exv10w1



 



EXHIBIT 10.1



FIFTH AMENDMENT TO

AMENDED AND RESTATED

CREDIT AGREEMENT



     This Fifth Amendment dated as of May 1, 2003 (this “Fifth Amendment”) to
that certain Amended and Restated Credit Agreement, dated as of January 31,
2002, as amended by First Amendment to Amended and Restated Credit Agreement
dated as of April 30, 2002, by Second Amendment to Amended and Restated Credit
Agreement dated as of July 31, 2002, by Third Amendment to Amended and
Restated Credit Agreement dated as of October 31, 2002, and by Amended and
Restated Fourth Amendment to Amended and Restated Credit Agreement dated as of
December 16, 2002 (collectively, the “Credit Agreement”), is among Newpark
Resources, Inc., a Delaware corporation, the Lenders, Bank One, NA, a national
banking association with its main office in Chicago, Illinois, individually as
a Lender, as Administrative Agent, and as LC Issuer, and the undersigned
Guarantors.


     WHEREAS, the Borrower intends to restructure the ownership structure of
its Canadian operating subsidiary, Newpark Canada, Inc. to effect cost, tax,
and other savings and operational efficiencies, and the parties wish to make
certain modifications to the Credit Agreement to permit such restructuring and
to modify certain other financial covenants, all by executing this Fifth
Amendment on the terms and conditions set forth herein;


     NOW, THEREFORE, the parties hereto do hereby amend the Credit Agreement,
all on the terms and conditions hereof and do hereby agree as follows:


     1.     Unless otherwise defined herein, all defined terms used in this Fifth
Amendment shall have the same meaning ascribed to such terms in the Credit
Agreement.


     2.     Sections 6.24.1 and 6.24.2 of the Credit Agreement are hereby amended
and restated to read in their entirety as follows:



		
	 	     6.24.1. Fixed Charge Coverage Ratio. The Borrower will not permit the ratio,
determined as of the end of each of its fiscal quarters, of (i)
Consolidated EBITDA for the fiscal quarter then ended, minus (ii)
$1,500,000.00 for maintenance capital expenditures for the fiscal quarter
then ended, minus (iii) the average of stock repurchases and/or
retirements permitted under Section 6.10 for such fiscal quarter and the
immediately preceding three fiscal quarters (exclusive of redemptions
under Section 6.10 (iii)) to (x) Consolidated Interest Expense for the
fiscal quarter then ended, plus (y) scheduled principal payments on
Consolidated Indebtedness for the fiscal quarter then ended, plus (z) cash
dividends on Existing Preferred Stock paid during the fiscal quarter then
ended, all calculated for the Borrower and its Subsidiaries on a
consolidated basis, to be less than the following:




	 	 	 	 	 
	Quarters ending:	 	Ratio:
	
	 	

	December 31, 2001
	 	3.00 to 1.00
	March 31, 2002
	 	2.25 to 1.00



 






 



	 	 	 	 	 
	Quarters ending:	 	Ratio:
	
	 	

	June 30, 2002
	 	2.50 to 1.00
	September 30, 2002
	 	1.75 to 1.00
	December 31, 2002
	 	2.00 to 1.00
	March 31, 2003
	 	2.00 to 1.00
	June 30, 2003
	 	2.50 to 1.00
	All quarters ending thereafter
	 	3.00 to 1.00




		
	 	     6.24.2. Leverage Ratio. The Borrower will not
permit the ratio, determined as of the end of each
of its fiscal quarters, of (i) Consolidated Funded
Indebtedness to (ii) Consolidated EBITDA at the end
of each of its fiscal quarters, annualized, all
calculated for the Borrower and its Subsidiaries on
a consolidated basis, to be greater than the
following:




	 	 	 	 	 
	Quarters ending:	 	Ratio:
	
	 	

	December 31, 2001
	 	3.00 to 1.00
	March 31, 2002
	 	4.00 to 1.00
	June 30, 2002
	 	5.50 to 1.00
	September 30, 2002
	 	5.25 to 1.00
	December 31, 2002
	 	4.75 to 1.00
	March 31, 2003
	 	4.50 to 1.00
	June 30, 2003
	 	4.00 to 1.00
	September 30, 2003
	 	3.50 to 1.00
	December 31, 2003
	 	3.25 to 1.00
	All quarters ending thereafter
	 	3.00 to 1.00



     3.     The form of the Compliance Certificate attached to the Credit Agreement
as Exhibit “B” is hereby amended and restated entirely by the form of
Compliance Certificate attached hereto as Exhibit “A”.


     4.     Notwithstanding any other provision of the Credit Agreement to the
contrary, the Borrower is authorized to modify the ownership and intercompany
debt structure of Newpark Canada, Inc., including making transfers of stock or
ownership interests, creating and acquiring interests in one or more additional
Canadian entities, creating or dissolving any entities, transferring
intercompany investments and intercompany loans, transforming intercompany
investments into intercompany loans and advances, and entering into all such
other transactions in connection therewith and, in the case of any issuances of
stock and other equity proceeds shall not be obligated to apply such proceeds
to the Loans; provided, however, that (i) the final effect of such
restructuring shall be that the Borrower or a wholly owned Subsidiary of the
Borrower shall own, directly or indirectly, all stock or other equity interests
in all such Canadian entities and Newpark Canada, Inc., (ii) prior to effecting
such transaction the Borrower shall provide the Administrative Agent with
details outlining the specific structures and steps intended to be effected and
the Administrative Agent shall be satisfied with the same, and (iii) the
Administrative Agent shall have received all such reports of accountants and
advisors of the Borrower and opinions of counsel to the Borrower in connection
therewith as it shall require. In connection therewith the Administrative Agent
is authorized to release the pledge of stock of


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 Newpark Canada Inc. provided, however, that the Administrative Agent
shall be furnished in pledge at least 65% but just less than 66-2/3% of all
stock, membership interest, partnership interests, or equity interests in the
highest tier Canadian Subsidiary and in such other Canadian Subsidiaries as the
Administrative Agent shall require, and, in connection therewith shall be
furnished such opinions of counsel as to the creation, perfection, and priority
of such pledges as it may require.


     5.     Section 6.14 (v) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:



	 	 	(v) Investments in Newpark Canada Inc. and all other Canadian
Subsidiaries not in excess of the aggregate of $30,000,000.00 outstanding
from time to time.



     6.     Except to the extent its provisions are specifically amended, modified
or superseded by this Fifth Amendment, the representations, warranties and
affirmative and negative covenants of the Borrower contained in the Credit
Agreement are incorporated herein by reference for all purposes as if copied
herein in full. The Borrower hereby restates and reaffirms each and every term
and provision of the Credit Agreement, as amended, including, without
limitation, all representations, warranties and affirmative and negative
covenants. Except to the extent its provisions are specifically amended,
modified or superseded by this Fifth Amendment, the Credit Agreement, as
amended, and all terms and provisions thereof shall remain in full force and
effect, and the same in all respects are confirmed and approved by the parties
hereto.


     7.     Each Guarantor hereby consents to the execution of this Fifth Amendment and
reaffirms its Guaranty of all of the obligations of the Borrower. Each such
Guarantor further acknowledges and consents to any increase in the obligations
owed by such Guarantor as the result of this Fifth Amendment. Borrower and
Guarantor acknowledge and agree that this Fifth Amendment shall not be
considered a novation or a new contract. Borrower and Guarantor acknowledge
that all existing rights, titles, powers, Liens, security interests and estates
in favor of the Lenders constitute valid and existing obligations and Liens and
security interests as against the Collateral in favor of the Administrative
Agent for the benefit of the Lenders. Borrower and each Guarantor confirm and
agree that (a) neither the execution of this Fifth Amendment nor the
consummation of the transactions described herein shall in any way effect,
impair or limit the covenants, liabilities, obligations and duties of the
Borrower and each Guarantor under the Loan Documents and (b) the obligations
evidenced and secured by the Loan Documents continue in full force and effect.
Each Guarantor hereby further confirms that it unconditionally guarantees to
the extent set forth in the Guaranty the due and punctual payment and
performance of any and all amounts and obligations owed the Borrower under the
Credit Agreement or the other Loan Documents.


     8.     This Fifth Amendment may be executed in any number of counterparts and all
of such counterparts taken together shaft be deemed to constitute one and the
same instrument.


     9.     THIS FIFTH AMENDMENT AND THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW


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PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS LOUISIANA,
BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.


     IN WITNESS WHEREOF, the parties have caused this Fifth Amendment to
Amended and Restated Credit Agreement to be duly executed as of the date first
above written.


[Remainder of Page Intentionally Blank]



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BORROWER:
	 
	 	
NEWPARK RESOURCES, INC.
	 
	 	By:	 	
/s/ John R. Dardenne, Sr.



John R. Dardenne, Sr.
	 	
Title: Treasurer
	 
	 	
GUARANTORS:
	 
	 	
EXCALIBAR MINERALS INC.,

MALLARD & MALLARD OF LA., INC.,

NEWPARK HOLDINGS, INC.,

SUPREME CONTRACTORS, L.L.C.,

NEWPARK DRILLING FLUIDS, LLC,

NEWPARK ENVIRONMENTAL SERVICES, L.L.C.,

NEWPARK ENVIRONMENTAL MANAGEMENT COMPANY, L.L.C.,

NEWPARK TEXAS, L.L.C.,

EXCALIBAR MINERALS OF LA., L.L.C., and

SOLOCO, L.L.C.
	 
	 	By:	 	
/s/ John R. Dardenne



John R. Dardenne, Sr., Treasurer



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	 	BATSON MILL, L.P.,

NEWPARK ENVIRONMENTAL SERVICES OF TEXAS, L.P.,

NEWPARK SHIPHOLDING TEXAS, L.P.,

NID, L.P.,

SOLOCO TEXAS, L.P.,

NES PERMIAN BASIN, L.P. and

NEWPARK ENVIRONMENTAL SERVICES MISSISSIPPI, L.P.
	 
	 	By:	 	Newpark Holdings, Inc., the general partner of each
	 
	 	 	 	
By:
	 	/s/ John R. Dardenne



John R. Dardenne, Sr., Treasurer



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BANK ONE, NA,
	 	 	
(Main Office, Chicago)

Individually as a Lender and as Administrative Agent and as LC Issuer
	 
	 	 	By:

Title:	 	
/s/ J. Charles Freel, Jr.



Director, Capital Markets



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CREDIT LYONNAIS NEW YORK BRANCH
	 
	 	 	By:

Title:	 	
/s/ Oliver Audemard



Senior Vice President



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ROYAL BANK OF CANADA
	 
	 	 	By:

Title:	 	
 



Manager



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HIBERNIA NATIONAL BANK
	 
	 	 	By:

Title:	 	
/s/ Cheryl H. Denenes



Vice President



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COMERICA BANK
	 
	 	 	By:

Title:	 	
 



Assistant Vice President



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WHITNEY NATIONAL BANK
	 
	 	 	By:

Title:	 	
/s/ Michael Jesse Shannon



Senior Vice President




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