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UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________________ FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported):
November 7, 2006 (November 6, 2006) CORE LABORATORIES N.V. (Exact name of registrant as specified in its charter) 001-14273 The Netherlands Not Applicable (State or other jurisdiction of incorporation or
organization) (I.R.S. Employer Identification No.) Herengracht 424 1017 BZ Amsterdam The Netherlands Not Applicable (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (31-20)
420-3191 Check the appropriate below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions: ___ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425) ___ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) ___ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2 (b)) ___ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4 (c)) Item 1.01 Entry into Material Definitive Agreement On November 6, 2006, Core Laboratories N.V. and certain of its subsidiaries, amended its Third Amended and Restated Credit Agreement (henceforth referred to as the "Amended Credit Agreement") with various financial institutions which are or may become parties to the Amended Credit Agreement (collectively, the "Lenders"), Bank of America, N.A. as administrative agent for the Lenders and as a letter of credit issuing bank. The Amended Credit Agreement primarily includes the following changes: In addition, the Amended Credit Agreement provides an option to increase the commitment under the credit facility to $150 million, if certain conditions are met. In July 2006, Core Laboratories N.V. had amended its Amended Credit Agreement to remove the Minimum Net Worth debt covenant ratio and also modify the Leverage Ratio
covenant (consolidated net indebtedness to consolidated EBITDA) to 2.25 to 1.0 (previously 2.5 to 1.0). The foregoing description does not purport to be complete and is qualified in its entirety by reference to the Amended Credit Agreement, which is filed as Exhibit 10.1 and 10.2 to this Current Report on Form 8-K and is incorporated herein by reference. Item 9.01 Financial Statements, Pro Forma Financial Information and Exhibits (c) 10.1 Second Amendment to the Third Amended and Restated
First Amendment to the Third Amended and Restated
Credit Agreement 10.2 Third Amendment to the Third Amended and Restated
First Amendment to the Third Amended and Restated
Credit Agreement SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized. Core Laboratories N.V. Dated: November 7, 2006 By /s/ Richard L. Bergmark Richard L. Bergmark Chief Financial Officer CORE LABORATORIES N.V. EXHIBIT NO. ITEM 10.1 Second Amendment to the Third Amended and Restated Credit Agreement SECOND AMENDMENT TO THIS SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 7, 2006 (the "Amendment"), among CORE LABORATORIES N.V., a Netherlands limited liability company (the "Parent"), CORE LABORATORIES LP, a Delaware limited partnership (the "US Borrower" and collectively with the Parent, the "Borrowers"), the various financial institutions which are or may become parties to the Credit Agreement, as amended hereby (collectively, the "Lenders"), JPMORGAN CHASE BANK, N.A. as administrative agent (the "Administrative Agent") for the Lenders and as a letter of credit issuing bank (in such capacity together with any successors thereto, an "LC Issuer"), and BANK OF AMERICA, N.A. as syndication agent ("Syndication Agent" and collectively with the Administrative Agent, the "Agents") for the Lenders and as a letter of credit issuing bank (in such capacity together with any successors thereto,
an "LC Issuer"). W I T N E S S E T H WHEREAS, the Borrowers, the Lenders, the Agents and the LC Issuers are parties to that certain Third Amended and Restated Credit Agreement, dated as of March 24, 2005, as amended by that certain First Amendment to Third Amended and Restated Credit Agreement, dated as of December 20, 2005 (as so amended, the "Credit Agreement"); and WHEREAS, the Borrowers desire to amend certain provisions of the Credit Agreement. NOW, THEREFORE, the parties hereto hereby agree as follows:
(Commission File Number)
-
Incorporates the Exchangeable Senior Notes issued by the Company on November 6, 2006 into various sections of the Amended Credit Agreement,
-
Reduces the aggregate borrowing commitment under the existing credit facility from $125 million to $100 million,
-
Improves the Leverage Ratio covenant (consolidated net indebtedness to consolidated EBITDA) from a ratio of 2.25 to 1.0 to the following; (a) 3.00 to 1.00 during the period from the Third Amendment Effective Date through the fiscal quarter ending March 31, 2008; (b) 2.75 to 1.00 during the period from the fiscal quarter beginning on April 1, 2008 through the fiscal quarter ending September 30, 2009; and (c) 2.50 to 1.00 during the period from the fiscal quarter beginning on October 1, 2009 through the Facility Termination Date,
-
Improves the Coverage Ratio covenant (consolidated EBITDA to consolidated interest expense) to be not less than 3.0 to 1.0 from a previous ratio of 3.5 to 1.0 and
-
Provides for lower borrowing costs as defined in the Amended Credit Agreement.
Exhibits
EXHIBIT INDEX TO FORM 8-K
10.2
Third Amendment to the Third
Amended and Restated Credit Agreement
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
"(vi) Other Indebtedness (in addition to any Indebtedness otherwise permitted pursuant to this Section 7.1) of up to $5,000,000 (or its Equivalent Amount) outstanding at any one time and any guaranties thereof;"
"(vii) Other unsecured Indebtedness (in addition to any Indebtedness otherwise permitted pursuant to this Section 7.1) consisting of funded debt in the form of money market lines of credit or similar arrangements not to exceed $5,000,000 (or its Equivalent Amount) outstanding at any one time and any guaranties thereof;"
"(viii) Other unsecured Indebtedness (in addition to any Indebtedness otherwise permitted pursuant to this Section 7.1), contingent or direct, not to exceed $5,000,000 (or its Equivalent Amount) outstanding at any one time in respect of letters of credit issued for the account of any of the Credit Parties in the conduct of their business in the ordinary course and any guaranties thereof;"
"(xi) Other Indebtedness (in addition to any Indebtedness otherwise permitted pursuant to this Section 7.1) that is subordinated to the Indebtedness of the Borrowers and the Guarantors under the Loan Documents; provided any such subordinated Indebtedness shall be subordinated on terms and conditions satisfactory to the Administrative Agent in its sole discretion; and"
"(xii) Other Indebtedness of any Subsidiary or Subsidiaries (in addition to any Indebtedness otherwise permitted pursuant to this Section 7.1); provided such Indebtedness in the aggregate at any one time outstanding does not exceed 10% of the Consolidated Net Worth of the Borrowers and their subsidiaries."
"(iii) The repurchase of the Parent's outstanding shares of common stock if (a) such repurchase is made pursuant to the valid authorization of the Parent's shareholders and (b) a copy of each such authorization or resolution shall be delivered to the Administrative Agent in accordance with Section 6.1(vii) or (viii) (each such repurchase, an "Eligible Share Repurchase");"
[SIGNATURES BEGIN ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the day and year first written above.
BORROWERS
CORE LABORATORIES N.V.
BY: Core Laboratories International B.V., its sole Managing Director
By: _____________________________________________
Name:
Title:
CORE LABORATORIES LP
BY: Core Laboratories LLC, its General Partner
By:
Name:
Title:
AGENTS AND LENDERS
JPMORGAN CHASE BANK, N.A.
Individually, as Administrative Agent, as Swing Line Lender and as an LC Issuer
By: ____________________________
Name:
Title:
BANK OF AMERICA, N.A.,
Individually, as Syndication Agent and as an LC Issuer
By:________________________________
Name:
Title:
COMERICA BANK, as a Lender
By:________________________________
Name:
Title:
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender
By:________________________________
Name:
Title:
THIRD AMENDMENT AND CONSENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT AND CONSENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 6, 2006 (the "Amendment"), among CORE LABORATORIES N.V., a Netherlands limited liability company (the "Parent"), CORE LABORATORIES LP, a Delaware limited partnership (the "US Borrower" and collectively with the Parent, the "Borrowers"), the various financial institutions which are or may become parties to the Credit Agreement as amended hereby, (collectively, the "Lenders"), BANK OF AMERICA, N.A. as administrative agent (the "Administrative Agent") for the Lenders and as letter of credit issuing bank (in such capacity together with any successors thereto, the "LC Issuer).
W I T N E S S E T H
WHEREAS, the Borrowers, the Lenders, the Agents and the LC Issuer are parties to that certain Third Amended and Restated Credit Agreement, dated as of March 24, 2005, as amended by that certain First Amendment to Third Amended and Restated Credit Agreement, dated as of December 20, 2005, as further amended by that certain Second Amendment to Third Amended and Restated Credit Agreement, dated as of July 7, 2006 (as so amended, the "Credit Agreement"); and
WHEREAS, pursuant to that certain Payoff and Resignation Letter, dated as of the date hereof (the "Payoff Letter") from JPMorgan Chase Bank, N.A. (the "Former Administrative Agent") and acknowledged by the Borrowers, the Former Administrative Agent has resigned as "Administrative Agent" and has terminated its commitments and is no longer a "Lender" or an "LC Issuer" under the Credit Agreement;
WHEREAS, the Borrowers, each of the Lenders party to this Amendment, and Bank of America, N.A. ("Bank of America") in its capacity as an LC Issuer under the Credit Agreement desire to appoint Bank of America as "Administrative Agent" (hereinafter, the "New Administrative Agent") under the Credit Agreement as amended by this Amendment;
WHEREAS, the US Borrower has filed a certain Offering Memorandum, dated as of October 31, 2006 (the "Offering Memo"), and substantially simultaneously with the execution and delivery of this Amendment, the US Borrower has entered into that certain Indenture, dated as of the date hereof, (the "Indenture") among the US Borrower, the Parent and Wells Fargo Bank, National Association as Trustee pursuant to which the US Borrower has issued (the "Convertible Note Issuance") up to $300,000,000 of "0.25% Senior Exchangeable Notes due 2011" as described in the Indenture (the "Convertible Notes");
WHEREAS, pursuant to the Indenture and as described in the Offering Memo, the Parent is guaranteeing the obligations of the US Borrower under the Indenture; and
WHEREAS, the Borrowers, the Lenders and the LC Issuer desire to amend certain provisions of the Credit Agreement in connection with the appointment of the New Administrative Agent and the Convertible Note Issuance and other related transactions.
NOW, THEREFORE, the parties hereto hereby agree as follows:
"(iii) Unsecured Indebtedness (other than the Indebtedness described in clause (i) or (ii) above) of up to $15,000,000 (or its Equivalent Amount) of the Credit Parties on a consolidated basis and in the aggregate outstanding at any one time;"
"(xiii) Indebtedness incurred (a) by the US Borrower in connection with the Convertible Note Issuance in a principal amount outstanding not to exceed $300,000,000, (b) by the Parent in connection with the guaranty of the US Borrower's obligations with respect to the Convertible Note Issuance in a principal amount outstanding not to exceed $300,000,000, or (c) any refinancing of such Indebtedness; provided that (x) in each case the principal maturity date for such Indebtedness is no earlier than three months after the Facility Termination Date and (y) in the case of any refinancing Indebtedness described in clause (c) above, (1) the stated principal amount of such Indebtedness is not greater than the principal amount outstanding at the time of such refinancing and in any event does not exceed $300,000,000 and (2) unless otherwise consented to by the Administrative Agent, such refinancing Indebtedness is on terms and conditions substantially similar to those of the Convertible Not e Issuance and the Indenture and is no less favorable than the terms and conditions of the Convertible Note Issuance and the Indenture."
"(iii) The repurchase of the Parent's outstanding shares of common stock (a) with the proceeds of the Convertible Note Issuance in an amount not to exceed $120,000,000 and (b) at any time after the Convertible Note Issuance if (1) at the time of such repurchase the ratio of Consolidated Net Indebtedness to Consolidated EBITDA (as measured on a pro forma basis after giving effect to such repurchase) is (A) less than 2.5 to 1.0 as measured during the period from the Third Amendment Effective Date through the fiscal quarter ending March 31, 2008, or (B) less than 2.25 to 1.00 as measured during the period from the fiscal quarter beginning on April 1, 2008 through the Facility Termination Date, and (2) Consolidated Liquidity (as measured on a pro forma basis after giving effect to such repurchase) exceeds $20,000,000; provided that in each case, such repurchase is made pursuant to the valid authorization of the Parent's shareholders and a copy of each such authorizatio n or resolution shall be delivered to the Administrative Agent in accordance with Section 6.1(vii) or (viii) (each such repurchase, an "Eligible Share Repurchase");"
"(viii) if the ratio of Consolidated Net Indebtedness (as measured on a pro forma basis after giving effect to such Acquisitions) to Consolidated EBITDA (as measured or on a pro forma basis after giving effect to such Acquisitions) is (a) less than (1) 2.5 to 1.0 as measured during the period from the Third Amendment Effective Date through the fiscal quarter ending March 31, 2008, or (2) less than 2.25 to 1.00 as measured during the period from the fiscal quarter beginning on April 1, 2008 through the Facility Termination Date, then Acquisitions by the Parent or any of its Subsidiaries or (b) greater than such amounts during such times, as applicable, then Acquisitions by the Parent and its Subsidiaries if the aggregate amount of all Acquisitions for the previous twelve month period does not exceed Consolidated EBITDA for the same twelve month period; provided that in each case, each such Acquisition is of an entity engaged in substantially the same line of business as the Borrowers and their respective Subsidiaries and after giving pro forma effect to such Acquisition, the Borrowers and the other Credit Parties are in compliance with each of the other covenants set forth in this Agreement, including without limitation, those set forth in Section 7.1 and 7.7;"
"7.6 Derivatives. Neither Borrower will, nor will it permit any of its Subsidiaries to, enter into any Derivatives other than (i) interest rate and foreign exchange Derivatives entered into for purposes of hedging bona fide interest and foreign exchange risk and (ii) Derivatives entered into in connection with exchangeable note hedge transactions as more full described in the "Use of Proceeds" section of the Offering Memo, and in each case, such Derivatives are not entered into for speculation."
"7.7 Financial Covenants.
7.7.1 Coverage Ratio. The Parent will not permit the ratio, determined as of the end of each of its fiscal quarters, for the then most recently ended four fiscal quarters of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense, to be less than 3.00 to 1.00 for any period of four consecutive fiscal quarters.
7.7.2 Leverage Ratio. The Parent will not permit the ratio, determined as of the end of each of its fiscal quarters, for the then most-recently ended four fiscal quarters of (i) Consolidated Net Indebtedness to (ii) Consolidated EBITDA to be greater than:
(a) 3.00 to 1.00 during the period from the Third Amendment Effective Date through the fiscal quarter ending March 31, 2008;
(b) 2.75 to 1.00 during the period from the fiscal quarter beginning on April 1, 2008 through the fiscal quarter ending September 30, 2009; and
(c) 2.50 to 1.00 during the period from the fiscal quarter beginning on October 1, 2009 through the through the Facility Termination Date;
provided that solely for the purposes of calculating Consolidated EBITDA for this section 7.7.2, Consolidated EBITDA shall be measured on a pro forma basis."
"7.8 Capital Expenditures. Neither Borrower will, nor will it permit any Subsidiary to, make Consolidated Capital Expenditures in excess of an amount equal to fifty percent (50%) of Consolidated EBITDA for the previous twelve months, if at any time, the ratio of Consolidated Net Indebtedness (as measured on a pro forma basis) to EBITDA is greater than 2.5 to 1.0."
"10.6 Expenses; Indemnity; Damage Waiver;
10.6.1 Costs and Expenses. The Borrowers shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the LC Issuer in connection with the issuance, amendment, renewal or extension of any Facility LCs or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the LC Issuer (including the fees, charges and disbursements of any counsel for t he Administrative Agent, any Lender or the LC Issuer), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Facility LCs issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Facility LCs.
10.6.2 Indemnification by the Borrowers. Each of the Borrowers shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the LC Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an "Indemnitee") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by either of the Borrowers or any other Credit Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Admi nistrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Facility LC or the use or proposed use of the proceeds therefrom (including any refusal by the LC Issuer to honor a demand for payment under a Facility LC if the documents presented in connection with such demand do not strictly comply with the terms of such Facility LC), (iii) any actual or alleged presence or release of hazardous materials on or from any property owned or operated by either of the Borrowers or any of their respective Subsidiaries, or any environmental liability related in any way to either of the Borrowers or any of their respective Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by either of the Borrowers or any other Credit Party, and regardless of w hether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by either of the Borrowers or any other Credit Party against an Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder or under any other Loan Document, if either of the Borrowers or such other Credit Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
10.6.3 Reimbursement by Lenders. To the extent that either of the Borrowers for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the LC Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the LC Issuer or such Related Party, as the case may be, such Lender's Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the LC Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or LC Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 10.5.
10.6.4 Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no Borrower shall assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Facility LC or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
10.6.5 Payments. All amounts due under this Section shall be payable not later than ten (10) Business Days after demand therefor.
10.6.6 Survival. The agreements in this Section shall survive the resignation of the Administrative Agent, the LC Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations."
"10.11 Treatment of Certain Information; Confidentiality; USA Patriot Act. Each of the Administrative Agent, the Lenders and the LC Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates' respective partners, directors, officers, employees, agents, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or un der any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to a Borrower and its obligations, (g) with the consent of the Borrowers or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the LC Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrowers. For purposes of this Section, "Information" means all information received from the Borrowers or any Subsidiary rela ting to the Borrowers or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the LC Issuer on a nonconfidential basis prior to disclosure by the Borrowers or any Subsidiary, provided that, in the case of information received from the Borrowers or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the LC Issuer acknowledges that (a) the Information may include material non-public information concerning the Borrowers or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including Federal and state securities Laws
Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of each Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Borrower in accordance with the Act."
"ARTICLE XI
THE ADMINISTRATIVE AGENT
11.1 Appointment and Authority. Each of the Lenders and the LC Issuers hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the LC Issuers, and no Borrower shall have rights as a third party beneficiary of any of such provisions.
11.2 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
11.3 Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or t hat is contrary to any Loan Document or applicable law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any of the Borrowers or any of their respective Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by either Borrower, a Lender or the LC Issuer. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
11.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Facility LC, that by its terms must be fulfilled to the satisfaction of a Lender or the LC Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the LC Issuer unless the Administrative Agent shal l have received notice to the contrary from such Lender or the LC Issuer prior to the making of such Loan or the issuance of such Facility LC. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
11.5 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
11.6 Resignation of Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders, the LC Issuer and the Borrowers. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrowers, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the LC Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify either Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resigna tion shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the LC Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor's appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrowers to a succ essor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the retiring Administrative Agent's resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.6 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent. Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as LC Issuer and Swing Line Lender. Upon the acceptance of a successor's appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring LC Issuer and Swing Line Lender, (b) the retiring LC Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor LC Issuer shall issue letters of credit in substitution for the Facility LCs, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring LC Issuer to effectively assume the obligations of the retiring LC Issuer with respect to such Facility LCs.
11.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the LC Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the LC Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
11.8 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers or other Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the LC Issuer hereunder.
11.9 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of any Loan or LC Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, LC Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the LC Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the LC Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the LC Issuer and the Administrative Agent under Sections 2.6, 2.23.4, and 10.6 allowed in such judicial proceeding; and
(b) #9; to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the LC Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the LC Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.6 and 10.6. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the LC Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the LC Issuer to authorize the Administrative Agent to vote in respect o f the claim of any Lender or the LC Issuer in any such proceeding.
11.10 Guaranty Matters. The Lenders and the LC Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Guarantor (other than the Parent) from its obligations under the its respective Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent's authority to release any Guarantor (other than the Parent) from its obligations under its respective Guaranty pursuant to this Section 11.10."
[SIGNATURES BEGIN ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the day and year first written above.
BORROWERS
CORE LABORATORIES N.V.
BY: Core Laboratories International B.V., its sole Managing Director
By: ____________________________________________
Name:
Title:
CORE LABORATORIES LP
BY: Core Laboratories LLC, its General Partner
By:
Name:
Title:
AGENTS AND LENDERS
BANK OF AMERICA, N.A.,
as Administrative Agent
By:________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as a Lender and as an LC Issuer
By:________________________________
Name:
Title:
COMERICA BANK, as a Lender
By:________________________________
Name:
Title:
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender
By:________________________________
Name:
Title:
EXHIBIT A
PRICING SCHEDULE
PRICING SCHEDULE
Consolidated Net Indebtedness/ Consolidated EBITDA |
LIBOR + |
ABR + |
Commitment Fee |
≥ 2.5x |
112.5 bps |
0 bps |
20.0 bps |
< 2.5x |
87.5 bps |
0 bps |
17.5 bps |
< 2.0x |
75.0 bps |
0 bps |
15.0 bps |
< 1.5x |
62.5 bps |
0 bps |
12.5 bps |
< 1.0x |
50.0 bps |
0 bps |
10.0 bps |
The Applicable Margin and Applicable Fee Rate shall be determined in accordance with the foregoing table based on the Parent's Status as reflected in the then most recent financials. Adjustments, if any, to the Applicable Margin or Applicable Fee Rate shall be effective five Business Days after the Administrative Agent has received the applicable financials. If the Parent fails to deliver the financials to the Administrative Agent at the time required pursuant to Section 6.1, then the Applicable Margin and Applicable Fee Rate shall be the highest Applicable Margin and Applicable Fee Rate set forth in the foregoing table until five days after such Financials are so delivered.
EXHIBIT B
COMMITMENT SCHEDULE
Lender |
Commitment |
Bank of America, N.A. |
$50,000,000 |
Comerica Bank |
$25,000,000 |
Wells Fargo Bank, National Association |
$25,000,000 |
Total: |
$100,000,000 |
EXHIBIT C
FEES
1. Amendment Fees shall payable to each Lender in an amount equal to 10 bps on such Lender's Commitment under the Credit Agreement as amended by this Amendment.
2. Commitment Fees shall be payable pursuant to the Credit Agreement as amended by this Amendment.