Exhibit 10.12C
AMENDMENT NO. 2
This Amendment No. 2 dated as of December 5, 2006 (this "Amendment") is
among Oil States International, Inc., a Delaware corporation (the "U.S.
Borrower"), PTI Group Inc., a corporation amalgamated under the laws of the
Province of Alberta (the "Canadian Borrower" and, together with the U.S.
Borrower, the "Borrowers"), each of the Guarantors, the lenders party to the
Credit Agreement described below (the "Lenders"), Xxxxx Fargo Bank, N.A. ("Xxxxx
Fargo"), as administrative agent (in such capacity, the "Administrative Agent")
for the Lenders, and The Bank of Nova Scotia ("BNS"), as administrative agent
(in such capacity, the "Canadian Administrative Agent") for the Canadian Lenders
(as defined in Credit Agreement described below).
INTRODUCTION
A. The Borrowers, the Lenders and the Agents are parties to the
Credit Agreement dated as of October 30, 2003, as amended by Amendment No. 1
dated as of January 31, 2005 (the "Credit Agreement").
B. The Borrower has requested that the Lenders agree to (1)
increase the Total Commitments to $400,000,000, (2) extend the Maturity Date
from January 31, 2010 to December 5, 2011 and (3) make certain other amendments
to the Credit Agreement.
THEREFORE, the Borrower, the Agents and the Lenders hereby agree as
follows:
Section 1. Definitions. Unless otherwise defined in this
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Amendment, terms used in this Amendment that are defined in the Credit Agreement
shall have the meanings assigned to such terms in the Credit Agreement.
Section 2. Amendments. The Credit Agreement shall be amended as
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follows:
(a) The second paragraph of the Credit Agreement shall be amended
by replacing (i) "U.S.$280,000,000" with "U.S.$300,000,000" and (ii)
"U.S.$45,000,000" with "U.S.$100,000,000".
(b) Section 1.01 of the Credit Agreement shall be amended as
follows:
(i) the definition of "Administrative Fee Letter" shall be
amended by replacing "December 13, 2004" with "October 23, 2006";
(ii) the definition of "Applicable Percentage" shall be
amended by replacing the table set forth therein in its entirety as
follows:
ABR, Canadian
Prime Rate and
Eurocurrency/B/A U.S. Base Rate Commitment
Leverage Ratio Spread Spread Fee Percentage
--------------------------------- ----------------- ---------------- ----------------
Category 1
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Less than 1.00 to 1.00 0.50% 0% 0.175%
Category 2
Greater than or equal to 0.75% 0% 0.20%
1.00 to 1.00 but less than
1.50 to 1.00
Category 3
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Greater than or equal to 1.00% 0% 0.20%
1.50 to 1.00 but less than
2.00 to 1.00
Category 4
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Greater than or equal to 1.125% 0% 0.25%
2.00 to 1.00 but less than
2.50 to 1.00
Category 5
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Greater than or equal to 1.25% 0% 0.25%
2.50 to 1.00
(iii) the definition of "Canadian Lender" shall be amended in
its entirety as follows:
"Canadian Lenders" shall mean Lenders having Canadian
Commitments or outstanding Canadian Loans. Each Canadian Lender at all
times shall be a resident of Canada for the purposes of the ITA.
(iv) the definition of "Confidential Information Memorandum"
shall be amended by replacing "October 2003" with "November 2006";
(v) the definition of "Material Indebtedness" shall be
amended by replacing "U.S.$5,000,000" with "U.S.$25,000,000";
(vi) the definition of "Maturity Date" shall be amended in
its entirety as follows:
"Maturity Date" shall mean December 5, 2011, or, with respect
to each Consenting Lender, the latest date (not later than December 5,
2012) to which the Maturity Date shall have been extended pursuant to
Section 2.09(d).
(vii) the definitions of "Mortgaged Properties", and
"Mortgages" shall be deleted;
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(viii) the definition of "Security Documents" shall be amended
by deleting "the Mortgages"; and
(ix) the following new definitions shall be added in
appropriate alphabetical order:
"Incremental Assumption Agreement" shall mean an Incremental
Assumption Agreement in form and substance reasonably satisfactory to
the Administrative Agent, among either or both of the Borrowers, the
Applicable Administrative Agent and one or more Incremental Lenders.
"Incremental Commitment" shall mean the commitment of any
Lender, established pursuant to Section 2.23, to make Loans to either
or both of the Borrowers.
"Incremental Commitment Amount" shall mean, at any time, the
excess, if any, of (a) U.S.$100,000,000 over (b) the aggregate amount
of all Incremental Commitments established prior to such time pursuant
to Section 2.23.
"Incremental Lender" shall have the meaning assigned to such
term in Section 2.23.
"SEC" means the Securities and Exchange Commission, and any
successor entity.
"Second Amendment Effective Date" means the date that
Amendment No. 2 dated as of December 5, 2006 among the U.S. Borrower,
the Canadian Borrower, the Guarantors, the Lenders and the
Administrative Agents, becomes effective.
(c) Section 2.05(c) is amended by replacing "$600" with "$450";
(d) A new section 2.09(d) is hereby added as follows:
(d) The Borrowers may, by notice to the Administrative Agent
(which shall promptly deliver a copy to each of the Lenders) given not
more than 60 days but not less than 30 days prior to the date that is
one (1) year prior to the Maturity Date, request that the Lenders
extend the Maturity Date for an additional period of not more than one
year as specified in such notice. Each Lender shall, by notice to the
Borrowers and the Administrative Agent given not later than 15 days
following receipt of the Borrowers' request, advise the Borrowers
whether or not it agrees to such extension. Any Lender that has not so
advised the Borrowers and the Administrative Agent by such day shall be
deemed to have declined to agree to such extension. Each such Lender
that agrees to such extension is referred to herein as a "Consenting
Lender" and each such Lender that does not agree to such extension is
referred to herein as a "Non-Consenting Lender". If the Borrowers shall
have requested and if the Required Lenders shall have agreed to an
extension of the Maturity Date, then the Maturity Date for each such
Consenting Lender's Loans shall be extended for the additional period
specified in the Borrowers' request. The decision to agree or withhold
agreement to any extension of the Maturity Date hereunder shall be at
the sole discretion of each Lender.
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Notwithstanding the foregoing provisions of this paragraph, (i) the
Maturity Date may not be extended to a date later than December 5,
2012, (ii) the Borrowers shall have the right, pursuant to Section
2.20(a), to replace any Non-Consenting Lender that has declined to
agree to any requested extension of the Maturity Date with a Consenting
Lender or other financial institution that will agree to such extension
of the Maturity Date, (iii) if Lenders holding at least a majority but
less than 100% of the Commitments of a Class shall have agreed to such
requested extension, the applicable Borrower may prepay at any time
before the then existing Maturity Date or shall repay on the then
existing Maturity Date, on a non-pro rata basis, the Loans (together
with accrued and unpaid interest and Fees), and terminate the
Commitments, of the Non-Consenting Lenders of such Class and (iv) the
Borrowers shall have the right, any time prior to the Maturity Date
then in effect, to withdraw their request for an extension under this
paragraph by notice to the Administrative Agent (which shall promptly
deliver a notice to each Lender), in which case the Maturity Date will
not be so extended. Notwithstanding the foregoing, no extension of the
Maturity Date shall become effective under this Section 2.09(d) unless
(A) the representations and warranties set forth in Article III hereof
and in each other Loan Document shall be true and correct in all
material respects on and as of the date of such extension with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, (B)
each Borrower and each other Loan Party shall be in compliance with all
the terms and provisions set forth herein and in each other Loan
Document on its part to be observed or performed, and at the time of
and immediately after such extension, no Event of Default or Default
shall have occurred and be continuing, and (C) there shall have been no
material adverse change in the business, assets, operations, condition
(financial or otherwise) or prospects of the Borrowers and the
Subsidiaries, taken as a whole, since December 31, 2005, and the
Administrative Agent shall have received a certificate to that effect
dated such date and executed by a Financial Officer of the U.S.
Borrower.
(e) Section 2.21(b) is amended by replacing (i) "U.S.$25,000,000"
with "U.S.$50,000,000" and (ii) "U.S.$7,500,000" with "U.S.$10,000,000";
(f) Section 2.21(c) is amended by replacing "12 months" with "24
months";
(g) Section 2.22(h) is amended by adding the following at the end
thereof:
Each B/A Equivalent Loan shall be evidenced by a non-interest bearing
promissory note of the Canadian Borrower, denominated in Canadian
Dollars, executed and delivered by the Canadian Borrower to such
Canadian Lender, substantially in the form of Exhibit L.
(h) A new Section 2.23 is hereby added as follows:
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SECTION 2.23. Increase in Commitments. (a) The U.S. Borrower
may, by written notice to the Administrative Agents from time to time
after the Closing Date, request that the Total Commitment be increased
by an amount not to exceed the Incremental Commitment Amount at such
time by delivering a request to the Administrative Agent, who shall
deliver a copy thereof to each Lender. Such notice shall set forth (a)
the amount of the requested increase in the Total Commitment (which
shall be in minimum increments of U.S.$1,000,000 and a minimum amount
of U.S.$25,000,000 or equal to the remaining Incremental Commitment
Amount), (b) the amount of the requested increase in the Total U.S.
Commitment, the Total Canadian Commitment or both and (c) the date on
which such increase is requested to become effective (which shall not
be less than 10 Business Days nor more than 60 days after the date of
such notice and which, in any event, must be on or prior to the
Maturity Date), and shall offer one or more Lenders the opportunity to
increase their U.S. Commitment or its Canadian Commitment, as
applicable. Each Lender so agreeing to increase its Commitment by all
or a portion of the offered amount (each such Lender being an
"Increasing Lender") shall give notice to the Borrowers and the
Administrative Agents not more than 10 days after the date of the
Administrative Agent's notice. Any Lender that declines to increase its
Commitment or does not deliver such a notice within such period of 10
days, in which case such Lender shall be deemed to have declined to
increase its Commitment, shall be a "Non-Increasing Lender". The
decision to agree to increase its Commitment hereunder shall be at the
sole discretion of each Lender. In the event that, on the 10th day
after the Administrative Agent shall have delivered a notice pursuant
to the second sentence of this paragraph, the Lenders shall have
declined any increase or agreed pursuant to the preceding sentence to
increase their Commitment by an aggregate amount less than the increase
in the Total Commitment requested by the U.S. Borrower, the U.S.
Borrower may arrange for one or more banks or other entities (any such
bank or other entity referred to in this clause (a) being called an
"Augmenting Lender" and, together with the Increasing Lenders, the
"Incremental Lenders"), to extend the Commitment in an aggregate amount
equal to the unsubscribed amount; provided that each Augmenting Lender
shall be subject to the approval of the Administrative Agents and the
Issuing Banks (which approvals shall not be unreasonably withheld or
delayed). Any increase in the Total Commitment may be made in an amount
which is less than the increase requested by the U.S. Borrower if the
U.S. Borrower is unable to arrange for, or chooses not to arrange for,
Augmenting Lenders.
(b) The Borrowers and each Incremental Lender shall execute
and deliver to the Administrative Agent an Incremental Assumption
Agreement and such other documentation as the Administrative Agent
shall reasonably specify to evidence the Incremental Commitment of such
Incremental Lender or its status as a Lender hereunder. The
Administrative Agent shall promptly notify each Lender as to the
effectiveness of each Incremental Assumption Agreement. Each of the
parties hereto hereby agrees that, upon the effectiveness of any
Incremental Assumption Agreement, this Agreement shall be deemed
amended to the extent (but only to the extent) necessary to reflect the
existence and terms of the Incremental Commitment evidenced thereby.
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(c) Each of the parties hereto hereby agrees that the
Administrative Agents may take any and all actions as may be reasonably
necessary to ensure that, after giving effect to any increase in the
Total Commitment pursuant to this Section 2.23, the outstanding U.S.
Loans (if any) are held by the U.S. Lenders in accordance with their
new U.S. Pro Rata Percentages and the outstanding Canadian Loans (if
any) are held by the Canadian Lenders in accordance with their new
Canadian Pro Rata Percentages. This may be accomplished at the
discretion of the Administrative Agents (i) by requiring the
outstanding Loans to be prepaid with the proceeds of a new Borrowing,
(ii) by causing Non-Increasing Lenders to assign portions of their
outstanding Loans to Incremental Lenders, (iii) by permitting the
Borrowings outstanding at the time of any increase in the Total
Commitment pursuant to this Section 2.23 to remain outstanding until
the last days of the respective Interest Periods therefor, even though
the Lenders would hold such Borrowings other than in accordance with
their new Pro Rata Percentages, or (iv) by any combination of the
foregoing. Any prepayment or assignment described in this paragraph (c)
shall be subject to indemnification by the Borrowers pursuant to
Section 2.15, but otherwise without premium or penalty.
(d) Notwithstanding the foregoing, no increase in the Total
Commitment (or in the Commitment of any Lender) or addition of a new
Lender shall become effective under this Section 2.23 unless, (i) (A)
the representations and warranties set forth in Article III hereof and
in each other Loan Document shall be true and correct in all material
respects on and as of the date of such increase with the same effect as
though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, (B)
each Borrower and each other Loan Party shall be in compliance with all
the terms and provisions set forth herein and in each other Loan
Document on its part to be observed or performed, and at the time of
and immediately after such increase, no Event of Default or Default
shall have occurred and be continuing, and (C) there shall have been no
material adverse change in the business, assets, operations, condition
(financial or otherwise) or prospects of the Borrowers and the
Subsidiaries, taken as a whole, since December 31, 2005, and the
Administrative Agent shall have received a certificate to that effect
dated such date and executed by a Financial Officer of the U.S.
Borrower and (ii) the Administrative Agent shall have received (with
sufficient copies for each of the Lenders) legal opinions, board
resolutions and an officer's certificate consistent with those
delivered on the Closing Date under clauses (a)(i) and (c)(ii)(B) of
Section 4.02.
(i) Section 3.04 is amended by deleting "filings with the United
States Patent and Trademark Office and the United States Copyright Office,
recordation of the Mortgages in the offices specified in Schedule 3.19".
(j) Section 3.06 is amended by replacing "December 31, 2002" with
"December 31, 2005".
(k) Section 3.12 is amended in its entirety to read as follows:
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SECTION 3.12. Investment Company Act. Neither Borrower nor any
Subsidiary is an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940.
(l) Sections 3.19(c) and (d) and 3.20 are deleted in their
entirety.
(m) Section 4.01(d) is amended by replacing "December 31, 2002"
with "December 31, 2005".
(n) Sections 5.02(c) and (d) are deleted in their entirety.
(o) Section 5.04(a) is amended by replacing "within 90 days after
the end of each fiscal year" with "within five Business Days after the date in
each fiscal year on which the Parent is required to file its Annual Report on
Form 10-K with the SEC (or would be required if the Parent is no longer required
to file regular and periodic reports with the SEC), in each case without giving
effect to any extension thereof".
(p) Section 5.04(b) is amended by replacing "within 45 days after
the end of each of the first three fiscal quarters of each fiscal year" with
"within five Business Days after each date in each fiscal year on which the
Parent is required to file a Quarterly Report on Form 10-Q with the SEC (or
would be required if the Parent is no longer required to file regular and
periodic reports with the SEC), in each case without giving effect to any
extension thereof".
(q) Section 5.09 is amended in its entirety as follows:
SECTION 5.09. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take
all further action (including filing Uniform Commercial Code, Personal
Property Security Act and other financing statements) that may be
required under applicable law, or that the Administrative Agent or the
Collateral Agent may reasonably request, in order to effectuate the
transactions contemplated by the Loan Documents and in order to grant,
preserve, protect and perfect the validity and first priority of the
security interests created or intended to be created by the Security
Documents. The U.S. Borrower will cause any subsequently acquired or
organized Domestic Subsidiary that is a Material Subsidiary or any
Domestic Subsidiary that was not a Material Subsidiary that
subsequently becomes a Material Subsidiary to execute a supplement
making it a party to the U.S. Subsidiary Guarantee Agreement and each
applicable U.S. Security Document in favor of the Collateral Agent.
Furthermore, if a Subsidiary, at any time, fails to meet any of the
requirements set forth in the definition of "Inactive Subsidiary", the
U.S. Borrower will, at its sole cost and expense, take all actions
necessary or as requested by the either Collateral Agent, to cause such
Collateral Agent to have a valid, first priority and perfected security
interest in all of the Equity Interest (or 65% of the Equity Interest
if such Subsidiary is a first-tier Foreign Subsidiary) in such
Subsidiary. The Canadian Borrower will cause any subsequently acquired
or organized Canadian Subsidiary that is a Material Subsidiary or any
Canadian Subsidiary that was not a Material Subsidiary that
subsequently becomes a Material Subsidiary to
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execute a supplement to the Canadian Subsidiary Guarantee Agreement and
each applicable Canadian Security Document. In addition, from time to
time, the Borrowers will, at their cost and expense, promptly secure
the Obligations by pledging or creating, or causing to be pledged or
created, perfected security interests with respect to such of their
respective personal property located within the United States or Canada
as the Administrative Agent shall designate (it being understood that
it is the intent of the parties that the Obligations of the U.S.
Borrower shall be secured by substantially all the material personal
property of the U.S. Borrower and the U.S. Subsidiary Guarantors
located in the United States (including 100% of the Equity Interests of
Domestic Subsidiaries that are not Inactive Subsidiaries and 65% of the
Equity Interests of Foreign Subsidiaries that are not Inactive
Subsidiaries and that are directly owned by the U.S. Borrower or any
Domestic Subsidiary), and the Obligations of the Canadian Borrower
shall be secured by substantially all the material personal property of
the Canadian Borrower and the Canadian Subsidiary Guarantors located in
Canada (including personal property which, individually, has a fair
market value in excess of U.S.$250,000). Such security interests and
Liens will be created under the Security Documents and other security
agreements, instruments and documents in form and substance reasonably
satisfactory to the Collateral Agents, and the Borrowers shall deliver
or cause to be delivered to the Lenders all such instruments and
documents (including legal opinions and lien searches) as the
Collateral Agents shall reasonably request to evidence compliance with
this Section. The Borrowers agree to provide such evidence as the
Collateral Agents shall reasonably request as to the perfection and
priority status of each such security interest and Lien.
Notwithstanding the foregoing, the parties agree that recordings in the
United States Patent and Trademark Office, the United States Copyright
Office and the Canadian Intellectual Property Office will not be
required with respect to registered trademarks, trademark applications
and copyrights of any Loan Party.
(r) Section 6.01 shall be amended as follows:
(i) Subsection (d) thereof shall be amended by (A) replacing
"when combined with the aggregate principal amount of all Capital Lease
Obligations incurred pursuant to Section 6.01(e)" with "when combined
with the aggregate principal amount of all Capital Lease Obligations
incurred pursuant to Section 6.01(e), all Permitted Seller Paper
incurred pursuant to Section 6.01(h) and Subsidiary Indebtedness
incurred pursuant to Section 6.01(k)" and (B) replacing
"U.S.$10,000,000 at any time outstanding" with "10% of the U.S.
Borrower's Consolidated Net Worth calculated on the date of incurrence
as of the most recent fiscal quarter for which financial statements are
available";
(ii) Subsection (e) thereof shall be amended by (A) replacing
"when combined with the aggregate principal amount of all Indebtedness
incurred pursuant to Section 6.01(d)" with "when combined with the
aggregate principal amount of all Indebtedness incurred pursuant to
Section 6.01(d), all Permitted Seller Paper incurred pursuant to
Section 6.01(h) and Subsidiary Indebtedness incurred pursuant to
Section 6.01(k)" and (B) replacing "U.S.$10,000,000 at any time
outstanding" with "10% of the U.S. Borrower's Consolidated Net Worth
calculated on the date of incurrence as of the most recent fiscal
quarter for which financial statements are available";
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(iii) Subsection (h) thereof shall be amended by replacing
"U.S.$10,000,000 at any time outstanding" with ", when combined with
the aggregate principal amount of all Indebtedness incurred pursuant to
Section 6.01(d), all Capital Lease Obligations incurred pursuant to
Section 6.01(e) and Subsidiary Indebtedness incurred pursuant to
Section 6.01(k), 10% of the U.S. Borrower's Consolidated Net Worth
calculated on the date of incurrence as of the most recent fiscal
quarter for which financial statements are available";
(iv) Subsection (j) thereof shall be amended by (A) deleting
"in an aggregate principal amount not to exceed $200,000,000" and (B)
deleting the "and" before subclause (iii) thereof and adding the
following new subsection (iv):
and (iv) such Indebtedness shall contain terms and conditions
that are customary for such transactions; and any extensions,
renewals or replacements of such Indebtedness; provided that
(A) neither the final maturity nor the weighted average life
to maturity of such Indebtedness is decreased, and (B) the
other requirements of this Section 6.01(j) are satisfied
(v) Subsection (k) thereof shall be amended by adding after
"Indebtedness of the Subsidiaries in an aggregate principal amount not
to exceed", "when combined with the aggregate principal amount of all
Indebtedness incurred pursuant to Section 6.01(d), all Capital Lease
Obligations incurred pursuant to Section 6.01(e) and Permitted Seller
Paper incurred pursuant to Section 6.01(h)";
(s) Section 6.04(f) shall be amended in its entirety as follows:
(f) (i) any Subsidiary may make intercompany loans to a
Borrower or any Subsidiary Guarantor, (ii) each Borrower may make
intercompany loans and advances to the other Borrower or any Subsidiary
Guarantor and (iii) the U.S. Borrower may make intercompany loans and
advances to 3045843 Nova Scotia Company provided that the proceeds of
such loans and advances are subsequently loaned or advanced, directly
or indirectly, to the Canadian Borrower or a Canadian Subsidiary
Guarantor;
(t) Section 6.04(i) shall be amended by adding "and" before
subclause (iii) thereof and deleting subclause (iv) thereof in its entirety up
to the parenthetical definition of "Permitted Acquisition".
(u) Section 6.05(b) shall be amended in its entirety as follows:
(b) Engage in any Asset Sale otherwise permitted under
paragraph (a) above unless (i) such consideration is at least equal to
the fair market value of the assets being sold, transferred, leased or
disposed of and (ii) the fair market value of all assets sold,
transferred, leased or disposed of pursuant to this paragraph (b) after
the Second Amendment Effective Date shall not exceed 10% of
Consolidated Net Worth calculated on the date of incurrence as of the
most recent fiscal quarter for which financial statements are available
in the aggregate.
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(v) Section 6.06(a)(iii) shall be amended in its entirety as
follows:
(iii) so long as (A) no Event of Default or Default shall have
occurred and be continuing or result therefrom, (B)
U.S.$10,000,000 of the Total Commitment is unused and
available after giving effect to such Restricted Payment, and
(C) the Borrowers would be in pro forma compliance with the
covenants set forth in Sections 6.10 and 6.11 after giving
effect to such Restricted Payment, the U.S. Borrower and, with
respect to the Exchangeable Shares, PTI Holdco (with funds
advanced by the U.S. Borrower) may make Restricted Payments in
any amount.
(w) Section 6.11 shall be amended in its entirety as follows:
SECTION 6.11. Maximum Leverage Ratio. Permit the
Leverage Ratio for any period of four consecutive fiscal
quarters of the U.S. Borrower, in each case taken as one
accounting period, to be greater than (a) 3.5 to 1.0 for each
fiscal quarter ending from December 31, 2006 through December
31, 2008, (b) 3.25 to 1.0 for each fiscal quarter ending from
March 31, 2009 through December 31, 2009 and (c) 3.00 to 1.00
for each fiscal quarter thereafter.
(x) Section 6.12 shall be amended in its entirety to read
"[Reserved]".
(y) Subsections (i) and (j) of Article VII are amended by
replacing "U.S.$5,000,000" with "U.S.$25,000,000".
(z) Schedule 2.01 to the Credit Agreement shall be amended in its
entirety with Schedule 2.01 attached to this Amendment.
(aa) Schedules 1.01(d), 3.20(a), and 3.20(b) and Xxxxxxxx X-0, X-0
and D-3 are deleted in their entirety.
(bb) The Credit Agreement shall be amended by adding Exhibit L
attached hereto as Exhibit L to the Credit Agreement.
Section 3. Release. Each of the Secured Parties hereby acknowledges
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and agrees that (a) all security interests and other Liens in favor of the
Collateral Agents for the benefit of the Secured Parties in the Mortgaged
Properties pursuant to the Mortgages and other Collateral described in the
Mortgages and encumbered thereby are hereby released, and (b) all of the
recordings in the United States Patent and Trademark Office, the United States
Copyright Office and the Canadian Intellectual Property Office with respect to
registered trademarks, trademark applications and copyrights of any Loan Party
shall be terminated. Each Administrative Agent hereby agrees from time to time,
upon request, without further consideration, other than the reimbursement for
any reasonable and necessary costs, to execute, deliver, acknowledge and file
all such further releases, termination statements, documents, agreements,
certificates and instruments and do such further acts as any Loan Party may
reasonably require to more effectively evidence or effectuate the releases
contemplated by this Section 3.
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Section 4. Representations and Warranties. The Borrowers represent and
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warrant to the Administrative Agent and the Lenders that:
(a) the representations and warranties set forth in Article III of
the Credit Agreement and in each other Loan Document are true and correct in all
material respects on and as of the date hereof with the same effect as though
made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date;
(b) each Borrower and each other Loan Party are in compliance with
all the terms and provisions set forth in the Credit Agreement and in each other
Loan Document on its part to be observed or performed, and as of the date
hereof, no Event of Default or Default has occurred and is continuing;
(c) there has been no material adverse change in the business,
assets, operations, condition (financial or otherwise) or prospects of the
Borrowers and the Subsidiaries, taken as a whole, since December 31, 2005; and
(d) (i) the execution, delivery, and performance of this Amendment
are within the corporate power and authority of the Borrowers and have been duly
authorized by appropriate proceedings, and (ii) this Amendment constitutes a
legal, valid, and binding obligation of the Borrowers, 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.
Section 5. Effectiveness. This Amendment shall become effective, and
the Credit Agreement shall be amended as provided in this Amendment, upon the
occurrence of the following conditions precedent:
(a) the Agents shall have received, on behalf of themselves, the
Lenders and the Issuing Banks;
(i) duly and validly executed originals of this Amendment to
the Administrative Agent;
(ii) if requested by any Lender, a new promissory note or
promissory notes payable to such Lender in the amount of its U.S.
Commitment and/or Canadian Commitment, as applicable, and in form and
substance reasonably acceptance to the Applicable Administrative Agent
and the applicable Borrower;
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(iii) a favorable written opinion of (A) Xxxxxx & Xxxxxx
L.L.P., U.S. counsel for the Borrowers, and (B) Fraser Xxxxxx Casgrain,
Canadian counsel to the Canadian Borrower, in each case (1) dated the
date of this Amendment, (2) addressed to the Issuing Banks, the
Administrative Agents and the Lenders, and (3) covering such matters
relating to the Loan Documents as the Administrative Agent shall
reasonably request;
(iv) a certificate as to the good standing or tax status of
each Loan Party as of a recent date, from the Secretary of State or
other relevant Governmental Authority of the state or jurisdiction of
its organization;
(v) a certificate of the Secretary or Assistant Secretary of
each Loan Party dated the date of this Amendment and certifying (A)
that that there have been no changes to the organizational documents of
such Loan Party since the Closing Date or attaching such amendments,
(B) that attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors of such Loan Party authorizing
the execution, delivery and performance of this Amendment and the other
Loan Documents to which such person is a party and that such
resolutions have not been modified, rescinded or amended and are in
full force and effect, and (C) as to the incumbency and specimen
signature of each officer executing this Amendment or any Loan Document
or any other document delivered in connection herewith on behalf of
such Loan Party;
(vi) a certificate, dated the date of this Amendment and
signed by a Financial Officer of the U.S. Borrower, confirming
compliance with Section 4(a), (b) and (c) of this Amendment;
(vii) each document (including each financing statement)
required by law or reasonably requested any Collateral Agent to be
filed, registered or recorded in order to create in favor of the
Applicable Collateral Agent for the benefit of the Secured Parties a
valid, legal and perfected first-priority security interest in and lien
on the Collateral (subject to any Lien expressly permitted by Section
6.02) described in such agreement shall have been delivered to the
Applicable Collateral Agent; and
(viii) such other documents, governmental certificates,
agreements, and lien searches as any Lender or any Agent may reasonably
request;
(b) the Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the date of this Amendment,
including, (i) an upfront fee payable to the Administrative Agent for the
account of each Lender in an amount equal to 10 basis points of such Lender's
final allocated Commitment, as modified by this Amendment, and (ii) to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
(including, without limitation, the reasonable fees, charges and disbursements
of counsel for the Administrative Agent) required to be reimbursed or paid by
the Borrowers hereunder or under any other Loan Document; and
(c) all requisite Governmental Authorities and third parties shall
have approved or consented to the transactions contemplated hereby to the extent
required and there shall be no litigation, governmental or judicial action,
actual or threatened, that could reasonably be expected to restrain, prevent or
impose burdensome conditions on the transactions contemplated hereby.
-16-
Section 6. Reaffirmation of Guaranty and Liens.
-----------------------------------
(a) Each Subsidiary of the U.S. Borrower that is listed on the
signature pages to this Amendment (each, a "Guarantor") (i) is party to a
Guarantee Agreement, guaranteeing payment of the Obligations, (ii) has reviewed
the Amendment and related documents, and (iii) waives any defenses to the
enforcement of its Guaranty that it may have, and agrees that according to its
terms such Guarantee will continue in full force and effect to guaranty the
Obligations under the Loan Documents, as the same may be amended, supplemented,
or otherwise modified, and such other amounts in accordance with the terms of
such Guaranty.
(b) The Borrowers and each Guarantor (i) are parties to certain
Security Documents securing and supporting the Obligations, (ii) have reviewed
the Amendment and related documents, (iii) waive any defenses that it may have
to the enforcement of the Security Documents to which they are party, and (iv)
agree that according to their terms the Security Documents to which they are
party such Security Documents (as such term is modified by this Amendment) will
continue in full force and effect to secure the Obligations under the Loan
Documents, as the same may be amended, supplemented, or otherwise modified, and
(v) acknowledge, represent, and warrant that the Liens and security interests
created by the Security Documents are valid and subsisting and create a first
priority perfected security interest subject to Liens expressly permitted by
Section 6.02 in the Collateral to secure the Obligations.
(c) The delivery of this Amendment does not indicate or establish
a requirement that any Guarantee or Security Document requires any Borrower's or
any Guarantor's approval of amendments to the Credit Agreement, but has been
furnished to the Agents and the Lenders as a courtesy at the Administrative
Agent's request.
Section 7. Effect on Credit Documents.
--------------------------
(a) Except as amended herein, the Credit Agreement and the Loan
Documents remain in full force and effect as originally executed, and nothing
herein shall act as a waiver of any of the Administrative Agent's or Lenders'
rights under the Loan Documents, as amended, including the waiver of any Default
or Event of Default, however denominated.
(b) This Amendment is a Loan Document for the purposes of the
provisions of the other Loan Documents. Without limiting the foregoing, any
breach of representations, warranties, and covenants under this Amendment may be
a Default or Event of Default under other Loan Documents.
Section 8. Choice of Law. This Amendment shall be governed by and
-------------
construed and enforced in accordance with the laws of the State of Texas.
Section 9. Counterparts. This Amendment may be signed in any number of
------------
counterparts, each of which shall be an original. Delivery of an executed
signature page to this Amendment by facsimile transmission shall be as effective
as delivery of a manually signed counterpart of this Amendment.
Section 10. Return of Notes. Each Lender that has requested a new
---------------
promissory note or promissory notes payable to such Lender in the amount of its
U.S. Commitment and/or Canadian Commitment, as applicable, pursuant to Section
5(a)(ii) hereof hereby agrees to return its original promissory note(s), if any,
in exchange for the new requested promissory notes; provided, however that the
failure of any Lender to do so shall not affect the effectiveness of this
Amendment.
[The remainder of this page has been left blank intentionally.]
-17-
EXECUTED to be effective as of the date first above written.
BORROWER:
OIL STATES INTERNATIONAL, INC.
by
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President,
Chief Financial Officer
and Treasurer
PTI GROUP INC.
by
-------------------------------
Name: Xxxx Xxxxxx
Title: CFO and Treasurer
OIL STATES SKAGIT SMATCO, LLC
OIL STATES INDUSTRIES, INC.
each by
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
and Assistant Secretary
SOONER PIPE LP, L.L.C.
CAPSTAR DRILLING LP, L.L.C.
by
-------------------------------
Name: Xxxx Xxxxx Xxxxx
Title: Sole Manager/President
A - Z TERMINAL CORPORATION
CAPSTAR DRILLING, L.P.
By: Oil States Energy
Services, Inc.,
its general partner
CAPSTAR DRILLING GP, L.L.C.
By: Oil States Energy
Services, Inc.,
its sole member
XXXXXXXX EXPLORATION COMPANY, INC.
GENERAL MARINE LEASING, LLC
OIL STATES ENERGY SERVICES, INC.
STINGER WELLHEAD PROTECTION
(CANADA) INCORPORATED
STINGER WELLHEAD PROTECTION
INCORPORATED
SOONER HOLDING COMPANY
SOONER INC.
SOONER PIPE GP, L.L.C.
SOONER PIPE, L.P.,
By: Sooner Pipe GP, L.L.C.,
its general partner
SPECIALTY RENTAL TOOLS & SUPPLY, L.P.
By: Capstar Drilling GP, L.L.C.,
its general partner
each by
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
OIL STATES SKAGIT SMATCO, LLC
OIL STATES INDUSTRIES, INC.
each by
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
and Assistant Secretary
SOONER PIPE LP, L.L.C.
CAPSTAR DRILLING LP, L.L.C.
by
-------------------------------
Name: Xxxx Xxxxx Xxxxx
Title: Sole Manager/President
Signature Page to Amendment No. 2
(Oil States International, Inc.)
PTI REMOTE SITE SERVICES USA, INC.
PTI INTERNATIONAL INC.
PTI PREMIUM CAMP SERVICES LTD.
PTI TRAVCO MODULAR STRUCTURES LTD.
CROWN CAMP SERVICES LTD.
PTI CAMP INSTALLATIONS LTD.
PTI INTERNATIONAL LTD.
000000 XXXXXXX INC.
each by
-------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
and Treasurer
OIL STATES MANAGEMENT, INC.
by
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: President and Secretary
Signature Page to Amendment No. 2
(Oil States International, Inc.)
XXXXX FARGO BANK, N.A.,
as a U.S. Lender,
and Administrative Agent
by
-------------------------------
Name: Xxxx Xxxxxxxxxxxxx
Title: Vice President
Signature Page to Amendment No. 2
(Oil States International, Inc.)
XXXXX FARGO FINANCIAL CORPORATION
CANADA, as a Canadian Lender
by
-------------------------------
Xxxx Xxxxxx
Vice President and
General Counsel
Signature Page to Amendment No. 2
(Oil States International, Inc.)
THE BANK OF NOVA SCOTIA, as a Canadian
Lender and as Canadian
Administrative Agent,
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
SCOTIABANC INC., as a U.S. Lender
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
[CAPITAL ONE], as a U.S. Lender
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
ROYAL BANK OF CANADA, as a U.S. Lender
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
ROYAL BANK OF CANADA,
as a Canadian Lender
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
JPMORGAN CHASE BANK, N.A., as a U.S.
Lender and a Canadian Lender
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
CALYON NEW YORK BRANCH,
as a U.S. Lender
by
-------------------------------
Name:
Title:
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN ISLANDS
BRANCH, as a U.S. Lender
by
-------------------------------
Name:
Title:
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
CREDIT SUISSE FIRST BOSTON
TORONTO BRANCH, as a Canadian Lender
by
-------------------------------
Name:
Title:
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
THE TORONTO-DOMINION BANK,
as a U.S. Lender
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
THE TORONTO-DOMINION BANK,
as a Canadian Lender
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
AMEGY BANK N.A., as a U.S. Lender
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
Barclays Bank Plc, as a U.S. Lender
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
COMERICA BANK, as a U.S. Lender
by
-------------------------------
Name:
Title:
Signature Page to Amendment No. 2
(Oil States International, Inc.)
SCHEDULE 2.01
LENDERS AND COMMITMENTS
-----------------------
COMMITMENTS
U.S. Canadian Total
Bank Commitment Commitment Commitment
---------------------------------------- -------------- -------------- --------------
Xxxxx Fargo Bank, N.A. $ 50,000,000 $ 0 $ 50,000,000
Xxxxx Fargo Financial Corporation Canada $ 0 $ 30,000,000 $ 30,000,000
Royal Bank of Canada $ 25,000,000 $ 15,000,000 $ 40,000,000
[Capital One] $ 40,000,000 $ 0 $ 40,000,000
JPMorgan Chase Bank, N.A. $ 35,000,000 $ 5,000,000 $ 40,000,000
Calyon New York Branch $ 40,000,000 $ 0 $ 40,000,000
The Bank of Nova Scotia $ 0 $ 25,000,000 $ 25,000,000
Scotiabanc Inc. $ 15,000,000 $ 0 $ 15,000,000
Credit Suisse First Boston $ 15,000,000 $ 10,000,000 $ 25,000,000
Amegy Bank N.A $ 15,000,000 $ 0 $ 15,000,000
The Toronto-Dominion Bank $ 15,000,000 $ 15,000,000 $ 30,000,000
Barclays Bank PLC $ 25,000,000 $ 0 $ 25,000,000
Comerica Bank $ 25,000,000 $ 0 $ 25,000,000
TOTAL $ 300,000,000 $ 100,000,000 $ 400,000,000
EXHIBIT L
FORM OF DISCOUNT NOTE
Cdn. $__________________ Date: ____________________
FOR VALUE RECEIVED, the undersigned unconditionally promises to pay on
__________ 20____ to or to the order of [NAME OF CANADIAN LENDER MAKING B/A
EQUIVALENT LOANS] ("Holder"), the sum of Cdn. $____________ with no interest
thereon.
The undersigned hereby waives presentment, protest and notice of every
kind and waives any defenses based upon indulgences which may be granted by the
Holder to any party liable hereon and or days of grace.
This promissory note evidences a B/A Equivalent Loan, as defined in
the Credit Agreement dated October 30, 2003 among Oil States International,
Inc., a Delaware corporation, and PTI Group Inc., a corporation amalgamated
under the laws of the Province of Alberta, as Borrowers, each of the Guarantors,
a syndicate of financial institutions, as Lenders, Xxxxx Fargo Bank, N.A., as
Administrative Agent for the Lenders, and The Bank of Nova Scotia, as Canadian
Administrative Agent for the Canadian Lenders, and constitutes evidence of
indebtedness to the Holder arising from such B/A Equivalent Loan.
PTI GROUP INC.
By: ______________________________
Name: ______________________________
Title: ______________________________
