EXHIBIT 10.37.8
PK&S DRAFT
01/24/02
FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") made and
entered into as of January __, 2002 among BLACK WARRIOR WIRELINE CORP., a
Delaware corporation ("Borrower") and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation (in its individual capacity, "GE Capital"), for itself, as
Lender, and as Agent for Lenders.
RECITALS
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WHEREAS, Borrower, Lenders and Agent are parties to that certain Credit
Agreement, dated as of September 14, 2001 (the "Credit Agreement"; capitalized
terms used herein and not defined herein have the meanings assigned to them in
the Credit Agreement), pursuant to which Lenders have made and have agreed, upon
the terms and subject to the conditions set forth therein, to make certain
financial accommodations to Borrower; and
WHEREAS, Borrower has requested that the Lenders consent to the
acquisition by Borrower of certain assets of Big Gun Perforating, Inc., and the
Lenders are willing to consent to such acquisition subject to the terms and
conditions as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
A. AMENDMENTS
1. Amendment to Annex A. The Credit Agreement is amended by inserting the
following definitions of "Big Gun Acquisition", "Xxxxxxxx Annual Payments",
"Xxxxxxxx Employment Agreement" and "Xxxxxxxx Non-Compete Payment" into Annex A
of the Credit Agreement in the appropriate alphabetical order:
"Big Gun Acquisition" shall mean the acquisition by the Borrower
of certain assets of Big Gun Perforating, Inc. for a purchase price not
to exceed $55,000.00.
"Xxxxxxxx Annual Payments" shall mean the yearly additional
compensation payments payable to Xxxx Xxxxx Xxxxxxxx pursuant to
Section 3.4 of the Xxxxxxxx Employment Agreement.
"Xxxxxxxx Employment Agreement" shall mean that certain Employment
Agreement, dated as of January 1, 2002, by and between the Borrower and
Xxxx Xxxxx Xxxxxxxx.
"Xxxxxxxx Non-Compete Payment" shall mean the $245,000 payment
payable to Xxxx Xxxxx Xxxxxxxx pursuant to Section 3.3 of the Xxxxxxxx
Employment Agreement to be paid upon consummation of the Big Gun
Acquisition.
2. Amendment to Annex A. The Credit Agreement is hereby amended by
deleting therefrom the definitions of "Fixed Charges" and "Restricted Payments"
in Annex A of the Credit Agreement and by substituting in lieu thereof the
following definitions:
"Fixed Charges" means, with respect to any Person for any
fiscal period, (a) the aggregate of all Interest Expense paid in cash
during such period, plus (b) scheduled payments of principal with
respect to Indebtedness during such period, plus (c) Capital
Expenditures paid in cash during such period, plus (d) income taxes
paid in cash during such period, plus (e) the Xxxxxxxx Annual Payments
paid in cash during such period, plus (f) the Xxxxxxxx Non-Compete
Payment paid in cash during such period.
"Restricted Payment" means, with respect to any Credit Party
(a) the declaration or payment of any dividend or the incurrence of any
liability to make any other payment or distribution of cash or other
property or assets in respect of Stock; (b) any payment on account of
the purchase, redemption, defeasance, sinking fund or other retirement
of such Credit Party's Stock or any other payment or distribution made
in respect thereof, either directly or indirectly; (c) any payment or
prepayment of principal of, premium, if any, or interest, fees or other
charges on or with respect to, and any redemption, purchase,
retirement, defeasance, sinking fund or similar payment and any claim
for rescission with respect to, any Subordinated Debt; (d) any payment
made to redeem, purchase, repurchase or retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to
acquire Stock of such Credit Party now or hereafter outstanding; (e)
any payment of a claim for the rescission of the purchase or sale of,
or for material damages arising from the purchase or sale of, any
shares of such Credit Party's Stock or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such
claim for damages or rescission; (f) any payment, loan, contribution,
or other transfer of funds or other property to any Stockholder of such
Credit Party other than payment of compensation in the ordinary course
of business to Stockholders who are employees of such Person; (g) any
payment of management fees (or other fees of a similar nature) by such
Credit Party to any Stockholder of such Credit Party or its Affiliates
and (h) the Xxxxxxxx Annual Payments.
3. Amendment to Section 61. Section 6.1 of the Credit Agreement is hereby
amended by replacing said Section 6.1 in its entirety with the following:
6.1 Mergers, Subsidiaries, Etc. No Credit Party shall directly or
indirectly, by operation of law or otherwise, (a) form or acquire any
Subsidiary, or (b) merge with, consolidate with, acquire all or
substantially all of the assets or Stock of, or otherwise combine with
or acquire, any Person; provided, however, that the
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Borrower may consummate the Big Gun Acquisition.
4. Amendment to Section 6.3. Section 6.3(a) of the Credit Agreement is
hereby amended by replacing said Section 6.3(a) in its entirety with the
following:
(a) No Credit Party shall create, incur, assume or permit to exist
any Indebtedness, except (without duplication) (i) Indebtedness secured
by purchase money security interests and Capital Leases permitted in
Section 6.7(c), (ii) the Loans and the other Obligations, (iii)
unfunded pension fund and other employee benefit plan obligations and
liabilities to the extent they are permitted to remain unfunded under
applicable law, (iv) existing Indebtedness described in Disclosure
Schedule (6.3) and refinancings thereof or amendments or modifications
thereto that do not have the effect of increasing the principal amount
thereof or changing the amortization thereof (other than to extend the
same) and that are otherwise on terms and conditions no less favorable
to any Credit Party, Agent or any Lender, as determined by Agent, than
the terms of the Indebtedness being refinanced, amended or modified,
(v) Indebtedness specifically permitted under Section 6.17 and (vi) the
Xxxxxxxx Annual Payments;
5. Amendment to Section 6.14. Section 6.14 of the Credit Agreement is
hereby amended by replacing said Section 6.14 in its entirety with the
following:
Restricted Payments. No Credit Party shall make any Restricted
Payment, except (a) dividends and distributions by Subsidiaries of
Borrower paid to Borrower, (b) employee loans permitted under Section
6.4(b), (c) fees paid to SJMB, LP in an amount not to exceed $150,000
but only to the extent that (1) such fees are paid after the Lenders
receive copies of the Form 10-Q to be filed by Borrower with the
Securities and Exchange Commission for its Fiscal Quarter ending
September 30, 2001, and are paid no later than December 31, 2001, and
(2) such Form 10-Q demonstrates that Borrower's EBITDA for the Fiscal
Quarter ending September 30, 2001 is at least $7,000,000 and (d) so
long as no Default or Event of Default has occurred, the Xxxxxxxx
Annual Payments.
B. CONDITIONS PRECEDENT
Notwithstanding any other provision of this Amendment and without
affecting in any manner the rights of Lenders hereunder, it is understood and
agreed that this Amendment shall not become effective, and the Credit Agreement
shall remain in full force and effect, Borrower shall have no rights under this
Amendment and Lenders shall not be obligated to take, fulfill or perform any
action hereunder, until Agent shall have received (i) counterparts of this
Amendment duly executed by all parties hereto and (ii) an assignment of the
key-man life insurance policy insuring the life of Xxxx Xxxxx Xxxxxxxx executed
by Borrower in form and substance satisfactory to Agent.
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C. REPRESENTATIONS AND WARRANTIES
Borrower hereby affirms that after giving effect to this Amendment each
of the representations and warranties of Borrower contained in the Credit
Agreement and in any of the other Loan Documents (except to the extent that any
such representation or warranty expressly relates solely to an earlier date,
which Borrower hereby represents and warrants is true and correct as of such
earlier date) is correct in all material respects on and as of the date hereof
and after giving effect to this Amendment. In addition, with respect to this
Amendment, Borrower warrants and represents as follows:
(a) The execution, delivery and performance by Borrower of this
Amendment (i) are within Borrower's corporate power; (ii) have been
duly authorized by all necessary or proper corporate and shareholder
action; (iii) are not in contravention of any provision of Borrower's
certificate of incorporation or bylaws; (iv) will not violate any law
or regulation, or any order or decree of any Governmental Authority;
(v) will 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 Borrower is a party or by which Borrower or any of
its property is bound; (vi) will not result in the creation or
imposition of any Lien upon any of the property of Borrower other than
those in favor of Agent and Lenders, all pursuant to the Loan
Documents; and (vii) do not require the consent or approval of any
Governmental Authority.
(b) This Amendment has been duly executed and delivered for the
benefit and on behalf of Borrower and constitutes a legal, valid and
binding obligation of Borrower, enforceable against Borrower in
accordance with its terms.
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 in
accordance with Part C 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. 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
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this Amendment, and represents that, after giving effect to this Amendment and
the waivers contained herein, no Default or Event of Default has occurred and is
continuing as of the date hereof.
3. Expenses. Borrower agrees to pay on demand all costs and expenses of
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.
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.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
BORROWER
BLACK WARRIOR WIRELINE, CORP.
By:_____________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By:_____________________________
Xxxx Xxxxxx
Duly Authorized Signatory
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