Exhibit 10.1
AMENDMENT NO. 15
TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
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THIS AMENDMENT NO. 15 (this "Agreement") is entered into as of December 23,
2010 by and among BEST ENERGY SERVICES, INC (f/k/a HYBROOK RESOURCES CORP.), a
corporation organized under the laws of the State of Nevada ("Best"), XXX XXXXXX
DRILLING COMPANY, a corporation organized under the laws of the State of Utah
("BBD") and BEST WELL SERVICE, INC., a corporation organized under the laws of
the State of Kansas ("BWS") (Best, BBD and BWS, each a "Borrower", and
collectively "Borrowers"), the financial institutions party hereto
(collectively, the "Lenders" and individually a "Lender") and PNC BANK, NATIONAL
ASSOCIATION ("PNC"), as agent for Lenders (PNC, in such capacity, the "Agent").
BACKGROUND
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Borrowers, Lenders and Agent are parties to that certain Revolving Credit, Term
Loan and Security Agreement dated as of February 14, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement")
pursuant to which Agent and Lenders provide Borrowers with certain financial
accommodations.
Borrowers have requested that Agent and Lenders amend certain provisions of the
Loan Agreement as hereafter provided, and Agent and Lenders are willing to do so
on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of credit
heretfore or hereafter made to or for the account of Borrowers by Agent or
Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined or amended
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herein shall have the meanings given to them in the Loan Agreement.
2. Reservation of Rights: Borrowers acknowledge that the Events of Default
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set forth on Schedule I hereto (the "Existing Defaults") have occurred and are
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continuing under the Loan Agreement.
(a) As a result of the Existing Defaults, Agent has the immediate right to
exercise its rights and remedies under the Loan Agreement, the Other Documents
or at law.
(b) To the extent Agent makes any additional Advances after the date hereof,
such Advances shall not constitute either a waiver of, nor agreement to forbear
by Agent with respect to the Existing Defaults or any future violation or Event
of Default under the Loan Agreement or the Other Documents, including, without
limitation, the Existing Default. No such additional Advances by Agent shall,
directly or indirectly, in any way whatsoever, impair, prejudice or otherwise
adversely effect Agent's right at any time and from time to time to exercise any
right, privilege or remedy in connection with the Loan Agreement or related
documents or amend or alter the provisions of the Loan Agreement or the Other
Documents or constitute a course of dealing or other basis for altering any
Obligation of Borrowers or any other Person or any right, privilege or remedy of
Agent under the Loan Agreement or the Other Documents.
(c) Although Agent is not presently taking any immediate action with respect
to the Existing Defaults except as set forth above, Agent hereby reserves all
its rights and remedies under the Loan Agreement, the Other Documents and
applicable law, and its election not to exercise any such right or remedy at the
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present time shall not (a) preclude Agent from ceasing at any time to make
Advances, (b) limit in any manner whatsoever Borrowers' obligation to comply
with, and Agent's right to insist on Borrowers' compliance with, each and every
term of the Loan Agreement and the Other Documents or (c) constitute a waiver of
any Event of Default or any right or remedy available to Agent under the Loan
Agreement, the Other Documents or applicable law, and Agent hereby expressly
reserves its rights with respect to the same.
(d) No failure or delay on the part of Agent in exercising any right or
remedy under the Loan Agreement and no course of dealing between Borrowers and
Agent shall operate as a waiver of any such right or remedy nor shall any single
or partial exercise of any right or remedy under the Loan Agreement preclude any
other or further exercise thereof or the exercise of any other right or remedy
under the Loan Agreement. Agent expressly reserves all of its rights and
remedies under the Loan Agreement.
3. Amendments to Loan Agreement. Subject to the satisfaction of Section 4
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below, the Loan Agreement is hereby amended as follows:
(a) The definition of Special Advance Amount set forth in Section 1.1 of the
Loan Agreement is hereby amended to read in its entirety as set forth below:
"Special Advance Amount" shall mean (w) $1,750,000, prior to December 21, 2010,
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(x) $1,875,000 from December 21, 2010 through and including January 14, 2011,
(y) $1,750,000 from January 15, 2001 through and including March 30, 2011 and
(z) $0 on and after March 31, 2011.
(b) The Borrowers covenant and agree that the incremental availability
created by the increase in the Special Advance Amount for the period
contemplated by this Agreement will be used solely for the purpose of mobilizing
to rigs to the Eagle Ford in South Texas and, if requested by Agent, Borrowers
will provide a certification to Agent that the incremental availability is being
used for such purpose.
4. Conditions of Effectiveness. This Agreement shall become effective when
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Agent shall have received:
(a) four (4) copies of this Agreement executed by the Required Lenders and
each Borrower;
(b) a common stock purchase warrant for 250,000 shares of common stock of
Best at an exercise price of $0.10 per share in form and substance satisfactory
to Agent and its counsel;
(c) such other certificates, instruments, documents, agreements and opinions
of counsel as may be required by Agent or its counsel, each of which shall be in
form and substance satisfactory to Agent and its counsel.
5. Representations, Warranties and Covenants. Each Borrower hereby
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represents, warrants and covenants as follows:
(a) This Agreement and the Loan Agreement constitute legal, valid and
binding obligations of such Borrower and are enforceable against such Borrower
in accordance with their respective terms.
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(b) Upon the effectiveness of this Agreement, each Borrower hereby reaffirms
all covenants, representations and warranties made in the Loan Agreement to the
extent the same are not amended or waived hereby and agrees that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Agreement.
(c) The execution, delivery and performance of this Agreement and all other
documents in connection therewith has been duly authorized by all necessary
corporate action, and does not contravene, violate or cause the breach of any
agreement, judgment, order, law or regulation applicable to any Borrower.
(d) No Event of Default or Default has occurred and is continuing or would
exist after giving effect to this Agreement (other than the Existing Default).
(e) No Borrower has any defense, counterclaim or offset with respect to the
Loan Agreement or the Obligations.
6. Effect on the Loan Agreement.
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(a) Upon the effectiveness of this Agreement, each reference in the Loan
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import shall mean and be a reference to the Loan Agreement as amended hereby.
Except as specifically amended herein, the Loan Agreement, and all other
documents, instruments and agreements executed and/or delivered in connection
therewith, shall remain in full force and effect, and are hereby ratified and
confirmed. This Agreement shall constitute an "Other Document" for all purposes
under the Loan Agreement.
(b) Except as expressly provided herein, the execution, delivery and
effectiveness of this Agreement shall not operate as a waiver of any right,
power or remedy of Agent or any Lender, nor constitute a waiver of any provision
of the Loan Agreement, or any other documents, instruments or agreements
executed and/or delivered under or in connection therewith.
7. Release. The Borrowers hereby acknowledge and agree that: (a)
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neither they nor any of their Affiliates have any claim or cause of action
against Agent or any Lender (or any of Agent's or any Lender's Affiliates,
officers, directors, employees, attorneys, consultants or agents) and (b) Agent
and each Lender have heretofore properly performed and satisfied in a timely
manner all of their respective obligations to the Borrowers under the Loan
Agreement and the Other Documents. Notwithstanding the foregoing, Agent and
each Lender wish (and the Borrowers agree) to eliminate any possibility that any
past conditions, acts, omissions, events or circumstances would impair or
otherwise adversely affect any of Agent's or such Lender's rights, interests,
security and/or remedies under the Loan Agreement and the Other Documents.
Accordingly, for and in consideration of the agreements contained in this
Agreement and other good and valuable consideration, each Borrower (for itself
and its Affiliates and the successors, assigns, heirs and representatives of
each of the foregoing) (each a "Releasor" and collectively, the "Releasors")
does hereby fully, finally, unconditionally and irrevocably release and forever
discharge Agent, each Lender and each of their respective Affiliates, officers,
directors, employees, attorneys, consultants and agents (each a "Released Party"
and collectively, the "Released Parties") from any and all debts, claims,
obligations, damages, costs, attorneys' fees, suits, demands, liabilities,
actions, proceedings and causes of action, in each case, whether known or
unknown, contingent or fixed, direct or indirect, and of whatever nature or
description, and whether in law or in equity, under contract, tort, statute or
otherwise, which any Releasor has heretofore had or now or hereafter can, shall
or may have against any Released Party by reason of any act, omission or thing
whatsoever done or omitted to be done on or prior to the date hereof arising out
of, connected with or related in any way to this Agreement, the Loan Agreement
or any Other Document, or any act, event or transaction related or attendant
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thereto, or Agent's or any Lender's agreements contained therein, or the
possession, use, operation or control of any of the assets of agreements
contained therein, or the possession, use, operation or control of any of the
assets of the Borrowers, or the making of any advance, or the management of such
advance or the Collateral.
8. Governing Law. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York (other than those conflict of law rules that would defer to the
substantive law of another jurisdiction).
9. Cost and Expenses. Borrowers hereby agree to pay the Agent, on demand,
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all costs and reasonable expenses (including reasonable attorneys' fees and
legal expenses) incurred in connection with this Agreement and any instruments
or documents contemplated hereunder.
10. Headings. Section headings in this Agreement are included herein for
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convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
11. Counterparts; Facsimile Signatures. This Agreement may be executed by
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the parties hereto in one or more counterparts of the entire document or of the
signature pages hereto, each of which shall be deemed an original and all of
which taken together shall constitute one and the same agreement. Any signature
received by facsimile or electronic transmission shall be deemed an original
signature hereto.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year first written above.
PNC BANK, NATIONAL ASSOCIATION,
as Lender and as Agent
By:__________________________
Name:
Title:
BEST ENERGY SERVICES, INC.
By:__________________________
Name:
Title:
XXX XXXXXX DRILLING COMPANY
By:__________________________
Name:
Title:
BEST WELL SERVICE, INC.
By:__________________________
Name:
Title:
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SCHEDULE I
Existing Default
1. An Event of Default as a result of the Borrowers' failure to pay
certain taxes as required pursuant to Section 4.13 of the Loan Agreement.
2. An Event of Default as a result of the imposition of tax Liens as
evidenced by (i) that certain Tax Warrant of the Kansas Department of Revenue
and (ii) the Notices of Federal Tax Lien received from the Internal Revenue
Service and attached hereto as Exhibit A.
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