SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT
EXHIBIT
10.18
SECOND
AMENDMENT TO CREDIT AND SECURITY AGREEMENT
THIS
SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT
(this
“Amendment”),
dated
as of November 30, 2006, is made by and between IWC
SERVICES, LLC,
a Texas
limited liability company (“Borrower”)
and
XXXXX
FARGO BANK,
National Association (“Lender”),
acting through its XXXXX
FARGO BUSINESS CREDIT
operating division.
RECITALS
Borrower,
Boots & Xxxxx International Well Control, Inc. (“BNC”)
and
Lender are parties to the Credit and Security Agreement dated as of March
3,
2006 (as amended, restated, amended and restated or extended from time to
time,
the “Credit
Agreement”).
Borrower
has requested that certain amendments and a waiver be made to the Credit
Agreement in connection with HWCES’ proposed acquisition of the Rig Assist Unit
- 460K unit and related equipment from Odfjell Drilling AS, a Norwegian company
(the “RAS
Equipment”)
on or
about November 30, 2006, with the RAS Equipment to be acquired using HWCES’
available cash on-hand for an aggregate purchase price not to exceed U.S.
$3,600,000 plus the related transportation and set-up costs not to exceed
$200,000 in the aggregate and free of any Liens thereon (the “RAS
Equipment Acquisition”),
which
Lender is willing to make pursuant to the terms and conditions set forth
herein.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements herein contained, it is agreed as follows:
1. Consent
to Acquisition of RAS Equipment.
As of
the Effective Date, Lender consents to the RAS Equipment Acquisition and
waives
the Default arising solely on account of HWCES contracting to incur the Capital
Expenditures for the RAS Equipment Acquisition before the Effective Date.
2. Amendments
to the Credit Agreement.
As of
the Effective Date, the Credit Agreement shall be amended as
follows:
(a) The
definition of “Unfinanced Capital Expenditures” appearing in Section
1.1
of the
Credit Agreement shall be amended and restated, in its entirety, to read
as
follows:
“Unfinanced
Capital Expenditures”
means
Capital Expenditures paid in cash (other than cash that constitutes the proceeds
of Indebtedness). However, for purposes of this definition, Capital Expenditures
incurred using the proceeds of a Revolving Advance shall constitute Unfinanced
Capital Expenditures, and the RAS Equipment Capital Expenditures shall not
constitute Unfinanced Capital Expenditures.
(b) A
definition for “RAS Equipment Acquisition” shall be added to Section
1.1
of the
Credit Agreement in its proper alphabetical location:
“RAS
Equipment Acquisition”
means
HWCES’ acquisition of the Rig Assist Unit - 460K unit and related equipment from
Odfjell Drilling AS, a Norwegian company (the “RAS
Equipment”)
on or
about November 30, 2006, with the RAS Equipment to be acquired using HWCES’
available cash on-hand for an aggregate purchase price not to exceed U.S.
$3,600,000 (said purchase price, together with the costs for transporting
the
RAS Equipment from Bergen, Norway to Qatar and other costs to place the RAS
Equipment in service not to exceed $200,000 in the aggregate, being collectively
the “RAS
Equipment Capital Expenditures”)
and
free of any Liens thereon.
(c) Section
6.2(c)
of the
Credit Agreement shall be amended and restated, in its entirety, to read
as
follows:
(c) Capital
Expenditures.
BNC and
its Subsidiaries, including Borrower, will not incur (i) Unfinanced Capital
Expenditures of more than $4,500,000 in the aggregate during any fiscal year
and
(ii) Capital Expenditures (whether financed or Unfinanced Capital Expenditures)
of more than $10,000,000 in the aggregate plus the RAS Equipment Capital
Expenditures incurred during any fiscal year.
3. No
Other Changes.
Except
as explicitly amended by this Amendment, all of the terms and conditions
of the
Credit Agreement and the other Loan Documents shall remain in full force
and
effect.
4. Conditions
Precedent.
This
Amendment shall be effective when Lender shall have received an executed
original hereof, together with each of the following, each in substance and
form
acceptable to Lender in its sole discretion (the date on which these conditions
are satisfied shall be the “Effective
Date”):
(a) Originals
of the Acknowledgment and Agreement of Guarantors and the Acknowledgment
and
Agreement of Subordinated Creditor set forth at the end of this Amendment,
duly
executed by each Guarantor and the Subordinated Creditor.
(b) All
representations and warranties made under this Amendment shall be true, correct
and complete.
(c) Such
other matters as Lender may require in its Permitted Discretion.
5. Representations
and Warranties.
Borrower hereby represents and warrants to Lender as follows:
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(a) Borrower
and each Guarantor have all requisite power and authority to execute this
Amendment and the Acknowledgement and Agreement of Guarantors, as applicable
and
to perform all of their obligations under this Amendment and the Acknowledgement
and Agreement of Guarantors, and this Amendment and the Acknowledgement and
Agreement of Guarantors have been duly executed and delivered by Borrower
and
the Guarantors, as applicable, and constitute the
legal, valid and binding obligations of such parties, enforceable in accordance
with their respective terms.
(b) The
execution, delivery and performance by Borrower and Guarantors of this Amendment
and the Acknowledgement and Agreement of Guarantors have been duly authorized
by
all necessary action and do not (i) require any authorization, consent or
approval by any governmental department, commission, board, bureau, agency
or
instrumentality, domestic or foreign, (ii) violate any provision of any
law, rule or regulation or of any order, writ, injunction or decree presently
in
effect, having applicability to Borrower or any Guarantor, or any governing
document of Borrower or any Guarantor, or (iii) result in a breach of or
constitute a default under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which Borrower or any Guarantor is
a
party or by which it or its properties may be bound or affected.
(c) Except
for the Default to be waived pursuant to Section
1
hereof,
no Default or Event of Default exists under the Credit Agreement before or
after
giving effect to this Amendment.
(d) All
of
the representations and warranties contained in Article
V
of the
Credit Agreement are correct on and as of the date hereof as though made
on and
as of such date, except to the extent that such representations and warranties
relate solely to an earlier date.
6. References.
All
references in the Credit Agreement to “this Agreement” shall be deemed to refer
to the Credit Agreement as amended hereby; and any and all references in
the
Security Documents to the Credit Agreement shall be deemed to refer to the
Credit Agreement as amended hereby.
7. No
Other Waiver.
Except
as set forth in Section
1
hereof,
the execution of this Amendment and acceptance of any documents related hereto
shall not be deemed to be a waiver of any Default or Event of Default under
the
Credit Agreement or breach, default or event of default under any Security
Document or other document held by Lender, whether or not known to Lender
and
whether or not existing on the date of this Amendment.
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8. Release.
BORROWER, AND EACH GUARANTOR BY SIGNING THE ACKNOWLEDGMENT AND AGREEMENT
OF
GUARANTORS SET FORTH BELOW, EACH HEREBY ABSOLUTELY AND UNCONDITIONALLY RELEASES
AND FOREVER DISCHARGES LENDER, AND ANY AND ALL PARTICIPANTS, PARENT
CORPORATIONS, SUBSIDIARY CORPORATIONS, AFFILIATED CORPORATIONS, INSURERS,
INDEMNITORS, SUCCESSORS AND ASSIGNS THEREOF, TOGETHER WITH ALL OF THE PRESENT
AND FORMER DIRECTORS, OFFICERS, ATTORNEYS, AGENTS AND EMPLOYEES OF ANY OF
THE
FOREGOING, FROM ANY AND ALL CLAIMS, DEMANDS OR CAUSES OF ACTION OF ANY KIND,
NATURE OR DESCRIPTION, WHETHER ARISING IN LAW OR EQUITY OR UPON CONTRACT
OR TORT
OR UNDER ANY STATE OR FEDERAL LAW OR OTHERWISE, WHICH BORROWER OR SUCH GUARANTOR
HAS HAD, NOW HAS OR HAS MADE CLAIM TO HAVE AGAINST ANY SUCH PERSON FOR OR
BY
REASON OF ANY ACT, OMISSION, MATTER, CAUSE OR THING WHATSOEVER ARISING FROM
THE
BEGINNING OF TIME TO AND INCLUDING THE EFFECTIVE DATE, WHETHER SUCH CLAIMS,
DEMANDS AND CAUSES OF ACTION ARE MATURED OR UNMATURED OR KNOWN OR UNKNOWN,
INCLUDING,
WITHOUT LIMITATION, ALL CLAIMS, DEMANDS OR CAUSES OF ACTION ARISING IN WHOLE
OR
PART FROM THE NEGLIGENCE OR STRICT LIABLITY OF LENDER OR ANY OTHER RELEASED
PARTY.
9. Severability.
If any
term or provision of this Amendment is adjudicated to be invalid under
applicable laws or regulations, such provision shall be inapplicable to the
extent of such invalidity without affecting the validity or enforceability
of
the remainder of this Amendment which shall be given effect so far as
possible.
10. Binding
Effect.
This
Amendment shall be binding upon and inure to the benefit of Borrower and
Lender
and their respective successors and assigns, except that Borrower shall not
have
the right to assign any rights thereunder or any interest therein without
Lender’s prior written consent.
12. Costs
and Expenses.
Borrower hereby reaffirms its agreement under the Credit Agreement to pay
or
reimburse Lender on demand for all costs and expenses incurred by Lender
in
connection with the Loan Documents, including without limitation all reasonable
fees and disbursements of legal counsel. Without limiting the generality
of the
foregoing, Borrower specifically agrees to pay all fees and disbursements
of
counsel to Lender for the services performed by such counsel in connection
with
the preparation of this Amendment and the documents and instruments incidental
hereto. Borrower hereby agrees that Lender may, at any time or from time
to time
in its sole discretion and without further authorization by Borrower, make
a
loan to Borrower under the Credit Agreement, or apply the proceeds of any
loan,
for the purpose of paying any such fees, disbursements, costs and
expenses.
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13. Miscellaneous.
This
Amendment, the Acknowledgment and Agreement of Guarantors and the Acknowledgment
and Agreement of Subordinated Creditor (i) may
be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original and all of which counterparts, taken
together, shall constitute one and the same instrument and (ii)
AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES
AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL
AGREEMENTS OF THE PARTIES, AND THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG
THE
PARTIES.
Capitalized terms used in this Amendment and the Acknowledgments attached
hereto
have the meanings given to them in the Credit Agreement unless otherwise
specified. This Amendment shall be governed and construed in accordance with
the
laws of the State of Texas.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first written above to be effective as of the Effective
Date.
| IWC SERVICES, LLC, a Texas limited liability company | ||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
| Name: Xxxxx Xxxxxxxxxx | ||
| Title: President and CEO | ||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, acting through its Xxxxx Fargo Business Credit operating division | ||
|
By:
|
/s/
Xxxx Xxxxxxxxx
|
|
| Name: Xxxx Xxxxxxxxx | ||
| Title: Vice-President | ||
ACKNOWLEDGMENT
AND AGREEMENT OF GUARANTORS
Each
undersigned, each a guarantor of the indebtedness and other obligations of
Borrower to Lender pursuant to a separate Guaranty each dated as of March
3,
2006 (each a “Guaranty”),
hereby (i) acknowledges receipt of the foregoing Amendment; (ii) consents
to the terms (including without limitation the release set forth in Section
8
of the
Amendment) and execution thereof; (iii) reaffirms its obligations to Lender
pursuant to the terms of its Guaranty; and (iv) acknowledges that Lender
may amend, restate, extend, renew or otherwise modify the Credit Agreement
and
any indebtedness or agreement of Borrower, or enter into any agreement or
extend
additional or other credit accommodations, without notifying or obtaining
the
consent of the undersigned and without impairing the liability of the
undersigned under its Guaranty for all of Borrower’s present and future
indebtedness and other obligations to Lender.
BOOTS
& XXXXX INTERNATIONAL WELL CONTROL, INC.
BOOTS
& XXXXX SERVICES, INC.
BOOTS
& XXXXX SPECIAL SERVICES, INC.
ELMAGCO,
INC.
HELL
FIGHTERS, INC.
HWC
LIMITED
IWC
ENGINEERING, INC.
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
| Name: Xxxxx Xxxxxxxxxx | ||
| Title: President and CEO of each entity above | ||
ACKNOWLEDGMENT
AND AGREEMENT OF SUBORDINATED CREDITORS
The
undersigned, a subordinated creditor of BNC pursuant to each Senior Subordinated
Promissory Note, hereby (i) acknowledges receipt of the foregoing Amendment;
(ii) consents to the terms and execution thereof; (iii) reaffirms the
terms of each Senior Subordinated Promissory Note; and (iv) acknowledges
that Lender may amend, restate, extend, renew or otherwise modify the Loan
Documents and any indebtedness or agreement of Borrower or enter into any
agreement or extend additional or other credit accommodations (in each case
subject to any limitations set forth in the respective Senior Subordinated
Promissory Note), without notifying or obtaining the consent of the undersigned
except as may be expressly required under the terms of each Senior Subordinated
Promissory Note.
OIL
STATES ENERGY SERVICES, INC.
(formerly
known as HWC Energy Services, Inc.)
|
By:
|
/s/ Xxxxx Xxxxxx | |
|
Name:
|
Xxxxx Xxxxxx | |
|
Title:
|
President |
