WAIVER AGREEMENT
EXHIBIT 10.1
Execution Copy
This WAIVER AGREEMENT (“Agreement”) dated as of June 9, 2008 (“Effective Date”) is among
Pioneer Drilling Company, a Texas corporation (“Borrower”), the Guarantors (as defined below), the
Lenders (as defined below) signatory hereto, and Xxxxx Fargo Bank, N.A., as administrative agent
for the Lenders (in such capacity, the “Administrative Agent”), as issuing lender (in such
capacity, the “Issuing Lender”), and as swing line lender (in such capacity, the “Swing Line
Lender”).
RECITALS
A. The Borrower is party to that certain Credit Agreement dated as of February 29, 2008 (the
“Credit Agreement”) among the Borrower, the lenders party thereto from time to time (the
“Lenders”), the Administrative Agent, the Issuing Lender, and the Swing Line Lender.
B. The Borrower has requested that the Lenders (i) acknowledge the existence of a Default (as
defined in the Credit Agreement), and (ii) provide for a waiver for such Default as set forth
below, and the Lenders signatory hereto have agreed, subject to the terms and conditions of this
Agreement, to such acknowledgement and waiver.
NOW THEREFORE, in consideration of the benefits to be derived by the parties hereto and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Defined Terms; Etc. As used in this Agreement, each of the capitalized
terms defined in the opening paragraph and the Recitals above shall have the meanings assigned to
such terms therein. Each capitalized term defined in the Credit Agreement and used herein without
definition shall have the meaning assigned to such term in the Credit Agreement, unless expressly
provided to the contrary. Article, Section, Schedule, and Exhibit references are to Articles and
Sections of and Schedules and Exhibits to this Agreement, unless otherwise specified. The words
“hereof”, “herein”, and “hereunder” and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this Agreement.
Section 2. Waiver. The Borrower hereby acknowledges the existence of a Default
arising from the Borrower’s failure to timely deliver internally prepared Financial Statements
within 60 days after the end of the fiscal quarter ending on March 31, 2008 certified by a
Financial Officer of the Borrower as fairly presenting in all material respects the financial
condition of the Borrower, together with a duly completed Compliance Certificate, in each case as
required under Section 5.2(b) of the Credit Agreement (the “Existing Default”). Subject to the
terms and conditions of this Agreement, the Lenders hereby waive the Existing Default; provided
however that (a) the Borrower complies with the requirements of Section 5.2(b) of the Credit
Agreement for the fiscal quarter ending on March 31, 2008 on or before August 13, 2008, and (b)
until such time as the Borrower complies with the requirements of Section 5.2(b) of the
Credit Agreement for the fiscal quarter ending on March 31, 2008, (i) the sum of the aggregate
outstanding amount of all Revolving Advances plus the Letter of Credit Exposure
plus the aggregate outstanding amount of all Swing Line Advances shall not exceed
$350,000,000 at any
time (provided, however, that the Commitment Fee shall continue to be calculated based on the
Total Commitment) and (ii) the Applicable Margin shall be determined at Level V. In addition, as a
result of and in connection with the Existing Default, the Lenders hereby waive the requirement
that the Borrower make the representation set forth in Section 4.4(a) with respect to the audited
financial statements for the Borrower and its Restricted Subsidiaries (other than the Wedge
Entities) dated as of December 31, 2007 being true and correct in all material respects and
presenting fairly in all material respects the consolidated financial condition of the Borrower and
its Restricted Subsidiaries (other than the Wedge Entities) as of the date thereof (the “Financial
Statement Representation”) until the earlier of (A) the date of the Borrower’s compliance with the
requirements of Section 5.2(b) of the Credit Agreement for the fiscal quarter ending on March 31,
2008 and (B) August 13, 2008. The waivers by the Lenders described in this Section 2 are
contingent upon the satisfaction of the conditions precedent set forth in Section 4 below and are
limited to the Existing Default and the Financial Statement Representation. Such waiver shall not
be construed to be a permanent waiver of the Sections covered by the Existing Default or the
Financial Statement Representation or any other terms, provisions, covenants, warranties or
agreements contained in the Credit Agreement or in any of the other Credit Documents. The
description herein of the Existing Default is based upon the information provided to the Lenders on
or prior to the date hereof and shall not be deemed to exclude the existence of any other Defaults
or Events of Default. The failure of the Lenders to give notice to the Borrower or the Guarantors
of any such other Defaults or Events of Default is not intended to be nor shall be a waiver
thereof.
Section 3. Representations and Warranties. The Borrower and each Guarantor hereby
represents and warrants that: (a) after giving effect to this Agreement, the representations and
warranties of such Person contained in the Credit Agreement (other than the Financial Statement
Representation) and the representations and warranties of such Person contained in the other Credit
Documents are true and correct in all material respects on and as of the Effective Date as if made
on as and as of such date, except to the extent that any such representation or warranty expressly
relates solely to an earlier date, in which case such representation or warranty is true and
correct in all material respects as of such earlier date; (b) after giving effect to this
Agreement, no Default has occurred and is continuing; (c) the execution, delivery and performance
of this Agreement are within the corporate, limited liability company or partnership power and
authority of such Person and have been duly authorized by appropriate corporate, limited liability
company or partnership action and proceedings; (d) this Agreement constitutes the legal, valid, and
binding obligation of such Person enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the rights
of creditors generally and general principles of equity; and (e) there are no governmental or other
third party consents, licenses and approvals required in connection with the execution, delivery,
performance, validity and enforceability of this Agreement.
Section 4. Conditions to Effectiveness. This Agreement shall become effective on the
Effective Date and enforceable against the parties hereto upon the occurrence of the following
conditions precedent: (a) the Administrative Agent shall have received multiple counterparts, as
requested by the Administrative Agent, of this Agreement duly and validly executed and delivered by
duly authorized officers of the Borrower and the Majority Lenders; and (b) the Borrower shall have
paid (i) to the Administrative Agent for the pro rata account of the Lenders executing this
Agreement, an amendment and consent fee equal to 0.02% of each
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such Lender’s Revolving Commitment in effect as of the Effective Date and (ii) any other fees
as may be agreed to between the Administrative Agent and the Borrower and all fees and expenses of
the Administrative Agent’s outside legal counsel pursuant to all invoices presented for payment on
or prior to the Effective Date. Such fees shall be non-refundable and deemed to be fully earned
when paid.
Section 5. Acknowledgments and Agreements.
(a) The Borrower acknowledges that on the date hereof all outstanding Obligations are payable
in accordance with their terms and the Borrower waives any defense, offset, counterclaim or
recoupment with respect thereto.
(b) The Administrative Agent and the Lenders hereby expressly reserve all of their rights,
remedies, and claims under the Credit Documents. Nothing in this Agreement shall constitute a
waiver or relinquishment of (i) any Default or Event of Default under any of the Credit Documents
other than as expressly set forth above with respect to the Existing Default, (ii) any of the
agreements, terms or conditions contained in any of the Credit Documents, other than as expressly
set forth above with respect to the Existing Default and the Financial Statement Representation,
(iii) any rights or remedies of the Administrative Agent or any Lender with respect to the Credit
Documents, or (iv) the rights of the Administrative Agent or any Lender to collect the full amounts
owing to them under the Credit Documents. The Lenders reserve the right to exercise any rights and
remedies available to them in connection with any other present or future defaults with respect to
the Credit Agreement or any other provision of any Credit Document.
(c) The Borrower hereby agrees and acknowledges that the Lenders require and will require
strict performance by the Borrower of all of its obligations, agreements and covenants contained in
the Credit Agreement and the other Credit Documents, and no inaction or action regarding any
Default or Event of Default is intended to be or shall be a waiver thereof.
(d) Each of the Borrower, the Guarantors, the Administrative Agent, the Issuing Lender, the
Swing Line Lender and the Lenders does hereby adopt, ratify, and confirm the Credit Agreement and
acknowledges and agrees that, except as specifically waived or amended hereby, the Credit Agreement
is and remains in full force and effect, and the Borrower and the Guarantors acknowledge and agree
that their respective liabilities and obligations under the Credit Agreement and the Guaranty, are
not impaired in any respect by this Agreement, other than as expressly set forth above with respect
to the Existing Default and the Financial Statement Representation.
(e) This Agreement is a Credit Document for the purposes of the provisions of the other Credit
Documents. Without limiting the foregoing, any breach of representations, warranties, and
covenants under this Agreement shall be a Default or Event of Default, as applicable, under the
Credit Agreement.
Section 6. Reaffirmation of the Guaranty. Each Guarantor hereby ratifies, confirms,
acknowledges and agrees that its obligations under the Guaranty are in full force and effect and
that such Guarantor continues to unconditionally and irrevocably guarantee the full
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and punctual payment, when due, whether at stated maturity or earlier by acceleration or
otherwise, all of the Guaranteed Obligations (as defined in the Guaranty), as such Guaranteed
Obligations may have been amended by this Agreement, and its execution and delivery of this
Agreement does not indicate or establish an approval or consent requirement by such Guarantor under
the Guaranty in connection with the execution and delivery of amendments, consents or waivers to
the Credit Agreement, the Notes or any of the other Credit Documents.
Section 7. Counterparts; Successors and Assigns. This Agreement may be signed in any
number of counterparts, each of which shall be an original and all of which, taken together,
constitute a single instrument. This Agreement may be executed electronically or by facsimile
signature and all such signatures shall be effective as originals. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns
permitted pursuant to the Credit Agreement.
Section 8. Invalidity; Governing Law. In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement. This Agreement shall be deemed to be a contract made under and
shall be governed by and construed in accordance with the laws of the State of Texas.
Section 9. Entire Agreement. THIS AGREEMENT, THE CREDIT AGREEMENT, THE NOTES, AND THE
OTHER CREDIT DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[SIGNATURES BEGIN ON NEXT PAGE]
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EXECUTED effective as of the date first above written.
| BORROWER: | PIONEER DRILLING COMPANY |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Xxxxx X. Xxxxxxx | ||||
| Chief Financial Officer | ||||
| GUARANTORS: | PIONEER DRILLING SERVICES, LTD. PIONEER PRODUCTION SERVICES, INC. PIONEER WIRELINE SERVICES HOLDINGS, INC. PIONEER WELL SERVICES HOLDINGS, INC. PIONEER FISHING & RENTAL SERVICES HOLDINGS, INC. PIONEER WELL SERVICES, LLC PIONEER FISHING & RENTAL SERVICES, LLC PIONEER WIRELINE SERVICES, LLC |
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| Each by: | /s/ Xxxxx X. Xxxxxxx | |||
| Xxxxx X. Xxxxxxx | ||||
| Chief Financial Officer | ||||
| ADMINISTRATIVE AGENT/ ISSUING LENDER/ SWING LINE LENDER/ LENDER: |
XXXXX FARGO BANK, N.A. |
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| By: | /s/ Xxxx Xxxxxxxxxxxxx | |||
| Xxxx Xxxxxxxxxxxxx | ||||
| Senior Vice President | ||||
| LENDERS: | XXXXX FARGO BANK, N.A., as a Lender |
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| By: | /s/ Xxxx Xxxxxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxxxxx | |||
| Title: | Senior Vice President | |||
| FORTIS BANK SA/NV, NEW YORK BRANCH, as a Lender |
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| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Managing Director | |||
| By: | /s/ K. De Lathauwer | |||
| Name: | K. De Lathauwer | |||
| Title: | Director | |||
| AMEGY BANK, NATIONAL ASSOCIATION, as a Lender |
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| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Assistant Vice President | |||
| NATIXIS, as a Lender |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Director | |||
| CATERPILLAR FINANCIAL SERVICES CORPORATION, as a Lender |
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| By: | /s/ Xxxxxxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxxxxx | |||
| Title: | Global Operations Manager-Capital Markets | |||
| BANK OF AMERICA, N.A., as a Lender |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Senior Vice-President | |||
| COMERICA BANK, as a Lender |
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| By: | /s/ Xxxx Xxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxx | |||
| Title: | Vice President | |||
Signature Page to Waiver Agreement
(Pioneer Drilling Company)
(Pioneer Drilling Company)
| THE FROST NATIONAL BANK, as Issuing Lender for Existing
Letters of Credit and a Lender |
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| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Senior Vice President | |||
Signature Page to Waiver Agreement
(Pioneer Drilling Company)
(Pioneer Drilling Company)
| THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, as a Lender |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
Signature Page to Waiver Agreement
(Pioneer Drilling Company)
(Pioneer Drilling Company)
| HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | First Vice President | |||
Signature Page to Waiver Agreement
(Pioneer Drilling Company)
(Pioneer Drilling Company)
| BANK OF SCOTLAND plc, as a Lender |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Assistant Vice President | |||
Signature Page to Waiver Agreement
(Pioneer Drilling Company)
(Pioneer Drilling Company)
| WHITNEY NATIONAL BANK, as a Lender |
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| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Vice President | |||
Signature Page to Waiver Agreement
(Pioneer Drilling Company)
(Pioneer Drilling Company)
