Exhibit 10.1
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment") is entered into as of June 22, 2006, by and among WARRIOR ENERGY
SERVICES CORPORATION (formerly known as Black Warrior Wireline Corp.), a
Delaware corporation ("Borrower"), any other Credit Parties signatory hereto,
the lenders signatory hereto and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation ("GE Capital"), as Agent for Lenders (in such capacity, the
"Agent").
RECITALS
A. Borrower, the other Credit Parties signatory thereto, GE Capital,
the lenders from time to time parties thereto (the "Lenders") and the Agent are
parties to a certain Second Amended and Restated Credit Agreement, dated as of
December 16, 2005, as amended by that certain First Amendment to Second Amended
and Restated Credit Agreement, dated as of March 15, 2006, and as amended by
that certain Second Amendment to Second Amended and Restated Credit Agreement,
dated as of April 12, 2006 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; capitalized terms used
herein and not defined herein have the meanings assigned to them in the Credit
Agreement).
B. Borrower has requested that the Agent and the Lenders amend the
Credit Agreement in certain respects and the Agent and the Lenders have agreed
to amend the Credit Agreement subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and intending to be legally bound, the parties
hereto agree as follows:
A. AMENDMENT
Section (a) of Annex F of the Credit Agreement is hereby amended by
increasing the Maximum Capital Expenditures limit for Fiscal Year 2006 from
$10,000,000 to $15,000,000.
B. CONDITIONS PRECEDENT
Notwithstanding any other provision of this Amendment and without
affecting in any manner the rights of the Agent and the Lenders hereunder, it is
understood and agreed that this Amendment shall not become effective, Borrower
shall have no rights under this Amendment and the Agent and the Lenders shall
not be obligated to take, fulfill or perform any action hereunder, until the
Agent shall have received counterparts of this Amendment duly executed by the
Requisite Lenders and all Credit Parties.
C. REPRESENTATIONS AND WARRANTIES
Each Credit Party hereby represents and warrants to the Lenders and the
Agent that:
1. The execution, delivery and performance by such Credit Party of this
Amendment (a) are within such Credit Party's corporate power; (b) have been duly
authorized by all necessary corporate and shareholder action; (c) are not in
contravention of any provision of such Credit Party's certificate of
incorporation or bylaws or other organizational documents; (d) do not violate
any law or regulation, or any order or decree of any Governmental Authority; (e)
do not conflict with or result in the breach or termination of, constitute a
default under or accelerate any performance required by, any indenture,
mortgage, deed of trust, lease, agreement or other instrument to which such
Credit Party or any of its Subsidiaries is a party or by which such Credit Party
or any such Subsidiary or any of their respective property is bound; (f) do not
result in the creation or imposition of any Lien upon any of the property of
such Credit Party or any of its Subsidiaries; and (g) do not require the consent
or approval of any Governmental Authority or any other Person;
2. This Amendment has been duly executed and delivered for the benefit
of or on behalf of each Credit Party and constitutes a legal, valid and binding
obligation of each Credit Party, enforceable against such Credit Party in
accordance with its terms except as the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
creditors' rights and remedies in general; and
3. After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing as of the date hereof.
D. OTHER AGREEMENTS
1. Continuing Effectiveness of Loan Documents. As amended hereby, all
terms of the Credit Agreement and the other Loan Documents shall be and remain
in full force and effect and shall constitute the legal, valid, binding and
enforceable obligations of Borrower. To the extent any terms and conditions in
any of the other Loan Documents shall contradict or be in conflict with any
terms or conditions of the Credit Agreement, after giving effect to this
Amendment, such terms and conditions are hereby deemed modified and amended
accordingly to reflect the terms and conditions of the Credit Agreement as
modified and amended hereby. Upon the effectiveness of this Amendment such terms
and conditions are hereby deemed modified and amended accordingly to reflect the
terms and conditions of the Credit Agreement as modified and amended hereby.
2. Reaffirmation and Acknowledgments.
(a) Reaffirmation. Borrower hereby restates, ratifies and reaffirms
each and every term and condition set forth in the Credit Agreement and the
other Loan Documents, effective as of the date hereof and after giving effect to
this Amendment.
(b) Acknowledgment of Perfection of Security Interest. Borrower hereby
acknowledges that, as of the date hereof, the security interests and liens
granted to the Agent and the Lenders under the Credit Agreement and the other
Loan Documents securing the Loans are in full force and effect, are properly
perfected and are enforceable in accordance with the terms of the Credit
Agreement and the other Loan Documents
3. Expenses. Borrower agrees to pay on demand all costs and expenses of
the Agent in connection with the preparation, execution, delivery and
enforcement of this Amendment, the closing hereof, and any other transactions
contemplated hereby, including the fees and out-of-pocket expenses of Agent's
counsel.
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4. GOVERNING LAW. IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA.
5. Counterparts. This Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
this Amendment by facsimile transmission or by electronic mail in pdf form shall
be as effective as delivery of a manually executed counterpart hereof.
6. Binding Nature. This Amendment shall be binding upon and inure to
the benefit of the parties hereto, their respective successors,
successors-in-titles, and assigns.
7. Entire Understanding. This Amendment sets forth the entire
understanding of the parties with respect to the matters set forth herein, and
shall supersede any prior negotiations or agreements, whether written or oral,
with respect thereto.
8. Release. Each Credit Party hereby releases, acquits, and forever
discharges the Agent and each of the Lenders, and each and every past and
present subsidiary, affiliate, stockholder, officer, director, agent, servant,
employee, representative, and attorney of the Agent and the Lenders, from any
and all claims, causes of action, suits, debts, liens, obligations, liabilities,
demands, losses, costs and expenses (including reasonable attorneys' fees) of
any kind, character, or nature whatsoever, known or unknown, fixed or
contingent, which such Credit Party may have or claim to have now or which may
hereafter arise out of or connected with any act of commission or omission of
the Agent or the Lenders existing or occurring prior to the date of this
Amendment or any instrument executed prior to the date of this Amendment
including, without limitation, any claims, liabilities or obligations arising
with respect to the Credit Agreement or the other of the Loan Documents, other
than claims, liabilities or obligations caused by Agent's or any Lender's own
gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction. The provisions of this paragraph shall be binding upon
each Credit Party and shall inure to the benefit of Agent, the Lenders, and
their respective heirs, executors, administrators, successors and assigns.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
WARRIOR ENERGY SERVICES
CORPORATION, as Borrower
By: /S/Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
[SIGNATURE PAGE TO THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and a Lender
By:
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Name:
Title: Duly Authorized Signatory
[SIGNATURE PAGE TO THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
CIT BUSINESS CREDIT, INC., as a Lender
By:
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Name:
Title:
[SIGNATURE PAGE TO THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
LASALLE BUSINESS CREDIT, LLC, as a Lender
By:
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Name:
Title:
[SIGNATURE PAGE TO THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
