCUMENTS EMBODIES THE ENTIRE
AGREEMENT AND UNDERSTANDING AMONG THE PARTIES TO IT AND
SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS AND
UNDERSTANDINGS OF SUCH PERSONS, VERBAL OR WRITTEN, RELATING
TO THE SUBJECT MATTER HEREOF EXCEPT FOR THE FEE LETTER AND
ANY PRIOR ARRANGEMENTS MADE WITH RESPECT TO THE PAYMENT BY
ANY BORROWER OF (OR ANY INDEMNIFICATION FOR) ANY FEES, COSTS
OR EXPENSES PAYABLE TO OR INCURRED (OR TO BE INCURRED) BY OR
ON BEHALF OF THE AGENT OR THE BANKS.
12.17 Conflict with Security Documents. The
benefits, rights and remedies of the Banks and Agent and the
security contained in or provided for in the Credit
Documents are cumulative; provided, however, that if the
provisions of the other Credit Documents conflict with any
provision of this Agreement, this Agreement shall control to
the extent of such conflict, unless the applicable
provisions of the other Credit Documents increase the rights
of the Banks and Agent, in which event the terms of the
other Credit Documents shall control.
12.18 Termination. In the event that the
Commitments have been reduced to zero, no Letters of Credit
are outstanding and all Loans and other Obligations have
been fully and finally paid, this Agreement shall terminate
(except for provisions expressly stated to survive any such
termination), and the Agent and the Banks shall, upon the
request and at the cost and expense of the Company, cause to
be executed and delivered such releases of Collateral,
assignments or other documents or instruments to evidence
such termination as the Company shall reasonably request.
For the purposes of this Section 12.18, there shall be
deemed to be no Letters of Credit outstanding if the Company
shall have taken the actions required by Section 9.3 (other
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than in connection with a Default or Event of Default).
Each Borrower agrees that if at any time all or any part of
any payment previously applied by any Bank to any Loan or
other Obligation is or must be returned by or recovered from
such Bank for any legally binding reason (including the
order of any bankruptcy court), to the fullest extent not
prohibited by applicable law, the Credit Documents shall
automatically be reinstated to the same effect as if the
prior application had not been made, and, to the fullest
extent not prohibited by applicable law, each Borrower
hereby agrees to indemnify each such payee against, and to
save and hold each such payee harmless from, any required
return by or recovery from such payee of any such payment
because of its being deemed preferential under any
applicable Legal Requirement, or for any other reason.
12.19 Currency Conversion. If any sum due from any
Borrower or Guarantor under this Agreement or any other
Credit Document or in connection herewith or any order or
judgment given or made in relation to this Agreement or any
other Credit Document has to be converted from the currency
(the "first currency") in which the same is payable
hereunder or under such order or judgment into another
currency (the "second currency") for the purpose of (a)
making or filing a claim of proof against any Borrower or
Guarantor with any Governmental Authority or in any court
or tribunal; (b) obtaining an order or judgment in any
court or other tribunal; or (c) enforcing any order or
judgment given or made in relation to this Agreement or any
other Credit Document, the equivalent of such first currency
amount in any second currency shall be calculated based on
the spot rate for the purchase of the first currency with
the second currency quoted by ABN AMRO in Chicago, Illinois
at approximately 10:00 a.m. New York City time on the date
for such determination. The Borrowers shall jointly and
severally indemnify and hold harmless each of the Persons to
whom such sum is due from and against any loss suffered as a
result of any discrepancy between (i) the rate of exchange
used for such purpose to convert the sum in question from
the first currency into the second currency and (ii) the
rate or rates of exchange at which such Person may in the
ordinary course of business purchase the first currency with
the second currency upon receipt of a sum paid to it in
satisfaction, in whole or in part, of any such order,
judgment, claim or proof. The foregoing indemnity shall
constitute a separate joint and several obligation of the
Borrowers distinct from the Obligations and shall survive
the giving or making of any judgment or order in relation to
all or any of the Obligations.
12.20 Limitation of WECL Liability.
Notwithstanding any contrary provision of this Agreement or
any other Credit Document, WECL shall be liable only for
payment of:
(a) the principal amount of all Loans made either
to it or to WGI and interest in respect thereof;
(b) the amount to be reimbursed in respect of
each Letter of Credit issued at its or WGI's request or for
its or WGI's account and all fees and expenses in respect of
such Letters of Credit, and the security interest granted by
WECL pursuant to Sections 3.5(b), 3.9(c) and 9.4 and
elsewhere in the Credit Documents shall only secure such
amounts;
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(c) all costs and expenses payable pursuant to
this Agreement or any other Credit Document in connection
with the enforcement or preservation of any rights of the
Agent or the Banks against WECL or WGI under this Agreement
or any other Credit Document or otherwise specifically
applicable to WECL or WGI;
(d) any currency indemnity relating to an amount
payable by WECL pursuant to this Section 12.20;
(e) WECL's pro rata share (as determined by the
Company in good faith, provided, that WECL's pro rata share
shall not exceed the greater of (i) one-third (1/3) or (ii)
the percentage represented by the amount of all outstanding
Loans and Letter of Credit Obligations requested by WECL
divided by all outstanding Loans and Letter of Credit
Obligations under this Agreement) of all other fees and
costs under this Agreement which cannot be specifically
allocated to WECL;
(f) WGI's pro rata share (as determined by the
Company in good faith, provided, that WGI's pro rata share
shall not exceed the percentage represented by the amount of
all outstanding Loans and Letter of Credit Obligations
requested by WGI divided by all outstanding Loans and Letter
of Credit Obligations under this Agreement) of all other
fees and costs under this Agreement which cannot be
specifically allocated to WGI;
(g) WECL's obligations as a Guarantor under
Article X with respect to all Obligations of WGI (excluding
Obligations of WGI as a Guarantor arising under Article X);
and
(h) To the extent permitted by the following
paragraph, WECL's obligations under the WECL Guaranty.
The sole intention of this Section 12.20 is to ensure
that WECL does not contravene the prohibition with respect
to financial assistance in the Business Corporation Act
(Ontario) by assuming impermissible levels of joint
liability with the other Borrowers (the "Prohibition"). If
a court of competent jurisdiction determines that WECL's
liability, contingent or otherwise, for an Obligation
arising under this Agreement that is limited by this Section
12.20 need not be so limited by the Prohibition, then this
Section 12.20 shall not apply (and shall be deemed never to
have applied) with respect to that particular Obligation.
If a court of competent jurisdiction determines that the
incurrence of liability by WECL for a particular Obligation
whether under this Agreement or under the WECL Guaranty
violates the Prohibition, then WECL shall not be liable for
such Obligation.
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IN WITNESS WHEREOF, the Parties have caused this
Agreement to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first
above written.
WILLBROS GROUP, INC., as
a Borrower and as a
Guarantor
By: /s/ Melvin F. Spreitzer
Melvin F. Spreitzer
Executive Vice President
Edificio Plaza Bancomer
Calle 50, Apartado 6307
Panama 5, Republic of Panama
with a copy to:
John N. Hove, Esq., Suite 700
2431 East 61st Street
Tulsa, Oklahoma 74136
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Commitment: AMRO BANK N.V., Individually
$27,500,000 and as Agent
By: /s/ W. Bryan Chapman
--------------------
Name: W. Bryan Chapman
--------------------
Title: Group Vice President
--------------------
By: /s/ Charles W. Randall
---------------------
Name: Charles W. Randall
---------------------
Title: Senior Vice President and
---------------------
Managing Director
---------------------
Domestic and Eurodollar Address for Notices:
Lending Offices: Three Riverway, Suite 1700
Houston, TX 77056
Fax: 713/621-5801
<PAGE>
Commitment: CREDIT LYONNAIS NEW YORK BRANCH,
$23,500,000 Individually and as Co-Agent
By: /s/ Alain Papiasse
------------------------------
Name: Alain Papiasse
------------------------------
Title: Executive Vice President
-----------------------------
Domestic and Eurodollar Credit Contact:
Lending Offices:
Tom Byargeon
- -------------------- 1000 Louisiana, Suite 5360
- -------------------- Houston, Texas 77002
Phone: (713) 753-8706
Fax: (713) 751-0307
Operations Contact:
Bernadette Archie
1000 Louisiana, Suite 5360
Houston, Texas 77002
Phone: (713) 753-8723
Fax: (713) 751-0307 or 751-0421
Payment Instructions:
Credit Lyonnais New York Branch
New York
ABA No.: 026008073
Loan Servicing
For Further Credit to:
Loan Servicing
Account No.: 01-88179-3701
Attention: Ref. Willbros Group
<PAGE>
Commitment: BOATMEN'S NATIONAL BANK OF OKLAHOMA
$17,000,000
By: /s/ Lelia McCoy
--------------------------------
Name: Lelia McCoy
--------------------------------
Title: Senior Vice President
--------------------------------
Domestic and Eurodollar Credit Contact:
Lending Offices:
Barry Woods
- ----------------------- 515 S. Boulder
- ----------------------- Tulsa, Oklahoma 74103
Phone: (918) 591-8575
Fax: (918) 591-8221
Operations Contact:
Teresa Richardson
515 S. Boulder
Tulsa, Oklahoma 74103
Phone: (918) 591-8323
Fax: (918) 591-8221
Payment Instructions:
Boatmen's National Bank of Oklahoma
515 S. Boulder
Tulsa, Oklahoma 74103
ABA No.: 103000017
For Further Credit to:
Willbros Group, Inc.
Attention: Teresa Richardson
<PAGE>
Commitment: BANK OF NOVA SCOTIA
$17,000,000
By: /s/ F. C. H. Ashby
------------------------------
Name: F. C. H. Ashby
------------------------------
Title: Senior Manager Loan Operations
------------------------------
Domestic and Eurodollar
Lending Offices:
600 Peachtree Street, Suite 2700
Atlanta, Georgia 30308
Credit Contact:
Mr. Greg Smith
Relationship Manager
1100 Louisiana, Suite 3000
Houston, Texas 77002
Phone: (713) 759-3439
Fax: (713) 752-2425
Operations Contact:
Phyllis Walker
600 Peachtree Street, Suite 2700
Atlanta, Georgia 30308
Phone: (404) 877-1552
Fax: (404) 888-8998
Payment Instructions:
The Bank of Nova Scotia
New York, New York
ABA No.: 026002532
For Further Credit to:
Atlanta Agency
Account No.: 0606634
Attention: Phyllis Walker re:
Willbros Group
<PAGE>
Commitment: ARAB BANKING CORPORATION (B.S.C.)
$13,000,000
By: /s/ Sheldon Tilney
------------------------------
Name: Sheldon Tilney
------------------------------
Title: Deputy General Manager
------------------------------
Domestic and Eurodollar Bid Notification Methods Contacts:
Lending Offices:
Primary Contact/Sign. Officer
Arab Banking Corporation Grant McDonald
277 Park Avenue, 32nd Floor Arab Banking Corporation
New York, New York 10172-3299 277 Park Avenue, 32nd Floor
New York, New York 10172-3299
Phone: (212) 583-4759
Fax: (212) 583-0935/0921
Backup Contact/Sign. Officer
Sheldon Tilney
Arab Banking Corporation
277 Park Avenue, 32nd Floor
New York, New York 10172-3299
Phone: (212) 583-4757
Fax: (212) 583-0935/0921
Credit Contacts, Primary Contact &
Documentation:
Grant McDonald
Arab Banking Corporation
277 Park Avenue, 32nd Floor
New York, New York 10172-3299
Phone: (212) 583-4759
Fax: (212) 583-0935/0921
<PAGE>
Commitment: AUSTRALIA AND NEW ZEALAND
$13,000,000 BANKING GROUP LTD.
By: /s/ Paul Clifford
------------------------------
Name: Paul Clifford
------------------------------
Title: Vice President
------------------------------
Domestic and Eurodollar Credit Contact:
Lending Offices:
Kyle Loughlin
- ---------------------- 1177 Avenue of the Americas
- ---------------------- New York, New York 10036
Phone: (212) 801-9853
Fax: (212) 801-9131
Operations Contact:
Tessie Amante
1177 Avenue of the Americas
New York, New York 10036
Phone: (212) 801-9744
Fax: (212) 801-9859
Payment Instructions:
Morgan Guaranty Trust Co., New York
New York, New York
ABA No.: 021-000-238
For Further Credit to:
Australia and New Zealand Banking Group
Account No.: 631-00-888
Attention: Loan Admin-Willbros Group, Inc.
<PAGE>
Commitment: BANK AUSTRIA AKTIENGESELLSCHAFT -
$13,000,000 GRAND CAYMAN BRANCH
By: /s/ J. Anthony Seay
------------------------------
Name: J. Anthony Seay
------------------------------
Title: Vice President
------------------------------
By: /s/ Karen L. Jill
------------------------------
Name: Karen L. Jill
------------------------------
Title: Assistant Vice President
------------------------------
Domestic and Eurodollar Credit Contact:
Lending Offices:
Karen Jill
- ----------------------- 565 Fifth Avenue
- ----------------------- New York, New York 10017
Phone: (212) 880-1079
Fax: (212) 880-1080
Operations Contact:
Robert Melendez
565 Fifth Avenue
New York, New York 10017
Phone: (212) 880-1173
Fax: (212) 880-1180
Payment Instructions:
Morgan Guaranty Trust Co.
New York, New York
ABA No.: 021000238
For Further Credit to:
Bank Austria AG - Grand Cayman Branch
Account No.: 630-00-260
Attention: Robert Melendez, Loan
Operations Re: Willbros
<PAGE>
Commitment: BANK OF OKLAHOMA, N.A.
$13,000,000
By: /s/ Pam Schloeder
------------------------------
Name: Pam Schloeder
------------------------------
Title: Vice President
------------------------------
Domestic and Eurodollar Credit Contact:
Lending Offices:
Pam Schloeder
- ---------------------- P. O. Box 2300, Energy Department, 8 South
- ---------------------- Tulsa, Oklahoma 74172
Phone: (918) 588-6012
Fax: (918) 588-6880
Operations Contact:
Stephanie Steelmon
P. O. Box 2300, Energy Department, 12 North
Tulsa, Oklahoma 74172
Phone: (918) 588-6174
Fax: (918) 588-6902
Payment Instructions:
Bank of Oklahoma, N. A.
Tulsa, Oklahoma
ABA No.: 10390036
For Further Credit to:
Willbros Group, Inc.
Account No.: 4637682-1001
Attention: Loan Operations
<PAGE>
Commitment: THE BANK OF TOKYO-
$13,000,000 MITSUBISHI, LTD.--HOUSTON AGENCY
By: /s/ John W. McGhee
------------------------------
Name: John W. McGhee
------------------------------
Title: Vice President
------------------------------
Domestic and Eurodollar Credit Contact:
Lending Offices:
Michael A. Innes
- ----------------------- Vice President
- ----------------------- 1100 Louisiana, Suite 2800
Houston,Texas 77002-5216
Phone: (713) 655-3807
Fax: (713) 658-0116
Operations Contact:
Barrie Hogue
1100 Louisiana, Suite 2800
Houston,Texas 77002-5216
Phone: (713) 655-3835
Fax: (713) 658-0116
Payment Instructions:
Bank of Tokyo-Mitsubishi, New York
Branch
New York, New York
FED
ABA No.: 026009632
For Further Credit to:
Bank of Tokyo-Mitsubishi,
Houston Agency
Account No.: 30001710
Attention: Loan Admin/Willbros
<PAGE>
The following exhibits and schedules have been omitted,
and the Registrant agrees to furnish supplementally a copy
of any such omitted exhibits or schedules to the Securities
and Exchange Commission upon its request:
EXHIBITS
B Notice of Borrowing
C Form of Notice of Conversion/Continuation
D Form of Election to Participate
E Form of Election to Terminate
F Form of Syndicated Letter of Credit
G - 1 Form of Application (Standby Letter of Credit)
G - 2 Form of Application (Commercial Letter of Credit)
G - 3 Form of Power of Attorney
H Opinion of Counsel -- Panama
I Opinion of Counsel -- U.S.
J Opinion of Counsel -- Canada
K Opinion of Counsel -- The Netherlands
L Opinion of Counsel -- Agent
M Financial Condition Certificate
N Form of Opinion of Counsel for Designated Subsidiaries
O Form of Assignment and Assumption Agreement
P Form of Notice of Investment
SCHEDULES
Schedule 1.1 Existing Letters of Credit
Schedule 2.1 Commitments
Schedule 5.5 Litigation and Claims
Schedule 5.7 ERISA
Schedule 5.10 Contested Taxes
Schedule 5.12 Environmental Matters
Schedule 5.19 Copyrights, Patents, Trademarks, Licenses,
etc.
Schedule 5.20(a) Subsidiaries
Schedule 5.20(b) Equity Investments
Schedule 8.1 Existing Liens
Schedule 8.4 Indebtedness
Schedule 8.6 Contingent Obligations
<PAGE>
NOTE
[$---------------] New York, New York February 20, 1997
FOR VALUE RECEIVED, -----------------------------------
("Maker"), a [----------------------------------------------
promises to pay to the order of ----------------------------
- ------------------------------------------ ("Payee") at the
Principal Office in New York, New York, of ABN AMRO Bank
N.V. acting as agent (including its successors in such
capacity, the "Agent") for Payee and the other lenders
(together with Payee, collectively referred to herein as the
"Banks") which are now or may hereafter become parties to
the Credit Agreement referred to below, or at such other
place as the Agent may hereafter designate in writing, in
immediately available funds and in lawful money of the
United States of America, the principal sum of
[---------------------- ----------------------] DOLLARS
([$---------------]) (or the unpaid balance of all
principal advanced against this note, if that amount is
less), on the dates and in the principal amounts provided
in the Credit Agreement referred to below, and to pay
interest on the unpaid principal balance of this note
from time to time outstanding until maturity at the rate
or rates established pursuant to the terms of the Credit
Agreement and interest on all past due amounts, both
principal and accrued interest, in accordance with Section
2.10 of the Credit Agreement.
Interest on the amount of each advance against this
note shall be computed on the amount of that advance and
from the date it is made.
The principal of this note shall be due and payable on
the Commitment Termination Date, the final maturity of this
note. Accrued and unpaid interest shall be due and payable
as provided in the Credit Agreement and at the maturity of
this note. All payments shall be applied first to accrued
interest, the balance to principal.
Subject to the provisions of the Credit Agreement,
Maker may at any time pay the full amount or any part of
this note without payment of any premium or fee. All
prepayments shall be applied in accordance with the Credit
Agreement.
The unpaid principal balance of this note at any time
shall be the total of all principal lent or advanced against
this note less the sum of all principal payments and
prepayments made on this note by or for the account of
Maker. All loans and advances and all payments and
prepayments made hereon may be endorsed by the holder of
this note on the schedule which is attached hereto (and
hereby made a part hereof for all purposes) or otherwise
recorded in the holder's records; provided, that any failure
to make notation of (a) any advance shall not cancel, limit
or otherwise affect Maker's obligations or any holder's
rights, or (b) any payment or prepayment of principal shall
not cancel, limit or otherwise affect Maker's entitlement to
credit for that payment as of the date received by the
Agent.
Subject to the provisions of the Credit Agreement,
Maker may use all or any part of the credit provided to be
evidenced by this note at any time before the Commitment
Termination Date. Subject to the provisions of the Credit
Agreement, Maker may borrow, repay and reborrow and there is
no limit on the number of advances against this note so long
as the total unpaid principal of this note at any time
outstanding does not exceed the lesser of (a) the face
amount of this note or (b) the amount determined from time
to time in accordance with the Credit Agreement.
This note is one of the Notes which has been issued
pursuant to the terms of that certain Credit Agreement (as
amended, modified, supplemented and restated, the "Credit
Agreement") dated as of February 20, 1997, among Willbros
Group, Inc., certain of its subsidiaries, the Agent, the Co-
Agent and the Banks, to which reference is made for all
purposes, and evidences Loans made by the Payee thereunder.
This note is governed by and entitled to the benefits of the
Credit Agreement. Any term used in this note and defined in
the Credit Agreement that is not otherwise defined in this
note shall have the meaning ascribed to it in the Credit
Agreement. Advances against this note by Payee or other
holder hereof shall be governed by the Credit Agreement.
<PAGE>
The occurrence of an Event of Default shall constitute
default under this note, whereupon the Agent or the holder
hereof shall be entitled to exercise any or all rights,
powers and remedies afforded (a) under the Credit Documents
and (b) by applicable law, including the right to accelerate
the maturity of this entire note.
If any holder of this note retains an attorney in
connection with any such default or to collect, enforce or
defend this note or any papers intended to secure or
guarantee it in any lawsuit or in any probate,
reorganization, bankruptcy or other proceeding, or if Maker
sues any holder in connection with this note or any such
papers and does not prevail, Maker agrees to pay to each
such holder, in addition to principal and interest, all
reasonable costs and expenses incurred by such holder in
trying to collect this note or in any such suit or
proceeding, including reasonable attorneys' fees.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (OTHER
THAN ITS CONFLICTS OF LAW RULES).
[NAME OF MAKER]
a-----------------------
By:-----------------------
Name: --------------------
Title:--------------------
Page 2 of 2 Pages
EXHIBIT A
<PAGE>
EXHIBIT 10.2
PARENT PLEDGE AGREEMENT
BY
WILLBROS GROUP, INC.
IN FAVOR OF
ABN AMRO BANK N.V.,
As Agent
February 20, 1997
<PAGE>
TABLE OF CONTENTS
Page
----
1. Pledge 1
2. Security for Obligations 2
3. Delivery of Pledged Collateral 3
4. Representations, Warranties and Covenants 3
5. Further Assurances 6
6. Voting Rights; Dividends; Etc. 8
7. Agent Appointed Attorney-in-Fact 10
8. Agent May Perform 10
9. No Responsibility for Certain Actions; Indemnity 10
10. Remedies upon Default 11
11. Expenses 14
12. Amendments, Etc 14
13. Address for Notices 14
14. Continuing Security Interest 14
15. Security Interest Absolute 15
16. Use of Copies 16
17. Right of Set-off 16
18. Severability 16
19. Waiver of Jury Trial 16
<PAGE>
20. Governing Law; Jurisdiction 16
21. Counterparts 18
22. Waiver of Subrogation 18
23. Subordination 18
Schedule I Schedule of Pledged Shares
Schedule II Stock Assignment Separate From Certificate
Schedule III Pledge Agreement Supplement
<PAGE>
PARENT PLEDGE AGREEMENT
This PARENT PLEDGE AGREEMENT (this "Agreement"), dated
as of February 20, 1997, is made and entered into by
WILLBROS GROUP, INC., a Republic of Panama corporation (the
"Company"), in favor of ABN AMRO BANK N.V., as agent (in
such capacity, the "Agent") for the financial institutions
(the "Banks") from time to time a party to the Credit
Agreement (defined below).
PRELIMINARY STATEMENTS.
1. The Company and certain of its Subsidiaries (as
defined in the Credit Agreement) (collectively, the
"Borrowers"), the Agent, Credit Lyonnais New York Branch as
Co-Agent, and the Banks are party to a Credit Agreement of
even date herewith (such Credit Agreement, as amended,
restated, supplemented or otherwise modified from time to
time, being hereinafter referred to as the "Credit
Agreement"; unless otherwise defined herein, terms defined
in the Credit Agreement are used herein as therein defined).
2. Pursuant to the Credit Agreement, the Banks have
agreed to make available to the Borrowers a revolving credit
facility and a standby and commercial letter of credit
facility.
3. The Company is a Borrower and the direct or
indirect parent of all of the other Borrowers, and the
Company will derive substantial benefit from each extension
of credit to the Borrowers by the Banks under the Credit
Agreement.
4. The obligation of the Banks to make the Loans and
to issue or participate in the Letters of Credit is
conditioned upon, among other things, the execution and
delivery by the Company of this Agreement.
AGREEMENTS.
In consideration of the premises and in order to induce
the Banks to enter into the Credit Agreement and make the
Loans and issue or participate in the Letters of Credit, and
for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged and confessed by the
parties, the Company agrees with the Agent, for the benefit
of the Agent and the Banks (the Agent and the Banks
collectively, the "Secured Parties"), as follows:
1. PLEDGE. In order to secure the prompt and
unconditional payment of the obligations referred to in
Section 2 and the performance of the obligations, covenants,
agreements and undertakings described in this Agreement, the
Company hereby transfers, grants, bargains, sells, conveys,
hypothecates, sets over, delivers and pledges to the Agent,
on behalf of the Secured Parties, and grants to the Agent,
on behalf of the Secured Parties, a security interest in,
all of the Company's remedies, powers, privileges, rights,
titles and interests of every kind and character now owned
<PAGE>
or hereafter acquired, created or arising in and to the
following (the "Pledged Collateral"):
(a) the Pledged Shares (as defined below);
(b) all shares of capital stock, general and
limited partnership interests, trust interests, joint
venture interests, ownership rights arising under the law of
any jurisdiction, and any evidence of the foregoing,
together with any property and rights derivative thereof,
acquired, received or owned by the Company of any Person,
other than Vintondale Corporation N.V., a Netherlands
Antilles corporation, which, on or after the date of this
Agreement, is or becomes, as a result of any occurrence, a
direct Subsidiary of the Company;
(c) all certificates and similar evidence of
ownership representing the Pledged Shares;
(d) all cash dividends, stock dividends, cash,
instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of
or in exchange for any or all of the Pledged Shares or the
shares or interests acquired, received or owned under
Section 1(b); and
(e) all additions to and substitutions for any of
the foregoing and all products and proceeds of any of the
Pledged Collateral, together with all renewals and
replacements of any of the Pledged Collateral, all accounts,
accounts receivable, instruments, notes, chattel paper,
documents (including all documents of title), books,
records, contract rights and general intangibles arising in
connection with any of the Pledged Collateral.
"Pledged Shares" means all shares described in Schedule I,
as amended from time to time, together with all rights,
contingent or otherwise, of the Company to acquire shares in
the entities or organizations represented by the shares
described in Schedule I, as amended from time to time, or in
any Borrower, all rights to receive cash dividends, stock
dividends, distributions upon redemption or liquidation,
distributions as a result of split-ups, recapitalizations or
rearrangements, stock rights, rights to subscribe, voting
rights, rights to receive securities, options, warrants,
calls, commitments, securities accounts, security
entitlements, and all new securities and other property
which the Company now owns or may hereafter become entitled
to receive on account of the foregoing or with respect to
any such company;
To have and to hold the Pledged Collateral, together
with all right, title, interest, powers, privileges and
preferences pertaining or incidental thereto, unto
the Agent, its successors and assigns, on behalf of the
Secured Parties, forever; subject, however, to the terms,
covenants and conditions set forth in this Agreement.
2
<PAGE>
2. SECURITY FOR OBLIGATIONS. The security interests
and other rights granted pursuant to Section 1 secure, and
the Pledged Collateral is security for, the prompt
performance and payment in full in cash when due,
whether at stated maturity, by acceleration or otherwise of
the following (the "Secured Obligations"; provided, however,
that to the extent that in a legal proceeding brought within
the applicable limitations period it is determined by the
final, non-appealable order of a court having jurisdiction
over the issue and the applicable parties that the Company
received less than a reasonably equivalent value in exchange
for the Company's incurrence of its obligations under this
Agreement, then and only then the liability of the Company
for the Secured Obligations is limited in amount to the
Guaranteed Debt of the Company):
(a) any and all Obligations, whether now existing
or hereafter arising;
(b) any and all sums and the interest which
accrues on them which the Company may owe any Secured Party
pursuant to any Credit Document on account of any Borrower's
failure to keep, observe or perform any covenant under any
Credit Document;
(c) all present and future debts and obligations
under or pursuant to any Credit Document or other document
now or in the future governing, evidencing, guaranteeing or
securing or otherwise relating to the indebtedness incurred
pursuant to the Credit Agreement, and all supplements,
amendments, restatements, renewals, extensions,
rearrangements, increases, expansions or replacements of
them.
The Credit Agreement guarantees, among other things,
the prompt performance and payment in full of the Secured
Obligations. The Secured Obligations include, among other
things, (i)a revolving credit facility under which funds may
be advanced by the Banks, repaid and subsequently readvanced
by the Banks, and (ii) a standby and commercial letter of
credit facility under which Letters of Credit may from time
to time be issued. Notwithstanding that the balance of the
revolving line of credit may at certain times be zero and
that no Letters of Credit may at certain times be
outstanding, the Liens granted hereunder to the Agent shall
remain in full force and effect at all times and with the
same priority until the payment in full in cash of the
Secured Obligations, the termination of the Commitments and
the expiration or termination of all outstanding Letters of
Credit.
3. DELIVERY OF PLEDGED COLLATERAL. The Pledged Collateral
and all certificates, instruments and property representing
or evidencing the Pledged Collateral shall, within two
Business Days of the Company's actual or constructive
receipt thereof, be delivered to and held by or on behalf of
the Agent pursuant to this Agreement and shall be in
suitable form for transfer of ownership and possession by
delivery, or shall be accompanied by duly executed
3
<PAGE>
instruments of transfer or assignment in blank, all in form
and substance satisfactory to the Agent. The Agent shall
have the right, at any time in its discretion and without
notice to the Company, to transfer to or to register in its
name or any of its nominees, any or all of the Pledged
Collateral, subject only to the revocable rights specified
in Section 6(a). In addition, the Agent shall have the
right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger
denominations.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Company represents, warrants and covenants to the Agent and
the other Secured Parties as follows:
(a) The Company (i) is a corporation duly
organized, validly existing and in good standing under the
laws of the Republic of Panama; (ii) is not duly qualified
as a foreign corporation under the laws of any jurisdiction,
and there is no jurisdiction in which qualification or
licensing is required by the nature of its business and
where the absence of such qualification has a reasonable
likelihood of having a Material Adverse Effect; (iii) has
all requisite corporate power and authority and the legal
right to own, pledge, mortgage and operate its properties,
and to conduct its business as now or currently proposed to
be conducted; (iv) is in compliance with its certificate or
articles of incorporation, by-laws and similar
organizational documents; (v) is not in default under any
material agreement such that there is a reasonable
likelihood of such default having a Material Adverse Effect;
(vi) is in compliance (except to the extent any
noncompliance has no reasonable likelihood of having a
Material Adverse Effect) with all Legal Requirements; and
(vii) together with the other Borrowers, forms part of a
group of companies that are closely related legally and
economically, each deriving benefits from the other, and the
execution, delivery and performance of this Agreement is
conducive to the business interests of the Company and its
pursuit of profits and continuity.
(b) Each Person listed on Schedule I or described
in Section 1(b): (i) is an entity duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its organization; (ii) is duly qualified to
do business and in good standing in every jurisdiction in
which the nature of the business it conducts makes such
qualification necessary or desirable; (iii) has all
requisite corporate power and authority and the legal right
to own, pledge, mortgage and operate its properties, and to
conduct its business as now or currently proposed
to be conducted; (iv) is in compliance with its certificate
or articles of incorporation, by-laws and similar
organizational documents; and (v) to the Company's best
knowledge, is in compliance (except to the extent any
noncompliance has no reasonable likelihood of having a
Material Adverse Effect) with all Legal Requirements.
(c) The execution, delivery, and performance by
the Company
4
<PAGE>
of this Agreement (i) are within the Company's corporate
power; (ii) have been duly authorized by all necessary
corporate action; (iii) do not contravene the Company's
certificate or articles of incorporation or by-laws or other
organizational documents; (iv) do not result in or require
the creation of any Lien upon or with respect to any of its
properties; and (v) do not conflict with or result in a
breach of the terms, conditions or provisions of, or cause a
default under, any agreement, instrument, franchise, license
or concession to which the Company is a party or by which
the Company or any of its property is bound.
(d) No authorization or approval or other action
by, and no notice to or filing with, any Governmental
Authority is required for the due execution, delivery and
performance by the Company of this Agreement or for the
validity or enforceability thereof.
(e) This Agreement is a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as enforcement may be
limited by applicable bankruptcy, insolvency or similar laws
relating to creditors' rights generally, as such laws would
apply in the event of bankruptcy, insolvency or other
similar occurrence with respect to the Company.
(f) There is no pending or, to the best knowledge
of the Company, threatened action or proceeding affecting
the Company before or by any Governmental Authority which
has any reasonable likelihood of having a Material Adverse
Effect.
(g) The Company is not (i) a party to any
contractual obligation the performance of which either
unconditionally or upon the happening of an event, will
result in the creation of a Lien on the Company's property
or assets (other than in favor of the Secured Parties); or
(ii) subject to any charter or corporate restriction which
has a reasonable likelihood of having a Material Adverse
Effect.
(h) The representations and warranties made by
the Company and the Borrowers in Article V of the Credit
Agreement are true and correct, and all information supplied
to the Secured Parties, and all statements made to the
Secured Parties by or on behalf of any Borrower or the
Company before, concurrently with or after the Company's
execution of this Agreement with respect to the Pledged
Collateral are and will be true, correct, complete, valid
and genuine in all material respects. No statement
contained in any certificate, schedule, list, financial
statement or other papers furnished to any Secured Party by
or on behalf of any Borrower or the Company contains (or
will contain) any untrue statement of material fact or omits
(or will omit) to state a material fact necessary to make
the statements contained herein or therein not misleading.
(i) The shares described on Schedule I include
all of the
5
<PAGE>
authorized, issued and outstanding shares of capital stock
of each of the companies listed thereon and the rights to
acquire shares in such companies. The Company is the sole
legal and equitable owner and holder of the Pledged Shares,
which are free and clear of all Liens, or rights or
interests of any other Person, of every kind and nature
except for the Lien created by this Agreement. The shares
of stock described in the first sentence of this paragraph
are duly authorized, validly issued, fully paid,
non-assessable, and free from any restriction on transfer,
except as provided in the letters patent of incorporation of
Willbros Engineering & Construction Limited, and none of
such shares has been issued or transferred in violation of
the securities registration, securities disclosure or
similar laws of any jurisdiction to which such issuance or
transfer may be subject. There are no options, warrants,
financing statements, calls or commitments of any character
relating to the Pledged Shares, nor are there any rights of
first refusal, voting trusts, voting agreements or similar
agreements relating to the Pledged Shares. The pledge,
assignment and delivery of the Pledged Collateral pursuant
to this Agreement will create a valid first priority lien on
and a first priority perfected security interest in the
Pledged Collateral and the proceeds thereof. Appropriate
financing statements will be filed in favor of the Agent in
the office of the County Clerk of Oklahoma County, Oklahoma,
U.S.A. The chief executive office of the Company is located
in Panama.
(j) When additional Pledged Collateral is
delivered to the Agent in accordance with Section 3, the
Company will be the legal and equitable owner of such
Pledged Collateral free and clear of all Liens, or rights or
interests of any other Person, of every kind and nature
including any state or federal tax liens, except for the
Lien created by this Agreement; each share of stock
comprising such Pledged Collateral will have been duly
authorized and validly issued and will be fully paid and
non-assessable and free from any restriction on transfer,
except as provided in the letters patent of incorporation of
Willbros Engineering & Construction Limited; and the Company
will have legal title to such Pledged Collateral and power
to pledge, assign and deliver such Pledged Collateral in the
manner contemplated by this Agreement.
(k) The Company agrees that it will (i) cause
each issuer of shares of stock comprising Pledged Collateral
not to issue any stock or other securities in addition to or
in substitution for the shares of stock comprising Pledged
Collateral issued by such issuer, except to the Company,
(ii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all additional
shares of stock or other securities of each issuer of
Pledged
Collateral, and (iii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all
shares of stock covered by Section 1(b).
(l) Without the prior written consent of the
Agent having been first obtained, the Company (i) shall not
sell, assign, transfer, pledge, mortgage, hypothecate,
dispose of or encumber, or grant any option or warrant or
Lien or right with respect to, or permit any Liens to arise
with respect to, the Pledged
6
<PAGE>
Collateral, any of its rights in or to the Pledged
Collateral and any portion thereof, except for the pledge
thereof provided for in this Agreement, and (ii) shall not
permit any issuer of shares of stock comprising Pledged
Collateral to terminate its corporate existence, to be a
party to any merger or consolidation, or to sell, lease or
dispose of all or substantially all of its assets and
properties in a single transaction or series of related
transactions, except as permitted by the Credit Agreement.
(m) The Company has and will defend the title to
the Pledged Collateral and the Liens created by this
Agreement against all claims and demands of any Person at
any time claiming the Pledged Collateral or any interest
therein and will maintain and preserve such Liens until the
termination of this Agreement.
5. FURTHER ASSURANCES.
(a) The Company agrees that, at any time and from
time to time, at the expense of the Company, the Company
will promptly execute and deliver all further instruments
and documents, and take all further action, that may be
necessary or desirable, or that the Agent may reasonably
request, in order to create, maintain, perfect and protect
any security interest, pledge, or hypothecation granted or
purported to be granted by this Agreement, to enable the
Agent to exercise and enforce its rights and remedies under
this Agreement with respect to any Pledged Collateral, and
to assure the transferability by the Agent and its
successors of the Pledged Collateral. The Company shall
notify the Agent in writing, at least two (2) weeks in
advance of the date that it establishes any office or place
of business in the United States, or establishes its chief
executive office in any other part of the world, of its
intent to establish such office.
(b) Where all or any part of any jurisdiction's
enactment of the 1994 revisions to Article 8 of the Uniform
Commercial Code applies with respect to a portion of the
Pledged Collateral, (i) the Company shall cause the Agent to
have sole "control", as defined therein, of such Pledged
Collateral that comprises investment property, together with
all proceeds thereof, and (ii) at the Agent's request from
time to time, the Company shall instruct (and hereby
instructs) any third party holding such Pledged Collateral
to obey only the instructions and entitlement orders of the
Agent with respect to such Pledged Collateral and any
proceeds thereof. Except as the Agent may otherwise permit
in writing, the Company shall have no right to cause the
withdrawal, application or transfer of any financial assets
or security entitlements with respect to the Pledged
Collateral, and the Company shall not give any
instructions or entitlement orders with respect to them.
(c) Without limiting the foregoing, the Company
further agrees that it will, upon obtaining any additional
shares of any issuer of the Pledged
7
<PAGE>
Collateral or shares or other equity interests in entities
described in Section 1(b) or any other securities
constituting Pledged Collateral, promptly (and in any event
within five (5) Business Days) deliver to the Agent (i) such
shares, (ii) a duly executed but blank stock power in the
form of Schedule II for each certificate representing such
additional Pledged Collateral, and (iii) a duly executed
Pledge Agreement Supplement in substantially the form of
Schedule III (a "Pledge Agreement Supplement") or as may
otherwise be reasonably required by the Agent identifying
the additional shares which are pledged pursuant to Section
1(b). The Company authorizes the Agent to attach each
Pledge Agreement Supplement to this Agreement and agrees
that all shares listed on any Pledge Agreement Supplement
delivered to the Agent shall for all purposes constitute
Pledged Collateral.
(d) The Company will cause to be paid before
delinquency all taxes, charges, liens and assessments at any
time levied or assessed against the Pledged Collateral, or
any part thereof, or against any Secured Party for or on
account of the Pledged Collateral or the interest created by
this Agreement, and will furnish the Agent with receipts
showing payment of such taxes and assessments at least five
(5) days before the applicable default date therefor.
(e) If the validity or priority of this Agreement
or of any rights, titles, security interests or other
interests created or evidenced by this Agreement shall be
attacked, endangered or questioned or if any legal
proceedings are instituted with respect thereto, the Company
will take all necessary and proper steps for the defense of
such legal proceedings. The Agent is authorized and
empowered to take such additional steps as in its judgment
and discretion may be necessary or proper for the defense of
any such legal proceedings or the protection of the validity
or priority of this Agreement and the rights, titles,
security interests and other interests created or evidenced
by this Agreement, and the Secured Obligations include all
expenses so incurred of every kind and
character.
(f) Regarding any proceedings relating to the
Pledged Collateral, or any portion thereof, the Agent may
participate therein, and the Company shall from time to time
deliver to the Agent all instruments reasonably requested by
it to permit such participation. The Company shall, at its
expense, diligently prosecute any such proceedings and shall
consult with the Agent, its attorneys and experts, and
cooperate with them in the carrying on or defense of any
such proceedings.
6. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have
occurred and be continuing (and, in the case of clause (i)
below, so long as written notice has not been given by the
Agent to the Company):
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(i) The Company shall be entitled to
exercise any Pledged Collateral or any part thereof
for any purpose consistent with the terms Agreement
or the Credit Agreement; provided, however, that
the Company shall not exercise or refrain from
exercising any such right with the primary intent
of causing a Material Adverse Effect.
(ii) The Company shall be entitled to
receive and retain any and all dividends paid in
respect of the Pledged Collateral (other than any
and all
(A) dividends paid or payable
other than in cash in respect of, and
instruments and other property received,
receivable or otherwise distributed in
respect of, or in exchange for, any
Pledged Collateral,
(B) dividends and other
distributions paid or payable in cash in
respect of any Pledged Collateral in
connection with a partial or total
liquidation or dissolution or in
connection with a return of capital,
capital surplus or paid-in-surplus, and
(C) cash paid, payable or
otherwise distributed in redemption of,
or in exchange for, any Pledged
Collateral,
all of which shall be, and all of which shall be
forthwith delivered to the Agent to hold as,
Pledged Collateral and shall, if received by the
Company, be received in trust for the benefit of
the Agent, be segregated from the other property
or funds of the Company, and be forthwith
delivered to the Agent as Pledged Collateral in
the same form as so received (with any necessary
endorsement)).
(iii) The Agent shall execute and
deliver (or cause to be executed and delivered) to
the Company all such proxies and other instruments
as the Company may reasonably request for the
purpose of enabling the Company to exercise the
voting and other rights which it is entitled to
exercise pursuant to clause (i) above
and to receive the dividends which it is
authorized to receive and retain pursuant to
clause (ii) above.
Regardless of the Company's right described above to receive
and retain certain rights and property, such rights and
property nonetheless secure the repayment of the Secured
Obligations and are a part of the Pledged Collateral.
(b) Upon the occurrence and during the
continuation of an Event of Default:
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<PAGE>
(i) All rights of the Company to
exercise the voting and other consensual rights
which it would otherwise be entitled to exercise
pursuant to Section 6(a)(i) and the obligations of
the Agent under Section 6(a)(iii) shall cease upon
receipt by the Company of written notice of an
Event of Default, and all such rights shall
thereupon become vested in the Agent who shall
thereupon have the sole right to exercise such
voting and other consensual rights;
(ii) All rights of the Company to
receive the dividends which it would otherwise be
authorized to receive and retain pursuant to
Section 6(a)(ii) shall cease upon receipt by the
Company of written notice of an Event of Default,
and all such rights shall thereupon become vested
in the Agent who shall thereupon have the sole
right to receive and hold as Pledged Collateral
such dividends; and
(iii) All dividends which are
received by the Company contrary to the provisions
of clause (ii) of this Section 6(b) shall be
received in trust for the benefit of the Agent,
shall be segregated from other funds of the
Company and shall be forthwith paid over to the
Agent as Pledged Collateral in the same form as so
received (with any necessary endorsement).
(c) In order to permit the Agent to exercise the
voting and other rights which it may be entitled to exercise
pursuant to Section 6(b)(i), and to receive all dividends
and distributions which it may be entitled to receive under
Section 6(b)(ii), the Company shall, if necessary, upon
written notice from the Agent, from time to time execute and
deliver to the Agent appropriate dividend payment orders and
other instruments as the Agent may reasonably request. To
this end, the Company hereby irrevocably constitutes and
appoints the Agent the proxy and attorney-in-fact of the
Company, with full power of substitution, to vote, and to
act with respect to, any and all Pledged Collateral that is
securities standing in the name of the Company or with
respect to which the Company is entitled to vote and act,
subject to the understanding that such proxy may not be
exercised unless an Event of Default has occurred and is
continuing. The proxy herein granted is coupled with an
interest, is irrevocable, and shall continue until payment
in full in cash of the Secured Obligations, the
termination of the Commitments and the expiration or
termination of all outstanding Letters of Credit.
7. AGENT APPOINTED ATTORNEY-IN-FACT. The Company
hereby appoints the Agent the Company's true and lawful
attorney-in-fact, with full authority in the place and stead
of the Company and in the name of the Company or otherwise,
from time to time in the Agent's discretion, subject to
Section 6, to take any action and to execute any document or
instrument which
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<PAGE>
the Agent may reasonably deem necessary or desirable to
accomplish the purposes of this Agreement, including,
without limitation, to receive, endorse and collect all
instruments made payable to the Company representing any
dividend, interest payment or other distribution in respect
of the Pledged Collateral or any part thereof and to give
full discharge for the same. The Agent's liability, if any,
otherwise arising under applicable law shall be limited to
amounts actually received as a result of the exercise of the
powers granted to it herein. No Agent or Bank, and no
officer, director, employee or agent of the Agent or any
Bank, shall be responsible to the Company for any act or
failure to act hereunder, except that any such Person shall
be responsible for its own gross negligence or willful
misconduct.
8. AGENT MAY PERFORM. The Agent is authorized to
perform, or cause performance of, any agreement contained
herein in the event that the Company fails to timely perform
the same, and the reasonable expenses of the Agent incurred
in connection therewith shall be payable by the Company.
The Agent is further authorized in its discretion to take
any other action, either on its own behalf or on behalf of
the Company (and as regards actions taken on behalf of the
Company, this authorization is irrevocable and is an agency
coupled with an interest), as the Agent may elect, which the
Agent may deem necessary or appropriate to protect and
preserve the rights, titles and interests of the Agent
hereunder. The powers conferred on the Agent pursuant to
this Agreement are conferred solely to protect the Secured
Parties' interest in the Pledged Collateral and shall not
impose any duty or obligation on any Secured Party to
perform any of the powers herein conferred. No exercise
of any of the rights provided for in this Agreement
constitute a retention of collateral in satisfaction of
indebtedness.
9. NO RESPONSIBILITY FOR CERTAIN ACTIONS; INDEMNITY.
Neither the Agent nor any other Secured Party shall have
responsibility for (a) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Pledged Collateral,
whether or not the Agent or any other Secured Party has or
is deemed to have knowledge of such matters, (b) taking any
necessary steps to preserve any rights against any Person
with respect to any Pledged Collateral or (c) supervising,
monitoring or controlling any aspect of the character or
condition of any of the Pledged Collateral or any operations
conducted in connection with it for the benefit of the
11
<PAGE>
Company or any other Person. The Company agrees to
indemnify, defend and hold Secured Parties, their respective
shareholders, directors, officers, agents, advisors and
employees (collectively "Indemnified Parties") harmless from
and against any and all loss, liability, obligation, damage,
penalty, judgment, claim, deficiency, expense, action, suit,
cost and disbursement of any kind or nature whatsoever
(including interest, penalties, attorneys' fees and amounts
paid in settlement), imposed on, incurred by or asserted
against the Indemnified Parties growing out of or resulting
from this Agreement or any transaction or event contemplated
in it (except that such indemnity shall not be paid to any
Indemnified Party to the extent such loss, etc. directly
results from the gross negligence or willful misconduct of
any of the Indemnified Parties).
10. REMEDIES UPON DEFAULT. If any Event of Default
shall have occurred and be continuing:
(a) The Agent may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all the
rights and remedies of a secured party in default under the
Uniform Commercial Code (the "Code") in effect in the State
of New York at that time, and, subject to applicable
regulatory and legal requirements, the Agent may also,
without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at
public or private sale, at any exchange, broker's board or
at any of the Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as
the Agent may deem commercially reasonable. Upon
consummation of any such sale, the Agent shall have the
right to assign, transfer and deliver to the purchaser or
purchasers thereof the Pledged Collateral so sold. Each
such purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of the
Company, and the Company, for itself and for its successors,
receivers, trustees and assigns, and for any and all persons
ever claiming any interest in the Pledged Collateral, to
the extent permitted by law, hereby waives all rights of
extension, redemption, stay, valuation and appraisal, and
any similar right arising under the law of any country,
which the Company now has or may at any time in the future
have under any rule of law or statute now existing or
hereafter enacted. The Company agrees that, to the extent
notice of sale shall be required by law, at least 10 days'
notice to the Company of the time and place of any public
sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Agent
shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given.
The Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor,
and such sale may, without further notice, be made at the
time and place to which it was so adjourned. The Company
hereby waives any claims against the Agent arising by reason
of the fact that the price at which any Pledged Collateral
may have been sold at such a private sale was less than the
price which might have been obtained at a public sale, even
if the Agent accepts the first offer received and does not
offer such Pledged Collateral to more than one offeree.
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<PAGE>
At any public sale made pursuant to this Section 10, any
Secured Party may bid for or purchase, free from any right
of redemption, stay or appraisal, and any similar right
arising under the law of any country, on the part of the
Company (all said rights being also hereby waived and
released), the Pledged Collateral or any part thereof
offered for sale and may make payment on account thereof
by using any claim then due and payable to it from any
Borrower, any Guarantor and/or the Company as a credit
against the purchase price, and it may, upon compliance
with the terms of sale, hold, retain and dispose of such
property without further accountability to the Company
therefor. For purposes hereof, (i) a written agreement
to purchase the Pledged Collateral or any portion thereof
shall be treated as a sale thereof, (ii) the Agent shall
be free to carry out such sale pursuant to such
agreement and (iii) the Company shall not be entitled to the
return of the Pledged Collateral or any portion thereof
subject thereto, notwithstanding the fact that after the
Agent shall have entered into such an agreement all Events
of Default shall have been remedied and the Secured
Obligations paid in full. As an alternative to exercising
the power of sale herein conferred upon it, the Agent may
proceed by a suit or suits at law or in equity to foreclose
upon the Pledged Collateral and to sell the Pledged
Collateral or any portion thereof pursuant to a judgment or
decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver. Any
sale pursuant to the provisions of this Section 10 shall be
deemed to conform to the commercially reasonable standards
as provided in the Code. The Company covenants and agrees
that it will execute and deliver such documents and take
such other action as the Agent deems necessary or advisable
in order that any such sale may be made in compliance with
applicable law.
(b) The Agent shall have all the rights of a
secured party after default under the Uniform Commercial
Code of New York and in conjunction with, in addition to or
in substitution for those rights and remedies:
(i) it shall not be necessary that the
Pledged Collateral or any part thereof be present at the
location of any sale pursuant to the provisions of this
Section 10;
(ii) to the extent the sale of Pledged
Collateral is insufficient to satisfy the Secured
Obligations, the Company shall remain liable for any
deficiency;
(iii) the sale by the Agent of less than
the whole of the Pledged Collateral shall not exhaust the
rights of the Agent hereunder, and the Agent is specifically
empowered to make successive sale or sales hereunder until
the whole of the Pledged Collateral shall be sold; and, if
the proceeds of such sale of less than the whole of the
Pledged Collateral shall be less than the aggregate of the
Secured Obligations, this Agreement and the security
interest created hereby shall remain in full force and
effect as to the unsold portion of the
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<PAGE>
Pledged Collateral just as though no sale had been made;
(iv) in the event any sale hereunder is not
completed or is defective in the opinion of the Agent, such
sale shall not exhaust the rights of the Agent hereunder and
the Agent shall have the right to cause a subsequent sale or
sales to be made hereunder; and
(v) demand of performance, advertisement and
presence of property at sale are hereby waived and the Agent
is hereby authorized to sell hereunder any financial asset
it may hold as security for the Secured Obligations. All
demands and presentments of any kind or nature are expressly
waived by the Company. The Company hereby waives the right
to require the Agent to pursue any other remedy for the
benefit of the Company and agrees that Secured Party may
proceed against any Person for the amount of the Obligations
owed to the Agent without taking any action against any
other Person and without selling or otherwise proceeding
against or applying any of the Pledged Collateral in the
Agent's possession.
(c) The Company recognizes that, by reason of
certain prohibitions contained in the Securities Act of 1933
and applicable state securities laws, the Agent may be
compelled, with respect to any sale of all or any part of
the Pledged Collateral, to limit purchasers to those who
will agree, among other things, to acquire such securities
for their own account, for investment, and not with a view
to the distribution or resale thereof. The Company
acknowledges and agrees that any such sale may result in
prices and other terms less favorable to the seller than
if such sale were a public sale without such restrictions
and agrees that such circumstances shall not be a factor
in determining whether such sale has been made in a
commercially reasonable manner. The Agent shall be under
no obligation to delay the sale of any of the Pledged
Collateral for the period of time necessary to permit the
Company to register such securities for public sale under
the Securities Act of 1933, or under applicable state
securities laws, even if the Company would agree to do so.
(d) If the Agent determines to exercise its right
to sell any or all of the Pledged Collateral, upon written
request, the Company shall, and shall cause each of its
direct Subsidiaries, other than Vintondale Corporation N.V.,
to, from time to time, furnish to the Agent all such
information as the Agent may reasonably request in order to
determine the number of shares and other instruments
included in the Pledged Collateral which may be sold by the
Agent as exempt transactions under the Securities Act of
1933 and rules of the Securities and Exchange Commission
thereunder, as the same are from time to time in effect.
(e) Any cash held by the Agent as Pledged
Collateral and all
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<PAGE>
cash proceeds received by the Agent in respect of any sale
of, collection from, or other realization upon all or any
part of the Pledged Collateral shall be applied by the Agent
(unless otherwise required by law):
First, to the payment of the costs and
expenses of retaking, holding, preparing for sale,
or selling the Pledged Collateral or any portion
thereof, including all expenses (including,
without limitation, any legal fees and
disbursements and the allocated cost of in-house
counsel), liabilities and advances made or
incurred by the Agent in connection therewith;
Next, to the Agent and the other Secured
Parties in partial payment of the Secured
Obligations; and
Finally, after payment in full in cash of all
Secured Obligations, termination of the
Commitments and expiration or termination of all
outstanding Letters of Credit, to the payment to
the Company, or its successors or assigns, or to
whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may
direct, of any surplus then remaining from such
cash and cash proceeds.
(f) All remedies herein expressly provided for
are cumulative of any and all other remedies existing at law
or in equity and are cumulative of any
and all other remedies provided for in any other instrument
securing the payment of the Obligations, or any part
thereof, or otherwise benefiting the Secured Parties, and
the resort to any remedy provided for hereunder or under any
such other instrument or provided for by law shall not
prevent the concurrent or subsequent employment of any other
appropriate remedy or remedies.
(g) The Secured Parties may resort to any
security given by this Agreement or to any other security
now existing or hereafter given to secure the payment of the
Obligations, in whole or in part, and in such portions and
in such order as may seem best to such Secured Party in its
sole and uncontrolled discretion, and any such action shall
not in anywise be considered as a waiver of any of the
rights, benefits or security interests evidenced by this
Agreement.
11. EXPENSES. The Company will upon demand pay to the
Agent the amount of any and all reasonable costs,
disbursements and expenses of every character, including
without limitation the reasonable fees and expenses of its
counsel (including the reasonable allocated cost of in-house
counsel), subject to the limitations expressed in Section
12.5 of the Credit Agreement, and of any experts, incurred
or expended by the Agent from time to time in connection
with: (a) the preparation, negotiation, documentation,
closing, renewal, revision, modification, renegotiation or
review of this Agreement; (b) the custody or preservation
of, or the sale of, collection from, or other realization
upon, any of
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<PAGE>
the Pledged Collateral, (c) the exercise or enforcement of
any of the rights of the Agent or any other Secured Party
hereunder, or (d) the failure by the Company to perform or
observe any of the provisions hereof.
12. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by
the Company herefrom, shall in any event be effective unless
the same shall be in writing and signed by the Agent and, in
the case of amendment, by the Company and then such waiver
or consent shall be effective only in the specific instance
and for the specific purpose for which given and to the
extent therein specified. The Agent may waive any default
without waiving any other prior or subsequent default, and
the Agent may remedy any default without waiving the default
remedied. The failure by the Agent to exercise any right,
power or remedy upon any default shall not be construed as a
waiver of such default or as a waiver of the right to
exercise any such right, power or remedy at a later date.
No single or partial exercise by the Agent of any right,
power or remedy hereunder shall exhaust the same or shall
preclude any other or further exercise thereof, and every
such right, power or remedy hereunder may be exercised at
any time and from time to time. No notice to nor demand on
the Company in any case shall of itself entitle the Company
to any other or further notice or demand in similar or other
circumstances. Acceptance by the Agent of any payment in an
amount less than the amount then due on the Secured
Obligations shall be deemed an acceptance on account only
and shall not in any way affect the existence of a default
hereunder. No waiver, release, consent by Agent pursuant
to this Agreement shall affect or impair the rights of a
Secured Party against any third party, except to the extent
specifically agreed to by the Secured Party in such writing.
13. ADDRESS FOR NOTICES. Except as otherwise provided
herein, all notices, requests and other communications
provided for hereunder shall be in writing and given as
provided in the Credit Agreement.
14. CONTINUING SECURITY INTEREST. This Agreement shall
create a continuing security interest in the Pledged
Collateral and shall (a) remain in full force and effect
until payment in full in cash (after the termination of the
Commitments and the expiration or termination of all
outstanding Letters of Credit) of the Secured Obligations;
(b) continue to be effective if at any time payment and
performance of the Secured Obligations is, pursuant to
applicable law, rescinded or reduced in amount, or must
otherwise be restored by the Agent or any other Secured
Party; (c) be binding upon the Company, its successors and
assigns, and any trustee, receiver, or conservator of the
Company, and any successors in interest of the Company in
and to all or any part of the Pledged Collateral; and (d)
inure, together with the rights and remedies of the Agent
hereunder, to the benefit of the Agent, the other Secured
Parties and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing
clause (d), the Agent and/or any Bank may assign or
otherwise
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<PAGE>
transfer its rights and obligations under the Credit
Agreement to any other Person or entity, and such other
Person or entity shall thereupon become vested with all the
benefits in respect thereof granted to such Bank herein or
otherwise, all as provided in, and to the extent set forth
in, the Credit Agreement. Upon the payment in full in cash
(after the termination of the Commitments and the expiration
or termination of all outstanding Letters of Credit) of the
Secured Obligations, the Company shall be entitled to the
return, upon its request and at its expense, of such of the
Pledged Collateral as shall not have been sold or otherwise
applied pursuant to the terms hereof.
15. SECURITY INTEREST ABSOLUTE. All rights and
security interests of the Secured Parties hereunder, and all
obligations of the Company hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or
enforceability of the Credit Agreement, any other
Credit Document, or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or
place of payment of, or in any other term of, all
or any of the Secured
Obligations (including, without limitation, the
possible extension of the Commitment Termination
Date and increase of the amount of the Commitments
all on the terms and conditions set forth in the
Credit Agreement), or any other amendment, renewal
or waiver of or any consent to any departure from
the Credit Agreement or any other Credit Document;
(c) any exchange, release or
non-perfection of any other collateral, or any
release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the
Obligations;
(d) any indulgence, moratorium or
release granted by any Secured Party, including
but not limited to (i) any renewal, extension or
modification which a Secured Party may grant with
respect to the Obligations, (ii) any surrender,
compromise, release, renewal, extension, exchange
or substitution which a Secured Party may grant in
respect of any item securing the Obligations, or
any part thereof or any interest therein, or (iii)
any release or indulgence granted to any endorser,
guarantor or surety of the Obligations; or
(e) any other circumstance which might
otherwise constitute a defense available to, or a
discharge of, the Company or a third party
pledgor.
16. USE OF COPIES. Any carbon, photographic or other
reproduction
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<PAGE>
of this Agreement or any financing statement signed by the
Company is sufficient as a financing statement for all
purposes, including without limitation, filing in any state
as may be permitted by the provisions of the Uniform
Commercial Code of such state.
17. RIGHT OF SET-OFF.
(a) Upon the occurrence and during the
continuation of any Event of Default under the Credit
Agreement, each Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by law,
to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Bank
to or for the credit or the account of the Company against
any and all of the Secured Obligations, irrespective of
whether or not such Bank shall have made any demand under
this Agreement and although such Secured Obligations may be
contingent and unmatured. Each Bank which sets-off pursuant
to this Section 17(a) shall give prompt notice to the
Company following the occurrence thereof; provided that the
failure to give such notice shall not affect the validity of
the
set-off.
(b) Any payment obtained by any Bank pursuant to
Section 17(a) (or in any other manner directly from the
Company) shall be remitted to the Agent and distributed
among the Secured Parties in accordance with the provisions
of Section 10(e).
18. SEVERABILITY. If for any reason any provision or
provisions hereof are determined to be invalid and contrary
to any existing or future law, such invalidity shall not
impair the operation of or affect those portions of this
Agreement which are valid. Each waiver in this Agreement is
subject to the overriding and controlling rule that it shall
be effective only if and to the extent that (a) it is not
prohibited by applicable law and (b) applicable law neither
provides for nor allows any material sanctions to be imposed
against the Secured Parties for having bargained for and
obtained it.
19. WAIVER OF JURY TRIAL. The Company hereby waives
and agrees to waive any right it may have to a jury trial in
connection with any action, suit or proceeding arising out
of of related in any way to this agreement or any other
credit document.
20. GOVERNING LAW; JURISDICTION.
(a) This Agreement and each issue arising
hereunder shall be governed by, and construed in accordance
with, the laws of the State of New York (excluding its
conflicts of laws principles), except to the extent provided
in Section 12.14(b) of the Credit Agreement and to the
extent that the federal laws of the United States of America
may otherwise apply. The parties agree that this
18
<PAGE>
choice of New York law has been made pursuant to Section 5-
1401 of the general obligations law of the State of New
York. Unless otherwise defined herein or in the Credit
Agreement, terms defined in Articles 8 and 9 of the Uniform
Commercial Code in the State of New York are used herein as
therein defined.
(b) Except as otherwise provided in Section
20(d), any legal action or proceeding with respect to this
Agreement 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
Agreement, the Company hereby consents, for itself and in
respect of its property, to the jurisdiction of the
aforesaid courts. The Company hereby irrevocably waives any
objection, including without limitation, any objection to
the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the
bringing of any action or proceeding in such jurisdiction in
respect of this Agreement, any other Credit Document, or any
document related to this
Agreement or any other Credit Document. The Company agrees
that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in any other jurisdictions
by suit on the judgment or in any other manner provided by
law.
(c) The Company has irrevocably appointed CT
Corporation System, with an office at 1633 Broadway, New
York, New York, (the "Process Agent"), as its agent to
receive on behalf of the Company and its property service of
copies of the summons and complaint and any other process
which may be served in any action or proceeding arising out
of or relating to this Agreement. Such service may be made
by mailing or delivering a copy of such process to the
Company in care of the Process Agent at the Process Agent's
above address, and the Company hereby irrevocably authorizes
and directs the Process Agent to accept such service on its
behalf. As an alternative method of service, the Company
also irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing of
copies of such process to the Company at its address
specified on the signature page hereof. Process may be
served in English, and the Company irrevocably waives any
right accruing to it under the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents, the
Hague Convention on the Taking of Evidence Abroad in Civil
or Commercial Matters, Panamanian law, and any similar
treaty regarding the service of process or the collection of
evidence. Any process and documents to be sent to the other
party containing languages other than English shall be sent
with English translations certified by the sender, and the
sending party shall bear the translation costs.
(d) Nothing in this Section 20 shall affect the
right of the Agent or any other Secured Party to serve legal
process in any other manner permitted by law or affect the
right of the Agent or any other Secured Party to bring any
action or proceeding against the Company in the courts of
any other jurisdictions.
(e) To the extent the Company has or hereafter
may acquire any immunity from jurisdiction of any court or
from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or
its property, the Company hereby irrevocably waives such
immunity in respect of its obligations under this Agreement.
(f) This Agreement together with the other credit
documents embodies the entire agreement and understanding
among the parties with respect to its subject matter and
19
<PAGE>
supersedes all prior or contemporaneous agreements and
understandings of such persons, verbal or written, relating
to such subject matter.
21. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to
be an original for all purposes; but such counterparts shall
be deemed to constitute but one and the same instrument.
22. WAIVER OF SUBROGATION. The Company expressly
waives any and all rights of subrogation, reimbursement and
contribution (contractual, statutory or otherwise) against
the Secured Parties, individually and collectively,
including without limitation, any claim or right of
subrogation under the Bankruptcy Code (Title 11 of the U.S.
Code) or any successor statute, arising from the existence
or performance of this Agreement and the Company irrevocably
waives any right to enforce any remedy which the Secured
Parties, or any one or more of them, now have or may
hereafter have against Borrowers and waives any benefit of,
and any right to participate in, any security now or
hereafter held by the Secured Parties, or any one or more of
them, until the Secured Obligations have been paid and
performed in full (after the termination of the Commitments
and the expiration or termination of all outstanding Letters
of Credit).
23. SUBORDINATION. The Company hereby expressly
covenants and agrees for the benefit of the Secured Parties
that all obligations and liabilities of the other Borrowers
to the Company of whatsoever description (including, without
limitation, all intercompany receivables of the Company from
each of the other Borrowers) shall be subordinated and
junior in right of payment to the Secured Obligations.
Following the occurrence of an Event of Default, all
indebtedness of the other Borrowers to the Company shall, if
the Agent shall so request, be collected and received by the
Company as trustee for the Secured Parties and paid over to
the Secured Parties, or any one or more of them, as the case
may be, on account of the Secured Obligations, but without
reducing or affecting in any manner the obligations of the
Company under this Agreement.
24. INCORPORATION BY REFERENCE. Article I of the
Credit Agreement is incorporated by reference in this
Agreement.
20
<PAGE>
IN WITNESS WHEREOF, the Company has caused this
Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above
written.
WILLBROS GROUP, INC.
By: /s/ Melvin S. Spreitzer
-----------------------------------
Name: Melvin S. Spreitzer
-----------------------------------
Title: Executive Vice President
-----------------------------------
With a copy to: Address:
John N. Hove, Esq. Edificio Plaza Bancomer
2431 E. 61st St. Calle 50, Apartado 6307
Suite 700 Panama 5, Republic of Panama
Tulsa, Oklahoma 74136 Attention: Dr. Fernando Cardoze
U.S.A. Telex: 2120
Telecopier: 918/748-7026 Answerback: ARIFA PA
Telecopier: 011-507-63-8919
Agreed to:
ABN AMRO BANK N.V., as Agent
By:/s/ W. Bryan Chapman /s/ Linda Board
- ------------------------------------------------------------
Name: W. Bryan Chapman Linda Board
- ------------------------------------------------------------
Title: Group Vice President Vice President
- ------------------------------------------------------------
By signing below, Willbros Engineering & Construction
Limited confirms that an executed copy of this Parent Pledge
Agreement dated as of February 20, 1997
21
<PAGE>
between Willbros Group, Inc. and ABN AMRO Bank N.V., as
Agent, has been submitted to it and acknowledges the above
pledge of the Pledged Collateral.
WILLBROS ENGINEERING & CONSTRUCTION
LIMITED
a corporation organized under the laws
of the Province of Ontario, Canada
By: /s/ Melvin F. Spreitzer
-----------------------------------
Name: Melvin F. Spreitzer
-----------------------------------
Title: Executive Vice President
-----------------------------------
By signing below, Willbros International, Inc. confirms that an executed
copy of this Parent Pledge Agreement dated as of February 20, 1997
between Willbros Group, Inc. and ABN AMRO Bank N.V., as Agent, has been
submitted to it and acknowledges the above pledge of the Pledged
Collateral.
WILLBROS INTERNATIONAL, INC.
a corporation organized under the laws
of the Republic of Panama
By: /s/ Melvin F. Spreitzer
-----------------------------------
Name: Melvin F. Spreitzer
-----------------------------------
Title: Executive Vice President
-----------------------------------
22
<PAGE>
SCHEDULE I
TO
PLEDGE AGREEMENT
Attached to and forming a part of that certain Parent
Pledge Agreement, dated as of February 20, 1997, by
WILLBROS GROUP, INC. to ABN AMRO BANK N.V., as Agent.
<TABLE>
<CAPTION>
SCHEDULE OF PLEDGED SHARES
State Stock
or Class Certif- Number
Name of Country of of cate Par of
Subsidiary Organization Stock No. Value shares
- --------------- ------------ ------ ------- ----- ------
<S> <C> <C> <C> <C> <C>
Willbros Interna- Republic of
tional, Inc. Panama Common 5 $1.00 25,000
Willbros
Engineering &
Construction Ontario,
Limited Canada Common 2 N/A 6
</TABLE>
<PAGE>
SCHEDULE II
TO
PLEDGE AGREEMENT
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
For Value Received, the undersigned does hereby sell,
assign and transfer unto:
- ------------------------------------------------------------
- --------------------------- -------------------------------
- ----------------------------- (---------------------------)
Shares of the --------------------------------------Stock of
- ------------------------------------------------------------
- --------- standing in ------------------ ----------------
- --------------- name on the books of said Corporation
represented by certificate No. -------------- herewith and
does hereby irrevocably constitute and appoint -----------
- ----------------------------------------------------------
attorney to transfer the said stock on the books of the
within named Corporation with full power of substitution.
This instrument and each issue arising hereunder shall be
governed by, and construed in accordance with, the laws
of the State of New York (excluding its conflict of laws
principles). This choice of New York law has been made
pursuant to Section 5-1401 of the General Obligations Law
of the State of New York.
Dated: WILLBROS GROUP, INC.
By:
-----------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Signature Attested to by:
- ----------------------------------------------------------
(Name)
- ----------------------------------------------------------
(Title)
- ----------------------------------------------------------
(Date)
[ADD NOTARIZATION OF SIGNATURE APPROPRIATE TO JURISDICTION
WHERE ACTUALLY EXECUTED]
<PAGE>
SCHEDULE III
TO
PLEDGE AGREEMENT
PLEDGE AGREEMENT SUPPLEMENT
This Pledge Agreement Supplement, dated as of ---------
- --------------,-------, is delivered pursuant to Section 5
of the Pledge Agreement referred to below. The undersigned
hereby agrees that this Pledge Agreement Supplement may be
attached to the Parent Pledge Agreement dated as of February
20, 1997 (the "Pledge Agreement"; the terms defined therein
and not otherwise defined herein being used herein as
therein defined), by and between the undersigned and ABN
AMRO Bank N.V., as Agent for the Banks party to the Credit
Agreement dated as of February 20, 1997, among Willbros
Group, Inc., certain of its Subsidiaries, the several
financial institutions from time to time a party thereto,
the Agent, and Credit Lyonnais New York Branch as Co-Agent.
This instrument and each issue arising hereunder shall be
governed by, and construed in accordance with, the laws of
the State of New York (excluding its conflict of laws
principles). This choice of New York law has been made
pursuant to Section 5-1401 of the General Obligations Law of
the State of New York.
The undersigned agrees that the securities listed below
shall for all purposes constitute Pledged Collateral and
shall be subject to the security interest created by the
Pledge Agreement.
The undersigned hereby certifies that the
representations and warranties set forth in Section 4 of the
Pledge Agreement are true and correct as to the Pledged
Collateral listed herein on and as of the date hereof.
WILLBROS GROUP, INC.
By:
-----------------------------------
Name
-----------------------------------
Title:
-----------------------------------
State Stock
or Certifi- Number
Name of Country of Class of cate Par of
Subsidiary Organization Stock No. Value shares
- ---------- ------------ -------- -------- ----- -------
By signing below, ------------------------------------------
- ---------------------------------confirms that an executed
copy of the Parent Pledge Agreement dated as of February 20,
<PAGE>
1997 between Willbros Group, Inc. and ABN AMRO Bank N.V., as
Agent, together with this Pledge Agreement, has been
submitted to it and acknowledges that the above pledge of
the Pledged Collateral.
(NAME OF COMPANY IN WHICH SHARES ARE
PLEDGED)
a (jurisdiction and form of organization)
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
<PAGE>
EXHIBIT 10.3
PLEDGE AGREEMENT
BY
MUSKETEER OIL B. V.
IN FAVOR OF
ABN AMRO BANK N.V.,
As Agent
February 20, 1997
<PAGE>
TABLE OF CONTENTS
Page
-------
1. Pledge 1
2. Security for Obligations 2
3. Delivery of Pledged Collateral 3
4. Representations, Warranties and Covenants 3
5. Further Assurances 6
6. Voting Rights; Dividends; Etc 8
7. Agent Appointed Attorney-in-Fact 10
8. Agent May Perform 10
9. No Responsibility for Certain Actions; Indemnity 10
10. Remedies upon Default 11
11. Expenses 14
12. Amendments, Etc 14
13. Address for Notices 14
14. Continuing Security Interest 15
15. Security Interest Absolute 15
16. Use of Copies 16
17. Right of Set-off 16
18. Severability 16
19. Waiver of Jury Trial 17
<PAGE>
20. Governing Law; Jurisdiction 17
21. Counterparts 18
22. Waiver of Subrogation 18
23. Subordination 19
23. Incorporation by Reference 19
24. Miscellaneous Terms 19
Schedule I Schedule of Pledged Shares
Schedule II Stock Assignment Separate From Certificate
Schedule III Pledge Agreement SupplementPLEDGE AGREEMENT
<PAGE>
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Agreement"), dated as of
February 20, 1997, is made and entered into by MUSKETEER OIL
B.V., a Netherlands limited liability company (the
"Company"), in favor of ABN AMRO BANK N.V., as agent (in
such capacity, the "Agent") for the financial institutions
(the "Banks") from time to time a party to the Credit
Agreement (defined below).
PRELIMINARY STATEMENTS.
1. Willbros Group, Inc., a Republic of Panama
corporation ("WGI"), and certain of its Subsidiaries (as
defined in the Credit Agreement) (collectively, the
"Borrowers"), the Agent, Credit Lyonnais New York Branch as
Co-Agent, and the Banks are party to a Credit Agreement of
even date herewith (such Credit Agreement, as amended,
restated, supplemented or otherwise modified from time to
time, being hereinafter referred to as the "Credit
Agreement"; unless otherwise defined herein, terms defined
in the Credit Agreement are used herein as therein defined).
2. Pursuant to the Credit Agreement, the Banks have
agreed to make available to the Borrowers a revolving credit
facility and a standby and commercial letter of credit
facility.
3. The Company is an indirect Subsidiary of WGI and an
affiliate of all of the Borrowers, and the Company will
derive substantial benefit from each extension of credit to
the Borrowers by the Banks under the Credit Agreement.
4. The obligation of the Banks to make the Loans and
to issue or participate in the Letters of Credit is
conditioned upon, among other things, the execution and
delivery by the Company of this Agreement.
AGREEMENTS.
In consideration of the premises and in order to induce
the Banks to enter into the Credit Agreement and make the
Loans and issue or participate in the Letters of Credit, and
for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged and confessed by the
parties, the Company agrees with the Agent, for the benefit
of the Agent and the Banks (the Agent and the Banks
collectively, the "Secured Parties"), as follows:
1. PLEDGE In order to secure the prompt and
unconditional payment of the obligations referred to in
Section 2 and the performance of the obligations, covenants,
agreements and undertakings described in this Agreement, the
<PAGE>
Company hereby transfers, grants, bargains, sells, conveys,
hypothecates, sets over, delivers and pledges to the Agent,
on behalf of the Secured Parties, and grants to the Agent,
on behalf of the Secured Parties, a security interest in,
all of the Company's remedies, powers, privileges, rights,
titles and interests of every kind and character now owned
or hereafter acquired, created or arising in and to the
following (the "Pledged Collateral"):
(a) the Pledged Shares (as defined below);
(b) all shares of capital stock, general and
limited partnership interests, trust interests, joint
venture interests, ownership rights arising under the law of
any jurisdiction, and any evidence of the foregoing,
together with any property and rights derivative thereof,
acquired, received or owned by the Company of any Person
which, on or after the date of this Agreement, is or
becomes, as a result of any occurrence, a direct Subsidiary
of the Company;
(c) all certificates and similar evidence of
ownership representing the Pledged Shares;
(d) all cash dividends, stock dividends, cash,
instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of
or in exchange for any or all of the Pledged Shares or the
shares or interests acquired, received or owned under
Section 1(b); and
(e) all additions to and substitutions for any of
the foregoing and all products and proceeds of any of the
Pledged Collateral, together with all renewals and
replacements of any of the Pledged Collateral, all accounts,
accounts receivable, instruments, notes, chattel paper,
documents (including all documents of title), books,
records, contract rights and general intangibles arising in
connection with any of the Pledged Collateral.
"Pledged Shares" means all shares described in Schedule I,
as amended from time to time, together with all rights,
contingent or otherwise, of the Company to acquire shares in
the entities or organizations represented by the shares
described in Schedule I, as amended from time to time, or in
any Borrower, all rights to receive cash dividends, stock
dividends, distributions upon redemption or liquidation,
distributions as a result of split-ups, recapitalizations or
rearrangements, stock rights, rights to subscribe, voting
rights, rights to receive securities, options, warrants,
calls, commitments, securities accounts, security
entitlements, and all new securities and other property
which the Company now owns or may hereafter become entitled
to receive on account of the foregoing or with respect to
any such company;
To have and to hold the Pledged Collateral, together
with all right, title,
2
<PAGE>
interest, powers, privileges and preferences pertaining or
incidental thereto, unto the Agent, its successors and
assigns, on behalf of the Secured Parties, forever; subject,
however, to the terms, covenants and conditions set forth in
this Agreement.
2. SECURITY FOR OBLIGATIONS. The security interests
and other rights granted pursuant to Section 1 secure, and
the Pledged Collateral is security for, the prompt
performance and payment in full in cash when due, whether at
stated maturity, by acceleration or otherwise of the
following (the "Secured Obligations"; provided, however,
that to the extent that in a legal proceeding brought within
the applicable limitations period it is determined by the
final, non-appealable order of a court having jurisdiction
over the issue and the applicable parties that the Company
received less than a reasonably equivalent value in exchange
for the Company's incurrence of its obligations under this
Agreement, then and only then is the Secured Obligations,
for the purposes of this Agreement only, limited in amount
to the Guaranteed Debt that would have applied to the
Company had it been a direct party to the Credit Agreement):
(a) any and all Obligations, whether now existing
or hereafter arising;
(b) any and all sums and the interest which
accrues on them which the Company may owe any Secured Party
pursuant to any Credit Document on account of any Borrower's
failure to keep, observe or perform any covenant under any
Credit Document;
(c) all present and future debts and obligations
under or pursuant to any Credit Document or other document
now or in the future governing, evidencing, guaranteeing or
securing or otherwise relating to the indebtedness incurred
pursuant to the Credit Agreement, and all supplements,
amendments, restatements, renewals, extensions,
rearrangements, increases, expansions or replacements of
them.
The Credit Agreement guarantees, among other things,
the prompt performance and payment in full of the Secured
Obligations. The Secured Obligations include, among other
things, (i) a revolving credit facility under which funds
may be advanced by the Banks, repaid and subsequently
readvanced by the Banks, and (ii) a standby and commercial
letter of credit facility under which Letters of Credit may
from time to time be issued. Notwithstanding that the
balance of the revolving line of credit may at certain times
be zero and that no Letters of Credit may at certain times
be outstanding, the Liens granted hereunder to the Agent
shall remain in full force and effect at all times and with
the same priority until the payment in full in cash of the
Secured Obligations, the termination of the Commitments and
the expiration or termination of all
3
<PAGE>
outstanding Letters of Credit.
3. DELIVERY OF PLEDGED COLLATERAL. The Pledged
Collateral and all certificates, instruments and property
representing or evidencing the Pledged Collateral shall,
within two Business Days of the Company's actual or
constructive receipt thereof, be delivered to and held by or
on behalf of the Agent pursuant to this Agreement and shall
be in suitable form for transfer of ownership and possession
by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form
and substance satisfactory to the Agent. The Agent shall
have the right, at any time in its discretion and without
notice to the Company, to transfer to or to register in its
name or any of its nominees, any or all of the Pledged
Collateral, subject only to the revocable rights specified
in Section 6(a). In addition, the Agent shall have the
right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger
denominations.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Company represents, warrants and covenants to the Agent and
the other Secured Parties as follows:
(a) The Company (i) is a private limited
liability company (besloten vennootschap) duly organized,
validly existing and in good standing under the laws of The
Netherlands; (ii) is not duly qualified as a foreign
corporation under the laws of any jurisdiction, and there is
no jurisdiction in which qualification or licensing is
required by the nature of its business and where the absence
of such qualification has a reasonable likelihood of having
a Material Adverse Effect; (iii) has all requisite corporate
power and authority and the legal right to own, pledge,
mortgage and operate its properties, and to conduct its
business as now or currently proposed to be conducted; (iv)
is in compliance with its articles of association and
similar organizational documents; (v) is not in default
under any material agreement such that there is a reasonable
likelihood of such default having a Material Adverse Effect;
(vi) is in compliance (except to the extent any
noncompliance has no reasonable likelihood of having a
Material Adverse Effect) with all Legal Requirements; and
(vii) together with the Borrowers, forms part of a group of
companies that are closely related legally and economically,
each deriving benefits from the other, and the execution,
delivery and performance of this Agreement is conducive to
the business interests of the Company and its pursuit of
profits and continuity.
(b) Each Person listed on Schedule I or described
in Section 1(b): (i) is an entity duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its organization; (ii) is duly qualified to
do business and in good standing in every jurisdiction in
which the nature of the business it
4
<PAGE>
conducts makes such qualification necessary or desirable;
(iii) has all requisite corporate power and authority and
the legal right to own, pledge, mortgage and operate its
properties, and to conduct its business as now or currently
proposed to be conducted; (iv) is in compliance with its
articles of association and similar organizational
documents; and (v) to the Company's best knowledge, is in
compliance (except to the extent any noncompliance has no
reasonable likelihood of having a Material Adverse Effect)
with all Legal Requirements.
(c) The execution, delivery, and performance by
the Company of this Agreement (I) are within the Company's
corporate power; (ii) have been duly authorized by all
necessary corporate action; (iii) do not contravene the
Company's certificate or articles of incorporation or
by-laws or other organizational documents; (iv) do not
result in or require the creation of any Lien upon or with
respect to any of its properties; and (v) do not conflict
with or result in a breach of the terms, conditions or
provisions of, or cause a default under, any agreement,
instrument, franchise, license or concession to which the
Company is a party or by which the Company or any of its
property is bound.
(d) No authorization or approval or other action
by, and no notice to or filing with, any Governmental
Authority is required for the due execution, delivery and
performance by the Company of this Agreement or for the
validity or enforceability thereof.
(e) This Agreement is a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as enforcement may be
limited by applicable bankruptcy, insolvency or similar laws
relating to creditors' rights generally, as such laws would
apply in the event of bankruptcy, insolvency or other
similar occurrence with respect to the Company.
(f) There is no pending or, to the best knowledge
of the Company, threatened action or proceeding affecting
the Company before or by any Governmental Authority which
has any reasonable likelihood of having a Material Adverse
Effect.
(g) The Company is not (I) a party to any
contractual obligation the performance of which either
unconditionally or upon the happening of an event, will
result in the creation of a Lien on the Company's property
or assets (other than in favor of the Secured Parties); or
(ii) subject to any charter or corporate restriction which
has a reasonable likelihood of having a Material Adverse
Effect.
(h) The representations and warranties made by
the Borrowers in Article V of the Credit Agreement are true
and correct, and all information
5
<PAGE>
supplied to the Secured Parties, and all statements made to
the Secured Parties by or on behalf of any Borrower or the
Company before, concurrently with or after the Company's
execution of this Agreement with respect to the Pledged
Collateral are and will be true, correct, complete, valid
and genuine in all material respects. No statement
contained in any certificate, schedule, list, financial
statement or other papers furnished to any Secured Party by
or on behalf of any Borrower or the Company contains (or
will contain) any untrue statement of material fact or omits
(or will omit) to state a material fact necessary to make
the statements contained herein or therein not misleading.
(i) The shares described on Schedule I include
all of the authorized, issued and outstanding shares of
capital stock of each of the companies listed thereon and
the rights to acquire shares in such companies. The
companies and other entities listed on Schedule I constitute
all of the Borrowers and all of the Material Subsidiaries in
which the Company has a direct ownership interest. The
Company is the sole legal and equitable owner and holder of
the Pledged Shares, which are free and clear of all Liens,
or rights or interests of any other Person, of every kind
and nature except for the Lien created by this Agreement.
The shares of stock described in the first sentence of this
paragraph are duly authorized, validly issued, fully paid,
non-assessable, and free from any restriction on transfer,
and none of such shares has been issued or transferred in
violation of the securities registration, securities
disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject. There are no options,
warrants, financing statements, calls or commitments of any
character relating to the Pledged Shares, nor are there any
rights of first refusal, voting trusts, voting agreements or
similar agreements relating to the Pledged Shares. The
pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid first
priority lien on and a first priority perfected security
interest in the Pledged Collateral and the proceeds thereof.
Appropriate financing statements will be filed in favor of
the Agent in the office of the County Clerk of Oklahoma
County, Oklahoma, U.S.A. The Company maintains no office or
place of business in the United States of America, in Canada
or in any other part of the world, other than its registered
office in The Netherlands.
(j) When additional Pledged Collateral is
delivered to the Agent in accordance with Section 3, the
Company will be the legal and equitable owner of such
Pledged Collateral free and clear of all Liens, or rights or
interests of any other Person, of every kind and nature
including any state or federal tax liens, except for the
Lien created by this Agreement; each share of stock
comprising such Pledged Collateral will have been duly
authorized and validly issued and will be fully paid and
non-assessable and free from any restriction on transfer;
and the Company will have legal title to such Pledged
Collateral and power to pledge, assign and deliver such
Pledged Collateral in the manner contemplated
6
<PAGE>
by this Agreement.
(k) The Company agrees that it will (i) cause
each issuer of shares of stock comprising Pledged Collateral
not to issue any stock or other securities in addition to or
in substitution for the shares of stock comprising Pledged
Collateral issued by such issuer, except to the Company,
(ii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all additional
shares of stock or other securities of each issuer of
Pledged Collateral, and (iii) pledge hereunder, immediately
upon its acquisition (directly or indirectly) thereof, any
and all shares of stock covered by Section 1(b).
(l) Without the prior written consent of the
Agent having been first obtained, the Company (i) shall not
sell, assign, transfer, pledge, mortgage, hypothecate,
dispose of or encumber, or grant any option or warrant or
Lien or right with respect to, or permit any Liens to arise
with respect to, the Pledged Collateral, any of its rights
in or to the Pledged Collateral and any portion thereof,
except for the pledge thereof provided for in this
Agreement, and (ii) shall not permit any issuer of shares of
stock comprising Pledged Collateral to terminate its
corporate existence, to be a party to any merger or
consolidation, or to sell, lease or dispose of all or
substantially all of its assets and properties in a single
transaction or series of related transactions, except as
permitted by the Credit Agreement.
(m) The Company has and will defend the title to
the Pledged Collateral and the Liens created by this
Agreement against all claims and demands of any Person at
any time claiming the Pledged Collateral or any interest
therein and will maintain and preserve such Liens until the
termination of this Agreement.
5. FURTHER ASSURANCES.
(a) The Company agrees that, at any time and from
time to time, at the expense of the Company, the Company
will promptly execute and deliver all further instruments
and documents, and take all further action, that may be
necessary or desirable, or that the Agent may reasonably
request, in order to create, maintain, perfect and protect
any security interest, pledge, or hypothecation granted or
purported to be granted by this Agreement, to enable the
Agent to exercise and enforce its rights and remedies under
this Agreement with respect to any Pledged Collateral, and
to assure the transferability by the Agent and its
successors of the Pledged Collateral. The Company shall
notify the Agent in writing, at least two (2) weeks in
advance of the date that it establishes any office or place
of business in the United States, or establishes its chief
executive office in any other part of the world, of its
intent to establish such office.
7
<PAGE>
(b) Where all or any part of any jurisdiction's
enactment of the 1994 revisions to Article 8 of the Uniform
Commercial Code applies with respect to a portion of the
Pledged Collateral, (i) the Company shall cause the Agent to
have sole "control", as defined therein, of such Pledged
Collateral that comprises investment property, together with
all proceeds thereof, and (ii) at the Agent's request from
time to time, the Company shall instruct (and hereby
instructs) any third party holding such Pledged Collateral
to obey only the instructions and entitlement orders of the
Agent with respect to such Pledged Collateral and any
proceeds thereof. Except as the Agent may otherwise permit
in writing, the Company shall have no right to cause the
withdrawal, application or transfer of any financial assets
or security entitlements with respect to the Pledged
Collateral, and the Company shall not give any instructions
or entitlement orders with respect to them.
(c) Without limiting the foregoing, the Company
further agrees that it will, upon obtaining any additional
shares of any issuer of the Pledged Collateral or shares or
other equity interests in entities described in Section 1(b)
or any other securities constituting Pledged Collateral,
promptly (and in any event within five (5) Business Days)
deliver to the Agent (i) such shares, (ii) a duly executed
but blank stock power in the form of Schedule II for each
certificate representing such additional Pledged Collateral,
and (iii) a duly executed Pledge Agreement Supplement in
substantially the form of Schedule III (a "Pledge Agreement
Supplement") or as may otherwise be reasonably required by
the Agent identifying the additional shares which are
pledged pursuant to Section 1(b). The Company authorizes
the Agent to attach each Pledge Agreement Supplement to this
Agreement and agrees that all shares listed on any Pledge
Agreement Supplement delivered to the Agent shall for all
purposes constitute Pledged Collateral.
(d) The Company will cause to be paid before
delinquency all taxes, charges, liens and assessments at any
time levied or assessed against the Pledged Collateral, or
any part thereof, or against any Secured Party for or on
account of the Pledged Collateral or the interest created by
this Agreement, and will furnish the Agent with receipts
showing payment of such taxes and assessments at least five
days before the applicable default date therefor.
(e) If the validity or priority of this Agreement
or of any rights, titles, security interests or other
interests created or evidenced by this Agreement shall be
attacked, endangered or questioned or if any legal
proceedings are instituted with respect thereto, the Company
will take all necessary and proper steps for the defense of
such legal proceedings. The Agent is authorized and
empowered to take such additional steps as in its judgment
and discretion may be necessary or proper for the defense of
any such legal proceedings or the protection of the validity
or priority of this Agreement and the rights, titles,
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<PAGE>
security interests and other interests created or evidenced
by this Agreement, and the Secured Obligations include all
expenses so incurred of every kind and character.
(f) Regarding any proceedings relating to the
Pledged Collateral, or any portion thereof, the Agent may
participate therein, and the Company shall from time to time
deliver to the Agent all instruments reasonably requested by
it to permit such participation. The Company shall, at its
expense, diligently prosecute any such proceedings and shall
consult with the Agent, its attorneys and experts, and
cooperate with them in the carrying on or defense of any
such proceedings.
6. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have
occurred and be continuing (and, in the case of clause (i)
below, so long as written notice has not been given by the
Agent to the Company):
(i) The Company shall be entitled to
exercise any and all voting and/or other
consensual rights pertaining to the Pledged
Collateral or any part thereof for any purpose
consistent with the terms of this Agreement or the
Credit Agreement; provided, however, that the
Company shall not exercise or refrain from
exercising any such right with the primary intent
of causing a Material Adverse Effect.
(ii) The Company shall be entitled to
receive and retain any and all dividends paid in
respect of the Pledged Collateral (other than any
and all
(A) dividends paid or payable
other than in cash in respect of, and
instruments and other property received,
receivable or otherwise distributed in
respect of, or in exchange for, any
Pledged Collateral,
(B) dividends and other
distributions paid or payable in cash in
respect of any Pledged Collateral in
connection with a partial or total
liquidation or dissolution or in
connection with a return of capital,
capital surplus or paid-in-surplus, and
(C) cash paid, payable or
otherwise distributed in redemption of,
or in exchange for, any Pledged
Collateral,
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<PAGE>
all of which shall be, and all of which shall be
forthwith delivered to the Agent to hold as,
Pledged Collateral and shall, if received by the
Company, be received in trust for the benefit of
the Agent, be segregated from the other property
or funds of the Company, and be forthwith
delivered to the Agent as Pledged Collateral in
the same form as so received (with any necessary
endorsement)).
(iii) The Agent shall execute and
deliver (or cause to be executed and delivered) to
the Company all such proxies and other instruments
as the Company may reasonably request for the
purpose of enabling the Company to exercise the
voting and other rights which it is entitled to
exercise pursuant to clause (i) above and to
receive the dividends which it is authorized to
receive and retain pursuant to clause (ii) above.
Regardless of the Company's right described above to receive
and retain certain rights and property, such rights and
property nonetheless secure the repayment of the Secured
Obligations and are a part of the Pledged Collateral.
(b) Upon the occurrence and during the
continuation of an Event of Default:
(i) All rights of the Company to
exercise the voting and other consensual rights
which it would otherwise be entitled to exercise
pursuant to Section 6(a)(i) and the obligations of
the Agent under Section 6(a)(iii) shall cease upon
receipt by the Company of written notice of an
Event of Default, and all such rights shall
thereupon become vested in the Agent who shall
thereupon have the sole right to exercise such
voting and other consensual rights;
(ii) All rights of the Company to
receive the dividends which it would otherwise be
authorized to receive and retain pursuant to
Section 6(a)(ii) shall cease upon receipt by the
Company of written notice of an Event of Default,
and all such rights shall thereupon become vested
in the Agent who shall thereupon have the sole
right to receive and hold as Pledged Collateral
such dividends; and
(iii) All dividends which are
received by the Company contrary to the provisions
of clause (ii) of this Section 6(b) shall be
received in trust for the benefit of the Agent,
shall be segregated from other funds of the
Company and shall be forthwith paid over to the
Agent as Pledged Collateral in the same form as so
received (with any necessary endorsement).
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<PAGE>
(c) In order to permit the Agent to exercise the
voting and other rights which it may be entitled to exercise
pursuant to Section 6(b)(i), and to receive all dividends
and distributions which it may be entitled to receive under
Section 6(b)(ii), the Company shall, if necessary, upon
written notice from the Agent, from time to time execute and
deliver to the Agent appropriate dividend payment orders and
other instruments as the Agent may reasonably request. To
this end, the Company hereby irrevocably constitutes and
appoints the Agent the proxy and attorney-in-fact of the
Company, with full power of substitution, to vote, and to
act with respect to, any and all Pledged Collateral that is
securities standing in the name of the Company or with
respect to which the Company is entitled to vote and act,
subject to the understanding that such proxy may not be
exercised unless an Event of Default has occurred and is
continuing. The proxy herein granted is coupled with an
interest, is irrevocable, and shall continue until payment
in full in cash of the Secured Obligations, the termination
of the Commitments and the expiration or termination of all
outstanding Letters of Credit.
7. AGENT APPOINTED ATTORNEY-IN-FACT. Company hereby
appoints the Agent the Company's true and lawful attorney-
in-fact, with full authority in the place and stead of the
Company and in the name of the Company or otherwise, from
time to time in the Agent's discretion, subject to Section
6, to take any action and to execute any document or
instrument which the Agent may reasonably deem necessary or
desirable to accomplish the purposes of this Agreement,
including, without limitation, to receive, endorse and
collect all instruments made payable to the Company
representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any
part thereof and to give full discharge for the same. The
Agent's liability, if any, otherwise arising under
applicable law shall be limited to amounts actually received
as a result of the exercise of the powers granted to it
herein. No Agent or Bank, and no officer, director,
employee or agent of the Agent or any Bank, shall be
responsible to the Company for any act or failure to act
hereunder, except that any such Person shall be responsible
for its own gross negligence or willful misconduct.
8. AGENT MAY PERFORM. Agent is authorized to perform,
or cause performance of, any agreement contained herein in
the event that the Company fails to timely perform the same,
and the reasonable expenses of the Agent incurred in
connection therewith shall be payable by the Company. The
Agent is further authorized in its discretion to take any
other action, either on its own behalf or on behalf of the
Company (and as regards actions taken on behalf of the
Company, this authorization is irrevocable and is an agency
coupled with an interest), as the Agent may elect, which the
Agent may deem necessary or appropriate to protect and
preserve the rights, titles and interests of the Agent
11
<PAGE>
hereunder. The powers conferred on the Agent pursuant to
this Agreement are conferred solely to protect the Secured
Parties' interest in the Pledged Collateral and shall not
impose any duty or obligation on any Secured Party to perform
any of the powers herein conferred. No exercise of any of
the rights provided for in this Agreement constitute a
retention of collateral in satisfaction of indebtedness.
9. NO RESPONSIBILITY FOR CERTAIN ACTIONS; INDEMNITY.
Neither the Agent nor any other Secured Party shall have
responsibility for (a) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Pledged Collateral,
whether or not the Agent or any other Secured Party has or
is deemed to have knowledge of such matters, (b) taking any
necessary steps to preserve any rights against any Person
with respect to any Pledged Collateral, or (c) supervising,
monitoring or controlling any aspect of the character or
condition of any of the Pledged Collateral or any operations
conducted in connection with it for the benefit of the
Company or any other Person. The Company agrees to
indemnify, defend and hold Secured Parties, their respective
shareholders, directors, officers, agents, advisors and
employees (collectively "Indemnified Parties") harmless from
and against any and all loss, liability, obligation, damage,
penalty, judgment, claim, deficiency, expense, action, suit,
cost and disbursement of any kind or nature whatsoever
(including interest, penalties, attorneys' fees and amounts
paid in settlement), imposed on, incurred by or asserted
against the Indemnified Parties growing out of or resulting
from this Agreement or any transaction or event contemplated
in it (except that such indemnity shall not be paid to any
Indemnified Party to the extent such loss, etc. directly
results from the gross negligence or willful misconduct of
any of the Indemnified Parties).
10. REMEDIES UPON DEFAULT. If any Event of Default
shall have occurred and be continuing:
(a) The Agent may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all the
rights and remedies of a secured party in default under the
Uniform Commercial Code (the "Code") in effect in the State
of New York at that time, and, subject to applicable
regulatory and legal requirements, the Agent may also,
without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at
public or private sale, at any exchange, broker's board or
at any of the Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as
the Agent may deem commercially reasonable. Upon
consummation of any such sale, the Agent shall have the
right to assign, transfer and deliver to the purchaser or
purchasers thereof the Pledged Collateral so sold. Each
such purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of the
Company, and the Company, for itself and for its successors,
12
<PAGE>
receivers, trustees and assigns, and for any and all persons
ever claiming any interest in the Pledged Collateral, to the
extent permitted by law, hereby waives all rights of
extension, redemption, stay, valuation and appraisal, and
any similar right arising under the law of any country,
which the Company now has or may at any time in the future
have under any rule of law or statute now existing or
hereafter enacted. The Company agrees that, to the extent
notice of sale shall be required by law, at least 10 days'
notice to the Company of the time and place of any public
sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Agent shall
not be obligated to make any sale of Pledged Collateral
regardless of notice of sale having been given. The Agent
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and
place to which it was so adjourned. The Company hereby
waives any claims against the Agent arising by reason of the
fact that the price at which any Pledged Collateral may have
been sold at such a private sale was less than the price
which might have been obtained at a public sale, even if the
Agent accepts the first offer received and does not offer
such Pledged Collateral to more than one offeree. At any
public sale made pursuant to this Section 10, any Secured
Party may bid for or purchase, free from any right of
redemption, stay or appraisal, and any similar right arising
under the law of any country, on the part of the Company
(all said rights being also hereby waived and released), the
Pledged Collateral or any part thereof offered for sale and
may make payment on account thereof by using any claim then
due and payable to it from any Borrower, any Guarantor
and/or the Company as a credit against the purchase price,
and it may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further
accountability to the Company therefor. For purposes
hereof, (i) a written agreement to purchase the Pledged
Collateral or any portion thereof shall be treated as a sale
thereof, (ii) the Agent shall be free to carry out such sale
pursuant to such agreement and (iii) the Company shall not
be entitled to the return of the Pledged Collateral or any
portion thereof subject thereto, notwithstanding the fact
that after the Agent shall have entered into such an
agreement all Events of Default shall have been remedied and
the Secured Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the
Agent may proceed by a suit or suits at law or in equity to
foreclose upon the Pledged Collateral and to sell the
Pledged Collateral or any portion thereof pursuant to a
judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a
court-appointed receiver. Any sale pursuant to the
provisions of this Section 10 shall be deemed to conform to
the commercially reasonable standards as provided in the
Code. The Company covenants and agrees that it will execute
and deliver such documents and take such other action as the
Agent deems necessary or advisable in order that any such
sale may be made in compliance with applicable law.
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<PAGE>
(b) The Agent shall have all the rights of a
secured party after default under the Uniform Commercial
Code of New York and in conjunction with, in addition to or
in substitution for those rights and remedies:
(i) it shall not be necessary that the
Pledged Collateral or any part thereof be present at the
location of any sale pursuant to the provisions of this
Section 10;
(ii) the sale by the Agent of less than the
whole of the Pledged Collateral shall not exhaust the rights
of the Agent hereunder, and the Agent is specifically
empowered to make successive sale or sales hereunder until
the whole of the Pledged Collateral shall be sold; and, if
the proceeds of such sale of less than the whole of the
Pledged Collateral shall be less than the aggregate of the
Secured Obligations, this Agreement and the security
interest created hereby shall remain in full force and
effect as to the unsold portion of the Pledged Collateral
just as though no sale had been made;
(iii) in the event any sale hereunder is
not completed or is defective in the opinion of the Agent,
such sale shall not exhaust the rights of the Agent
hereunder and the Agent shall have the right to cause a
subsequent sale or sales to be made hereunder; and
(iv) demand of performance, advertisement and
presence of property at sale are hereby waived and the Agent
is hereby authorized to sell hereunder any financial asset
it may hold as security for the Secured Obligations. All
demands and presentments of any kind or nature are expressly
waived by the Company. The Company hereby waives the right
to require the Agent to pursue any other remedy for the
benefit of the Company and agrees that Secured Party may
proceed against any Person for the amount of the Obligations
owed to the Agent without taking any action against any
other Person and without selling or otherwise proceeding
against or applying any of the Pledged Collateral in the
Agent's possession.
(c) The Company recognizes that, by reason of
certain prohibitions contained in the Securities Act of 1933
and applicable state securities laws, the Agent may be
compelled, with respect to any sale of all or any part of
the Pledged Collateral, to limit purchasers to those who
will agree, among other things, to acquire such securities
for their own account, for investment, and not with a view
to the distribution or resale thereof. The Company
acknowledges and agrees that any such sale may result in
prices and other terms less favorable to the seller than if
such sale were a public sale without such restrictions and
agrees that such circumstances shall not be a factor in
determining whether such sale has been made in a
commercially reasonable manner. The Agent shall be under no
obligation to delay the sale of
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<PAGE>
any of the Pledged Collateral for the period of time
necessary to permit the Company to register such securities
for public sale under the Securities Act of 1933, or under
applicable state securities laws, even if the Company would
agree to do so.
(d) If the Agent determines to exercise its right
to sell any or all of the Pledged Collateral, upon written
request, the Company shall, and shall cause each of its
direct Subsidiaries to, from time to time, furnish to the
Agent all such information as the Agent may reasonably
request in order to determine the number of shares and other
instruments included in the Pledged Collateral which may be
sold by the Agent as exempt transactions under the
Securities Act of 1933 and rules of the Securities and
Exchange Commission thereunder, as the same are from time to
time in effect.
(e) Any cash held by the Agent as Pledged
Collateral and all cash proceeds received by the Agent in
respect of any sale of, collection from, or other
realization upon all or any part of the Pledged Collateral
shall be applied by the Agent (unless otherwise required by
law):
First, to the payment of the costs and
expenses of retaking, holding, preparing for sale,
or selling the Pledged Collateral or any portion
thereof, including all expenses (including,
without limitation, any legal fees and
disbursements and the allocated cost of in-house
counsel), liabilities and advances made or
incurred by the Agent in connection therewith;
Next, to the Agent and the other Secured
Parties in partial payment of the Secured
Obligations; and
Finally, after payment in full in cash of all
Secured Obligations, termination of the
Commitments and expiration or termination of all
outstanding Letters of Credit, to the payment to
the Company, or its successors or assigns, or to
whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may
direct, of any surplus then remaining from such
cash and cash proceeds.
(f) All remedies herein expressly provided for
are cumulative of any and all other remedies existing at law
or in equity and are cumulative of any and all other
remedies provided for in any other instrument securing the
payment of the Obligations, or any part thereof, or
otherwise benefiting the Secured Parties, and the resort to
any remedy provided for hereunder or under any such other
instrument or provided for by law shall not prevent the
concurrent or subsequent employment of any other appropriate
remedy or remedies.
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<PAGE>
(g) The Secured Parties may resort to any
security given by this Agreement or to any other security
now existing or hereafter given to secure the payment of the
Obligations, in whole or in part, and in such portions and
in such order as may seem best to such Secured Party in its
sole and uncontrolled discretion, and any such action shall
not in anywise be considered as a waiver of any of the
rights, benefits or security interests evidenced by this
Agreement.
11. EXPENSES. The Company will upon demand pay to the
Agent the amount of any and all reasonable costs,
disbursements and expenses of every character, including
without limitation the reasonable fees and expenses of its
counsel (including the reasonable allocated cost of in-house
counsel), subject to the limitations expressed in Section
12.5 of the Credit Agreement, and of any experts, incurred
or expended by the Agent from time to time in connection
with: (a) the preparation, negotiation, documentation,
closing, renewal, revision, modification, renegotiation or
review of this Agreement; (b) the custody or preservation
of, or the sale of, collection from, or other realization
upon, any of the Pledged Collateral, (c) the exercise or
enforcement of any of the rights of the Agent or any other
Secured Party hereunder, or (d) the failure by the Company
to perform or observe any of the provisions hereof.
12. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement nor consent to any departure by
the Company herefrom shall in any event be effective unless
the same shall be in writing and signed by the Agent, and,
in the case of amendment, by the Company, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given and to
the extent therein specified. The Agent may waive any
default without waiving any other prior or subsequent
default, and the Agent may remedy any default without
waiving the default remedied. The failure by the Agent to
exercise any right, power or remedy upon any default shall
not be construed as a waiver of such default or as a waiver
of the right to exercise any such right, power or remedy at
a later date. No single or partial exercise by the Agent of
any right, power or remedy hereunder shall exhaust the same
or shall preclude any other or further exercise thereof, and
every such right, power or remedy hereunder may be exercised
at any time and from time to time. No notice to nor demand
on the Company in any case shall of itself entitle the
Company to any other or further notice or demand in similar
or other circumstances. Acceptance by the Agent of any
payment in an amount less than the amount then due on the
Secured Obligations shall be deemed an acceptance on account
only and shall not in any way affect the existence of a
default hereunder. No waiver, release, consent by Agent
pursuant to this Agreement shall affect or impair the rights
of a Secured Party against any third party, except to the
extent specifically agreed to by the Secured Party in such
writing.
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<PAGE>
13. ADDRESS FOR NOTICES. Except as otherwise provided
herein, all notices, requests and other communications
provided for pursuant to this Agreement or any other Credit
Document shall be in writing (including telegraphic, telex,
facsimile transmission or cable communication and confirmed
in original writing) and mailed, telegraphed, telexed,
telefaxed, cabled or delivered, if to the Company to its
address specified on the signature page of this Agreement;
if to any Bank, to its Domestic Lending Office; and if to
the Agent, to its address specified on the signature pages
of the Credit Agreement; or, if to the Company or the Agent,
to such other address as shall be designated by such party
in a written notice to the other party. All such notices
and communications shall be effective (i) if mailed, on the
fifth day after being deposited in the United States Postal
Service, (ii) on the next day after being delivered to a
service for overnight delivery, (iii) if telegraphed,
telecopied, cabled or telexed, on the day delivered to the
telegraph company, transmitted by telecopier, confirmed by
telex answerback or delivered to the cable company,
respectively, or (iv) if delivered, upon delivery, except
that notices pursuant to Article IX of the Credit Agreement
shall not be effective until received by the Agent. Actual
notice shall always be effective.
14. CONTINUING SECURITY INTEREST. This Agreement shall
create a continuing security interest in the Pledged
Collateral and shall (a) remain in full force and effect
until payment in full in cash (after the termination of the
Commitments and the expiration or termination of all
outstanding Letters of Credit) of the Secured Obligations;
(b) continue to be effective if at any time payment and
performance of the Secured Obligations is, pursuant to
applicable law, rescinded or reduced in amount, or must
otherwise be restored by the Agent or any other Secured
Party; (c) be binding upon the Company, its successors and
assigns, and any trustee, receiver, or conservator of the
Company, and any successors in interest of the Company in
and to all or any part of the Pledged Collateral; and (d)
inure, together with the rights and remedies of the Agent
hereunder, to the benefit of the Agent, the other Secured
Parties and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing
clause (d), the Agent and/or any Bank may assign or
otherwise transfer its rights and obligations under the
Credit Agreement to any other Person or entity, and such
other Person or entity shall thereupon become vested with
all the benefits in respect thereof granted to such Bank
herein or otherwise, all as provided in, and to the extent
set forth in, the Credit Agreement. Upon the payment in
full in cash (after the termination of the Commitments and
the expiration or termination of all outstanding Letters of
Credit) of the Secured Obligations, the Company shall be
entitled to the return, upon its request and at its expense,
of such of the Pledged Collateral as shall not have been
sold or otherwise applied pursuant to the terms hereof.
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<PAGE>
15. SECURITY INTEREST ABSOLUTE. All rights and
security interests of the Secured Parties hereunder, and all
obligations of the Company hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or
enforceability of the Credit Agreement, any other
Credit Document, or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or
place of payment of, or in any other term of, all
or any of the Secured Obligations (including,
without limitation, the possible extension of the
Commitment Termination Date and increase of the
amount of the Commitments all on the terms and
conditions set forth in the Credit Agreement), or
any other amendment, renewal or waiver of or any
consent to any departure from the Credit Agreement
or any other Credit Document;
(c) any exchange, release or
non-perfection of any other collateral, or any
release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the
Obligations;
(d) any indulgence, moratorium or
release granted by any Secured Party, including
but not limited to (i) any renewal, extension or
modification which a Secured Party may grant with
respect to the Obligations, (ii) any surrender,
compromise, release, renewal, extension, exchange
or substitution which a Secured Party may grant in
respect of any item securing the Obligations, or
any part thereof or any interest therein, or (iii)
any release or indulgence granted to any endorser,
guarantor or surety of the Obligations; or
(e) any other circumstance which might
otherwise constitute a defense available to, or a
discharge of, the Company or a third party
pledgor.
16. USE OF COPIES. Any carbon, photographic or other
reproduction of this Agreement or any financing statement
signed by the Company is sufficient as a financing statement
for all purposes, including without limitation, filing in
any state as may be permitted by the provisions of the
Uniform Commercial Code of such state.
17. RIGHT OF SET-OFF.
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<PAGE>
(a) Upon the occurrence and during the
continuation of any Event of Default under the Credit
Agreement, each Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by law,
to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Bank
to or for the credit or the account of the Company against
any and all of the Secured Obligations, irrespective of
whether or not such Bank shall have made any demand under
this Agreement and although such Secured Obligations may be
contingent and unmatured. Each Bank which sets-off pursuant
to this Section 17(a) shall give prompt notice to the
Company following the occurrence thereof; provided that the
failure to give such notice shall not affect the validity of
the set-off.
(b) Any payment obtained by any Bank pursuant to
Section 17(a) (or in any other manner directly from the
Company) shall be remitted to the Agent and distributed
among the Secured Parties in accordance with the provisions
of Section 10(e).
18. SEVERABILITY. If for any reason any provision or
provisions hereof are determined to be invalid and contrary
to any existing or future law, such invalidity shall not
impair the operation of or affect those portions of this
Agreement which are valid. Each waiver in this Agreement is
subject to the overriding and controlling rule that it shall
be effective only if and to the extent that (a) it is not
prohibited by applicable law and (b) applicable law neither
provides for nor allows any material sanctions to be imposed
against the Secured Parties for having bargained for and
obtained it.
19. WAIVER OF JURY TRIAL. The Company hereby waives
and agrees to waive any right it may have to a jury trial in
connection with any action, suit or proceeding arising out
of or related in any way to this agreement or any other
credit document.
20. GOVERNING LAW; JURISDICTION.
(a) This agreement and each issue arising
hereunder shall be governed by, and construed in accordance
with, the laws of the State of New York (excluding its
conflicts of laws principles), except to the extent provided
in Section 12.14(b) of the credit agreement and to the
extent that the federal laws of the United States of America
may otherwise apply. The parties agree that this choice of
New York law has been made pursuant to Section 5-1401 of the
general obligations law of the State of New York. Unless
otherwise defined herein or in the Credit Agreement, terms
defined in Articles 8 and 9 of the Uniform Commercial Code
in the State of New York are used herein as therein defined.
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<PAGE>
(b) Except as otherwise provided in Section
20(d), any legal action or proceeding with respect to this
Agreement 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
Agreement, the Company hereby consents, for itself and in
respect of its property, to the jurisdiction of the
aforesaid courts. The Company hereby irrevocably waives any
objection, including without limitation, any objection to
the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the
bringing of any action or proceeding in such jurisdiction in
respect of this Agreement, any other Credit Document, or any
document related to this Agreement or any other Credit
Document. The Company agrees that a final judgment in any
such action or proceeding shall be conclusive and may be
enforced in any other jurisdictions by suit on the judgment
or in any other manner provided by law. The parties agree
that, for the purpose of any proceeding brought in The
Netherlands to enforce a final judgment of the aforesaid
courts, (a) the pledge and grant of a security interest
described in Section 1 of this Agreement shall be construed
to grant to the Agent, in addition, a first ranking right of
pledge (pandrecht) under the law of The Netherlands and (b)
any findings of fact rendered by such courts shall be (and
shall be deemed to be) admitted by each party.
(c) The Company has irrevocably appointed CT
Corporation System, with an office at 1633 Broadway, New
York, New York, (the "Process Agent"), as its agent to
receive on behalf of the Company and its property service of
copies of the summons and complaint and any other process
which may be served in any action or proceeding arising out
of or relating to this Agreement. Such service may be made
by mailing or delivering a copy of such process to the
Company in care of the Process Agent at the Process Agent's
above address, and the Company hereby irrevocably authorizes
and directs the Process Agent to accept such service on its
behalf. As an alternative method of service, the Company
also irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing of
copies of such process to the Company at its address
specified on the signature page hereof. Process may be
served in English, and the Company irrevocably waives any
right accruing to it under the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents, the
Hague Convention on the Taking of Evidence Abroad in Civil
or Commercial Matters, the law of The Netherlands, and any
similar treaty regarding the service of process or the
collection of evidence. Any process and documents to be
sent to the other party containing languages other than
English shall be sent with English translations certified by
the sender, and the sending party shall bear the translation
costs.
(d) Nothing in this Section 20 shall affect the
right of the Agent
20
<PAGE>
or any other Secured Party to serve legal process in any
other manner permitted by law or affect the right of the
Agent or any other Secured Party to bring any action or
proceeding against the Company in the courts of any other
jurisdictions.
(e) To the extent the Company has or hereafter
may acquire any immunity from jurisdiction of any court or
from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or
its property, the Company hereby irrevocably waives such
immunity in respect of its obligations under this Agreement.
(f) This agreement together with the other credit
documents embodies the entire agreement and understanding
among the parties with respect to its subject matter and
supersedes all prior or contemporaneous agreements and
understandings of such persons, verbal or written, relating
to such subject matter.
21. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to
be an original for all purposes; but such counterparts shall
be deemed to constitute but one and the same instrument.
22. WAIVER OF SUBROGATION. The Company expressly
waives any and all rights of subrogation, reimbursement and
contribution (contractual, statutory or otherwise) against
the Secured Parties, individually and collectively,
including without limitation, any claim or right of
subrogation under the Bankruptcy Code (Title 11 of the U.S.
Code) or any successor statute, arising from the existence
or performance of this Agreement and the Company irrevocably
waives any right to enforce any remedy which the Secured
Parties, or any one or more of them, now have or may
hereafter have against Borrowers and waives any benefit of,
and any right to participate in, any security now or
hereafter held by the Secured Parties, or any one or more of
them, until the Secured Obligations have been paid and
performed in full (after the termination of the Commitments
and the expiration or termination of all outstanding Letters
of Credit).
23. SUBORDINATION. The Company hereby expressly
covenants and agrees for the benefit of the Secured Parties
that all obligations and liabilities of the Borrowers to the
Company of whatsoever description (including, without
limitation, all intercompany receivables of the Company from
each of the Borrowers) shall be subordinated and junior in
right of payment to the Secured Obligations. Following the
occurrence of an Event of Default, all indebtedness of the
Borrowers to the Company shall, if the Agent shall so
request, be collected and received by the Company as trustee
for the Secured Parties and paid over
21
<PAGE>
to the Secured Parties, or any one or more of them, as the
case may be, on account of the Secured Obligations, but
without reducing or affecting in any manner the obligations
of the Company under this Agreement.
23. INCORPORATION BY REFERENCE.
(a) Article I of the Credit Agreement is
incorporated by reference in this Agreement. Article XII of
the Credit Agreement is incorporated by reference in this
Agreement with the same effect as if the Company were named
as a Borrower therein.
(b) The limitation on the Secured Obligations
described in Section 2 of this Agreement shall not affect or
excuse the liability or obligations of any Guarantor, nor
may any similar limitation in Section 10.2 of the Credit
Agreement be raised as a defense to any action or claim
against the Company (collectively, such limitations are
herein referred to as the "Limitations"). The Agent shall
have the right to determine and designate from time to time,
without notice or assent of the Company, which portions of
the Obligations to which such limitations apply, and the
Company acknowledges that such determination and designation
shall be conclusive. This Agreement shall not fail or be
ineffective or invalid or be considered too indefinite or
contingent with respect to the Company because the deemed
Guaranteed Debt applicable to the Company may fluctuate from
time to time or for any other reason. The Company agrees
that, as it relates to its deemed Guaranteed Debt, any
payment or prepayment by any Guarantor or any other Person
against any part of the Secured Obligations shall be deemed
paid first against that portion that is limited by the
Limitations, and the balance, if any, shall be applied to
remaining Secured Obligations, in such order and manner as
the Agent shall determine in its sole discretion. The
Company's covenants, agreements and obligations under this
Agreement shall in no way be released, diminished, reduced,
impaired or otherwise affected by reason of the happening
from time to time of any of the matters, events or
conditions described in Section 10.4 of the Credit
Agreement, regardless of whether the Company is given any
notice or is asked for or gives any consent (all
requirements for which, however arising, the Company hereby
waives). In addition to the other terms and conditions of
this Agreement, the Company agrees that every waiver,
release, subordination, representation, warranty and
agreement described in Article X of the Credit Agreement
(except those imposing vicarious, personal liability on
Guarantors for the Obligations (e.g., Sections 10.2, 10.7
and 10.19)) are hereby made by the Company and made a part
of this Agreement, and the same shall apply, with necessary
changes in points of detail, to this Agreement to the same
extent as if the Company were named as a Guarantor and
Borrower in the Credit Agreement.
24. MISCELLANEOUS TERMS.
22
<PAGE>
(a) The Company represents and warrants to the
Agent and the other Secured Parties that (i) no resolution
of the general meeting of shareholders is in effect which
would require approval from the general meeting of
shareholders or any other party in connection with the
execution of this Agreement or the performance of this
Agreement in accordance with its terms, (ii) Vintondale
Corporation N.V. ("Vintondale") is aware of the terms and
conditions of this Agreement and consents to the Company's
execution of it, (iii) with the exception of debts owing to
Vintondale or WGI and tax obligations arising in the
ordinary course of business that are not yet due and
payable, the Company is not directly or indirectly indebted
to any Person, nor has it guaranteed the indebtedness of any
Person, (iv) no shareholder or shareholders of the Company
have passed a resolution approving a voluntary winding-up of
the Company or approved a statutory merger (juridische
fusie) (as disappearing entity), (v) no receiver, trustee,
administrator or similar officer has been appointed in
respect of the Company, (vi) no petition has been presented
to a court for the bankruptcy (faillissment), dissolution
(ontbinding en vereffening), voluntary dissolution
(ontbinding), or suspension of payments (surseance van
betaling) of the Company, and (vii) the execution and
performance of this Agreement is in the Company's direct
interests, serves to attain the objects expressed in the
Company's articles of association, and does not jeopardize
the subsistence of the Company.
(b) The Company covenants that it shall not incur
any indebtedness (other than indebtedness to Vintondale and
tax obligations arising in the ordinary course of business)
or guarantee the obligations of any Person, in excess of
US$100,000 in each case, without (i) notifying the Agent in
writing at least five days in advance of the incurrence of
the debt (unless the creditor is a Subsidiary of WGI) or the
issuance of the guarantee and, (ii) unless such obligee is
a Subsidiary of WGI having actual knowledge of the the
pledge and security interest granted in this Agreement,
informing the obligee in writing of the existence, nature
and extent of the pledge and security interest granted in
this Agreement.
(c) The Company shall cause to be prominently
noted each year in its publicly filed annual statement of
accounts that all of its interests in the Pledged Collateral
have been pledged to the Agent to secure a $150,000,000
credit facility extended to the Company's affiliates.
(d) The Company shall register the pledge of
receivables under this Agreement with the relevant Inspectie
voor de Registratie en Successie in The Netherlands.
23
<PAGE>
IN WITNESS WHEREOF, the Company has caused this
Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above
written.
MUSKETEER OIL B.V.
By: /s/ illegible
-----------------------------------
Name: Holland Intertrust Corporation, B.V.
-----------------------------------
Title: Managing Director
-----------------------------------
With a copy to: Address:
John N. Hove, Esq. Museumplein 11, 1071 DJ
2431 E. 61st St. Amsterdam, The Netherlands
Suite 700 Attention: Floris van der
Rhee
Tulsa, Oklahoma 74136 Telex: 18709
U.S.A. Answerback: HOLD NL
Telecopier: 918/748-7026 Telecopier: 011-31-20-6647747
AGREED TO:
ABN AMRO BANK N.V., as Agent
By: /s/ W. Bryan Chapman /s/ Linda Board
-----------------------------------------
Name: W. Bryan Chapman Linda Board
-----------------------------------------
Title: Group Vice President Vice President
-----------------------------------------
By signing below, WILLBROS USA, INC. confirms that an
executed copy of this Pledge Agreement dated as of February
20, 1997 between Musketeer Oil B.V. and ABN AMRO Bank N.V.,
as Agent, has been submitted to it and acknowledges the
above pledge of the Pledged Collateral.
WILLBROS USA, INC.
By: /s/ Melvin F. Spreitzer
-----------------------------------
Name: Melvin F. Spreitzer
-----------------------------------
Title: Executive Vice President
-----------------------------------
24
<PAGE>
SCHEDULE I
TO
PLEDGE AGREEMENT
Attached to and forming a part of that certain Pledge
Agreement dated as of February 20, 1997 by Musketeer
Oil B.V. to ABN AMRO Bank N.V., as Agent.
1. Description:
(a) Name of Subsidiary: Willbros USA, Inc.
(b) State or Country of Organization: Delaware
(c) Class of Stock: Common
(d) Stock Certificate No.: 2
(e) Number of Shares: 167 shares
2. Description:
(a) Name of Subsidiary: Willbros USA, Inc.
(b) State or Country of Organization: Delaware
(c) Class of Stock: Common
(d) Stock Certificate No.: 5
(e) Number of Shares: 1,137 shares
3. Description:
(a) Name of Subsidiary: Willbros USA, Inc.
(b) State or Country of Organization: Delaware
(c) Class of Stock: Common
(d) Stock Certificate No.: 7
(e) Number of Shares: 3,863 shares
<PAGE>
SCHEDULE II
TO
PLEDGE AGREEMENT
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
For Value Received, the undersigned does hereby sell,
assign and transfer unto:
- ------------------------------------------------------------
- ------------------------------------------------------------
(-----------------------) Shares of the --------------------
Stock of ---------------------------------------------------
standing in ----------------------- ----------------------
name on the books of said Corporation represented by
certificate No. ---------------herewith and does hereby
irrevocably constitute and appoint -------------------------
- --------------------------------------------attorney to
transfer the said stock on the books of the within named
Corporation with full power of substitution. This
instrument and each issue arising hereunder shall be
governed by, and construed in accordance with, the laws of
the State of New York (excluding its conflict of laws
principles). This choice of New York law has been made
pursuant to Section 5-1401 of the General Obligations Law of
the State of New York.
MUSKETEER OIL B.V.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Date:
-----------------------------------
Signature Attested to by:
- -------------------------------------------------------
(Name)
- -------------------------------------------------------
(Title)
- -------------------------------------------------------
(Date)
<PAGE>
SCHEDULE III
TO
PLEDGE AGREEMENT
PLEDGE AGREEMENT SUPPLEMENT
This Pledge Agreement Supplement, dated as of----------
- -----------------------, ---------------, is delivered
pursuant to Section 5 of the Pledge Agreement referred to
below. The undersigned hereby agrees that this Pledge
Agreement Supplement may be attached to the Pledge Agreement
dated as of February 20, 1997 (the "Pledge Agreement"; the
terms defined therein and not otherwise defined herein being
used herein as therein defined), by and between the
undersigned and ABN AMRO Bank N.V., as Agent for the Banks
party to the Credit Agreement dated as of February 20, 1997,
among Willbros Group, Inc., certain of its Subsidiaries, the
several financial institutions from time to time a party
thereto, the Agent, and Credit Lyonnais New York Branch as
Co-Agent. This instrument and each issue arising hereunder
shall be governed by, and construed in accordance with, the
laws of the State of New York (excluding its conflict of
laws principles). This choice of New York law has been made
pursuant to Section 5-1401 of the General Obligations Law of
the State of New York.
The undersigned agrees that the securities listed below
shall for all purposes constitute Pledged Collateral and
shall be subject to the security interest created by the
Pledge Agreement.
The undersigned hereby certifies that the
representations and warranties set forth in Section 4 of the
Pledge Agreement are true and correct as to the Pledged
Collateral listed herein on and as of the date hereof.
MUSKETEER OIL B.V.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
1. Description:
(a) Name of Subsidiary:
(b) State or Country of Organization:
(c) Class of Stock:
(d) Stock Certificate No.:
(e) Number of Shares:
<PAGE>
2. Description:
(a) Name of Subsidiary:
(b) State or Country of Organization:
(c) Class of Stock:
(d) Stock Certificate No.:
(e) Number of Shares:
3. Description:
(a) Name of Subsidiary:
(b) State or Country of Organization:
(c) Class of Stock:
(d) Stock Certificate No.:
(e) Number of Shares:
4. Description:
(a) Name of Subsidiary:
(b) State or Country of Organization:
(c) Class of Stock:
(d) Stock Certificate No.:
(e) Number of Shares:
By signing below, ------------------------------------------
confirms that an executed copy of the Pledge Agreement dated
as of February 20, 1997 between Musketeer Oil B.V. and ABN
AMRO Bank N.V., as Agent, together with this Pledge Agreement
Supplement, has been submitted to it and acknowledges the above
pledge of the Pledged Collateral.
[NAME OF COMPANY IN WHICH SHARES ARE
PLEDGED]
a [jurisdiction and form of organization]
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
<PAGE>
EXHIBIT 10.4
PLEDGE AGREEMENT
BY
WILLBROS USA, INC.
IN FAVOR OF
ABN AMRO BANK N.V.,
As Agent
February 20, 1997
<PAGE>
TABLE OF CONTENTS
Page
--------
1. Pledge 1
2. Security for Obligations 2
3. Delivery of Pledged Collateral 3
4. Representations, Warranties and Covenants 4
5. Further Assurances 6
6. Voting Rights; Dividends; Etc. 8
7. Agent Appointed Attorney-in-Fact 9
8. Agent May Perform 10
9. No Responsibility for Certain Actions; Indemnity 10
10. Remedies upon Default 10
11. Expenses 14
12. Amendments, Etc 14
13. Address for Notices 14
14. Continuing Security Interest 14
15. Security Interest Absolute 15
16. Use of Copies 16
17. Right of Set-off 16
18. Severability 16
19. Waiver of Jury Trial 16
<PAGE>
20. Governing Law; Jurisdiction 16
21. Counterparts 18
22. Waiver of Subrogation 18
23. Subordination 18
Schedule I Schedule of Pledged Shares
Schedule II Stock Assignment Separate From Certificate
Schedule III Pledge Agreement Supplement
<PAGE>
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Agreement"), dated as of
February 20, 1997, is made and entered into by WILLBROS USA,
INC., a Delaware corporation (the "Company"), in favor of
ABN AMRO BANK N.V., as agent (in such capacity, the "Agent")
for the financial institutions (the "Banks") from time to
time a party to the Credit Agreement (defined below).
PRELIMINARY STATEMENTS.
1. Willbros Group, Inc., a Republic of Panama
corporation ("WGI"), and certain of its Subsidiaries (as
defined in the Credit Agreement) (collectively, the
"Borrowers"), the Agent, Credit Lyonnais New York Branch as
Co-Agent, and the Banks are party to a Credit Agreement of
even date herewith (such Credit Agreement, as amended,
restated, supplemented or otherwise modified from time to
time, being hereinafter referred to as the "Credit
Agreement"; unless otherwise defined herein, terms defined
in the Credit Agreement are used herein as therein defined).
2. Pursuant to the Credit Agreement, the Banks have
agreed to make available to the Borrowers a revolving credit
facility and a standby and commercial letter of credit
facility.
3. The Company is a Borrower and the parent of certain
of the other Borrowers, and the Company will derive
substantial benefit from each extension of credit to the
Borrowers by the Banks under the Credit Agreement.
4. The obligation of the Banks to make the Loans and
to issue or participate in the Letters of Credit is
conditioned upon, among other things, the execution and
delivery by the Company of this Agreement.
AGREEMENTS.
In consideration of the premises and in order to induce
the Banks to enter into the Credit Agreement and make the
Loans and issue or participate in the Letters of Credit, and
for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged and confessed by the
parties, the Company agrees with the Agent, for the benefit
of the Agent and the Banks (the Agent and the Banks
collectively, the "Secured Parties"), as follows:
1. PLEDGE. In order to secure the prompt and
unconditional payment of the obligations referred to in
Section 2 and the performance of the obligations, covenants,
agreements and undertakings described in this Agreement, the
Company hereby transfers, grants, bargains, sells, conveys,
hypothecates, sets over, delivers and pledges to the Agent,
<PAGE>
on behalf of the Secured Parties, and grants to the Agent,
on behalf of the Secured Parties, a security interest in,
all of the Company's remedies, powers, privileges, rights,
titles and interests of every kind and character now owned
or hereafter acquired, created or arising in and to the
following (the "Pledged Collateral"):
(a) the Pledged Shares (as defined below);
(b) all shares of capital stock, general and
limited partnership interests, trust interests, joint
venture interests, ownership rights arising under the law of
any jurisdiction, and any evidence of the foregoing,
together with any property and rights derivative thereof,
acquired, received or owned by the Company of any Person,
which, on or after the date of this Agreement, is or
becomes, as a result of any occurrence, a Subsidiary of the
Company or of the Company and WGI or of the Company and any
other Subsidiary or Subsidiaries of WGI; provided such
Subsidiary has total consolidated assets which constitute
10% or more of the total consolidated assets of WGI.
(c) all certificates and similar evidence of
ownership representing the Pledged Shares;
(d) all cash dividends, stock dividends, cash,
instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of
or in exchange for any or all of the Pledged Shares or the
shares or interests acquired, received or owned under
Section 1(b); and
(e) all additions to and substitutions for any of
the foregoing and all products and proceeds of any of the
Pledged Collateral, together with all renewals and
replacements of any of the Pledged Collateral, all accounts,
accounts receivable, instruments, notes, chattel paper,
documents (including all documents of title), books,
records, contract rights and general intangibles arising in
connection with any of the Pledged Collateral.
"Pledged Shares" means all shares described in Schedule I,
as amended from time to time, together with all rights,
contingent or otherwise, of the Company to acquire shares in
the entities or organizations represented by the shares
described in Schedule I, as amended from time to time, or in
any Borrower, all rights to receive cash dividends, stock
dividends, distributions upon redemption or liquidation,
distributions as a result of split-ups, recapitalizations or
rearrangements, stock rights, rights to subscribe, voting
rights, rights to receive securities, options, warrants,
calls, commitments, securities accounts, security
entitlements, and all new securities and other property
which the Company now owns or may hereafter become entitled
to receive on account of the foregoing or with respect to
any such company;
2
<PAGE>
To have and to hold the Pledged Collateral, together
with all right, title, interest, powers, privileges and
preferences pertaining or incidental thereto, unto the
Agent, its successors and assigns, on behalf of the Secured
Parties, forever; subject, however, to the terms, covenants
and conditions set forth in this Agreement.
2. SECURITY FOR OBLIGATIONS. The security interests
and other rights granted pursuant to Section 1 secure, and
the Pledged Collateral is security for, the prompt
performance and payment in full in cash when due, whether at
stated maturity, by acceleration or otherwise of the
following (the "Secured Obligations"; provided, however,
that to the extent that in a legal proceeding brought within
the applicable limitations period it is determined by the
final, non-appealable order of a court having jurisdiction
over the issue and the applicable parties that the Company
received less than a reasonably equivalent value in exchange
for the Company's incurrence of its obligations under this
Agreement, then and only then the liability of the Company
for the Secured Obligations is limited in amount to the
Guaranteed Debt of the Company):
(a) any and all Obligations, whether now existing
or hereafter arising;
(b) any and all sums and the interest which
accrues on them which the Company may owe any Secured Party
pursuant to any Credit Document on account of any Borrower's
failure to keep, observe or perform any covenant under any
Credit Document;
(c) all present and future debts and obligations
under or pursuant to any Credit Document or other document
now or in the future governing, evidencing, guaranteeing or
securing or otherwise relating to the indebtedness incurred
pursuant to the Credit Agreement, and all supplements,
amendments, restatements, renewals, extensions,
rearrangements, increases, expansions or replacements of
them.
The Credit Agreement guarantees, among other things,
the prompt performance and payment in full of the Secured
Obligations. The Secured Obligations include, among other
things, (i) a revolving credit facility under which funds
may be advanced by the Banks, repaid and subsequently
readvanced by the Banks, and (ii) a standby and commercial
letter of credit facility under which Letters of Credit may
from time to time be issued. Notwithstanding that the
balance of the revolving line of credit may at certain times
be zero and that no Letters of Credit may at certain times
be outstanding, the Liens granted hereunder to the Agent
shall remain in full force and effect at all times and with
3
<PAGE>
the same priority until the payment in full in cash of the
Secured Obligations, the termination of the Commitments and
the expiration or termination of all outstanding Letters of
Credit.
3. DELIVERY OF PLEDGED COLLATERAL. The Pledged
Collateral and all certificates, instruments and property
representing or evidencing the Pledged Collateral shall,
within two Business Days of the Company's actual or
constructive receipt thereof, be delivered to and held by or
on behalf of the Agent pursuant to this Agreement and shall
be in suitable form for transfer of ownership and possession
by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form
and substance satisfactory to the Agent. The Agent shall
have the right, at any time in its discretion and without
notice to the Company, to transfer to or to register in its
name or any of its nominees, any or all of the Pledged
Collateral, subject only to the revocable rights specified
in Section 6(a). In addition, the Agent shall have the
right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger
denominations.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Company represents, warrants and covenants to the Agent and
the other Secured Parties as follows:
(a) The Company (i) is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Delaware; (ii) is duly qualified as a
foreign corporation under the laws of the State of Oklahoma
(in which it is in good standing), and there is no
jurisdiction in which the Company is not qualified as a
foreign corporation in which qualification or licensing is
required by the nature of its business and where the absence
of such qualification has a reasonable likelihood of having
a Material Adverse Effect; (iii) has all requisite corporate
power and authority and the legal right to own, pledge,
mortgage and operate its properties, and to conduct its
business as now or currently proposed to be conducted; (iv)
is in compliance with its certificate or articles of
incorporation, by-laws and similar organizational documents;
(v) is not in default under any material agreement such that
there is a reasonable likelihood of such default having a
Material Adverse Effect; (vi) is in compliance (except to
the extent any noncompliance has no reasonable likelihood of
having a Material Adverse Effect) with all Legal
Requirements; and (vii) together with the other Borrowers,
forms part of a group of companies that are closely related
legally and economically, each deriving benefits from the
other, and the execution, delivery and performance of this
Agreement is conducive to the business interests of the
Company and its pursuit of profits and continuity.
(b) Each Person listed on Schedule I or described
in Section
4
<PAGE>
1(b): (i) is an entity duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
organization; (ii) is duly qualified to do business and in
good standing in every jurisdiction in which the nature of
the business it conducts makes such qualification necessary
or desirable; (iii) has all requisite corporate power and
authority and the legal right to own, pledge, mortgage and
operate its properties, and to conduct its business as now
or currently proposed to be conducted; (iv) is in compliance
with its certificate or articles of incorporation, by-laws
and similar organizational documents; and (v) to the
Company's best knowledge, is in compliance (except to the
extent any noncompliance has no reasonable likelihood of
having a Material Adverse Effect) with all Legal
Requirements.
(c) The execution, delivery, and performance by
the Company of this Agreement (i) are within the Company's
corporate power; (ii) have been duly authorized by all
necessary corporate action; (iii) do not contravene the
Company's certificate or articles of incorporation or
by-laws or other organizational documents; (iv) do not
result in or require the creation of any Lien upon or with
respect to any of its properties; and (v) do not conflict
with or result in a breach of the terms, conditions or
provisions of, or cause a default under, any agreement,
instrument, franchise, license or concession to which the
Company is a party or by which the Company or any of its
property is bound.
(d) No authorization or approval or other action
by, and no notice to or filing with, any Governmental
Authority is required for the due execution, delivery and
performance by the Company of this Agreement or for the
validity or enforceability thereof.
(e) This Agreement is a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as enforcement may be
limited by applicable bankruptcy, insolvency or similar laws
relating to creditors' rights generally, as such laws would
apply in the event of bankruptcy, insolvency or other
similar occurrence with respect to the Company.
(f) There is no pending or, to the best knowledge
of the Company, threatened action or proceeding affecting
the Company before or by any Governmental Authority which
has any reasonable likelihood of having a Material Adverse
Effect.
(g) The Company is not (i) a party to any
contractual obligation the performance of which either
unconditionally or upon the happening of an event, will
result in the creation of a Lien on the Company's property
or assets (other than in favor of the Secured Parties); or
(ii) subject to any charter or corporate restriction which
has a reasonable likelihood of having a Material
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<PAGE>
Adverse Effect.
(h) The representations and warranties made by
the Company and the Borrowers in Article V of the Credit
Agreement are true and correct, and all information supplied
to the Secured Parties, and all statements made to the
Secured Parties by or on behalf of any Borrower or the
Company before, concurrently with or after the Company's
execution of this Agreement with respect to the Pledged
Collateral are and will be true, correct, complete, valid
and genuine in all material respects. No statement
contained in any certificate, schedule, list, financial
statement or other papers furnished to any Secured Party by
or on behalf of any Borrower or the Company contains (or
will contain) any untrue statement of material fact or omits
(or will omit) to state a material fact necessary to make
the statements contained herein or therein not misleading.
(i) The shares described on Schedule I include
all of the authorized, issued and outstanding shares of
capital stock of each of the companies listed thereon and
the rights to acquire shares in such companies. The Company
is the sole legal and equitable owner and holder of the
Pledged Shares, which are free and clear of all Liens, or
rights or interests of any other Person, of every kind and
nature except for the Lien created by this Agreement. The
shares of stock described in the first sentence of this
paragraph are duly authorized, validly issued, fully paid,
non-assessable, and free from any restriction on transfer,
and none of such shares has been issued or transferred in
violation of the securities registration, securities
disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject. There are no options,
warrants, financing statements, calls or commitments of any
character relating to the Pledged Shares, nor are there any
rights of first refusal, voting trusts, voting agreements or
similar agreements relating to the Pledged Shares. The
pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid first
priority lien on and a first priority perfected security
interest in the Pledged Collateral and the proceeds thereof.
Appropriate financing statements will be filed in favor of
the Agent in the office of the County Clerk of Oklahoma
County, Oklahoma, U.S.A. The chief executive office of the
Company is located in Tulsa, Oklahoma, U.S.A.
(j) When additional Pledged Collateral is
delivered to the Agent in accordance with Section 3, the
Company will be the legal and equitable owner of such
Pledged Collateral free and clear of all Liens, or rights or
interests of any other Person, of every kind and nature
including any state or federal tax liens, except for the
Lien created by this Agreement; each share of stock
comprising such Pledged Collateral will have been duly
authorized and validly issued and will be fully paid and
non-assessable and free from any restriction on transfer;
and the Company will have legal title to such Pledged
Collateral and power to pledge, assign and deliver such
Pledged Collateral in the manner contemplated
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<PAGE>
by this Agreement.
(k) The Company agrees that it will (i) cause
each issuer of shares of stock comprising Pledged Collateral
not to issue any stock or other securities in addition to or
in substitution for the shares of stock comprising Pledged
Collateral issued by such issuer, except to the Company,
(ii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all additional
shares of stock or other securities of each issuer of
Pledged Collateral, and (iii) pledge hereunder, immediately
upon its acquisition (directly or indirectly) thereof, any
and all shares of stock covered by Section 1(b).
(l) Without the prior written consent of the
Agent having been first obtained, the Company (i) shall not
sell, assign, transfer, pledge, mortgage, hypothecate,
dispose of or encumber, or grant any option or warrant or
Lien or right with respect to, or permit any Liens to arise
with respect to, the Pledged Collateral, any of its rights
in or to the Pledged Collateral and any portion thereof,
except for the pledge thereof provided for in this
Agreement, and (ii) shall not permit any issuer of shares of
stock comprising Pledged Collateral to terminate its
corporate existence, to be a party to any merger or
consolidation, or to sell, lease or dispose of all or
substantially all of its assets and properties in a single
transaction or series of related transactions, except as
permitted by the Credit Agreement.
(m) The Company has and will defend the title to
the Pledged Collateral and the Liens created by this
Agreement against all claims and demands of any Person at
any time claiming the Pledged Collateral or any interest
therein and will maintain and preserve such Liens until the
termination of this Agreement.
5. FURTHER ASSURANCES.
(a) The Company agrees that, at any time and from
time to time, at the expense of the Company, the Company
will promptly execute and deliver all further instruments
and documents, and take all further action, that may be
necessary or desirable, or that the Agent may reasonably
request, in order to create, maintain, perfect and protect
any security interest, pledge, or hypothecation granted or
purported to be granted by this Agreement, to enable the
Agent to exercise and enforce its rights and remedies under
this Agreement with respect to any Pledged Collateral, and
to assure the transferability by the Agent and its
successors of the Pledged Collateral. The Company shall
notify the Agent in writing, at least two (2) weeks in
advance of the date that it establishes its chief executive
office in any jurisdiction other than the State of Oklahoma,
of its intent to establish such office.
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<PAGE>
(b) Where all or any part of any jurisdiction's
enactment of the 1994 revisions to Article 8 of the Uniform
Commercial Code applies with respect to a portion of the
Pledged Collateral, (i) the Company shall cause the Agent to
have sole "control", as defined therein, of such Pledged
Collateral that comprises investment property, together with
all proceeds thereof, and (ii) at the Agent's request from
time to time, the Company shall instruct (and hereby
instructs) any third party holding such Pledged Collateral
to obey only the instructions and entitlement orders of the
Agent with respect to such Pledged Collateral and any
proceeds thereof. Except as the Agent may otherwise permit
in writing, the Company shall have no right to cause the
withdrawal, application or transfer of any financial assets
or security entitlements with respect to the Pledged
Collateral, and the Company shall not give any instructions
or entitlement orders with respect to them.
(c) Without limiting the foregoing, the Company
further agrees that it will, upon obtaining any additional
shares of any issuer of the Pledged Collateral or shares or
other equity interests in entities described in Section 1(b)
or any other securities constituting Pledged Collateral,
promptly (and in any event within five (5) Business Days)
deliver to the Agent (i) such shares, (ii) a duly executed
but blank stock power in the form of Schedule II for each
certificate representing such additional Pledged Collateral,
and (iii) a duly executed Pledge Agreement Supplement in
substantially the form of Schedule III (a "Pledge Agreement
Supplement") or as may otherwise be reasonably required by
the Agent identifying the additional shares which are
pledged pursuant to Section 1(b). The Company authorizes
the Agent to attach each Pledge Agreement Supplement to this
Agreement and agrees that all shares listed on any Pledge
Agreement Supplement delivered to the Agent shall for all
purposes constitute Pledged Collateral.
(d) The Company will cause to be paid before
delinquency all taxes, charges, liens and assessments at any
time levied or assessed against the Pledged Collateral, or
any part thereof, or against any Secured Party for or on
account of the Pledged Collateral or the interest created by
this Agreement, and will furnish the Agent with receipts
showing payment of such taxes and assessments at least five
(5) days before the applicable default date therefor.
(e) If the validity or priority of this Agreement
or of any rights, titles, security interests or other
interests created or evidenced by this Agreement shall be
attacked, endangered or questioned or if any legal
proceedings are instituted with respect thereto, the Company
will take all necessary and proper steps for the defense of
such legal proceedings. The Agent is authorized and
empowered to take such additional steps as in its judgment
and discretion may be necessary or proper for the defense of
any such legal proceedings or the protection of the validity
or priority of this Agreement and the rights, titles,
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<PAGE>
security interests and other interests created or evidenced
by this Agreement, and the Secured Obligations include all
expenses so incurred of every kind and character.
(f) Regarding any proceedings relating to the
Pledged Collateral, or any portion thereof, the Agent may
participate therein, and the Company shall from time to time
deliver to the Agent all instruments reasonably requested by
it to permit such participation. The Company shall, at its
expense, diligently prosecute any such proceedings and shall
consult with the Agent, its attorneys and experts, and
cooperate with them in the carrying on or defense of any
such proceedings.
6. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have
occurred and be continuing (and, in the case of clause (i)
below, so long as written notice has not been given by the
Agent to the Company):
(i) The Company shall be entitled to
exercise any and all voting and/or other
consensual rights pertaining to the Pledged
Collateral or any part thereof for any purpose
consistent with the terms of this Agreement or the
Credit Agreement; provided, however, that the
Company shall not exercise or refrain from
exercising any such right with the primary intent
of causing a Material Adverse Effect.
(ii) The Company shall be entitled to
receive and retain any and all dividends paid in
respect of the Pledged Collateral (other than any
and all
(A) dividends paid or payable
other than in cash in respect of, and
instruments and other property received,
receivable or otherwise distributed in
respect of, or in exchange for, any
Pledged Collateral,
(B) dividends and other
distributions paid or payable in cash in
respect of any Pledged Collateral in
connection with a partial or total
liquidation or dissolution or in
connection with a return of capital,
capital surplus or paid-in-surplus, and
(C) cash paid, payable or
otherwise distributed in redemption of,
or in exchange for, any Pledged
Collateral,
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<PAGE>
all of which shall be, and all of which shall be
forthwith delivered to the Agent to hold as,
Pledged Collateral and shall, if received by the
Company, be received in trust for the benefit of
the Agent, be segregated from the other property
or funds of the Company, and be forthwith
delivered to the Agent as Pledged Collateral in
the same form as so received (with any necessary
endorsement)).
(iii) The Agent shall execute and
deliver (or cause to be executed and delivered) to
the Company all such proxies and other instruments
as the Company may reasonably request for the
purpose of enabling the Company to exercise the
voting and other rights which it is entitled to
exercise pursuant to clause (i) above and to
receive the dividends which it is authorized to
receive and retain pursuant to clause (ii) above.
Regardless of the Company's right described above to receive
and retain certain rights and property, such rights and
property nonetheless secure the repayment of the Secured
Obligations and are a part of the Pledged Collateral.
(b) Upon the occurrence and during the
continuation of an Event of Default:
(i) All rights of the Company to
exercise the voting and other consensual rights
which it would otherwise be entitled to exercise
pursuant to Section 6(a)(i) and the obligations of
the Agent under Section 6(a)(iii) shall cease upon
receipt by the Company of written notice of an
Event of Default, and all such rights shall
thereupon become vested in the Agent who shall
thereupon have the sole right to exercise such
voting and other consensual rights;
(ii) All rights of the Company to
receive the dividends which it would otherwise be
authorized to receive and retain pursuant to
Section 6(a)(ii) shall cease upon receipt by the
Company of written notice of an Event of Default,
and all such rights shall thereupon become vested
in the Agent who shall thereupon have the sole
right to receive and hold as Pledged Collateral
such dividends; and
(iii) All dividends which are
received by the Company contrary to the provisions
of clause (ii) of this Section 6(b) shall be
received in trust for the benefit of the Agent,
shall be segregated from other funds of the
Company and shall be forthwith paid over to the
Agent as Pledged Collateral in the same form as
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<PAGE>
so received (with any necessary endorsement).
(c) In order to permit the Agent to exercise the
voting and other rights which it may be entitled to exercise
pursuant to Section 6(b)(i), and to receive all dividends
and distributions which it may be entitled to receive under
Section 6(b)(ii), the Company shall, if necessary, upon
written notice from the Agent, from time to time execute and
deliver to the Agent appropriate dividend payment orders and
other instruments as the Agent may reasonably request. To
this end, the Company hereby irrevocably constitutes and
appoints the Agent the proxy and attorney-in-fact of the
Company, with full power of substitution, to vote, and to
act with respect to, any and all Pledged Collateral that is
securities standing in the name of the Company or with
respect to which the Company is entitled to vote and act,
subject to the understanding that such proxy may not be
exercised unless an Event of Default has occurred and is
continuing. The proxy herein granted is coupled with an
interest, is irrevocable, and shall continue until payment
in full in cash of the Secured Obligations, the termination
of the Commitments and the expiration or termination of all
outstanding Letters of Credit.
7. AGENT APPOINTED ATTORNEY-IN-FACT. The Company
hereby appoints the Agent the Company's true and lawful
attorney-in-fact, with full authority in the place and stead
of the Company and in the name of the Company or otherwise,
from time to time in the Agent's discretion, subject to
Section 6, to take any action and to execute any document or
instrument which the Agent may reasonably deem necessary or
desirable to accomplish the purposes of this Agreement,
including, without limitation, to receive, endorse and
collect all instruments made payable to the Company
representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any
part thereof and to give full discharge for the same. The
Agent's liability, if any, otherwise arising under
applicable law shall be limited to amounts actually received
as a result of the exercise of the powers granted to it
herein. No Agent or Bank, and no officer, director,
employee or agent of the Agent or any Bank, shall be
responsible to the Company for any act or failure to act
hereunder, except that any such Person shall be responsible
for its own gross negligence or willful misconduct.
8. AGENT MAY PERFORM. The Agent is authorized to
perform, or cause performance of, any agreement contained
herein in the event that the Company fails to timely perform
the same, and the reasonable expenses of the Agent incurred
in connection therewith shall be payable by the Company.
The Agent is further authorized in its discretion to take
any other action, either on its own behalf or on behalf of
the Company (and as regards actions taken on behalf of the
Company, this authorization is irrevocable and is an agency
coupled with an interest), as the Agent may elect, which the
Agent may deem necessary or
11
<PAGE>
appropriate to protect and preserve the rights, titles and
interests of the Agent hereunder. The powers conferred on
the Agent pursuant to this Agreement are conferred solely to
protect the Secured Parties' interest in the Pledged
Collateral and shall not impose any duty or obligation on
any Secured Party to perform any of the powers herein
conferred. No exercise of any of the rights provided for in
this Agreement constitute a retention of collateral in
satisfaction of indebtedness.
9. NO RESPONSIBILITY FOR CERTAIN ACTIONS; INDEMNITY.
Neither the Agent nor any other Secured Party shall have
responsibility for (a) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Pledged Collateral,
whether or not the Agent or any other Secured Party has or
is deemed to have knowledge of such matters, (b) taking any
necessary steps to preserve any rights against any Person
with respect to any Pledged Collateral, or (c) supervising,
monitoring or controlling any aspect of the character or
condition of any of the Pledged Collateral or any operations
conducted in connection with it for the benefit of the
Company or any other Person. The Company agrees to
indemnify, defend and hold Secured Parties, their respective
shareholders, directors, officers, agents, advisors and
employees (collectively "Indemnified Parties") harmless from
and against any and all loss, liability, obligation, damage,
penalty, judgment, claim, deficiency, expense, action, suit,
cost and disbursement of any kind or nature whatsoever
(including interest, penalties, attorneys' fees and amounts
paid in settlement), imposed on, incurred by or asserted
against the Indemnified Parties growing out of or resulting
from this Agreement or any transaction or event contemplated
in it (except that such indemnity shall not be paid to any
Indemnified Party to the extent such loss, etc. directly
results from the gross negligence or willful misconduct of
any of the Indemnified Parties).
10. REMEDIES UPON DEFAULT. IF any Event of Default
shall have occurred and be continuing:
(a) The Agent may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all the
rights and remedies of a secured party in default under the
Uniform Commercial Code (the "Code") in effect in the State
of New York at that time, and, subject to applicable
regulatory and legal requirements, the Agent may also,
without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at
public or private sale, at any exchange, broker's board or
at any of the Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as
the Agent may deem commercially reasonable. Upon
consummation of any such sale, the Agent shall have the
right to assign, transfer and deliver to the purchaser or
purchasers thereof the Pledged Collateral so sold. Each
such purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on
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<PAGE>
the part of the Company, and the Company, for itself and for
its successors, receivers, trustees and assigns, and for any
and all persons ever claiming any interest in the Pledged
Collateral, to the extent permitted by law, hereby waives
all rights of extension, redemption, stay, valuation and
appraisal, and any similar right arising under the law of
any country, which the Company now has or may at any time in
the future have under any rule of law or statute now
existing or hereafter enacted. The Company agrees that, to
the extent notice of sale shall be required by law, at least
10 days' notice to the Company of the time and place of any
public sale or the time after which any private sale is to
be made shall constitute reasonable notification. The Agent
shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given.
The Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made
at the time and place to which it was so adjourned. The
Company hereby waives any claims against the Agent arising
by reason of the fact that the price at which any Pledged
Collateral may have been sold at such a private sale was
less than the price which might have been obtained at a
public sale, even if the Agent accepts the first offer
received and does not offer such Pledged Collateral to more
than one offeree. At any public sale made pursuant to this
Section 10, any Secured Party may bid for or purchase, free
from any right of redemption, stay or appraisal, and any
similar right arising under the law of any country, on the
part of the Company (all said rights being also hereby
waived and released), the Pledged Collateral or any part
thereof offered for sale and may make payment on account
thereof by using any claim then due and payable to it from
any Borrower, any Guarantor and/or the Company as a credit
against the purchase price, and it may, upon compliance with
the terms of sale, hold, retain and dispose of such property
without further accountability to the Company therefor. For
purposes hereof, (i) a written agreement to purchase the
Pledged Collateral or any portion thereof shall be treated
as a sale thereof, (ii) the Agent shall be free to carry out
such sale pursuant to such agreement and (iii) the Company
shall not be entitled to the return of the Pledged
Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Agent shall have
entered into such an agreement all Events of Default shall
have been remedied and the Secured Obligations paid in full.
As an alternative to exercising the power of sale herein
conferred upon it, the Agent may proceed by a suit or suits
at law or in equity to foreclose upon the Pledged Collateral
and to sell the Pledged Collateral or any portion thereof
pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver. Any sale pursuant to the
provisions of this Section 10 shall be deemed to conform to
the commercially reasonable standards as provided in the
Code. The Company covenants and agrees that it will execute
and deliver such documents and take such other action as the
Agent deems necessary or advisable in order that any such
sale may be made in
compliance with applicable law.
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<PAGE>
(b) The Agent shall have all the rights of a
secured party after default under the Uniform Commercial
Code of New York and in conjunction with, in addition to or
in substitution for those rights and remedies:
(i) it shall not be necessary that the
Pledged Collateral or any part thereof be present at the
location of any sale pursuant to the provisions of this
Section 10;
(ii) to the extent the sale of Pledged
Collateral is insufficient to satisfy the Secured
Obligations, the Company shall remain liable for any
deficiency to the extent of its Guaranteed Debt;
(iii) the sale by the Agent of less than
the whole of the Pledged Collateral shall not exhaust the
rights of the Agent hereunder, and the Agent is specifically
empowered to make successive sale or sales hereunder until
the whole of the Pledged Collateral shall be sold; and, if
the proceeds of such sale of less than the whole of the
Pledged Collateral shall be less than the aggregate of the
Secured Obligations, this Agreement and the security
interest created hereby shall remain in full force and
effect as to the unsold portion of the Pledged Collateral
just as though no sale had been made;
(iv) in the event any sale hereunder is not
completed or is defective in the opinion of the Agent, such
sale shall not exhaust the rights of the Agent hereunder and
the Agent shall have the right to cause a subsequent sale or
sales to be made hereunder; and
(v) demand of performance, advertisement and
presence of property at sale are hereby waived and the Agent
is hereby authorized to sell hereunder any financial asset
it may hold as security for the Secured Obligations. All
demands and presentments of any kind or nature are expressly
waived by the Company. The Company hereby waives the right
to require the Agent to pursue any other remedy for the
benefit of the Company and agrees that Secured Party may
proceed against any Person for the amount of the Obligations
owed to the Agent without taking any action against any
other Person and without selling or otherwise proceeding
against or applying any of the Pledged Collateral in the
Agent's possession.
(c) The Company recognizes that, by reason of
certain prohibitions contained in the Securities Act of 1933
and applicable state securities laws, the Agent may be
compelled, with respect to any sale of all or any part of
the Pledged Collateral, to limit purchasers to those who
will agree, among other things, to acquire such securities
for their own account, for investment, and not with a view
to the distribution or resale thereof. The
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<PAGE>
Company acknowledges and agrees that any such sale may
result in prices and other terms less favorable to the
seller than if such sale were a public sale without such
restrictions and agrees that such circumstances shall not
be a factor in determining whether such sale has been mad
in a commercially reasonable manner. The Agent shall be
under no obligation to delay the sale of any of the Pledged
Collateral for the period of time necessary to permit the
Company to register such securities for public sale under
the Securities Act of 1933, or under applicable state
securities laws, even if the Company would agree to do so.
(d) If the Agent determines to exercise its right
to sell any or all of the Pledged Collateral, upon written
request, the Company shall, and shall cause each of its
direct subsidiaries to, from time to time, furnish to the
Agent all such information as the Agent may reasonably
request in order to determine the number of shares and other
instruments included in the Pledged Collateral which may be
sold by the Agent as exempt transactions under the
Securities Act of 1933 and rules of the Securities and
Exchange Commission thereunder, as the same are from time to
time in effect.
(e) Any cash held by the Agent as Pledged
Collateral and all cash proceeds received by the Agent in
respect of any sale of, collection from, or other
realization upon all or any part of the Pledged Collateral
shall be applied by the Agent (unless otherwise required by
law):
First, to the payment of the costs and
expenses of retaking, holding, preparing for sale,
or selling the Pledged Collateral or any portion
thereof, including all expenses (including,
without limitation, any legal fees and
disbursements and the allocated cost of in-house
counsel), liabilities and advances made or
incurred by the Agent in connection therewith;
Next, to the Agent and the other Secured
Parties in partial payment of the Secured
Obligations; and
Finally, after payment in full in cash of all
Secured Obligations, termination of the
Commitments and expiration or termination of all
outstanding Letters of Credit, to the payment to
the Company, or its successors or assigns, or to
whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may
direct, of any surplus then remaining from such
cash and cash proceeds.
(f) All remedies herein expressly provided for
are cumulative of any and all other remedies existing at law
or in equity and are cumulative of any
15
<PAGE>
and all other remedies provided for in any other instrument
securing the payment of the Obligations, or any part
thereof, or otherwise benefiting the Secured Parties, and
the resort to any remedy provided for hereunder or under any
such other instrument or provided for by law shall not
prevent the concurrent or subsequent employment of any other
appropriate remedy or remedies.
(g) The Secured Parties may resort to any
security given by this Agreement or to any other security
now existing or hereafter given to secure the payment of the
Obligations, in whole or in part, and in such portions and
in such order as may seem best to such Secured Party in its
sole and uncontrolled discretion, and any such action shall
not in anywise be considered as a waiver of any of the
rights, benefits or security interests evidenced by this
Agreement.
11. EXPENSES. The Company will upon demand pay to the
Agent the amount of any and all reasonable costs,
disbursements and expenses of every character, including
without limitation the reasonable fees and expenses of its
counsel (including the reasonable allocated cost of in-house
counsel), subject to the limitations expressed in Section
12.5 of the Credit Agreement, and of any experts, incurred
or expended by the Agent from time to time in connection
with: (a) the preparation, negotiation, documentation,
closing, renewal, revision, modification, renegotiation or
review of this Agreement; (b) the custody or preservation
of, or the sale of, collection from, or other realization
upon, any of the Pledged Collateral, (c) the exercise or
enforcement of any of the rights of the Agent or any other
Secured Party hereunder, or (d) the failure by the Company
to perform or observe any of the provisions hereof.
12. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by
the Company herefrom, shall in any event be effective unless
the same shall be in writing and signed by the Agent and, in
the case of amendment, by the Company and then such waiver
or consent shall be effective only in the specific instance
and for the specific purpose for which given and to the
extent therein specified. The Agent may waive any default
without waiving any other prior or subsequent default, and
the Agent may remedy any default without waiving the default
remedied. The failure by the Agent to exercise any right,
power or remedy upon any default shall not be construed as a
waiver of such default or as a waiver of the right to
exercise any such right, power or remedy at a later date.
No single or partial exercise by the Agent of any right,
power or remedy hereunder shall exhaust the same or shall
preclude any other or further exercise thereof, and every
such right, power or remedy hereunder may be exercised at
any time and from time to time. No notice to nor demand on
the Company in any case shall of itself entitle the Company
to any other or further notice or demand in similar or other
circumstances. Acceptance by the Agent of any payment in an
amount less than the amount then due on the Secured
Obligations shall be deemed an
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<PAGE>
acceptance on account only and shall not in any way affect
the existence of a default hereunder. No waiver, release,
consent by Agent pursuant to this Agreement shall affect or
impair the rights of a Secured Party against any third
party, except to the extent specifically agreed to by the
Secured Party in such writing.
13. ADDRESS FOR NOTICES. Except as otherwise provided
herein, all notices, requests and other communications
provided for hereunder shall be in writing and given as
provided in the Credit Agreement.
14. CONTINUING SECURITY INTEREST. This Agreement shall
create a continuing security interest in the Pledged
Collateral and shall (a) remain in full force and effect
until payment in full in cash (after the termination of the
Commitments and the expiration or termination of all
outstanding Letters of Credit) of the Secured Obligations;
(b) continue to be effective if at any time payment and
performance of the Secured Obligations is, pursuant to
applicable law, rescinded or reduced in amount, or must
otherwise be restored by the Agent or any other Secured
Party; (c) be binding upon the Company, its successors and
assigns, and any trustee, receiver, or conservator of the
Company, and any successors in interest of the Company in
and to all or any part of the Pledged Collateral; and (d)
inure, together with the rights and remedies of the Agent
hereunder, to the benefit of the Agent, the other Secured
Parties and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing
clause (d), the Agent and/or any Bank may assign or
otherwise transfer its rights and obligations under the
Credit Agreement to any other Person or entity, and such
other Person or entity shall thereupon become vested with
all the benefits in respect thereof granted to such Bank
herein or otherwise, all as provided in, and to the extent
set forth in, the Credit Agreement. Upon the payment in
full in cash (after the termination of the Commitments and
the expiration or termination of all outstanding Letters of
Credit) of the Secured Obligations, the Company shall be
entitled to the return, upon its request and at its expense,
of such of the Pledged Collateral as shall not have been
sold or otherwise applied pursuant to the terms hereof.
15. SECURITY INTEREST ABSOLUTE. All rights and
security interests of the Secured Parties hereunder, and all
obligations of the Company hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or
enforceability of the Credit Agreement, any other
Credit Document, or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or
place of payment of, or in any other term of, all
or any of the Secured
17
<PAGE>
Obligations (including, without limitation, the
possible extension of the Commitment Termination
Date and increase of the amount of the Commitments
all on the terms and conditions set forth in the
Credit Agreement), or any other amendment, renewal
or waiver of or any consent to any departure from
the Credit Agreement or any other Credit Document;
(c) any exchange, release or
non-perfection of any other collateral, or any
release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the
Obligations;
(d) any indulgence, moratorium or
release granted by any Secured Party, including
but not limited to (i) any renewal, extension or
modification which a Secured Party may grant with
respect to the Obligations, (ii) any surrender,
compromise, release, renewal, extension, exchange
or substitution which a Secured Party may grant in
respect of any item securing the Obligations, or
any part thereof or any interest therein, or (iii)
any release or indulgence granted to any endorser,
guarantor or surety of the Obligations; or
(e) any other circumstance which might
otherwise constitute a defense available to, or a
discharge of, the Company or a third party
pledgor.
16. USE OF COPIES. Any carbon, photographic or other
reproduction of this Agreement or any financing statement
signed by the Company is sufficient as a financing statement
for all purposes, including without limitation, filing in
any state as may be permitted by the provisions of the
Uniform Commercial Code of such state.
17. RIGHT OF SET-OFF.
(a) Upon the occurrence and during the
continuation of any Event of Default under the Credit
Agreement, each Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by law,
to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Bank
to or for the credit or the account of the Company against
any and all of the Secured Obligations, irrespective of
whether or not such Bank shall have made any demand under
this Agreement and although such Secured Obligations may be
contingent and unmatured. Each Bank which sets-off pursuant
to this Section
18
<PAGE>
17(a) shall give prompt notice to the Company following the
occurrence thereof; provided that the failure to give such
notice shall not affect the validity of the set-off.
(b) Any payment obtained by any Bank pursuant to
Section 17(a) (or in any other manner directly from the
Company) shall be remitted to the Agent and distributed
among the Secured Parties in accordance with the provisions
of Section 10(e).
18. SEVERABILITY. If for any reason any provision or
provisions hereof are determined to be invalid and contrary
to any existing or future law, such invalidity shall not
impair the operation of or affect those portions of this
Agreement which are valid. Each waiver in this Agreement is
subject to the overriding and controlling rule that it shall
be effective only if and to the extent that (a) it is not
prohibited by applicable law and (b) applicable law neither
provides for nor allows any material sanctions to be imposed
against the Secured Parties for having bargained for and
obtained it.
19. WAIVER OF JURY TRIAL. The Company hereby waives
and agrees to waive any right it may have to a jury trial in
connection with any action, suit or proceeding arising out
of or related in any way to this Agreement or any other
credit document.
20. GOVERNING LAW; JURISDICTION.
(A) This Agreement and each issue arising
hereunder shall be governed by, and construed in accordance
with, the laws of the State of New York (excluding its
conflicts of laws principles), except to the extent provided
in Section 12.14(B) of the credit agreement and to the
extent that the federal laws of the United States of America
otherwise apply. The parties agree that this choice of New
York law has been made pursuant to Section 5-1401 of the
general obligations law of the State of New York. Unless
otherwise defined herein or in the Credit Agreement, terms
defined in articles 8 and 9 of the uniform commercial code
in the State of New York are used herein as therein defined.
(b) Except as otherwise provided in Section
20(d), any legal action or proceeding with respect to this
Agreement 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
Agreement, the Company hereby consents, for itself and in
respect of its property, to the jurisdiction of the
aforesaid courts. The Company hereby irrevocably waives any
objection, including without limitation, any objection to
the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter
19
<PAGE>
have to the bringing of any action or proceeding in such
jurisdiction in respect of this Agreement, any other Credit
Document, or any document related to this Agreement or any
other Credit Document. The Company agrees that a final
judgment in any such action or proceeding shall be
conclusive and may be enforced in any other jurisdictions by
suit on the judgment or in any other manner provided by law.
(c) The Company has irrevocably appointed CT
Corporation System, with an office at 1633 Broadway, New
York, New York, (the "Process Agent"), as its agent to
receive on behalf of the Company and its property service of
copies of the summons and complaint and any other process
which may be served in any action or proceeding arising out
of or relating to this Agreement. Such service may be made
by mailing or delivering a copy of such process to the
Company in care of the Process Agent at the Process Agent's
above address, and the Company hereby irrevocably authorizes
and directs the Process Agent to accept such service on its
behalf. As an alternative method of service, the Company
also irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing of
copies of such process to the Company at its address
specified on the signature page hereof. Process may be
served in English, and the Company irrevocably waives any
right accruing to it under the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents, the
Hague Convention on the Taking of Evidence Abroad in Civil
or Commercial Matters, and any similar treaty regarding the
service of process or the collection of evidence. Any
process and documents to be sent to the other party
containing languages other than English shall be sent with
English translations certified by the sender, and the
sending party shall bear the translation costs.
(d) Nothing in this Section 20 shall affect the
right of the Agent or any other Secured Party to serve legal
process in any other manner permitted by law or affect the
right of the Agent or any other Secured Party to bring any
action or proceeding against the Company in the courts of
any other jurisdictions.
(e) To the extent the Company has or hereafter
may acquire any immunity from jurisdiction of any court or
from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or
its property, the Company hereby irrevocably waives such
immunity in respect of its obligations under this Agreement.
(f) This Agreement together with the other credit
documents embodies the entire agreement and understanding
among the parties with respect to its subject matter and
supersedes all prior or contemporaneous agreements and
understandings of such persons, verbal or written, relating
to such subject matter.
20
<PAGE>
21. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to
be an original for all purposes; but such counterparts shall
be deemed to constitute but one and the same instrument.
22. WAIVER OF SUBROGATION. The Company expressly
waives any and all rights of subrogation, reimbursement and
contribution (contractual, statutory or otherwise) against
the Secured Parties, individually and collectively,
including without limitation, any claim or right of
subrogation under the Bankruptcy Code (Title 11 of the U.S.
Code) or any successor statute, arising from the existence
or performance of this Agreement and the Company irrevocably
waives any right to enforce any remedy which the Secured
Parties, or any one or more of them, now have or may
hereafter have against Borrowers and waives any benefit of,
and any right to participate in, any security now or
hereafter held by the Secured Parties, or any one or more of
them, until the Secured Obligations have been paid and
performed in full (after the termination of the Commitments
and the expiration or termination of all outstanding Letters
of Credit).
23. SUBORDINATION. The Company hereby expressly
covenants and agrees for the benefit of the Secured Parties
that all obligations and liabilities of the other Borrowers
to the Company of whatsoever description (including, without
limitation, all intercompany receivables of the Company from
each of the other Borrowers) shall be subordinated and
junior in right of payment to the Secured Obligations.
Following the occurrence of an Event of Default, all
indebtedness of the other Borrowers to the Company shall, if
the Agent shall so request, be collected and received by the
Company as trustee for the Secured Parties and paid over to
the Secured Parties, or any one or more of them, as the case
may be, on account of the Secured Obligations, but without
reducing or affecting in any manner the obligations of the
Company under this Agreement.
24. INCORPORATION BY REFERENCE. Article I of the
Credit Agreement is incorporated by reference in this
Agreement.
21
<PAGE>
IN WITNESS WHEREOF, the Company has caused this
Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above
written.
WILLBROS USA, INC.
By: /s/ Melvin S. Spreitzer
-----------------------------------
Name: Melvin S. Spreitzer
-----------------------------------
Title: Executive Vice President
-----------------------------------
Address:
-----------
2431 East 61st St., Suite 700
Tulsa, Oklahoma 74136
Attention: Melvin F. Spreitzer
Telex: 79-6660
Answerback: WILLBRO TUL
Telecopier: 918/748-7027
AGREED TO:
ABN AMRO BANK N.V.,
as Agent
By: /s/ W. Bryan Lawrence /s/ Linda Board
-------------------------------------------------------
Name: W. Bryan Lawrence Linda Board
-------------------------------------------------------
Title: Group Vice President Vice President
-------------------------------------------------------
By signing below, WILLBROS ENERGY SERVICES COMPANY confirms
that an executed copy of this Pledge Agreement dated as of
February 20, 1997 between
22
<PAGE>
WILLBROS USA, INC. and ABN AMRO Bank N.V., as Agent, has
been submitted to it and acknowledges the above pledge of
the Pledged Collateral.
WILLBROS ENERGY SERVICES COMPANY
By: /s/ Melvin S. Spreitzer
-----------------------------------
Name: Melvin S. Spreitzer
-----------------------------------
Title: Executive Vice President
-----------------------------------
By signing below, WILLBROS ENGINEERS, INC. confirms that an
executed copy of this Pledge Agreement dated as of February
20, 1997 between WILLBROS USA, INC. and ABN AMRO Bank N.V.,
as Agent, has been submitted to it and acknowledges the
above pledge of the Pledged Collateral.
WILLBROS ENGINEERS, INC.
By: /s/ Steve W. Shores
-----------------------------------
Name: Steve W. Shores
-----------------------------------
Title: Senior Vice President
-----------------------------------
23
<PAGE>
SCHEDULE I
TO
PLEDGE AGREEMENT
Attached to and forming a part of that certain Pledge
Agreement, dated as of February 20, 1997, by WILLBROS
USA, INC. to ABN AMRO BANK N.V., as Agent.
<TABLE>
<CAPTION>
SCHEDULE OF PLEDGED SHARES
State Stock
or Certifi- Number
Name of Country of Class of cate Par of
Subsidiary Organization Stock No. Value shares
- ---------- ----- -------- ------- ----- ------
<S> <C> <C> <C> <C> <C>
Willbros Energy Delaware Common 10 $1.00 10,000
Services Common 12 $1.00 308
Company
Willbros Delaware Common 104 $1.00 1,000
Engineers,
Inc.
</TABLE>
<PAGE>
SCHEDULE II
TO
PLEDGE AGREEMENT
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
For Value Received, the undersigned does hereby sell,
assign and transfer unto:
- ------------------------------------------------------------
- ------------------------------------------------------------
(---------------) Shares of the ----------------------------
Stock of ---------------------------------------------------
standing in ------------------------------------------------
name on the books of said Corporation represented by
certificate No. ----------------------------herewith and does
hereby irrevocably constitute and appoint ------------------
- --------------------------------------attorney to transfer
the said stock on the books of the within named Corporation
with full power of substitution.
Dated:------------- WILLBROS USA, INC.
By: ------------------------------
Name: ------------------------------
Title:------------------------------
Signature Attested to by:
- ----------------------------------
(Name)
- ----------------------------------
(Title)
- ----------------------------------
(Date)
[ADD NOTARIZATION OF SIGNATURE]
<PAGE>
SCHEDULE III
TO
PLEDGE AGREEMENT
PLEDGE AGREEMENT SUPPLEMENT
This Pledge Agreement Supplement, dated as of----------
- --------------------------,----------, is delivered pursuant
to Section 5 of the Pledge Agreement referred to below. The
undersigned hereby agrees that this Pledge Agreement Supplement
may be attached to the Pledge Agreement dated as of February
20, 1997 (the "Pledge Agreement"; the terms defined therein
and not otherwise defined herein being used herein as therein
defined), by and between the undersigned and ABN AMRO Bank
N.V., as Agent for the Banks party to the Credit Agreement
dated as of February 20, 1997, among Willbros Group, Inc.
and certain of its Subsidiaries, the several financial
institutions form time to time a party thereto, the Agent,
and Credit Lyonnais New York Branch as Co-Agent.
The undersigned agrees that the securities listed below
shall for all purposes constitute Pledged Collateral and
shall be subject to the security interest created by the
Pledge Agreement.
The undersigned hereby certifies that the
representations and warranties set forth in Section 4 of the
Pledge Agreement are true and correct as to the Pledged
Collateral listed herein on and as of the date hereof.
WILLBROS USA, INC.
By: -----------------------------------
Name: -----------------------------------
Title: -----------------------------------
State or Class Stock Percentage Number
Stock Country of of Certificate of Par of
Issuer Organization Stock No(s). Ownership Value Shares
- ------ ------------ ------ --------- --------- ----- ------
By signing below, ------------------------------------------
confirms that an executed copy of the Pledge Agreement dated
as of February 20, 1997 between Willbros USA, Inc.
<PAGE>
and ABN AMRO Bank, N.V., as Agent, together with this Pledge
Agreement Supplement, has been submitted to it and
acknowledges the above pledge of the Pledged Collateral.
(NAME OF COMPANY IS WHICH SHARES ARE PLEDGED)
a (jurisdiction and form of organization)
By: -----------------------------------
Name: -----------------------------------
Title: -----------------------------------
<PAGE>
EXHIBIT 10.9
EMPLOYMENT AGREEMENT
--------------------------------------------
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into as of the 1st day of January, 1997, by and among
Willbros Engineers, Inc. ("Employer"), a Delaware, U.S.A.,
corporation; James R. Beasley ("Employee"); and Willbros Group,
Inc. ("WGI"), a Republic of Panama corporation.
R E C I T A L S
--------------------
A. Employee is currently President of Employer.
B. Employer is, indirectly, a wholly owned subsidiary of
WGI.
C. Employee is one of the senior executives of a group of
companies comprised of WGI and its subsidiaries, including
Employer (collectively, "Willbros").
D. Employer and Employee wish to establish conditions and
incentives for the continuation of Employee's employment with
Employer.
E. WGI expects to derive, indirectly, substantial benefit
from the continuation of Employee's employment with Employer.
NOW, THEREFORE, in consideration of the above recitals and
the mutual covenants herein contained, the parties hereto,
intending to be legally bound, agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee, and
Employee hereby accepts employment with Employer, upon the terms
and conditions hereinafter set forth.
2. TERM. This Agreement, except as otherwise provided in
Paragraph 9, 10, 12, 14 or 15 below, shall be effective for the
period beginning on January 1, 1997, and ending on December 31,
1998. If a Change of Control (as defined in Paragraph 14(b)
below) occurs prior to December 31, 1998, Employee shall be
entitled to the severance payments specified in Paragraph 14
unless Employee and Employer enter into a mutually acceptable
employment agreement providing for the employment of Employee
(including appropriate incentive compensation arrangements on
terms not less favorable to Employee than those which apply to
calendar year 1998 pursuant to Paragraph 5 below) during the
three (3) year period commencing on January 1, 1999.
<PAGE>
3. DUTIES. Employee shall serve as President of Employer,
subject at all times to the direction of Employer's Board of
Directors, and shall fulfill the duties customarily incident to
such position in the pipeline and related facility construction
and engineering industry. Employee shall devote substantially
all of his business time and attention and his best efforts to
the performance of his duties hereunder. The foregoing
notwithstanding, Employer and Employee recognize and agree that
Employee may engage in passive personal investments, the
performance of business or managerial duties generally consistent
with those currently being performed by Employee in connection
with such investments and such other business activities as do
not conflict with the business and affairs of Employer or
interfere with Employee's performance of his duties hereunder.
4. COMPENSATION. As compensation for the performance by
Employee of the duties specified herein, Employee shall be paid
as follows during the term of this Agreement:
(a) Employee shall receive an annual base salary equal
to Employee's total annual base salary currently in effect
with his present Willbros employer ("Base Salary"), payable
in equal semi-monthly installments. Employer's Board of
Directors shall review such Base Salary at least annually
and may increase, but not decrease, such Base Salary at any
time, taking into account performance, experience, economic
circumstances and other relevant factors. Employee's Base
Salary shall not at any time be less than Employee's total
annual Base Salary currently in effect with his present
Willbros employer, adjusted for cost of living increases.
(b) Subject to Paragraph 5 below, Employee may receive
bonuses at the discretion of the Board of Directors of
Employer at any time.
(c) All salary and bonus payments to Employee shall be
subject to normal payroll withholding tax deductions.
5. INCENTIVE PLAN. Employee shall be eligible to
participate in that certain Willbros Engineers, Inc. Management
Incentive Plan dated January 1, 1996 (as the same may be amended
from time to time, the "Incentive Plan") during calendar years
1997 and 1998.
6. OTHER EMPLOYMENT BENEFITS. Employee shall be entitled
2
<PAGE>
to participate in any group insurance or other employee benefit plan
generally available to other executives of Employer, upon
terms generally applicable to other executives of Employer
or upon such other terms as Employert such different terms
are not less favorable to Employee.
7. EXPENSES. In addition to the compensation described in
Paragraphs 4 and 5 above, Employee shall be entitled to
reimbursement of Employee's actual out-of-pocket expenses
incurred in the conduct of Employer's business, all of which
expenses shall be limited to ordinary and necessary items and
shall be supported by vouchers, receipts or similar documentation
to the extent practicable and required by law.
8. VACATIONS. Employee shall be entitled to an annual
vacation with pay, in accordance with Employer's policies
generally applicable to its executives, at such times as will not
unduly interfere with or hamper the operation of Employer's
business.
9. CONFIDENTIALITY. Employee covenants and agrees that,
during and for a period of two (2) years after termination of
Employee's employment with Employer, Employee shall not furnish,
disclose or make accessible to any person, entity or governmental
authority, any knowledge or information, trade secrets, customer
information or lists, supplier information or lists, plans,
devices, material or financial or other information with respect
to the business of Willbros or any secret, confidential or
sensitive research or development work, promotions, ideas,
opportunities, business plans or designs relating to the business
of Willbros, except as may be necessary in the furtherance and
conduct of Willbros' business and except as may otherwise be
required by law. The prohibitions of this Paragraph 9 shall not
apply, however, to information in the public domain (but only if
the same becomes part of the public domain through a means other
than a disclosure prohibited hereunder). The provisions of this
Paragraph 9 shall survive expiration or termination of this
Agreement.
10. NON-COMPETITION. In the event Employee voluntarily
terminates his employment hereunder or retires during the term of
this Agreement, Employer may, by written notice provided to
Employee on or before the effective date of Employee's
termination, elect to require Employee to comply with the
non-competition provisions of this Paragraph 10. If Employer
provides such notice, Employee, for a period of two (2) years
from the date of his termination or retirement, will not compete,
directly or indirectly, with the businesses being conducted by
Willbros on the date of such termination or retirement in the
countries where Willbros is then conducting business, and
Employer will pay Employee on the first business day of each
month during such two (2) year non-compete period an amount equal
to one twenty-fourth (1/24) of Employee's annual Base Salary in
effect on Employee's date of termination or retirement. Such
payments shall be
3
<PAGE>
regarded solely as consideration for Employee's compliance with
the requirements of this Paragraph 10 and shall not constitute
salary or severance pay. Notwithstanding the foregoing, if
Employer requires Employee to comply with the non-competition
provisions hereof, Employee shall not be prohibited from owning
(other than in a managerial capacity) up to ten percent (10%) of
the publicly traded stock of a corporation trading on a
recognized securities exchange or in an over-the-counter market,
which corporation is in competition with Willbros. It is
expressly understood and agreed that Employer and Employee
consider the restrictions contained in this Paragraph 10 to be
reasonable and necessary for the purposes of preserving and
protecting the goodwill and proprietary information of Employer.
The provisions of this Paragraph 10 shall survive expiration or
termination of this Agreement.
11. BENEFITS AND REMEDIES.
(a) The benefits of Paragraphs 9 and 10 above shall
flow to and be enforceable by Employer and any of its
Affiliates (as defined in Paragraph 11(d) below) and their
respective successors and assigns. The parties hereto
recognize that, because of the nature of the subject matter
of Paragraphs 9 and 10 above, it would be impractical and
extremely difficult to determine Employer's or its
Affiliates' actual damages in the event of a breach of any
of such provisions. Accordingly, if Employee commits a
breach, or threatens to commit a breach, of Paragraph 9 or
10 above, Employer shall give Employee written notice of
such violation and, if Employee does not cure such violation
or otherwise cease to act in violation of the applicable
Paragraph within ten (10) days of the giving of such notice
(provided that the curing of such violation shall not
prevent Employer or any of its Affiliates or any of their
successors or assigns from seeking recovery of their
respective actual damages resulting from such violation),
Employer or any of its Affiliates or any of their successors
or assigns shall have the right to have the provisions of
said Paragraph 9 or 10, as applicable, specifically
enforced, by injunctive or other equitable relief, by any
court having equity jurisdiction, it being acknowledged and
agreed by Employee that any such breach or threatened breach
will cause irreparable injury to Employer or its Affiliates
and that an injunction may be issued against Employee to
stop or prevent any such breach or threatened breach. In
the event that an action shall be instituted to specifically
enforce Employee's obligations hereunder, Employee shall, to
the fullest extent permitted by applicable law, waive the
defense that Employer and its Affiliates have an adequate
remedy at law and shall interpose no opposition, legal or
otherwise, as to the propriety of pursuing specific
performance as a remedy and shall not request any bonding
for the issuance of the relief sought.
4
<PAGE>
(b) Each of the rights and remedies enumerated in
Paragraph 11(a) above shall be independent of the others,
and shall be severally enforceable, and all such rights and
remedies shall be in addition to, and not in lieu of, any
other rights and remedies available to Employer and its
Affiliates and their respective successors and assigns under
law or in equity or pursuant to any other agreement binding
upon the parties.
(c) In any action at law or equity to enforce any of
the provisions or rights under Paragraph 9 or 10 above, the
unsuccessful party to such litigation, as determined by the
court in a final judgment or decree, shall pay the
successful party or parties all costs, expenses and
reasonable attorneys' fees and disbursements incurred
therein by such party or parties (including without
limitation such costs, expenses and fees on any appeals),
and if such successful party or parties shall obtain a
judgment in any such action or proceeding, such costs,
expenses and attorneys' fees shall be included as part of
such judgment.
(d) For purposes of this Paragraph 11, the term
"Affiliate" with respect to Employer, shall mean any other
person or entity directly or indirectly controlling,
controlled by or under direct or indirect common control
with Employer.
12. TERMINATION. This Agreement may be terminated prior to
December 31, 1998 as follows:
(a) Upon Employee's death, in which case the Base
Salary and, except as provided in the Incentive Plan, all
other rights and benefits to which Employee is entitled
hereunder shall be prorated through the end of the month in
which Employee's death occurs.
(b) By Employer, at its sole option, immediately upon
written notice to Employee, for cause. "Cause" for
termination shall be limited to one or more of the
following:
(i) Proven or admitted theft, embezzlement
or the perpetration of any criminal fraud by Employee
against Willbros in connection with his employment with
Willbros;
(ii) The intentional misappropriation by
Employee, for his own personal benefit, of any material
corporate opportunity, without having first offered
such corporate opportunity to Willbros or obtained
other authorization by Willbros; or
5
<PAGE>
(iii) The intentional commission of any
felonious act by Employee in connection with his
employment with Willbros, which act is known to
Employee to be a felonious act and has not been
specifically authorized by Willbros.
Except as otherwise provided in Paragraph 14 below, in the
event of termination of this Agreement for any of the causes
enumerated in this Paragraph 12(b), Employer's obligation,
if any, to pay Employee shall cease immediately.
(c) By Employer, at its sole option, upon the
Disability of Employee. "Disability" for this purpose shall
mean total and permanent incapacity of Employee to perform
the usual duties of his employment, which shall be deemed to
exist when certified by a physician who is mutually
acceptable to Employee and Employer. Except as otherwise
provided in Paragraph 14 below, in the event of a
termination pursuant to this Paragraph 12(c), (i) the Base
Salary and, except as provided in the Incentive Plan, all
other rights to which Employee is entitled hereunder shall
be prorated through the end of the month in which the
effective date of such termination occurs, and (ii) Employee
shall be entitled to such compensation and benefits as are
provided in any long-term disability insurance policy or
certificate covering Employee, if any.
(d) By Employee, at his sole option, upon written
notice to Employer at least five (5) days prior to the
effective date of termination set forth in such notice if a
Change of Control (as defined in Paragraph 14(b) below) has
occurred and Employee gives notice of termination within
twelve (12) months after the occurrence of such Change of
Control. In the event of termination of this Agreement
pursuant to this Paragraph 12(d), the Base Salary and,
except as provided in the Incentive Plan, all other rights
to which Employee is entitled hereunder shall be prorated
through the end of the month in which the effective date of
such termination occurs. In addition, if applicable,
Employee shall be entitled to the payments due under
Paragraph 14 below.
(e) By Employee, in the case of Employer's substantial
breach of this Agreement (including without limitation
termination by Employer other than as allowed hereby). If
Employee terminates this Agreement because of Employer's
substantial breach of this Agreement, Employee shall be
entitled to receive Employee's Base Salary (as in effect at
the time of the breach) for the remainder of the term of
this Agreement (in which case such sum shall be paid monthly
over such period); however, if Paragraph 14 hereof is
applicable at the time of the breach and the payments under
such Paragraph 14 are greater than payments
6
<PAGE>
due under this Paragraph 12(e), Employee may elect to
receive the Paragraph 14 payments. To effect termination by
reason of a substantial breach of this Agreement by
Employer, Employee must have given written notice of such
breach to Employer and Employer must have failed to cure
such breach within fifteen (15) days of the date such notice
is deemed to have been delivered.
(f) By Employee, for any reason other than those set
forth in Paragraphs 12(a), 12(d) and 12(e) above, upon
written notice to Employer at least thirty (30) days prior
to the effective date of termination set forth in such
notice. In the event of a termination of this Agreement
pursuant to this Paragraph 12(f), Employer's obligations to
pay Employee, except as provided in the Incentive Plan,
shall cease on the effective date of such termination.
The termination of this Agreement under this Paragraph 12 shall
not affect the provisions of Paragraph 9, 10, 14 or 15 (to the
extent applicable) hereof or this Paragraph 12, which shall
remain in full force and effect for the applicable time period;
provided, however, if Employee rightfully terminates this
Agreement under Paragraph 12(e) above, only the prohibition of
Paragraph 9 above shall apply in accordance with its terms and
Paragraph 10 above shall not apply.
13. MISCELLANEOUS.
(a) Each party bound by this Agreement agrees to
perform any further acts and to execute and deliver any
additional documents which may reasonably be necessary to
carry out the provisions of this Agreement.
(b) This Agreement may not be assigned by either of
the parties hereto without the prior written consent of the
other. Subject to the foregoing, this Agreement shall be
binding upon, and shall inure to the benefit of, the parties
hereto and their respective heirs, legal representatives,
successors and assigns, each of which shall execute such
instruments and take such actions as are necessary or
appropriate to carry out the purposes of this Agreement.
Except as provided herein, nothing in this Agreement,
express or implied, is intended or shall be construed to
give to any person other than the parties hereto any right,
remedy or claim under or by reason of this Agreement.
(c) This Agreement, together with the Incentive Plan
and the other employee benefit plans referenced in Paragraph
6 above as the same may be amended from time to time,
constitutes the entire agreement and understanding
7
<PAGE>
between the parties hereto, and supersedes any prior
agreement or correspondence, relating to the subject matter
hereof. This Agreement may be modified or amended only by a
written instrument executed by the parties hereto.
(d) The use of headings and captions herein is solely
for the convenience of the parties hereto and shall not
limit or otherwise affect the construction of any of the
terms or provisions hereof.
(e) This Agreement shall be governed by the laws of
the State of New York, U.S.A., without regard to the
principles of conflict of laws.
(f) No waiver of any term, provision or condition of
this Agreement shall be effective unless in writing signed
by the party granting the waiver, and no such waiver shall
be deemed to be or construed as a further or continuing
waiver of such term, provision or condition or as a waiver
of any other term, provision or condition of this Agreement,
unless specifically so stated in such waiver.
(g) 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.
(h) If any covenant or agreement contained herein, or
any part hereof, is held to be unenforceable for any reason,
the remainder of this Agreement shall be construed as if
such provision or part thereof was not included herein;
provided, that if the unenforceability of any such covenant
or agreement is because of the breadth of its scope, the
duration of such provision or the geographical area covered
thereby, the parties agree that such provision shall be
amended, as determined by the court, so as to reduce the
breadth of the scope or the duration and/or geographical
area of such provision such that, in its reduced form, said
provision shall then be enforceable.
(i) All notices and other communications required or
permitted hereunder shall be in writing, and shall be deemed
to have been delivered on the date delivered by hand,
telegram, facsimile, or by similar means, or on the third
(3rd) day following the day when sent by recognized courier
or overnight delivery service (fees prepaid), or on the
fifth (5th) day following the day when deposited in the
mail, registered or certified (postage prepaid), addressed
as follows:
8
<PAGE>
If to Employee: James R. Beasley
5029 East 117th Street South
Tulsa, Oklahoma 74137
U.S.A.
If to Employer: Willbros Engineers, Inc.
Suite 700, 2431 East 61st Street
Tulsa, Oklahoma 74136
U.S.A.
If to WGI: Willbros Group, Inc.
Edificio Torre Banco Germanico
Calle 50 y 55 Este, Apartado 850048
Panama 5, Republic of Panama
With a copy to: John N. Hove, Esq.
Suite 200, 2431 East 61st Street
Tulsa, Oklahoma 74136
U.S.A.
Either party may change its address for receiving notices by
giving written notice of such change to the other party in
accordance with this Paragraph 13(i).
14. CHANGE OF CONTROL.
(a) If a Change of Control (as defined in Paragraph
14(b) below) occurs and Employee's employment is terminated
for any reason (whether voluntarily or involuntarily) within
twelve (12) months of such Change of Control, Employee shall
be entitled to elect to receive a severance payment equal to
the sum of: (i) three (3) times his Base Salary; (ii)
three (3) times the average incentive payment earned under
the Incentive Plan (or a similar predecessor incentive plan)
for the three (3) full calendar years preceding his
termination of employment; and (iii) the Special Retirement
Benefit (as defined in Paragraph 14(d) below).
(b) The term "Change of Control" means and will be
deemed to have occurred if (i) any person, other than WGI or
a Related Party, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended), directly or indirectly, of securities of
WGI representing twenty percent (20%) or more of the total
voting power of all the then outstanding voting securities
of WGI ("Voting Securities"); or (ii) any person, other than
WGI or a
9
<PAGE>
Related Party, purchases or otherwise acquires, under a
tender offer, securities representing, when combined with
other securities of WGI owned by such person, twenty percent
(20%) or more of the total voting power of all the then
outstanding Voting Securities; or (iii) the individuals (A)
who as of the date hereof constitute the Board of Directors
of WGI (the "Board") or (B) who hereafter are elected to the
Board and whose election, or nomination for election, to the
Board was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors
as of the date hereof or whose election or nomination for
election was previously so approved, cease for any reason to
constitute a majority of the members of the Board; or
(iv) the stockholders of WGI approve a merger,
consolidation, recapitalization or reorganization of WGI or
an acquisition of securities or assets by WGI, or
consummation of any such transaction if stockholder approval
is not obtained (other than any such transaction which would
result in the Voting Securities outstanding immediately
prior thereto continuing to represent, either by remaining
outstanding or by being converted into voting securities of
the surviving entity, at least eighty percent (80%) of the
total voting power represented by the voting securities of
the surviving entity outstanding immediately after such
transaction and in or as a result of which the voting rights
of each Voting Security relative to the voting rights of all
other Voting Securities are not altered); or (v) the
stockholders of WGI approve a plan of complete liquidation
of WGI, or an agreement for the sale or disposition by WGI
of all or substantially all of WGI's assets, other than any
such transaction which would result in a Related Party
owning or acquiring more than fifty percent (50%) of the
assets owned by WGI immediately prior to the transaction; or
(vi) the Board adopts a resolution to the effect that a
Change of Control has occurred and the transaction giving
rise to such resolution has been approved by the
stockholders of WGI or been consummated if such approval is
not sought.
(c) The term "Related Party" means (i) a majority
owned direct or indirect subsidiary of WGI; (ii) an
employee or group of employees of WGI or of any majority
owned direct or indirect subsidiary of WGI; (iii) a trustee
or other fiduciary holding securities under an employee
benefit plan of WGI or any majority owned direct or indirect
subsidiary of WGI; (iv) a corporation owned directly or
indirectly by the stockholders of WGI in substantially the
same proportion as their ownership of stock of WGI; or (v)
Yorktown Energy Partners, L.P.
(d) The term "Special Retirement Benefit" means an
amount calculated such that, when added to any benefits
payable to the Employee under the Willbros Engineers, Inc.
Pension Plan (the "Pension Plan") and the Willbros USA, Inc.
Executive Benefit Restoration Plan (collectively, the "Other
Retirement Benefits"),
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<PAGE>
the total retirement benefits the Employee receives from the
Employer will at least equal the amount which the aggregate
of the Other Retirement Benefits would have been if the
Employee retired on a date three (3) years following the
date of his employment termination and the Percentage of
Early Pension Payable (as described in the Pension Plan) was
calculated using a discount percent per year not exceeding
one and one-half percent (1 1/2%) from age sixty-five. For
purposes of calculating the Special Retirement Benefit and
the Other Retirement Benefits under this Agreement, the
following will apply:
(i) The Employee will be deemed to have
continued his employment for a three (3) year
period beginning on the date of his termination at
his Base Salary in effect on the date of
termination; and
(ii) The Employee will be deemed to have
received compensation under the Incentive Plan (or
a similar predecessor incentive plan) for each
year of such three (3) year period in an amount
equal to the average annual incentive payment
earned under the Incentive Plan for the three (3)
full calendar years preceding his termination of
employment.
(e) The provisions of this Paragraph 14 shall survive
expiration or termination of this Agreement.
15. TAX GROSS-UP PAYMENTS.
(a) The parties recognize that the payments under this
Agreement, including without limitation, payments under
Paragraph 14 above, and other compensation, benefits,
payments and distributions under the Incentive Plan or other
plans or compensation arrangements with respect to Employee
may be subject to the excise tax imposed under Section 4999
of the U.S. Internal Revenue Code of 1986 (as amended, the
"Code"). In such event, Employer will pay Employee one or
more cash payments ("Gross-up Payment") sufficient to pay
such excise tax, together with any interest or penalties
incurred by Employee relative thereto and any federal and
state excise or income taxes resulting from payments made
pursuant to this Paragraph 15 (collectively, the "Excise
Tax").
(b) Subject to the provisions of paragraph 15(c)
hereof, all determinations required to be made under this
Paragraph 15, including without limitation whether the
Gross-up Payment is required and the amount of the Gross-up
Payment, will be made by an accounting firm selected by
Employee and
11
<PAGE>
approved by Employer, which approval will not be
unreasonably withheld. Employee will provide the accounting
firm any information reasonably requested by it necessary to
make such determination, including without limitation copies
of Employee's tax returns for the periods affected, all of
which will be maintained in confidence by the accounting
firm. The accounting firm will provide detailed supporting
calculations together with its written opinion with respect
to the accuracy of such calculations to Employer and
Employee within fifteen (15) business days of the date of
termination of Employee's employment or such earlier time as
is requested by Employee or Employer and agreed to by the
accounting firm. All fees and expenses of the accounting
firm will be borne solely by Employer. The initial Gross-up
Payment, if any, as determined pursuant to this
Paragraph 15(b), will be paid to Employee within five (5)
days after Employee's receipt of the accounting firm's
determination. If the accounting firm determines that no
Excise Tax is payable by Employee, it will also furnish
Employee with an opinion that failure to report the Excise
Tax on Employee's applicable federal income tax return would
not result in the imposition of a negligence or similar
penalty. In the absence of such an opinion, a Gross-up
Payment in the amount which the accounting firm determines
to be payable will be due and payable to Employee. Except
as provided in the preceding sentence, any determination by
the accounting firm will be binding upon all of the parties
hereto. As a result of uncertainty in the application of
Section 4999 of the Code at the time of the initial
determination by the accounting firm hereunder, it is
possible that Gross-up Payments which will not have been
made by Employer should have been made, consistent with the
calculations required to be made hereunder (the
"Underpayment"). In the event that Employer exhausts the
remedies provided in Paragraph 15(c) hereof and Employee
thereafter is required to make a payment of any Excise Tax,
the accounting firm will determine the amount of the
Underpayment that has occurred and any such Underpayment
will be promptly paid by Employer to or for the benefit of
Employee.
(c) Employee will notify Employer in writing of any
claim by the U.S. Internal Revenue Service (the "IRS") that,
if successful, would require the payment by Employer of the
Gross-up Payment; provided, that failure by Employee to give
such notification will not affect any of Employee's rights
or the obligations of Employer under this Agreement. Such
notification will be given as soon as practicable but no
later than ten (10) business days after Employee knows of
such claim and will apprise Employer of the nature of such
claim and the date on which such claim is requested to be
paid. Employee will not pay such claim prior to the
expiration of the thirty (30) day period following the date
on which Employee gives such notice to Employer (or such
sooner period ending on the date that any
12
<PAGE>
payment of taxes with respect to such claim is due). If
Employer notifies Employee in writing prior to the
expiration of such period that it desires to contest such
claim, Employee will:
(i) give Employer any information
reasonably requested by Employer relating to such
claim;
(ii) take such action in connection with
contesting such claim as Employer may reasonably
request in writing from time to time, including
without limitation accepting legal representation
with respect to such claim by an attorney
reasonably selected by Employer;
(iii) cooperate with Employer in
good faith in order effectively to contest such
claim; and
(iv) permit Employer to participate in
any proceedings relating to such claim;
provided, however, that Employer will bear and pay
directly all costs and expenses (including without
limitation additional interest and penalties) incurred
in connection with such contest and will indemnify and
hold Employee harmless, on an after-tax basis, for any
Excise Tax or income tax, including without limitation
interest and penalties with respect thereto, imposed as
a result of such representation, and payment of costs
and expenses. Without limiting the foregoing, Employer
will control all proceedings taken in connection with
such contest and, at the sole option of Employer, may
pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole
option, either direct Employee to pay the tax claimed
and sue for a refund or contest the claim in any
permissible manner, and Employee will prosecute such
contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one
or more appellate courts, as Employer may determine;
provided, however, that if Employer directs Employee to
pay such claim and sue for a refund, Employer will
advance the amount of such payment to Employee, on an
interest-free basis, and will indemnify and hold
Employee harmless, on an after-tax basis, from any
Excise Tax, including without limitation interest or
penalties with respect thereto, imposed with respect to
such advance or with respect to any imputed income with
respect to such advance; and
13
<PAGE>
further provided that any extension of the statute
of limitations relating to payment of taxes for the
taxable year of Employee with respect to which such
contested amount is claimed to be due is limited solely
to such contested amount. Furthermore, the control of
the contest by Employer will be limited to issues with
respect to which a Gross-up Payment would be payable
hereunder and Employee will be entitled to settle or
contest, as the case may be, any other issue raised by
the IRS or any other taxing authority.
(d) If, after the receipt by Employee of an amount
advanced by Employer pursuant to Paragraph 15(c) hereof,
Employee becomes entitled to receive any refund with respect
to such claim, Employee will (subject to compliance by
Employer with the requirements of Paragraph 15(c) hereof)
promptly pay to Employer the amount of such refund (together
with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by Employee of an
amount advanced by Employer pursuant to Paragraph 15(c)
hereof, a determination is made that Employee will not be
entitled to any refund with respect to such claim and
Employer does not notify Employee in writing of its intent
to contest such denial of refund prior to the expiration of
thirty (30) calendar days after such determination, then
such advance will be forgiven and will not be required to be
repaid and the amount of such advance will offset, to the
extent thereof, the amount of Gross-up Payment required to
be paid. Any contest of a denial of refund will be
controlled by Paragraph 15(c) hereof.
(e) The provisions of this Paragraph 15 shall survive
expiration or termination of this Agreement.
14
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed, or
have caused to be executed, this Employment Agreement on the day
and year first set forth above.
"Employer"
WILLBROS ENGINEERS, INC.
By: /s/ Steve W. Shores
-------------------------
Name: Steve W. Shores
-------------------------
Title: Senior Vice President
-------------------------
"Employee"
/s/ James R. Beasley
------------------------------
James R. Beasley
WILLBROS GROUP, INC.
By: /s/ Larry J. Bump
--------------------------
Name: Larry J. Bump
--------------------------
Title: Chairman and CEO
--------------------------
15
<PAGE>
EXHIBIT 10.13
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (this "Agreement") is
made and entered into effective as of the ----------------day of
- ----------------, 19------ ("Effective Date"), by and between WILLBROS
GROUP, INC., a Republic of Panama corporation (the "Company"),
and---------------------------------------------, an individual
("Employee").
W I T N E S S E T H:
----------------------------
WHEREAS, the Board of Directors of the Company (the "Board")
has adopted the Willbros Group, Inc. 1996 Stock Plan (the "Plan")
for the purpose of encouraging key employees of the Company and
its Subsidiaries (as defined in the Plan) to acquire stock
ownership in the Company and to continue in the employ of the
Company and its Subsidiaries; and
WHEREAS, -------------------------------------------- is a
key employee of the Company or a Subsidiary, and the committee of
the Board which administers the Plan (the "Committee") desires to
grant to Employee an option under the Plan which qualifies as an
"incentive stock option" within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements herein contained, the parties hereto
hereby agree as follows:
1. GRANT OF OPTION. The Company hereby grants to Employee
the right and option to purchase from the Company, during the
periods and on the terms and conditions hereinafter set forth, an
aggregate of ----------------- shares of its common stock, par
value $.05 per share ("Share" or "Shares"), at a price of $------
per share, being the Fair Market Value (as defined in the
Plan) of a Share on the Effective Date (hereinafter, the
"Option").
2. EXERCISE PERIODS. Subject to the terms of this
Agreement, the Option shall become exercisable, in whole or in
part, only at the times and during the periods and for the number
of Shares set forth below:
(a) On or after --------------------, --------, but no
later than --------------, -------,
------------- Shares;
(b) On or after -------------------, -------, but no
later than ---------------, --------,
------------ Shares;
(c) On or after -----------------, --------, but no
later than ----------------, --------,
------------ Shares; and
<PAGE.
(d) On or after ------------------, -------- but no
later than ----------------, --------,
------------ Shares.
Provided, however, notwithstanding the above exercise periods,
the Option may become fully exercisable immediately under certain
circumstances set forth in the Plan.
3. EXERCISE OF OPTION. That portion of the Option which
is exercisable may be exercised, in whole or in part, by Employee
only so long as Employee remains, on or after the Effective Date,
continuously in the employ of the Company or any of its
Subsidiaries except as otherwise provided by this Agreement. At
the time of exercise, Employee shall deliver to the Company a
written notice duly signed by Employee stating the number of
Shares as to which the Option is being exercised at that time,
together with payment for the full exercise price of the Option
with respect to said Shares (a) in cash (or certified or bank
cashier's check payable to the order of the Company); (b) by
delivery of shares of common stock of the Company then owned by
Employee (such shares being valued at their Fair Market Value at
the time of such exercise); (c) by a combination of such methods;
or (d) by other means that the Committee deems appropriate; plus,
in each case, any applicable withholding tax thereon, whereupon
certificates therefor will be issued to Employee. The minimum
number of Shares which may be purchased at any time by exercise
of the Option is 100 Shares unless the number purchased is the
total number purchasable under the Option at that time. The
Option shall not be exercisable with respect to fractions of a
Share. No exercise or failure to exercise as to a portion of the
Shares shall preclude a later exercise or exercises as to
additional portions.
4. INCENTIVE STOCK OPTION. The Option is intended to
qualify as an "incentive stock option" as such term is defined at
Section 422 of the Internal Revenue Code of 1986, as amended, and
shall be construed in accordance with such intent and any
provision of this Agreement which may be inconsistent with such
intent is deemed to be modified to the extent necessary to be
consistent with such intent; provided, however, Employee
acknowledges and understands that the status of the Option as an
"incentive stock option" depends on various factors relating to
the Plan, the Option and the grant thereof (including the
exercise price of the Option), and that the Option may be
determined not to qualify as an "incentive stock option."
5. EMPLOYMENT. Nothing contained in this Agreement shall
confer upon Employee any right to continue in the employ of the
Company or any of its Subsidiaries or interfere in any way with
the right of the Company or any Subsidiary to terminate
Employee's employment at any time with or without cause. A leave
of absence approved by the Company or any Subsidiary shall not be
deemed an interruption of continuous employment under the Plan or
this Agreement.
6. THE PLAN AND AMENDMENTS. This Agreement shall be
subject to the terms and conditions of the Plan as presently
constituted and as may be amended hereafter from time to time,
including the discretion therein provided to the Committee.
Except as may be otherwise provided by the Plan, amendments to
the Plan shall
2
<PAGE>
constitute amendments to this Agreement and shall be incorporated
herein without the execution of any amendment or supplement
hereto by the parties. The parties further agree to any
amendment of this Agreement, without the execution of any
amendment or supplement, upon notice from the Company to Employee
that the terms and conditions of this Agreement shall be amended
to conform to any formal guidelines published by the Secretary of
the Treasury of the United States or his or her delegate
prescribing the requirements for "incentive stock options."
7. STOCKHOLDER RIGHTS PRIOR TO EXERCISE OF OPTIONS.
Neither Employee nor any of Employee's heirs, legal
representatives or beneficiaries shall be deemed to have any
rights as a stockholder of the Company with respect to any Shares
covered by the Option until the date of the issuance by the
Company of a certificate to Employee for such Shares.
8. RIGHTS IN EVENT OF TERMINATION OF EMPLOYMENT.
(a) In the event of the death of Employee while in the
employ of the Company or any of its Subsidiaries, Employee's
estate or beneficiaries shall have a period up to the
earlier of one year after Employee's death or 10 years after
the date hereof within which to exercise the Option, to the
extent Employee could have exercised the Option at the date
of Employee's death, unless the Committee, in its sole
discretion (subject to Section 10(e) of the Plan), extends
such period (but not beyond 10 years after the date hereof).
The Option, to the extent not exercised during such period,
shall terminate upon the expiration of such period.
(b) In the event of Employee's termination of
employment with the Company and its Subsidiaries by reason
of Employee's Disability (as defined in that certain
Willbros USA, Inc. Long-Term Disability Plan as of January
1, 1995, and any successor plan), Employee, or Employee's
guardian or legal representative, shall have a period up to
the earlier of one year after commencement of Employee's
Disability or 10 years after the date hereof within which to
exercise the Option, to the extent Employee could have
exercised the Option at the date of commencement of
Employee's Disability, unless the Committee, in its sole
discretion (subject to Section 10(e) of the Plan), extends
such period (but not beyond 10 years after the date hereof).
The Option, to the extent not exercised during such period,
shall terminate upon the expiration of such period.
(c) If Employee's employment terminates as a result of
Retirement (meaning retirement from employment with the
Company and its Subsidiaries in accordance with the terms of
a Company or Subsidiary retirement plan), Employee shall
have a period of up to five years from the date of
Retirement (but not beyond 10 years after the date hereof)
within which to exercise the Option, to the extent Employee
could have exercised the Option at the date of Employee's
Retirement, unless the Committee, in its sole discretion
(subject to Section 10(e) of the Plan),
3
<PAGE>
extends such period (but not beyond 10 years after the date
hereof). The Option, to the extent not exercised during
such period, shall terminate upon expiration of such period.
(d) In the event of termination of Employee's
employment with the Company and its Subsidiaries for any
reason other than death, Disability or Retirement, as
described in paragraphs (a), (b) or (c) of this Section 8,
Employee shall have a period of up to three months from the
date of termination of employment (but not beyond 10 years
after the date hereof) within which to exercise the Option,
to the extent Employee could have exercised the Option at
the date of Employee's termination of employment. The
Option, to the extent not exercised during such period,
shall terminate upon expiration of such period.
9. SHARES RESERVED; TAXES. The Company shall at all times
during the term of the Option reserve and keep available such
number of Shares as will be sufficient to satisfy the
requirements of this Agreement. The Company shall pay all
original issue taxes with respect to the issue of Shares pursuant
hereto and all other fees and expenses necessarily incurred in
connection therewith.
10. INVESTMENT REPRESENTATION. Employee represents to the
Company and agrees that if Employee exercises the Option, in
whole or in part, at a time when there is not in effect under the
United States Securities Act of 1933, as amended, a registration
statement relating to the Shares issuable upon exercise hereof
and available for delivery a prospectus meeting the requirements
of Section 10 of said Act, Employee will acquire such Shares upon
such exercise for the purpose of investment and not with a view
to their resale or distribution and that, upon each such exercise
of the Option, Employee will furnish to the Company a written
statement to such effect, satisfactory to the Company in form and
substance. Such written agreement shall also state that such
Shares shall not be transferred except pursuant to an effective
registration statement under said Act or in accordance with an
exemption from registration thereunder. The certificates issued
for all Shares issued hereunder shall bear the following legend
if a registration statement relating to the Shares issuable upon
exercise hereof is not in effect at the time of exercise of the
Option:
The securities evidenced by this
certificate have not been registered under
the U.S. Securities Act of 1933 or any other
securities laws. These securities have been
acquired for investment and may not be sold
or transferred for value in the absence of an
effective registration of them under the U.S.
Securities Act of 1933 and any other
applicable securities laws, or receipt by the
Company of an opinion of counsel or other
evidence acceptable to the Company that such
sale or transfer is exempt from registration
under such acts and laws.
11. PAYMENT OF WITHHOLDING TAX. Upon exercise by Employee
of the
4
<PAGE>
Option, the Company shall have the right to deduct from any cash
amounts otherwise payable to Employee any amounts required to
satisfy all tax withholding requirements imposed upon such
exercise under applicable federal, state, local or other laws.
12. NO TRANSFERABILITY. The Option shall not be
transferable except by will or the laws of descent and
distribution.
13. NOTICES. All notices required or permitted to be given
pursuant to this Agreement shall be in writing and delivered by
hand, telegram or mail, addressed as follows:
If to the Company: c/o 2431 East 61st Street, Suite 700
Tulsa, Oklahoma 74136-1267
Attention: John N. Hove, General Counsel
If to Employee: The address for Employee set forth on
the records of the Company or a Subsidiary
Each notice shall be deemed to have been given on the date it is
received. Such addresses may be changed by notice given by the
party making such change delivered to the other party hereto.
14. BINDING AGREEMENT. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and
their respective heirs, legal representatives, beneficiaries,
successors and assigns.
15. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Republic of Panama.
IN WITNESS WHEREOF, Employee has executed this Agreement,
and the Company has caused this Agreement to be executed by its
duly authorized officer, effective as of the day and year first
above written.
WILLBROS GROUP, INC.
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
5
<PAGE>
EMPLOYEE:
------------------------------
Name:
------------------------------
6
<PAGE>
EXHIBIT 10.14
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement")
is made and entered into effective as of the --------------day of
- --------------, 19--- ("Effective Date"), by and between WILLBROS
GROUP, INC., a Republic of Panama corporation (the "Company"), and
- ---------------------, an individual ("Employee").
W I T N E S S E T H:
----------------------------
WHEREAS, the Board of Directors of the Company (the "Board")
has adopted the Willbros Group, Inc. 1996 Stock Plan (the "Plan")
for the purpose of encouraging key employees of the Company and
its Subsidiaries (as defined in the Plan) to acquire stock
ownership in the Company and to continue in the employ of the
Company and its Subsidiaries; and
WHEREAS, ------------------------ is a key employee of the
Company or a Subsidiary, and the committee of the Board which
administers the Plan (the "Committee") desires to grant to
Employee a non-qualified stock option under the Plan;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements herein contained, the parties hereto
hereby agree as follows:
1. GRANT OF OPTION. The Company hereby grants to Employee
the right and option to purchase from the Company, during the
periods and on the terms and conditions hereinafter set forth, an
aggregate of ------------ shares of its common stock, par value
$.05 per share ("Share" or "Shares"), at a price of $----- per
share, being ---% of the Fair Market Value (as defined in the
Plan) of a Share on the Effective Date (hereinafter, the
"Option").
2. EXERCISE PERIODS. Subject to the terms of this
Agreement, the Option shall become exercisable, in whole or in
part, only at the times and during the periods and for the number
of Shares set forth below:
(a) On or after ------------------, --------, but no
later than ----------------, ------,
-------- Shares;
(b) On or after ------------------, --------, but no
later than ----------------, ------,
-------- Shares;
(c) On or after ------------------, --------, but no
later than ----------------, ------,
-------- Shares; and
(d) On or after ------------------, --------, but no
later than ----------------, ------,
-------- Shares.
<PAGE>
Provided, however, notwithstanding the above exercise periods,
each vesting date of the Option set forth above shall be
accelerated one year for each incremental $------ that the
average of the daily closing sales prices of a share of common
stock of the Company on the New York Stock Exchange over a period
of 60 consecutive trading days exceeds
$---------- per share during the term of the Option. Provided
further, notwithstanding the above exercise periods, the Option
may become fully exercisable immediately under certain
circumstances set forth in the Plan.
3. EXERCISE OF OPTION. That portion of the Option which
is exercisable may be exercised, in whole or in part, by Employee
only so long as Employee remains, on or after the Effective Date,
continuously in the employ of the Company or any of its
Subsidiaries except as otherwise provided by this Agreement. At
the time of exercise, Employee shall deliver to the Company a
written notice duly signed by Employee stating the number of
Shares as to which the Option is being exercised at that time,
together with payment for the full exercise price of the Option
with respect to said Shares (a) in cash (or certified or bank
cashier's check payable to the order of the Company); (b) by
delivery of shares of common stock of the Company then owned by
Employee (such shares being valued at their Fair Market Value at
the time of such exercise); (c) by withholding by the Company of
Shares from the Shares issuable upon such exercise (such withheld
Shares being valued at their Fair Market Value at the time of
such exercise); (d) in the discretion of the Committee, by
delivery of properly executed irrevocable instructions to a
securities broker (or, in the case of pledges, lender) to (i)
sell Shares subject to the Option and to deliver promptly to the
Company a sufficient portion of the proceeds of such sale
transaction on behalf of Employee to pay the exercise price of
said Shares or (ii) pledge Shares subject to the Option to a
margin account maintained with such broker or lender, as security
for a loan, and such broker or lender, pursuant to irrevocable
instructions, delivers to the Company a sufficient portion of the
loan proceeds to pay the exercise price of said Shares; (e) by a
combination of such methods; or (f) by other means that the
Committee deems appropriate; plus, in each case, any applicable
withholding tax thereon, whereupon certificates therefor will be
issued to Employee. The minimum number of Shares which may be
purchased at any time by exercise of the Option is 100 Shares
unless the number purchased is the total number purchasable under
the Option at that time. The Option shall not be exercisable
with respect to fractions of a Share. No exercise or failure to
exercise as to a portion of the Shares shall preclude a later
exercise or exercises as to additional portions.
4. EMPLOYMENT. Nothing contained in this Agreement shall
confer upon Employee any right to continue in the employ of the
Company or any of its Subsidiaries or
interfere in any way with the right of the Company or any
Subsidiary to terminate Employee's employment at any time with or
without cause. A leave of absence approved by the Company or any
Subsidiary shall not be deemed an interruption of continuous
employment under the Plan or this Agreement.
5. THE PLAN AND AMENDMENTS. This Agreement shall be
subject to the terms and conditions of the Plan as presently
constituted and as may be amended
2
<PAGE>
hereafter from time to time, including the discretion therein
provided to the Committee. Except as may be otherwise provided
by the Plan, amendments to the Plan shall constitute amendments
to this Agreement and shall be incorporated herein without the
execution of any amendment or supplement hereto by the parties.
The parties further agree to any amendment of this Agreement,
without the execution of any amendment or supplement, upon notice
from the Company to Employee that the terms and conditions of
this Agreement shall be amended to conform to any formal
guidelines published by the Secretary of the Treasury of the
United States or his or her delegate prescribing the requirements
for non-qualified stock options.
6. STOCKHOLDER RIGHTS PRIOR TO EXERCISE OF OPTIONS.
Neither Employee nor any of Employee's heirs, legal
representatives or beneficiaries shall be deemed to have any
rights as a stockholder of the Company with respect to any Shares
covered by the Option until the date of the issuance by the
Company of a certificate to Employee for such Shares.
7. RIGHTS IN EVENT OF TERMINATION OF EMPLOYMENT.
(a) In the event of the death of Employee while in the
employ of the Company or any of its Subsidiaries, Employee's
estate or beneficiaries shall have a period up to the later
of one year after Employee's death or 10 years after the
date hereof within which to exercise the Option, to the
extent Employee could have exercised the Option at the date
of Employee's death, unless the Committee, in its sole
discretion, extends such period. The Option, to the extent
not exercised during such period, shall terminate upon the
expiration of such period.
(b) In the event of Employee's termination of
employment with the Company and its Subsidiaries by reason
of Employee's Disability (as defined in that certain
Willbros USA, Inc. Long-Term Disability Plan as of January
1, 1995, and any successor plan), Employee, or Employee's
guardian or legal representative, shall have a period up to
the later of one year after commencement of Employee's
Disability or 10 years after the date hereof within which to
exercise the Option, to the extent Employee could have
exercised the Option at the date of commencement of
Employee's Disability, unless the Committee, in its sole
discretion, extends such period. The Option, to the extent
not exercised during such period, shall terminate upon the
expiration of such period.
(c) If Employee's employment terminates as a result of
Retirement (meaning retirement from employment with the
Company and its Subsidiaries in accordance with the terms of
a Company or Subsidiary retirement plan), Employee shall
have a period of up to five years from the date of
Retirement (but not beyond 10 years after the date hereof)
within which to exercise the Option, to the extent Employee
could have exercised the Option at the date of Employee's
Retirement, unless the Committee, in its sole discretion
extends such period (but not beyond 10 years after the date
hereof). The Option, to the extent not exercised during
3
<PAGE>
such period, shall terminate upon expiration of such period.
(d) In the event of termination of Employee's
employment with the Company and its Subsidiaries for any
reason other than death, Disability or Retirement, as
described in paragraphs (a), (b) or (c) of this Section 7,
Employee shall have a period of up to three months from the
date of termination of employment (but not beyond 10 years
after the date hereof) within which to exercise the Option,
to the extent Employee could have exercised the Option at
the date of Employee's termination of employment. The
Option, to the extent not exercised during such period,
shall terminate upon expiration of such period.
8. SHARES RESERVED; TAXES. The Company shall at all times
during the term of the Option reserve and keep available such
number of Shares as will be sufficient to satisfy the
requirements of this Agreement. The Company shall pay all
original issue taxes with respect to the issue of Shares pursuant
hereto and all other fees and expenses necessarily incurred in
connection therewith.
9. INVESTMENT REPRESENTATION. Employee represents to the
Company and agrees that if Employee exercises the Option, in
whole or in part, at a time when there is not in effect under the
United States Securities Act of 1933, as amended, a registration
statement relating to the Shares issuable upon exercise hereof
and available for delivery a prospectus meeting the requirements
of Section 10 of said Act, Employee will acquire such Shares upon
such exercise for the purpose of investment and not with a view
to their resale or distribution and that, upon each such exercise
of the Option, Employee will furnish to the Company a written
statement to such effect, satisfactory to the Company in form and
substance. Such written agreement shall also state that such
Shares shall not be transferred except pursuant to an effective
registration statement under said Act or in accordance with an
exemption from registration thereunder. The certificates issued
for all Shares issued hereunder shall bear the following legend
if a registration statement relating to the Shares issuable upon
exercise hereof is not in effect at the time of exercise of the
Option:
The securities evidenced by this
certificate have not been registered under
the U.S. Securities Act of 1933 or any other
securities laws. These securities have been
acquired for investment and may not be sold
or transferred for value in the absence of an
effective registration of them under the U.S.
Securities Act of 1933 and any other
applicable securities laws, or receipt by the
Company of an opinion of counsel or other
evidence acceptable to the Company that such
sale or transfer is exempt from registration
under such acts and laws.
10. PAYMENT OF WITHHOLDING TAX. Upon exercise by Employee
of the Option, the Company shall have the right to deduct from
any cash amounts otherwise payable to Employee any amounts
required to satisfy all tax withholding requirements
4
<PAGE>
imposed upon such exercise under applicable federal, state, local
or other laws. Alternatively, to satisfy any such withholding
requirements, the Company may, at the request of Employee, but
shall not be required to (a) withhold from the number of Shares
to be issued that number of Shares (based on the Fair Market
Value of the Shares at the time of such exercise) necessary to
satisfy such tax withholding requirements or (b) accept delivery
from Employee of shares of common stock of the Company then owned
by Employee (such shares being valued at their Fair Market Value
at the time of such exercise) as is sufficient to satisfy such
tax withholding requirements.
11. NO TRANSFERABILITY; LIMITED EXCEPTIONS TO TRANSFER
RESTRICTIONS.
(a) Unless otherwise expressly provided in this
Section 11, the Option shall not be transferable.
(b) All or a portion of the Option may be transferred
by Employee to (i) the spouse, children, stepchildren or
grandchildren of Employee ("Immediate Family Members"), (ii)
a trust or trusts for the benefit of Employee and/or
Immediate Family Members, (iii) an entity or entities whose
beneficiaries or beneficial owners are Employee and/or
Immediate Family Members, or (iv) such other persons or
entities as may be approved by the Committee, in its sole
discretion; provided, that, in each case, subsequent
transfers of such transferred Option shall be prohibited
except for transfers to the transferees described in this
paragraph (b) or by will or the laws of descent and
distribution. Following transfer, any such Option shall
continue to be subject to the same terms and conditions as
were applicable immediately prior to transfer; provided,
that, for purposes of Sections 3, 6, 7, 9 and 12 hereof the
term "Employee" shall be deemed to refer to the transferee
except for the events of termination of employment and other
employment aspects of said Sections relating to Employee
which shall continue to
refer to Employee. The events of termination of employment
of Section 7 shall continue to be applied with respect to
Employee, following which the Option shall be exercisable by
the transferee only to the extent, and for the periods
specified in Section 7. Employee shall remain subject to
any withholding taxes incurred upon exercise by transferee
of a transferred Option.
(c) The transfer restrictions set forth in paragraph
(a) of this Section 11 shall not apply to:
(i) transfers to the Company;
(ii) the designation of a beneficiary to
receive benefits in the event of Employee's death or,
if Employee has died, transfers to Employee's
beneficiary, or, in the absence of a validly designated
beneficiary, transfers by will or the laws of descent
and distribution;
5
<PAGE>
(iii) transfers pursuant to a domestic
relations order; or
(iv) if Employee has suffered a Disability,
permitted transfers on behalf of Employee by Employee's
guardian or legal representative.
12. NOTICES. All notices required or permitted to be given
pursuant to this Agreement shall be in writing and delivered by
hand, telegram or mail, addressed as follows:
If to the Company: c/o 2431 East 61st Street, Suite 700
Tulsa, Oklahoma 74136-1267
Attention: John N. Hove, General Counsel
If to Employee: The address for Employee set forth on
the records of the Company or a Subsidiary
Each notice shall be deemed to have been given on the date it is
received. Such addresses may be changed by notice given by the
party making such change delivered to the other party hereto.
13. BINDING AGREEMENT. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and
their respective heirs, legal representatives, beneficiaries,
successors and assigns.
14. GOVERNING LAW. This Agreement shall be governed by and
construed
in accordance with the laws of the Republic of Panama.
IN WITNESS WHEREOF, Employee has executed this Agreement,
and the Company has caused this Agreement to be executed by its
duly authorized officer, effective as of the day and year first
above written.
WILLBROS GROUP, INC.
By:---------------------------
Name:-----------------------
Title:----------------------
EMPLOYEE:
------------------------------
Name:-------------------------
6
<PAGE>
EXHIBIT 13
SELECTED CONSOLIDATED FINANCIAL AND OTHER DATA
(Dollar amounts in thousands, except per share data)
<TABLE>
<CAPTION>
Year ended December 31,
---------------------------------
1996 1995 1994
--------- ---------- ----------
<S> <C> <C> <C>
Statement of Income Data:
Contract revenues $ 197,688 $ 220,506 $ 145,716
Operating expenses:
Contract cost 145,812 161,584 98,700
Depreciation and amortization 13,932 15,193 14,598
General and administrative 25,803 27,937 24,261
Compensation from changes
in redemption value of
common stock 6,122 2,100 1,681
--------- ---------- ----------
Operating income 6,019 13,692 6,476
Net interest income (expense) (215) 144 835
Minority interest (2,220) (1,589) (1,758)
Other income (expense) 1,472 (381) 113
---------- ---------- ----------
Income before income taxes 5,056 11,866 5,666
Provision (credit) for income taxes 2,332 (75) (4,146)
---------- ---------- ----------
Net income $ 2,724 $ 11,941 $ 9,812
========== ========== ==========
Net income per share $ .09(1) $ .84 $ .70
Cash Flow Data:
Cash provided by (used in):
Operating activities $ 29,961 $ (8,396) $ (3,771)
Investing activities (24,072) (18,558) (13,169)
Financing activities (1,630) (2,321) (1,271)
Other Data:
EBITDA (2) $ 19,203 $ 26,915 $ 19,429
Capital expenditures $ 24,957 $ 18,946 $ 7,171
Backlog (3) $ 108,751 $ 139,359 $ 97,493
Number of employees 3,700 3,110 2,030
Balance Sheet Data (at period end):
Cash and cash equivalents $ 24,118 $ 19,859 $ 49,142
Working capital 36,723 38,767 28,390
Total assets 147,465 149,954 131,188
Total debt 1,340 3,119 5,828
Redemption value of common
stock held by plan participants - 7,918 5,430
Redeemable Preferred Stock - 36,200 36,200
Stockholders' equity 92,386 39,273 27,340
Year ended December 31,
-----------------------
1993 1992
-----------------------
Statement of Income Data: (CONTINUED)
Contract revenues $ 210,011 $ 180,947
Operating expenses:
Contract cost 147,991 127,942
Depreciation and amortization 16,672 15,029
General and administrative 24,145 19,300
Compensation from changes
in redemption value of
common stock 1,256 1,830
--------- ---------
Operating income 19,947 16,846
Net interest income (expense) (785) (2,133)
Minority interest (3,615) (1,014)
Other income (expense) 5,567 176
--------- ---------
Income before income taxes 21,114 13,875
Provision (credit) for income taxes 8,405 2,764
--------- ---------
Net income $ 12,709 $ 11,111
========= ==========
Net income per share $ .92 $ .85
Cash Flow Data:
Cash provided by (used in):
Operating activities $ 66,460 $ 40,896
Investing activities (14,621) (83,875)
Financing activities (8,175) (41,758)
Other Data:
EBITDA (2) $ 38,571 $ 31,037
Capital expenditures $ 16,534 $ 15,047
Backlog (3) $ 76,066 $ 160,565
Number of employees 1,870 3,090
Balance Sheet Data (at period end):
Cash and cash equivalents $ 67,346 $ 24,080
Working capital 20,663 14,481
Total assets 152,059 118,831
Total debt 6,639 16,000
Redemption value of common
stock held by plan participants 3,279 2,038
Redeemable Preferred Stock 36,200 35,000
Stockholders' equity 20,295 7,983
</TABLE>
- ----------------------------
(1) After deducting $1,448 ($.10 per common share) of
dividends on the Company's Preferred Stock.
(2) EBITDA represents earnings (net income) before interest,
income taxes, depreciation and amortization. EBITDA is not
intended to represent cash flows for the period, nor has it
been presented as an alternative to operating income as an
indicator of operating performance. It should not be
considered in isolation or as a substitute for measures of
performance prepared in accordance with generally accepted
accounting principles. See the Company's Consolidated
Statements of Cash Flows in the Company's Consolidated
Financial Statements. EBITDA is included in this information
because it is a basis upon which the Company assesses its
financial performance.
(3) The Company follows a practice of reflecting anticipated
revenues from uncompleted portions of existing contracts and
contracts whose award is reasonably assured as backlog.
Historically, a substantial amount of the Company's revenues
in a given year have not been reflected in its backlog at the
beginning of that year. The average of revenues for the years
1992 through 1996 exceeds the average of backlog at the
beginning of the years 1992 through 1996 by more than 150%.
18
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
General
The Company derives its revenues from providing construction
services, engineering services and specialty services to the oil
and gas industry and government entities worldwide. The Company
obtains contracts for its work primarily by competitive bidding
or through negotiations with long standing clients. Bidding
activity, backlog and revenues resulting from the award of
contracts to the Company may vary significantly from period to
period.
A number of factors relating to the Company's business affect
the Company's recognition of contract revenues. Revenues from
fixed price construction and engineering contracts are recognized
on the percentage-of-completion method. Under this method,
estimated contract revenues are accrued based generally on the
percentage that costs to date bear to total estimated costs,
taking into consideration physical completion. Generally, the
Company does not recognize income on a fixed-price contract until
the contract is approximately 10% complete. Costs which are
considered to be reimbursable are excluded before the percentage-
of-completion calculation is made. Accrued revenues pertaining to
reimbursables are limited to the cost of the reimbursables. If a
current estimate of total contract cost indicates a loss on a
contract, the projected loss is recognized in full when
determined. Revenues from unit-price contracts are recognized as
earned. Revenues from change orders, extra work, variations in
the scope of work and claims are recognized when realization is
assured.
The Company derives its revenues from contracts with durations
from a few weeks to several months or in some cases, more than a
year. Unit-price contracts provide relatively even quarterly
results; however, major projects are usually fixed-price
contracts that may result in uneven quarterly financial results
due to the method by which revenues are recognized. These
financial factors, as well as external factors such as weather,
client needs, client delays in approving change orders, labor
availability, governmental regulation and politics may affect the
progress of a project's completion and thus the timing of revenue
recognition. The Company believes that its operating results
should be evaluated over a relatively long time horizon during
which major contracts in progress are completed and change
orders, extra work, variations in the scope of work and claims
are negotiated and realized.
Under the Company's stock ownership plans established in 1992
and 1995, the Company had an obligation to purchase, under
certain conditions and at a formula price, common stock held by
retiring or terminating employees. The Company recorded as non-
cash compensation expense the change in the redemption value at
the end of each period using the maximum formula price. The
Company recognized a non-cash compensation expense of $4.7
million for the difference between the maximum redemption value
of the shares subject to redemption and the initial public
offering price upon the effectiveness of the initial public
offering. The amount of these non-cash compensation expenses
have not been added back in calculating EBITDA. The Company's
stock redemption obligations terminated in the fourth quarter of
1996.
As previously noted, the Company uses EBITDA as part of its
overall assessment of financial performance by comparing EBITDA
between accounting periods. Management believes that EBITDA is
used by the financial community as one way of measuring
performance of companies in a peer group and in evaluating the
market value of companies.
The Company recognizes anticipated revenue as backlog when the
award of a contract is reasonably assured. Backlog decreased
$30.6 million to $108.8 million as of December 31, 1996, due to a
$27.8 million decrease in Africa, a $29.5 million decrease in the
Middle East and a $.5 million decrease in the C.I.S. offset by a
$2.1 million increase in Asia, a $14.6 million increase in North
America and a $10.5 million increase in South America.
19
<PAGE>
RESULTS OF OPERATIONS
- ---------------------
Year Ended December 31, 1996, Compared to Year Ended December
31, 1995
CONTRACT REVENUES. Contract revenues decreased $22.8 million
(10%) to $197.7 million for 1996. The decrease was due primarily
to (a) a $19.2 million decrease in contract revenues in North
America due to a $23.1 million reduction in construction services
revenue offset by a $4.0 million increase in engineering and
material procurement services in the United States; (b) an $8.7
million decrease in contract revenues in Africa where a $17.5
million increase in construction services revenue related to
construction of a 20-inch gas pipeline river crossing and related
facilities was offset by a $26.2 million decrease in specialty
services revenue associated with construction of swamp flowlines,
flowline repair, dredging, pipe coating and material procurement
in Nigeria; offset by (c) a $4.5 million increase in contract
revenues in Asia due to engineering, material procurement and
construction services related to a 16 to 18-inch, 225-mile (365-
kilometer) pipeline and four pump stations in Pakistan.
CONTRACT COST. Contract cost decreased $15.8 million (10%) to
$145.8 million for 1996. The decrease was primarily attributable
to (a) a $20.1 million decrease in contract costs in North
America due to a decrease in construction services activity; (b)
a $7.4 million decrease in contract costs in Africa due primarily
to decreases in specialty services work; offset by (c) a $10.9
million increase in contract costs in Asia.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization
expense decreased $1.3 million to $13.9 million for 1996, due
primarily to certain assets becoming fully depreciated.
GENERAL AND ADMINISTRATIVE. General and administrative
expense decreased $2.1 million to $25.8 million for 1996,
primarily due to reduced incentive compensation expense.
OPERATING INCOME. Operating income decreased $7.7 million
(54%) to $6.0 million for 1996. The decrease was primarily
attributable to (a) a $7.5 million reduction in Asia due to cost
overruns and delay in settlement of certain project cost
recoveries on a project in Pakistan; (b) a $1.9 million decrease
in North America due to reduced construction services and a
charge for compensation expense for the difference between the
maximum redemption value of common stock subject to redemption
and the initial public offering price; offset by (c) a $2.1
million increase in South America due to high margin specialty
services activity in Venezuela, which was substantially completed
in 1996.
NET INTEREST INCOME (EXPENSE). Net interest income decreased
$.3 million to a net expense of $.2 million for 1996, due
primarily to a decrease in interest income on short-term
investments.
MINORITY INTEREST EXPENSE. Minority interest expense
increased $.6 million to $2.2 million for 1996, due to the
increased level of operations in jointly owned companies in
certain work countries.
OTHER INCOME (EXPENSE). Other income increased $1.9 million
to $1.5 million for 1996. The increase was primarily due to (a)
a $1.0 million increase in net foreign exchange gains arising
from remeasuring assets and liabilities in countries with highly
inflationary economies and (b) a $.7 million increase in net
gains on sales and retirements of equipment.
PROVISION (CREDIT) FOR INCOME TAXES. The provision for income
tax expense increased $2.4 million to $2.3 million for 1996, due
to increases in taxable income and tax rates in certain work
countries in 1996, and a lesser reduction in 1996 than in 1995 in
previous estimates of income taxes in certain work countries.
20
<PAGE>
Year Ended December 31, 1995, Compared to Year Ended December
31, 1994
CONTRACT REVENUES. Contract revenues increased $74.8 million
(51%) to $220.5 million for 1995. The increase was primarily
attributable to (a) a $29.7 million increase in contract revenues
in Asia from engineering, material procurement and construction
services related to a 16 to 18-inch, 225-mile (365-kilometer)
pipeline and four pump stations in Pakistan; (b) a $27.1 million
increase in contract revenues in Africa related to specialty
services associated with dredging, pipe coating and material
procurement in Nigeria; (c) a $14.8 million increase in contract
revenues in South America related to fabrication and installation
of concrete piles and platforms and other specialty services in
Venezuela; (d) a $7.0 million increase in contract revenues in
North America associated with construction of a 20 inch, 130 mile
(205 kilometer) gas pipeline in the United States; offset by (e)
a $2.6 million decrease in contract revenues in Oman due to
reduced speciality services.
CONTRACT COST. Contract cost increased $62.9 million (64%) to
$161.6 million for 1995. The increase was primarily attributable
to (a) a $30.0 million increase in contract cost in Asia due to
engineering, material procurement and construction services in
Pakistan; (b) a $22.7 million increase in contract cost in Africa
associated with specialty services in Nigeria; and (c) a $6.3
million increase in contract cost in South America related to
increased construction and specialty services in Venezuela.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization
expense increased $.6 million to $15.2 million for 1995, due
primarily to equipment and spare parts additions in 1995 of $18.9
million (compared to $7.2 million in 1994).
GENERAL AND ADMINISTRATIVE. General and administrative
expense increased $3.6 million to $27.9 million for 1995, due
primarily to increased costs associated with new contracts in
Africa and South America and the opening of a new office in Asia.
OPERATING INCOME. Operating income increased $7.2 million
(111%) to $13.7 million for 1995. The increase was primarily
attributable to (a) a $6.0 million increase in South America
related to increased specialty services; (b) a $3.6 million
increase in Africa related to increased specialty services; (c) a
$2.2 million increase in North America related to increased
construction contracts and engineering margins; offset by (d) a
$4.7 million decrease in the Middle East due to reduced specialty
services.
NET INTEREST INCOME (EXPENSE). Net interest income decreased
$.7 million to $.1 million for 1995, due primarily to reduced
interest income on short-term investments.
MINORITY INTEREST EXPENSE. Minority interest expense
decreased $.2 million to $1.6 million for 1995, due to decreased
activity in certain work countries.
OTHER INCOME (EXPENSE). Other income decreased $.5 million to
an expense of $.4 million for 1995, due primarily to a foreign
exchange loss.
PROVISION (CREDIT) FOR INCOME TAXES. The credit for income
taxes decreased $4.0 million to a credit of $.1 million for 1995,
principally due to increased taxable income in 1995 and a lesser
reduction in 1995 than in 1994 in previous estimates of income
taxes in certain countries.
EFFECT OF INFLATION AND CHANGING PRICES; FOREIGN EXCHANGE RISK
MANAGEMENT
- --------------------------------------------------------------
The Company's operations are affected by increases in prices,
whether caused by inflation, government mandates or other
economic factors, in the countries in which it operates. The
Company attempts to recover anticipated increases in the cost of
labor, fuel and materials through price escalation provisions in
certain of its major contracts or by considering the estimated
effect of such increases when bidding or pricing new work.
The Company attempts to negotiate contracts which provide for
payment in U.S. dollars, but it may be required to take all or a
portion of payment under a contract in another currency. To
mitigate non-U.S. currency exchange risk, the Company seeks to
match anticipated non-U.S. currency revenues with expenses in the
same currency. To the extent it is unable to match non-U.S.
currency revenues with expenses
21
<PAGE>
in the same currency, the Company may use forward
contracts, options or other common hedging techniques in the same
non-U.S. currencies. As a result of the Company's foreign
exchange risk management measures, aggregate foreign exchange
gains during the last five years have exceeded aggregate foreign
exchange losses during the same period.
CAPITAL STRUCTURE, LIQUIDITY AND CAPITAL RESOURCES
- --------------------------------------------------
The Company's primary requirements for capital are to fund the
acquisition, upgrade and maintenance of its equipment, provide
working capital for current projects, finance the mobilization of
employees and equipment to new projects, establish a presence in
countries where the Company perceives growth opportunities and
finance the possible acquisition of new businesses and equity
investments. Historically the Company has met its capital
requirements primarily from operating cash flow.
Cash and cash equivalents increased $4.2 million (21%) to $24.1
million for the year ended December 31, 1996. The increase is
primarily due to a $7.3 million decrease in working capital
(changes in operating assets and liabilities) and $22.7 million
of cash flow from operations offset by $24.1 million in net
capital expenditures for property, equipment and spare parts and
$1.6 million in financing activities.
At December 31, 1996, the Company had a $100 million line of
credit under a credit agreement with several financial
institutions and Bank of America National Trust and Savings
Association, as agent. This credit agreement provided a revolving
credit facility and a standby and commercial letter of credit
facility. At December 31, 1996, there were no borrowings and no
financial or commercial letters of credit were outstanding.
Standby letters of credit outstanding totaled $28.7 million,
leaving $71.3 million available under the facility.
Subsequent to December 31, 1996, the Company entered into a new
five-year $150 million credit agreement, that may be extended
annually, subject to certain approvals, for three years, with a
syndicated bank group including ABN AMRO Bank N.V. as agent and
Credit Lyonnais as co-agent. The new credit agreement provides
for a $100 million revolving credit facility, part of which can
be used for acquisitions and equity investments. The entire
facility, less amounts used under the revolving portions of the
facility, may be used for standby and commercial letters of
credit. Principal is payable at termination on all revolving
loans except qualifying acquisition and equity investment loans
which are payable quarterly over the remaining life of the new
credit agreement. Interest is payable quarterly at prime or
other alternative interest rates. A commitment fee is payable
quarterly based on an annual rate of 1/4% of the unused portion
of the credit facility. The Company's obligations under the new
credit agreement are secured by the stock of the principal
subsidiaries of the Company. The new credit agreement requires
the Company to maintain certain financial ratios, restricts the
amount of annual dividend payments to the greater of 25 cents per
share or 25% of net income and limits the Company's ability to
purchase its own stock.
The Company has unsecured credit facilities with banks in
certain countries outside the United States. Borrowings under
these lines, in the form of short-term notes and overdrafts, are
made at competitive local interest rates. Generally, each line
is available only for borrowings related to operations in a
specific country. Credit available under these facilities is
approximately $8.0 million at December 31, 1996.
The Company believes that cash flow from operations and
borrowing under existing credit facilities will be sufficient to
finance working capital and capital expenditures for ongoing
operations at least through the end of 1997.
22
<PAGE>
REPORT OF INDEPENDENT AUDITORS
THE STOCKHOLDERS AND BOARD OF DIRECTORS
WILLBROS GROUP, INC.:
We have audited the accompanying consolidated balance
sheets of Willbros Group, Inc. and subsidiaries (the "Company")
as of December 31, 1996 and 1995 and the related consolidated
statements of income, stockholders' equity, and cash flows for
each of the years in the three-year period ended December 31,
1996. These consolidated financial statements are the
responsibility of the Company's management. Our responsibility
is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with generally
accepted auditing standards in the United States. Those
standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in
the financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable
basis for our opinion.
In our opinion, the aforementioned consolidated
financial statements present fairly, in all material respects,
the financial position of Willbros Group, Inc. and subsidiaries
as of December 31, 1996 and 1995 and the results of their
operations and their cash flows for each of the years in the
three-year period ended December 31, 1996, in conformity with
generally accepted accounting principles in the United States.
KPMG PEAT MARWICK
Panama City, Panama
January 31, 1997
23
<PAGE>
WILLBROS GROUP, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands, except share and per share amounts)
<TABLE>
<CAPTION>
December 31,
----------------------
1996 1995
--------- ----------
ASSETS
------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 24,118 $ 19,859
Accounts receivable 53,756 65,652
Contract cost and recognized
income not yet billed 3,643 11,515
Prepaid expenses 3,866 1,992
--------- ----------
Total current assets 85,383 99,018
Spare parts, net 5,724 4,615
Property, plant and equipment, net 53,445 44,318
Other assets 2,913 2,003
--------- ----------
Total assets $ 147,465 $ 149,954
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------------
Current liabilities:
Notes payable $ 640 $ 3,119
Accounts payable and accrued liabilities 32,868 41,015
Accrued income taxes 4,050 4,918
Contract billings in excess of cost and
recognized income 11,102 11,199
--------- ---------
Total current liabilities 48,660 60,251
Deferred income taxes 200 1,358
Other liabilities 6,219 4,954
--------- ---------
Total liabilities 55,079 66,563
Redemption value of common stock held
by plan participants - 7,918
Redeemable Preferred Stock, $100 par value,
redeemable at par March 31, 2001, 8%
dividend payable quarterly beginning March
31, 1996, 362,000 shares authorized, none
issued at December 31, 1996 (362,000 at
December 31, 1995) - 36,200
Stockholders' equity:
Class A Preferred Stock, par value $.01 per
share, 1,000,000 shares authorized, none
issued - -
Common stock, par value $.05 per share,
35,000,000 shares authorized and 14,385,980
shares issued at December 31, 1996 (3,000,000
at December 31, 1995) 719 150
Capital in excess of par value 55,475 10,731
Cumulative foreign currency translation
adjustment (784) (784)
Retained earnings 40,160 39,956
Notes receivable for stock purchases (3,184) (2,377)
Treasury stock at cost, 78,000 shares at
December 31, 1995 - (485)
Redemption value of common stock held by
plan participants - (7,918)
--------- ---------
Total stockholders' equity 92,386 39,273
--------- ---------
Total liabilities and stockholders' equity $ 147,465 $ 149,954
</TABLE>
========== ==========
See accompanying notes to consolidated financial statements.
24
<PAGE>
WILLBROS GROUP, INC.
CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except share and per share amounts)
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------
1996 1995 1994
---------- ---------- ----------
<S> <C> <C> <>C>
Contract revenues $ 197,688 $ 220,506 $ 145,716
Operating expenses:
Contract 145,812 161,584 98,700
Depreciation and amortization 13,932 15,193 14,598
General and administrative 25,803 27,937 24,261
Compensation from changes in
redemption value of common stock 6,122 2,100 1,681
--------- ---------- ----------
191,669 206,814 139,240
--------- ---------- ----------
Operating income 6,019 13,692 6,476
Other income (expense):
Interest income 1,063 1,863 2,205
Foreign exchange gain (loss) 705 (331) 42
Minority interest (2,220) (1,589) (1,758)
Interest expense (1,278) (1,719) (1,370)
Other - net 767 (50) 71
--------- --------- ----------
(963) (1,826) (810)
--------- --------- ----------
Income before income taxes 5,056 11,866 5,666
Provision (credit) for income taxes 2,332 (75) (4,146)
--------- --------- ---------
Net income $ 2,724 $ 11,941 $ 9,812
========== ========== ==========
Net income per common and common
equivalent share $ .09 $ .84 $ .70
========== ========= ==========
Weighted average number of common
and common equivalent shares
outstanding 14,151,532 14,215,181 13,981,201
========== ========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
25
<PAGE>
WILLBROS GROUP, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(In thousands, except share amounts)
<TABLE>
<CAPTION>
Capital
Common Stock in Excess
---------------------- of Par
Shares Par Value Value
--------- ---------- ----------
<S> <C> <C> <C>
Balance, January 1, 1994: 2,475,000 $ 124 $ 5,203
Net income - - -
Purchase of treasury stock - - -
Payment of notes receivable - - -
Exercise of stock options 372,000 18 1,223
Increase in redemption value
of common stock - - 1,681
Translation adjustments - - -
Deemed divided - - -
---------- ---------- ----------
Balance, December 31, 1994 2,847,000 142 8,107
---------- ---------- ----------
Net income - - -
Purchase of treasury stock - - -
Payment of notes receivable - - -
Exercise of stock options 153,000 8 524
Increase in redemption value
of common stock - - 2,100
Translation adjustments - - -
--------- --------- ---------
Balance, December 31, 1995 3,000,000 150 10,731
--------- --------- ---------
Net income - - -
Preferred dividends - - -
Purchase of treasury stock - - -
Exercise of stock options - - -
Sale of common stock, net of
offering expenses 525,980 26 2,965
Conversion of preferred stock 10,860,000 543 35,657
Payment of notes receivable - - -
Increase in redemption value
of common stock - - 1,427
Compensation expense at
initial public offering date - - 4,695
Termination of redemption
obligation - - -
---------- ---------- ---------
Balance, December 31, 1996 14,385,980 $ 719 $ 55,475
========== ========== ==========
Cumulative Notes
Foreign Receivable
Currency for
Translation Retained Stock
Adjustment Earnings Purchases
--------- ---------- ---------
Balance, January 1, 1994 (Continued) $ (783) $ 20,977 $ (1,947)
Net income - 9,812 -
Purchase of treasury stock - - -
Payment of notes receivable - - 648
Exercise of stock options - - (1,096)
Increase in redemption value
of common stock - - -
Translation adjustments 7 - -
Deemed divided - (2,774) -
--------- ---------- ----------
Balance, December 31, 1994 (776) 28,015 (2,395)
--------- ---------- ----------
Net income - 11,941 -
Purchase of treasury stock - - -
Payment of notes receivable - - 663
Exercise of stock options - - (645)
Increase in redemption value
of common stock - - -
Translation adjustments (8) - -
---------- ---------- ----------
Balance, December 31, 1995 (784) 39,956 (2,377)
---------- ---------- ----------
Net income - 2,724 -
Preferred dividends - (1,448) -
Purchase of treasury stock - - -
Exercise of stock options - (1,072) (1,715)
Sale of common stock, net of
offering expenses - - -
Conversion of preferred stock - - -
Payment of notes receivable - - 908
Increase in redemption value
of common stock - - -
Compensation expense at
initial public offering date - - -
Termination of redemption
obligation - - -
---------- ---------- ----------
Balance, December 31, 1996 $ (784) $ 40,160 $ (3,184)
========== ========== ==========
Redemption
Value of
Common Total
Stock Held Stock-
Treasury by Plan holders'
Stock Participants Equity
--------- ---------- ----------
Balance, January 1, 1994 (Continued) $ - $ (3,279) $ 20,295
Net income - - 9,812
Purchase of treasury stock (323) 66 (257)
Payment of notes receivable - (536) 112
Exercise of stock options - - 145
Increase in redemption value
of common stock - (1,681) -
Translation adjustments - - 7
Deemed divided - - (2,774)
--------- ---------- ----------
Balance, December 31, 1994 (323) (5,430) 27,340
--------- ---------- ----------
Net income - - 11,941
Purchase of treasury stock (376) 166 (210)
Payment of notes receivable - (554) 109
Exercise of stock options 214 - 101
Increase in redemption value
of common stock - (2,100) -
Translation adjustments - - (8)
--------- ---------- ----------
Balance, December 31, 1995 (485) (7,918) 39,273
--------- ---------- ----------
Net income - - 2,724
Preferred dividends - - (1,448)
Purchase of treasury stock (2,531) 63 (2,468)
Exercise of stock options 3,016 - 229
Sale of common stock, net of
offering expenses - - 2,991
Conversion of preferred stock - - 36,200
Payment of notes receivable - (897) 11
Increase in redemption value
of common stock - (1,427) -
Compensation expense at
initial public offering date - - 4,695
Termination of redemption
obligation - 10,179 10,179
---------- ---------- ----------
Balance, December 31, 1996 $ - $ - $ 92,386
========== ========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
26
<PAGE>
WILLBROS GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------
1996 1995 1994
--------- --------- ----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $ 2,724 $ 11,941 $ 9,812
Reconciliation of net income to
cash provided by (used in)
operating activities:
Depreciation and amortization 13,932 15,193 14,598
Compensation from changes
in redemption value
of common stock 6,122 2,100 1,681
Loss (gain) on sales and
retirements (96) 592 394
Changes in operating assets
and liabilities:
Accounts receivable 11,896 (33,923) (607)
Contract cost and recognized
income not yet billed 7,872 (10,797) 2,308
Prepaid expenses and
other assets (2,784) (556) (679)
Accounts payable and
accrued liabilities (8,147) 8,930 (2,066)
Accrued income taxes (868) (1,541) (9,977)
Contract billings in excess of
cost and recognized income (97) 97 (19,228)
Deferred income taxes (1,158) (976) (207)
Other liabilities 565 544 200
--------- --------- ----------
Cash provided by (used in)
operating activities 29,961 (8,396) (3,771)
Cash flows from investing activities:
Proceeds from sales of property
and equipment 885 388 759
Purchase of property and equipment (18,474) (13,179) (3,703)
Purchase of spare parts (6,483) (5,767) (3,468)
Purchase of CAMSA, net of cash
received of $663 - - (6,757)
-------- ---------- ----------
Cash used in investing
activities (24,072) (18,558) (13,169)
Cash flows from financing activities:
Proceeds from notes payable to banks 13,291 6,530 11,211
Proceeds from common stock 3,220 101 145
Proceeds from notes payable to
former shareholders 1,401 - -
Collection of notes receivable
for stock purchases 908 663 648
Repayment of notes payable to banks (16,237) (9,239) (7,952)
Purchase of treasury stock (2,531) (376) (323)
Payment of dividends on
preferred stock (1,448) - -
Repayment of notes payable to former
shareholders (234) - -
Repayment of bank debt - - (5,000)
---------- ---------- ---------
Cash used in financing
activities (1,630) (2,321) (1,271)
Effect of exchange rate changes on
cash and cash equivalents - (8) 7
--------- ---------- ----------
Cash provided by (used in)
all activities 4,259 (29,283) (18,204)
Cash and cash equivalents,
beginning of year 19,859 49,142 67,346
-------- ---------- ---------
Cash and cash equivalents,
end of year $ 24,118 $ 19,859 $ 49,142
========= ========= ==========
</TABLE>
See accompanying notes to consolidated financial statements.
27
<PAGE>
WILLBROS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands, except share and per share amounts)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
- ---------------------------------------------
PRINCIPLES OF CONSOLIDATION - The consolidated financial
statements include the accounts of Willbros Group, Inc. ("WGI"),
a Republic of Panama corporation, and all of its majority-owned
subsidiaries (the "Company"). All material intercompany accounts
and transactions are eliminated in consolidation. The ownership
interest of minority participants in subsidiaries that are not
wholly owned (principally in Nigeria and Oman) is included in
accounts payable and accrued liabilities and is not material.
The minority participants' share of the net income of those
subsidiaries is included in other expense.
The consolidated financial statements are prepared in
accordance with generally accepted accounting principles in the
United States and include certain estimates and assumptions that
affect the reported amounts of assets and liabilities, the
disclosure of contingent assets and liabilities and the reported
amounts of revenues and expenses. Actual results could differ
from those estimates.
ACCOUNTS RECEIVABLE - Accounts receivable include retainage,
all due within one year, of $1,437 in 1996 and $2,654 in 1995 and
are stated net of allowances for bad debts of $1,119 in 1996 and
$2,992 in 1995.
SPARE PARTS - Spare parts (excluding expendables), stated net
of accumulated depreciation of $9,750 in 1996 and $10,641 in
1995, are depreciated over three years on the straight-line
method.
PROPERTY, PLANT AND EQUIPMENT - Depreciation is provided on
the straight-line method using principally estimated lives of
four to six years. When assets are retired or otherwise disposed
of, the cost and related accumulated depreciation are removed
from the accounts and any resulting gain or loss is recognized in
income for the period. Normal repair and maintenance costs are
charged to expense as incurred. Major overhaul costs are accrued
and allocated to contracts based on estimates of equipment
condition. Significant renewals and betterments are capitalized.
REVENUES - Construction and engineering fixed-price contracts
are accounted for using the percentage-of-completion method.
Under this method, estimated contract revenues are accrued based
generally on the percentage that costs to date bear to total
estimated costs, taking into consideration physical completion.
Estimated contract losses are recognized in full when determined.
Revenues from unit-price contracts are recognized as earned.
Revenues from change orders, extra work, variations in the scope
of work and claims are recognized when realization is assured.
INCOME TAXES - The Company accounts for income taxes by the
asset and liability method under which deferred tax assets and
liabilities are recognized for the future tax consequences of
operating loss and tax credit carryforwards and differences
between the financial carrying values of assets and liabilities
and their tax bases.
RETIREMENT PLANS AND BENEFITS - The Company has defined
benefit and defined contribution retirement plans and a
postretirement medical benefits plan that provide retirement
benefits to substantially all regular employees. Qualified plans
are contributory on the part of employees. Pension costs are
funded in accordance with annual actuarial valuations. The
Company records the cost of postretirement medical benefits,
which are funded on the pay-as-you-go basis, over the employees'
working lives.
COMMON STOCK OPTIONS - The Company follows the intrinsic value
method of accounting for common stock options granted to
employees.
28
<PAGE>
WILLBROS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands, except share and per share amounts)
FOREIGN CURRENCY TRANSLATION - All significant asset and
liability accounts stated in currencies other than United States
dollars are translated into United States dollars at current
exchange rates. Translation adjustments are accumulated in a
separate component of stockholders' equity. Revenue and expense
accounts are converted at prevailing rates throughout the year.
Foreign currency transaction adjustments and translation
adjustments in highly inflationary economies are recorded in
income.
CASH FLOWS - In the determination of cash flows, all highly
liquid debt instruments are considered to be cash equivalents.
The Company paid interest of $1,280 in 1996, $1,712 in 1995 and
$1,377 in 1994 and income taxes of $3,676 in 1996, $2,426 in 1995
and $2,227 in 1994.
INCOME PER SHARE - Primary income per share is calculated by
dividing net income, less any preferred dividend requirements, by
the weighted average number of common share and dilutive share
equivalents (options and warrants), outstanding during the year.
Fully diluted income per share is calculated assuming all shares
and dilutive share equivalents are outstanding as of the
beginning of the year. There is no significant difference
between primary and fully diluted income per share. The weighted
average number of common share and share equivalents assumes that
all common shares issued in the twelve months prior to the
initial public offering were outstanding for all periods
presented.
2. CONCENTRATION OF CREDIT RISK
- -------------------------------
The Company has a concentration of customers in the oil and
gas industry which exposes the Company to a concentration of
credit risk within an industry. The Company seeks to obtain
advance and progress payments for contract work performed on
major contracts. Receivables are generally not collateralized.
The Company believes that its allowance for bad debts is
adequate.
3. CONTRACTS IN PROGRESS
- ------------------------
Most contracts allow for progress billings to be made during
performance of the work. These billings may be made on a basis
different from that used for recognizing revenue. Contracts in
progress for which cost and recognized income exceed billings or
billings exceed cost and recognized income consist of:
<TABLE>
<CAPTION>
December 31,
---------------------
1996 1995
---------- ---------
<S> <C> <C>
Costs incurred on contracts in progress $ 67,296 $ 73,928
Recognized income 8,763 3,359
---------- ----------
76,059 77,287
Progress billings and advance payments 83,518 76,971 -----
$ (7,459) $ 316
========== ==========
Contract cost and recognized income not
yet billed $ 3,643 $ 11,515
Contract billings in excess of cost and
recognized income (11,102) (11,199)
---------- ----------
$ (7,459) $ 316
========== ==========
</TABLE>
4. PROPERTY, PLANT AND EQUIPMENT
- --------------------------------
Property, plant and equipment, at cost, consist of:
<TABLE>
<CAPTION>
December 31,
----------------------
1996 1995
---------- ----------
<S> <C> <C>
Construction equipment $ 38,475 $ 33,346
Marine equipment 32,355 23,100
Transportation equipment 16,318 15,208
Land, buildings, furniture
and equipment 9,663 8,677
---------- ----------
96,811 80,331
Less accumulated depreciation
and amortization 43,366 36,013
---------- ----------
$ 53,445 $ 44,318
========== ==========
</TABLE>
29
<PAGE>
WILLBROS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands, except share and per share amounts)
5. NOTES PAYABLE
- ----------------
The Company has unsecured credit facilities with banks in
certain countries outside the United States. Borrowings under
these lines of $173, in the form of short-term notes and
overdrafts, are made at competitive local interest rates.
Generally, each line is available only for borrowings related to
operations in a specific country. Credit available under these
facilities is approximately $8,000 at December 31, 1996.
The Company has notes payable to three former shareholders
requiring quarterly payments of $117 plus interest at the
Company's rate for senior debt to be made through April 15, 1999.
At December 31, 1996, the current portion of these notes,
included in notes payable, is $467 and the long-term portion,
included in other liabilities, is $700.
6. LINE OF CREDIT
- -----------------
At December 31, 1996, the Company had a $100,000 credit
agreement with a bank consortium which provided for revolving
loans and letters of credit. There were no borrowings and
outstanding letters of credit totaled $28,735 (of which none were
commercial or financial letters of credit) at December 31, 1996,
leaving an amount fully available under the line of $71,265.
The Company has an underwritten commitment for a new five-
year $150,000 credit agreement that may be extended annually for
three years with a bank. The new credit agreement, which was
entered into subsequent to December 31, 1996, provides for a
$100,000 revolving credit facility, part of which can be used for
acquisitions and equity investments. The entire facility, less
amounts used under the revolving portion of the facility, may be
used for standby and commercial letters of credit. Principal is
payable at termination on all revolving loans except qualifying
acquisition and equity investment loans which are payable
quarterly over the remaining life of the credit agreement.
Interest is payable quarterly at prime or other alternative
interest rates. A commitment fee is payable quarterly based on
an annual rate of 1/4% of the unused portion of the new credit
facility. The Company's obligations under the new credit
agreement are secured by the stock of the principal subsidiaries
of the Company. The new credit agreement requires the Company to
maintain certain financial ratios, restricts the amount of annual
dividend payments to the greater of 25 cents per share or 25% of net
income and limits the Company's ability to purchase its own
stock.
7. ACCOUNTS PAYABLE AND ACCRUED LIABILITIES
- -------------------------------------------
Accounts payable and accrued liabilities consist of:
<TABLE>
<CAPTION>
December 31,
----------------------
1996 1995
---------- ----------
<S> <C> <C>
Trade payables $ 18,471 $ 23,826
Payrolls and payroll liabilities 10,793 13,452
Equipment reconditioning and
overhaul reserves 3,604 3,737
---------- ----------
$ 32,868 $ 41,015
========== ==========
</TABLE>
8. RETIREMENT PLANS
- -------------------
The Company has defined benefit plans (pension plans) covering
substantially all regular employees which are funded by employee
and Company contributions. The Company's funding policy is to
contribute at least the minimum required by the Employee
Retirement Income Security Act of 1974 in accordance with annual
actuarial valuations. Benefits under the plans are determined by
employee earnings and credited service. Pension expense includes
the following components:
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------
1996 1995 1994
--------- ---------- ---------
<S> <C> <C> <C>
Service cost for benefits earned
during the period $ 1,136 $ 915 $ 1,206
Interest cost on projected
benefit obligation 1,725 1,608 1,447
Actual loss (gain) on plan assets (3,325) (4,855) 550
Deferred gain (loss) on plan assets 1,301 3,285 (2,169)
Amortization (2) - 22
--------- ---------- ----------
$ 835 $ 953 $ 1,056
========= ========== ==========
</TABLE>
30
<PAGE>
WILLBROS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands, except share and per share amounts)
Accrued pension liability includes the following components:
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------
1996 1995 1994
--------- --------- ----------
<S> <C> <C> <C>
Projected benefit obligation over
(under) plan assets:
Projected benefit obligation:
Vested benefits $ 20,963 $ 20,477 $ 16,478
Nonvested benefits 383 505 510
--------- ---------- ----------
Accumulated benefits 21,346 20,982 16,988
Related to future pay
increases 4,437 4,180 3,561
--------- ---------- ----------
25,783 25,162 20,549
Plan assets at fair value
(primarily listed stocks
and bonds) (26,995) (23,660) (18,595)
--------- ---------- ----------
(1,212) 1,502 1,954
Unrecognized net gain (loss) 2,456 (499) (1,124)
Unrecognized prior service cost (228) (253) (282)
Transition asset at
January 1, 1987 143 172 201
--------- ---------- ----------
$ 1,159 $ 922 $ 749
========= ========== ==========
</TABLE>
The projected benefit obligation is determined using a
weighted average discount rate of 7.5 percent at December 31,
1996, 7.0 percent at December 31, 1995, and 8.0 percent at
December 31, 1994. The rate of increase in future pay increases
is 6.0 percent and assets are expected to have a long-term rate
of return of 8.5 percent. The transition asset is amortized over
15 years.
The Company has a defined contribution plan which is funded by
participating employee contributions and the Company. The
Company matches employee contributions up to a maximum of 4% of
salary in cash or beginning in 1997 up to 5% of salary, if the
participant so elects, in WGI common stock. Company
contributions for this plan were $569 in 1996, $506 in 1995 and
$487 in 1994.
Effective January 1, 1994, the Company established an
Executive Benefit Restoration Plan. The Plan partially restores
benefits to certain executives whose benefits under the defined
benefit pension plans are reduced as a result of limitations
imposed by the U. S. Internal Revenue Code. Plan expense is $325
in 1996, $303 in 1995 and $285 in 1994 and plan liability,
included in accounts payable and accrued liabilities, is $1,061
at December 31, 1996 and $909 at December 31, 1995. The Company
established a trust to fund benefit payments. Contributions of
assets to the trust by the Company are irrevocable but are
subject to creditor claims under certain conditions. Assets held
in trust, included in other assets, are $974 at December 31,
1996, and $605 at December 31, 1995.
9. POSTRETIREMENT MEDICAL BENEFITS
- ----------------------------------
Postretirement medical benefit expense is $589 in 1996, $690
in 1995 and $615 in 1994 and includes service cost of $242 in
1996, $262 in 1995 and $269 in 1994 and interest cost of $347 in
1996, $405 in 1995 and $315 in 1994 and amortization of $23 in
1995 and $31 in 1994.
Accrued postretirement medical benefit liability includes the
following components:
<TABLE>
<CAPTION>
December 31,
----------------------
1996 1995
---------- ----------
<S> <C> <C>
Accumulated postretirement benefit obligation:
Retirees $ 1,734 $ 2,062
Fully eligible active plan participants 528 562
Other active plan participants 2,093 2,326
---------- ---------
Accumulated postretirement benefits 4,355 4,950
Unrecognized net gain (loss) 1,027 (70)
---------- ---------
$ 5,382 $ 4,880
========== =========
The non-current portion of the liability, $5,282 at December
31, 1996, and $4,717 at December 31, 1995, is included in other
liabilities.
The weighted average annual assumed rate of increase in the
per capita cost of covered benefits is 8.5 percent for 1996 and
is assumed to decrease to 5.5 percent by the year 2006 and to
remain at that level. The discount rate used in determining the
liability is 7.5 percent at December 31, 1996, 7.0 percent at
December 31, 1995, and 8.0 percent at December 31, 1994.
Increasing the assumed health care cost trend rates by one
percentage point in each year would increase the postretirement
medical liability at December 31, 1996, by $634 and expense for
1996 by $106.
31
<PAGE>
WILLBROS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands, except share and per share amounts)
10. INCOME TAXES
- ----------------
The provision (credit) for income taxes represents income
taxes arising as a result of operations and credits for revision
of previous estimates of income taxes payable in a number of
countries. The Company is not subject to income tax in Panama on
income earned outside of Panama. All income has been earned
outside of Panama; therefore, there is no expected relationship
between income (loss) before income taxes and the provision
(credit) for income taxes. The effective consolidated tax rate
differs from the statutory tax rate in each country because
taxable income and operating losses from different countries
cannot be offset and tax rates and methods of determining taxes
payable are different in each country.
Income (loss) before income taxes and the provision (credit)
for income taxes in the Consolidated Statements of Income consist
of:
</TABLE>
<TABLE>
<CAPTION>
Year Ended December 31,
--------- --------- ---------
1996 1995 1994
--------- --------- ----------
<S> <C> <C> <C>
Income (loss) before income taxes:
Other countries $ 12,888 $ 16,044 $ 11,841
United States (7,832) (4,178) (6,175)
--------- ---------- ---------
$ 5,056 $ 11,866 $ 5,666
========= ========== =========
Provision (credit) for income taxes:
Currently payable:
Other countries $ 3,696 $ 893 $ (3,942)
United States:
Federal - - -
State (206) 8 3
--------- ---------- ---------
3,490 901 (3,939)
Deferred, other countries (1,158) (976) (207)
--------- ---------- ---------
$ 2,332 $ (75) $ (4,146)
========= ========== ==========
</TABLE>
The Company has a deferred tax asset in the United States of
$20,329 at December 31, 1996, and $19,436 at December 31, 1995,
relating to United States net operating loss and credit
carryforwards and employee benefit expense, and a deferred tax
liability of $1,565 at December 31, 1996, and $1,485 at December
31, 1995, relating to excess tax depreciation. The net deferred
tax asset is reduced to zero by a valuation allowance. The
Company has a deferred tax liability in other countries of $200
at December 31, 1996, and $1,358 at December 31, 1995, related to
temporary differences, principally in contract revenues and
expenses.
The Company has $45,971 in United States net operating loss
carryforwards and $1,379 of United States investment tax credit
carryforwards at December 31, 1996. The United States net
operating loss carryforwards will expire, unless utilized,
beginning in 1997 and ending December 31, 2011. The
carryforwards available on an annual basis are limited. The
Company has a nonexpiring operating loss carryforward in the
United Kingdom of $29,412 (17,200 pound sterling) as of December
31, 1996.
11. STOCK OWNERSHIP PLANS
- -------------------------
During May, 1996, the Company established the Willbros Group,
Inc. 1996 Stock Plan (the "1996 Plan") with 1,125,000 shares of
common stock authorized for issuance to provide for awards to key
employees of the Company, and the Willbros Group, Inc. Director
Stock Plan (the "Director Plan") with 125,000 shares of common
stock authorized for issuance to provide for the grant of stock
options to non-employee directors.
Under the 1996 Plan, options vesting 25% at the date of
grant (October, 1996) and 25% each January 1 thereafter, were
granted to purchase 95,000 shares at $8.67 and 349,000 shares at
$9.125. Under the Director Plan, options to purchase 27,000
shares at $10.00 were granted at the date of the initial public
offering and options to purchase 10,000 shares at $9.125 were
granted in October, 1996. At December 31, 1996, the 1996 Plan
has 681,000 shares and the Director Plan has 88,000 shares
available for grant.
The per share weighted-average fair value of options granted
during 1996 under the 1996 Plan is $2.87 and under the Director
Plan is $2.58, calculated using the Black Scholes option-pricing
model (assuming the options have a life of 3 years, the risk-free
interest rate at the date of grant is 6.01% and volatility is
35.15%).
No compensation expense for the options granted under the
1996 Plan and the Director Plan is recorded. Had compensation
expense for vested options been recorded at December 31, 1996,
the Company's net income would have been reduced to $2,310, and
net income per share would have been reduced to $.06.
32
<PAGE>
WILLBROS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands, except share and per share amounts)
Under employee stock ownership plans established in 1992 and
1995, certain key employees were issued options to purchase
common stock at a discount from fair value and were allowed to
finance up to 90% of the option price with three-year non-
interest bearing recourse notes. Options were issued to purchase
372,000 shares of common stock at $3.33 per share in 1994 and
195,000 shares (including 42,000 treasury shares) of common stock
at $3.83 per share in 1995. During May 1996, options were issued
to purchase 273,000 shares of common stock, all from treasury
stock, at $4.53 per share and 5,192 shares of preferred stock,
all from treasury, at $136 per share. All options were exercised
shortly after issuance. The Company had an obligation to
purchase, under certain conditions and at a formula price, stock
held by retiring or terminating employees, and recorded as
compensation expense the change in the redemption value at the
end of each period using the maximum formula price. The Company
recognized a non-cash compensation expense of $4,695 for the
difference between the maximum redemption value of the shares
subject to redemption and the initial public offering price upon
the effectiveness of the initial public offering. The maximum
redemption amount was classified outside of stockholders' equity
in the consolidated balance sheets. The Company's redemption
obligation terminated in the fourth quarter of 1996.
12. ACQUISITION
- ---------------
Effective May 1, 1994, the Company acquired 100 percent of the
shares of Construcciones Acuaticas Mundiales, S.A. ("CAMSA"), a
Venezuelan company, from an affiliate of Heerema Holding
Construction, Inc. ("Heerema"), a former shareholder of the
Company, for $7,420 cash (including transaction fees) in a
transaction accounted for as a purchase. Accordingly, the
Company has made allocations of the purchase price among acquired
assets and liabilities based on their respective fair values at
the date of purchase. The net assets of CAMSA included $663 of
cash. Heerema's residual interest in CAMSA was reduced to its
previous carrying value by a deemed dividend. Pro forma net
income of the Company, assuming the acquisition occurred at
January 1, 1994, is not materially different from historical
results for the year ended December 31, 1994.
13. SEGMENT INFORMATION
- -----------------------
The Company operates in a single industry segment. The main
lines of business include construction, engineering and specialty
services to the oil and gas industry. Due to a limited number of
major projects and clients, the Company may at any one time have
a substantial part of its operations dedicated to one project,
client and country.
Customers with more than 10% of contract revenue are as
follows:
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------
1996 1995 1994
--------- --------- ----------
<S> <C> <C> <C>
Customer A 33 % 32 % 29 %
Customer B 16 13 -
---- ---- ----
49 % 45 % 29 %
==== ==== ====
</TABLE>
Information about the Company's operations in different
geographic areas is shown below:
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------
1996 1995 1994
<S> <C> <C> <C>
Contract revenues:
Africa $ 87,283 $ 95,972 $ 68,908
Asia 34,209 29,728 -
C.I.S. 868 1,283 540
Middle East 23,513 21,870 23,469
North America (1) 32,918 52,100 48,061
South America 18,897 19,553 4,738
-------- ---------- ----------
$ 197,688 $ 220,506 $ 145,716
========= ========== ==========
Operating profit (loss): (2)
Africa $ 25,764 $ 26,021 $ 22,736
Asia (8,421) (1,662) (582)
C.I.S. 172 548 (797)
Middle East 900 1,175 6,225
North America (2,680) (1,280) (3,898)
South America 5,822 3,855 (2,917)
--------- ---------- ----------
$ 21,557 $ 28,657 $ 20,767
========= ========== ==========
Identifiable assets:
Africa $ 54,767 $ 63,281 $ 37,211
Asia 9,961 20,498 -
C.I.S. 286 690 174
Middle East 20,781 15,543 13,626
North America 43,385 36,160 67,375
South America 18,285 13,782 12,802
--------- ---------- ----------
$ 147,465 $ 149,954 $ 131,188
========= ========== ==========
</TABLE>
- ---------------------
(1) Net of inter-geographic area revenues of $3,052 in 1996,
$4,986 in 1995, and $2,001 in 1994.
(2) Operating profit (loss) is before deducting general
corporate expenses of $15,538 in 1996, $14,965 in 1995 and
$14,291 in 1994.
33
<PAGE>
WILLBROS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands, except share and per share amounts)
14.FAIR VALUE OF FINANCIAL INSTRUMENTS
- --------------------------------------
The carrying value of financial instruments does not
materially differ from fair value.
15. INITIAL PUBLIC OFFERING
- ---------------------------
An initial public offering of the Company's common stock was
completed in August 1996, with the sale of 5,490,500 shares of
common stock, consisting of 525,980 newly issued shares resulting
in net proceeds to the Company of $4,892 before offering costs
and 4,964,520 shares sold by a stockholder of the Company for
which the Company did not receive any proceeds. Subsequent to
the initial public offering, there are 14,385,980 shares of
common stock outstanding.
In July 1996, prior to the initial public offering, all
362,000 shares of the $100 redeemable preferred stock of the
Company outstanding were converted into common stock of the
Company at a conversion rate of 30 shares of common stock for
each share of preferred stock.
16. CONTINGENCIES, COMMITMENTS AND OTHER CIRCUMSTANCES
- ------------------------------------------------------
The Company provides construction, engineering and specialty
services to the oil and gas industry. The Company's principal
markets are currently Africa, Asia, the Middle East, South
America and the United States. Operations outside the United
States may be subject to certain risks which ordinarily would not
be expected to exist in the United States, including foreign
currency fluctuations, expropriation of assets, civil uprisings
and riots, instability of government and legal systems of
decrees, laws, regulations, interpretations and court decisions
which are not always fully developed and which may be
retroactively applied. Management is not presently aware of any
events of the type described in the countries in which it
operates that have not been provided for in the accompanying
consolidated financial statements. Based upon the advice of
knowledgeable professionals in the various work countries
concerning the interpretation of the laws, practices and customs
of the countries in which it operates, management believes the
Company has followed the current practices in those countries;
however, because of the nature of these potential risks, there
can be no assurance that the Company may not be adversely
affected by them in the future. The Company insures
substantially all of its equipment in countries outside the
United States against certain political risks and terrorism.
The Company has the usual liability of contractors for the
completion of contracts and the warranty of its work. Where work
is performed through a joint venture, the Company also has
possible liability for the contract completion and warranty
responsibilities of its joint venturers. Management is not aware
of any material exposure related thereto which has not been
provided for in the accompanying consolidated financial
statements.
Certain post contract completion audits and reviews are being
conducted by clients andor government entities. While there can
be no assurance that claims will not be received as a result of
such audits and reviews, management does not believe a legitimate
basis for any material claims exists. At the present time it is
not possible for management to estimate the likelihood of such
claims being asserted or, if asserted, the amount or nature
thereof.
The Company has certain operating leases for office and camp
facilities. Rental expense, excluding daily rentals and
reimbursable rentals under cost plus contracts, was $2,112 in
1996, $1,896 in 1995 and $1,876 in 1994. Minimum lease
commitments under operating leases as of December 31, 1996, total
$11,309 and are payable as follows: 1997, $2,291; 1998, $1,886;
1999, $1,648; 2000, $1,474; 2001, $1,514; later years, $2,496.
34
<PAGE>
WILLBROS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands, except share and per share amounts)
17. QUARTERLY FINANCIAL DATA (UNAUDITED)
- ---------------------------------------
Selected unaudited quarterly financial data for the years
ended December 31, 1996 and 1995:
<TABLE>
<CAPTION>
First Second Third
Quarter Quarter Quarter
--------- --------- ---------
<S> <C> <C> <C>
December 31, 1996:
Revenue $ 53,479 $ 48,977 $ 47,407
Operating income (loss) 2,387 2,308 (1,499)
Compensation from changes in
redemption value included in
operating income 142 1,285 4,695
Income (loss) before income taxes 2,327 2,277 (2,486)
Net income (loss) 2,044 1,386 (2,841)
Net income (loss) per share .09 .05 (.20)
December 31, 1995:
Revenue $ 36,001 $ 39,121 $ 56,962
Operating income 525 374 2,389
Compensation from changes in
redemption value included in
operating income - 54 302
Income before income taxes 566 311 2,937
Net income 117 9 2,155
Net income per share .01 - .15
Fourth
Quarter Total
---------- ----------
December 31, 1996: (Continued)
Revenue $ 47,825 $ 197,688
Operating income (loss) 2,823 6,019
Compensation from changes in
redemption value included in
operating income - 6,122
Income (loss) before income taxes 2,938 5,056
Net income (loss) 2,135 2,724
Net income (loss) per share .15 .09
December 31, 1995:
Revenue $ 88,422 $ 220,506
Operating income 10,404 13,692
Compensation from changes in
redemption value included in
operating income 1,744 2,100
Income before income taxes 8,052 11,866
Net income 9,660 11,941
Net income per share .68 .84
</TABLE>
Operating income (loss) in the above information includes the
quarterly charges for compensation expense for the change in
redemption value of shares subject to redemption prior to the
initial public offering.
Revenue for the fourth quarter of 1995 included $22,898 in
Asia, primarily for the initial purchase of linepipe for a
project.
Operating income in the fourth quarter of 1995 included
recognition of cost recoveries related to previous year's
contracts in Africa amounting to $7,753. Operating income in the
fourth quarter of 1996 included cost overruns on a project in
Pakistan but did not include related cost recoveries which had
not been realized.
35
<PAGE>
WILLBROS GROUP, INC.
CORPORATE DATA
COMMON STOCK INFORMATION AND DIVIDEND POLICY
- --------------------------------------------
The Company's common stock commenced trading on August 15,
1996, on the New York Stock Exchange under the symbol WG. As of
December 31, 1996, there were 212 stockholders of record. The
table below sets forth the common stock trading price for the
subsequent quarterly periods.
<TABLE>
<CAPTION>
1996 High Low
-------------- --------- -------
<S> <C> <C>
Third Quarter $11-7/8 $9-5/8
Fourth Quarter $11 $9
</TABLE>
36
<PAGE>
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
The Stockholders and Board of Directors
Willbros Group, Inc.:
We consent to incorporation by reference in the
registration statements Nos. 333-18421 and 333-21399 on Form
S-8 of Willbros Group, Inc. of our reports dated January 31,
1997, relating to the consolidated balance sheets of
Willbros Group, Inc. and subsidiaries as of December 31,
1996 and 1995, and the related consolidated statements of
income, stockholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1996, and
the related schedule, which reports are incorporated in or
appear in the December 31, 1996 annual report on Form 10-K
of Willbros Group, Inc.
KPMG Peat Marwick
Panama City, Panama
March 28, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S DECEMBER 31, 1996 FORM 10-K AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000895450
<NAME> WILLBROS GROUP, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 24118
<SECURITIES> 0
<RECEIVABLES> 55193
<ALLOWANCES> 1437
<INVENTORY> 0
<CURRENT-ASSETS> 85383
<PP&E> 96811
<DEPRECIATION> 43366
<TOTAL-ASSETS> 147465
<CURRENT-LIABILITIES> 48660
<BONDS> 0
0
0
<COMMON> 719
<OTHER-SE> 91667
<TOTAL-LIABILITY-AND-EQUITY> 147465
<SALES> 197688
<TOTAL-REVENUES> 197688
<CGS> 145812
<TOTAL-COSTS> 191669
<OTHER-EXPENSES> 963
<LOSS-PROVISION> (1024)
<INTEREST-EXPENSE> 1278
<INCOME-PRETAX> 5056
<INCOME-TAX> 2332
<INCOME-CONTINUING> 2724
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2724
<EPS-PRIMARY> .09
<EPS-DILUTED> .09
</TABLE>
