EXHIBIT 10.3
FIRST AMENDED AND RESTATED
SUBORDINATION AND INTERCREDITOR AGREEMENT
THIS FIRST AMENDED AND RESTATED SUBORDINATION AND INTERCREDITOR AGREEMENT
dated as of September 30, 2004 (as amended, supplemented, restated or otherwise
modified, the "Agreement") is entered into by and among T-3 ENERGY SERVICES,
INC., a Delaware corporation ("Borrower"), each Guarantor (as such term is
defined in the Senior Credit Agreement) set forth on the signature pages hereof,
GENERAL ELECTRIC CAPITAL CORPORATION ("GECC"), COMERICA BANK ("Comerica"), XXXXX
FARGO BANK, NATIONAL ASSOCIATION, successor by merger with Xxxxx Fargo Bank
Texas, National Association (collectively with GECC, Comerica, and any other
party that becomes a lender under the Senior Credit Agreement defined below,
"Senior Lenders", and as agent for Senior Lenders, "Senior Agent"), and XXXXX
FARGO ENERGY CAPITAL, INC. (collectively with any other party that becomes a
lender under the Junior Credit Agreement defined below, "Junior Lenders", and as
agent for Junior Lenders, "Junior Agent").
RECITALS
A. Borrower has obtained credit from Junior Lenders, and Borrower has
obtained credit from Senior Lenders.
B. In connection with such credits, Borrower, Junior Agent, Junior
Lenders, Senior Agent and Senior Lenders have entered into that certain
Subordination and Intercreditor Agreement dated as of December 17, 2001 (the
"Existing Intercreditor Agreement").
C. Borrower proposes to obtain additional credit from Junior Lenders, and
Borrower proposes to obtain additional credit from Senior Lenders.
D. Senior Lenders have indicated they will extend such additional credit
to Borrower if certain conditions are met, including without limitation, the
requirement that Junior Lenders execute this Agreement.
E. Junior Lenders have indicated they will extend such additional credit
to Borrower if certain conditions are met, including without limitation, the
requirement that Senior Lenders execute this Agreement.
F. Senior Agent, Senior Lenders, Junior Agent and Junior Lenders desire to
set forth their relative rights and priorities regarding their respective credit
arrangements with Borrower.
NOW, THEREFORE, as an inducement to Senior Lenders and Junior Lenders to
extend credit and for other valuable consideration, the parties hereto agree to
amend and completely restate the Existing Intercreditor Agreement, as follows:
1. DEFINITIONS. As used herein, the following terms shall have the
following meanings:
"Bankruptcy Code" means the provisions of Title 11 of the United
States Code, 11 U.S.C. Sections 101 et seq.
"Critical Needs Advances" means Revolving Credit Advances that (i)
are made for the purposes of preserving or protecting Collateral or (ii) are
made at the request of the Borrower, the proceeds of which the Borrower
represents are to be used to pay payroll taxes, utility bills, insurance and
other expenses necessary to prevent immediate and irreparable harm to the
Borrower's business or assets (provided, however, that the Senior Lenders shall
not be responsible for ensuring that the proceeds of any Revolving Credit
Advances are used for such purposes).
"Indebtedness" means any and all principal, interest, fees and
expenses of Borrower and/or one or more Guarantor incurred or created, whether
voluntary or involuntary and however arising, whether due or not due, absolute
or contingent, liquidated or unliquidated, determined or undetermined, and
whether Borrower and/or one or more Guarantor may be liable individually or
jointly with others.
"Junior Credit Agreement" means that certain Loan Agreement dated as
of September 30, 2004, by and among Borrower, Junior Agent and Junior Lenders,
as amended, extended, renewed or restated from time to time as permitted under
this Agreement and the Senior Credit Agreement.
"Junior Creditors" means, collectively, Junior Lenders and Junior
Agent, and "Junior Creditor" means any of them individually.
"Junior Debt" means all Indebtedness now or at any time hereafter
owing from Borrower or any Guarantor to any Junior Creditor (including without
limitation, interest thereon which may accrue subsequent to Borrower becoming
subject to any state or federal debtor-relief statute) including, without
limitation, all Indebtedness owing from Borrower to any Junior Creditor pursuant
to the Junior Credit Agreement and the Junior Note.
"Junior Note" means that certain Promissory Note dated as of
September 30, 2004, made by Borrower payable to the order of Junior Lenders in
the principal amount of $15,000,000, as amended, extended, renewed or restated
from time to time as permitted under this Agreement and the Senior Credit
Agreement.
"Lien Priority" is defined in Section 5 of this Agreement.
"Senior Credit Agreement" means that certain First Amended and
Restated Credit Agreement dated as of September 30, 2004, by and among Borrower,
Senior Agent and Senior Lenders, as amended, extended, refinanced, renewed or
restated from time to time; subject however to the provisions of Section 12
hereof with respect to the extension of the maturity date of any Senior Debt.
"Senior Creditor" means, collectively, Senior Lenders and Senior
Agent, and "Senior Creditor" means any of them individually.
"Senior Debt" means all Indebtedness now or at any time hereafter
owing from Borrower or any Guarantor to any Senior Creditor pursuant to the
Senior Credit Agreement and the Senior Notes (including by way of example and
without limitation, all Obligations, all obligations of Subsidiaries under
Guaranty Agreements and interest thereon which may accrue subsequent to Borrower
becoming subject to any state or federal bankruptcy or debtor-relief statute),
provided that the principal amount of such Indebtedness shall never exceed
$75,000,000 plus up to $1,000,000 for Critical Needs Advances.
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"Senior Notes" means (a) those certain Revolving Credit Notes dated as of
September 30, 2004, made by Borrower payable to the order of Senior Lenders in
the aggregate principal amount of $50,000,000, (b) that certain Swing Line Note
dated as of September 30, 2004, made by Borrower payable to the order of Senior
Agent in the aggregate principal amount of $5,000,000, (c) notes evidencing
Critical Needs Advances, and (d) any of the notes referenced in clauses (a), (b)
or (c) above, as amended, extended, renewed or restated from time to time, as
permitted under this Agreement.
Other capitalized terms herein not otherwise defined herein shall have the
meanings ascribed to such terms in the Senior Credit Agreement.
2. INDEBTEDNESS SUBORDINATED. Junior Creditors hereby subordinate all
Junior Debt to all Senior Debt. Junior Creditors irrevocably consent and direct
that all Senior Debt shall be paid in full in cash (or solely with respect to
Letter of Credit Liabilities, fully cash collateralized in accordance with the
terms of the Senior Credit Agreement) prior to Borrower making any payment on
any Junior Debt except such payments as are expressly permitted by Section 3 of
this Agreement. Junior Agent will, and Senior Agent is authorized in the name of
Junior Creditors from time to time to, execute and file such financing
statements and other documents as Senior Agent may require in order to (i) give
notice to other persons and entities of the terms and provisions of this
Agreement and (ii) give effect to the provisions of this Agreement.
3. RESTRICTION OF PAYMENT OF JUNIOR DEBT; DISPOSITION OF PAYMENTS RECEIVED
BY JUNIOR CREDITORS. Until the Senior Debt has been paid in full, Borrower shall
not make, and Junior Creditors shall not accept or receive, any payment or
benefit in cash, by setoff or otherwise, directly or indirectly, on account of
principal, interest or any other amounts owing on any Junior Debt, except for
payment of the facility fees upon the execution and delivery of the Junior
Credit Agreement as set forth in the Junior Credit Agreement and such other
payments as are expressly permitted herein. Borrower is permitted to make and
Junior Creditors to receive all scheduled payments of interest on the Junior
Note and, after the Senior Debt has been paid in full in cash (or, solely with
respect to Letter of Credit Liabilities, fully cash collateralized in accordance
with the terms of the Senior Credit Agreement) and the Senior Lenders'
commitments to lend under the Senior Credit Agreement have been terminated,
payments of principal, or other amounts owing on the Junior Note; provided that
(a) Borrower shall not make, and Junior Creditors shall not accept or receive,
any prepayment or accelerated payment of or on any or all of the Junior Debt,
and (b) Borrower shall not make, and Junior Creditors shall not accept or
receive, any payment of principal, interest or other amounts owing on any or all
of the Junior Debt (A) while there is any monetary default on the Senior Debt or
(B) after written notice (a "Blockage Notice") from Senior Agent to Junior Agent
that a non-monetary Event of Default has occurred under the terms of any Senior
Debt for a period (each a "Blockage Period") commencing on the date of receipt
of such Blockage Notice and ending on the earlier of (i) the date such Event of
Default shall have been cured or waived in writing by the requisite Senior
Creditors in their sole discretion, and (ii) the date 181 days from the date of
receipt of such Blockage Notice, provided that Senior Agent may only deliver a
Blockage Notice if no previous Blockage Notice has been delivered within the 365
day period immediately preceding the date such Blockage Notice is proposed to be
delivered. During any Blockage Period, and while there is any monetary default
on the Senior Debt, Junior Creditors will not take any action or initiate any
proceedings, judicial or otherwise, (i) to enforce Junior Creditors' rights or
remedies with respect to any Junior Debt, including without limitation, any
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action to enforce any rights or remedies with respect to any collateral securing
any Junior Debt or (ii) to obtain any judgment or prejudgment remedy against
Borrower or any such collateral. If any payment is made in violation of this
Agreement, the applicable Junior Creditor shall promptly deliver the same to
Senior Agent in the form received, with any endorsement or assignment necessary
for the transfer of such payment or amounts setoff from such Junior Creditor to
Senior Creditors, to be either (in Senior Creditors' sole discretion) held as
cash collateral securing the Senior Debt or applied in reduction of the Senior
Debt in such order as Senior Creditors shall determine, and until so delivered,
such Junior Creditor shall hold such payment in trust for and on behalf of, and
as the property of, Senior Creditors.
4. DISPOSITION OF EVIDENCE OF INDEBTEDNESS. If there is any existing
promissory note or other evidence of any of the Junior Debt, including the
Junior Note, or if any promissory note or other evidence of Indebtedness is
executed at any time hereafter with respect thereto, and if there are any
financing statements now or hereafter executed, relating to the Collateral and
any security interests securing the Junior Debt, then Borrower and the
applicable Junior Creditor will xxxx the same with a legend, in form and
substance satisfactory to Senior Agent, stating that it is subject to this
Agreement, and if asked to do so, will deliver the same to Senior Agent. At any
time that any Senior Debt remains outstanding and/or any Senior Creditor remains
committed to extend any credit to Borrower, Junior Creditors shall not, without
Senior Creditors' prior written consent, assign any of their respective rights,
interests or obligations in connection with the Junior Debt, except as provided
in the Junior Credit Agreement and so long as any assignee of such rights,
interests or obligations agrees, in a writing in form and substance satisfactory
to Senior Agent, to be subject in all respects to the terms and conditions of
this Agreement as a "Junior Lender".
5. SUBORDINATION OF LIENS AND SECURITY INTERESTS. The parties hereby agree
that Senior Agent, for the benefit of itself and Senior Lenders, shall have a
first priority security interest in the Collateral, and Junior Agent, for the
benefit of Junior Lenders, shall have a second priority security interest in the
Collateral (the "Lien Priority"). Irrespective of the order of recording of
financing statements, security agreements or other instruments, and irrespective
of the descriptions of collateral contained in any such documents, the parties
agree among themselves that their respective security interests in the
Collateral shall be governed by the Lien Priority, which shall be controlling in
the event of any conflict between this Agreement and any other documents. After
all of the Senior Debt has become due and payable, whether by acceleration of
maturity or otherwise, the Junior Agent will release its Lien to the extent
requested by the Senior Agent in order for the Borrower or a Subsidiary (as
applicable) to effect a commercially reasonable sale or other commercially
reasonable disposition to which the requisite Senior Creditors have consented.
For the avoidance of doubt, a sale or other disposition would not be
commercially reasonable if the range of proceeds to be received by the Borrower
or a Subsidiary (as applicable) is significantly below the range of proceeds
that would be received in a disposition complying with Chapter 9 of the UCC to a
Person other than a secured party, a Person related to a secured party or a
secondary obligor.
6. NOTICE OF DEFAULT UNDER JUNIOR DEBT. Prior to exercising any rights or
remedies Junior Creditors may have pursuant to the Junior Credit Agreement, the
Junior Note, at law or in equity, Junior Agent shall provide Senior Agent with
written notice of any default under the Junior Credit Agreement or the Junior
Note and allow Senior Creditors 10 days to (a) cure such default (but Senior
Creditors shall not be obligated to cure such default) or (b) deliver
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notice via Senior Agent to Junior Agent pursuant to Section 3 of this Agreement
of the commencement of a Blockage Period; provided, however, the obligation to
provide such notice prior to exercise of any rights or remedies shall not apply
to a default resulting from any voluntary or involuntary bankruptcy of the
Borrower that causes automatic acceleration of the Junior Debt.
7. BREACH OF AGREEMENT BY BORROWER OR JUNIOR CREDITORS. In the event of
any breach of this Agreement by Borrower or any Junior Creditor, then and at any
time thereafter for so long as such breach is continuing Senior Creditors shall
have the right to declare immediately due and payable all or any portion of the
Senior Debt without presentment, demand, or any other notices of any kind,
including without limitation notice of nonperformance, protest, notice of
protest, notice of dishonor, notice of intention to accelerate or notice of
acceleration, all of which are expressly waived by Borrower and Junior
Creditors. No delay, failure or discontinuance of Senior Creditors in exercising
any right, privilege, power or remedy hereunder shall affect or operate as a
waiver of such right, privilege, power or remedy; nor shall any single or
partial exercise of any such right, privilege, power or remedy preclude, waive
or otherwise affect any other or further exercise thereof or the exercise of any
other right, privilege, power or remedy. Any waiver, permit, consent or approval
of any kind by Senior Creditors with respect to this Agreement must be in
writing and shall be effective only to the extent set forth in writing.
8. REPRESENTATIONS AND WARRANTIES; INFORMATION. Borrower and each Junior
Creditor represent and warrant to Senior Creditors that: (a) no interest in the
Junior Debt has been assigned or otherwise transferred to any person or entity;
(b) payment of the Junior Debt has not been heretofore subordinated to any other
creditor of Borrower; and (c) such Junior Creditor has the requisite power and
authority to enter into and perform its obligations under this Agreement. Each
Junior Creditor further represents and warrants to Senior Creditors that such
Junior Creditor has established adequate, independent means of obtaining from
Borrower on a continuing basis financial and other information pertaining to
Borrower's financial condition, and each Senior Creditor represents and warrants
to Junior Creditors that such Senior Creditor has established adequate,
independent means of obtaining from Borrower on a continuing basis financial and
other information pertaining to Borrower's financial condition. Junior Creditors
agree to keep adequately informed from such means of any facts, events or
circumstances which might in any way affect Junior Creditors' risks hereunder,
and Junior Creditors agree that Senior Creditors shall have no obligation to
disclose to Junior Creditors information or material about Borrower which is
acquired by any Senior Creditor in any manner. Senior Creditors may, but are in
no way obligated to, disclose to Junior Creditors any information or material
relating to Borrower which is acquired by any Senior Creditor by any means, and
Borrower hereby agrees to and authorizes any such disclosure by any Senior
Creditor.
9. TRANSFER OF ASSETS OR REORGANIZATION OF BORROWER. If any petition is
filed or any proceeding is instituted by or against Borrower under any
provisions of the Bankruptcy Reform Act, Title 11 of the United States Code, or
any other or similar law relating to bankruptcy, insolvency, reorganization or
other relief for debtors, or generally affecting creditors' rights, or seeking
the appointment of a receiver, trustee, custodian or liquidator of or for
Borrower or any of its assets, any payment or distribution of any of Borrower's
assets, whether in cash, securities or any other property, which would be
payable or
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deliverable with respect to any Junior Debt, shall be paid or delivered to
Senior Creditors until all Senior Debt is paid in full. Junior Creditors grant
to Senior Creditors the right to enforce, collect and receive any such payment
or distribution and to give releases or acquittances therefor, and each Junior
Creditor authorizes Senior Agent as its attorney-in-fact to vote and prove the
Junior Debt in any of the above-described proceedings or in any meeting of
creditors of Borrower relating thereto.
10. SENIOR CREDITORS' RIGHTS UNAFFECTED. Except as expressly set forth in
Section 12 below and as otherwise expressly set forth in this Agreement, (a)
Senior Creditors shall have no direct or indirect obligations to Junior
Creditors of any kind with respect to the manner or time in which Senior
Creditors exercise (or refrains from exercising) any of their rights or remedies
with respect to the Senior Debt, Borrower or any of Borrower's assets, (b)
Senior Creditors shall have the right to administer the Senior Debt, the
Collateral securing the Senior Debt and any of Senior Creditors' agreements with
Borrower with respect to the Senior Debt in any way Senior Creditors deem
appropriate, without regard to Junior Creditors or the Junior Debt, including
without limitation, the right to (i) waive, or release any of Senior Creditor's
security or rights; (ii) waive or ignore any defaults by Borrower; and/or (iii)
restructure, renew, modify or supplement the Senior Debt, or any portion
thereof, or any agreement with Borrower relating to any Senior Debt, and (c) all
rights, privileges, powers and remedies of Senior Creditors may be exercised
from time to time by Senior Creditors without notice to or consent of Junior
Creditors. Each Junior Creditor waives any right such Junior Creditor might
otherwise have to require a marshalling of any security held by any Senior
Creditor for all or any part of the Senior Debt or to direct or affect the
manner or timing with which Senior Creditors enforce any of their security.
11. AMENDMENTS TO JUNIOR DEBT. Borrower and Junior Creditors hereby
acknowledge and agree that, until the Senior Debt has been paid in full and this
Agreement has been terminated in writing by all the parties hereto, no change or
amendment to the terms of any agreement, document or instrument evidencing or
executed in connection with the Junior Debt, including without limitation the
Junior Note and the Junior Credit Agreement, shall be effective without the
prior written consent of Required Banks if the effect of such change or
amendment is to (a) increase the interest rate on any Junior Debt, (b) change
the dates upon which payments of principal or interest are due on any Junior
Debt other than to extend such dates, (c) change any default or event of default
or covenant other than to delete or make less restrictive any default or
covenant provision therein, or add any covenant with respect to such any Junior
Debt, (d) change the redemption or prepayment provisions of any Junior Debt
other than to extend the dates therefor or to reduce the premiums payable in
connection therewith, (e) grant any additional security, collateral or guaranty
to secure payment of any Junior Debt unless (i) prior to or concurrent with such
grant, Senior Agent, for the benefit of Senior Lenders, is granted the identical
security, collateral or guaranty to secure payment of the Senior Debt, and (ii)
the additional security interest or guaranty to secure payment of the Junior
Debt is expressly made subordinate in priority to the additional security
interest or guaranty to secure payment of the Senior Debt, or (f) change or
amend any other term if such change or amendment would materially increase the
obligations of Borrower or confer additional material rights to Junior Creditors
in a manner adverse to Borrower or Senior Creditors.
12. AMENDMENTS TO SENIOR DEBT. Borrower and Senior Creditors hereby
acknowledge and agree that, until this Agreement has been terminated in writing
by all the
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parties hereto, no change or amendment to the terms of any agreement, document
or instrument evidencing or executed in connection with the Senior Debt,
including without limitation the Senior Notes and the Senior Credit Agreement,
shall be effective without the prior written consent of holders of at least 51%
of the outstanding Junior Debt if the effect of such change or amendment is to
extend the final maturity date of any Senior Debt beyond the final maturity date
of any Junior Debt.
13. DELIVERY OF POSSESSORY COLLATERAL. After the Senior Debt has been paid
in full (or, solely with respect to Letter of Credit Liabilities, fully cash
collateralized in accordance with the terms of the Senior Credit Agreement) and
the Senior Lenders' commitments to lend under the Senior Credit Agreement have
been terminated, Senior Agent will, upon receipt of a written request from
Borrower, deliver all possessory Collateral in Senior Agent's possession to the
Borrower or such third party as Borrower shall instruct Senior Agent in such
request.
14. COSTS, EXPENSES AND ATTORNEYS' FEES. If any party hereto institutes
any arbitration or judicial or administrative action or proceeding to enforce
any provisions of this Agreement, or alleging any breach of any provision hereof
or seeking damages or any remedy, the losing party or parties shall pay to the
prevailing party or parties all costs and expenses, including reasonable
attorneys' fees (to include outside counsel fees), expended or incurred by the
prevailing party or parties in connection therewith, whether incurred at the
trial or appellate level, in an arbitration proceeding or otherwise, and
including any of the foregoing incurred in connection with any bankruptcy
proceeding (including without limitation, any adversary proceeding, contested
matter or motion brought by Senior Creditors or any other person) relating to
Borrower, Junior Creditors or any other person or entity.
15. SUCCESSORS; ASSIGNS; AMENDMENT; COUNTERPARTS. This Agreement shall be
binding upon and inure to the benefit of the heirs, executors, administrators,
legal representatives, successors and assigns of the parties. This Agreement may
be amended or modified only in writing signed by all parties hereto. This
Agreement may be executed in one or more counterparts, each of which when so
executed shall be deemed to be an original, but all of which when taken together
shall constitute one and the same instrument.
16. CONSTRUCTION. All words used herein in the singular shall be deemed to
have been used in the plural where the context so requires.
17. SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall
be held to be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such waiver or other provision or any
remaining provisions of this Agreement.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
19. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, BORROWER, JUNIOR CREDITORS AND SENIOR CREDITORS HEREBY IRREVOCABLY AND
EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF
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OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE
ACTIONS OF SENIOR CREDITORS IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT
THEREOF.
20. ARBITRATION.
(a) Arbitration. The parties hereto agree, upon demand by any party, to
submit to binding arbitration all claims, disputes and controversies between or
among them (and their respective employees, officers, directors, attorneys, and
other agents), whether in tort, contract or otherwise arising out of or relating
to in any way (i) the loan and related loan and security documents which are the
subject of this Agreement and its negotiation, execution, collateralization,
administration, repayment, modification, extension, substitution, formation,
inducement, enforcement, default or termination; or (ii) requests for additional
credit.
(b) Governing Rules. Any arbitration proceeding will (i) proceed in a
location in Texas selected by the American Arbitration Association ("AAA"); (ii)
be governed by the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the documents
between the parties; and (iii) be conducted by the AAA, or such other
administrator as the parties shall mutually agree upon, in accordance with the
AAA's commercial dispute resolution procedures, unless the claim or counterclaim
is at least $1,000,000.00 exclusive of claimed interest, arbitration fees and
costs in which case the arbitration shall be conducted in accordance with the
AAA's optional procedures for large, complex commercial disputes (the commercial
dispute resolution procedures or the optional procedures for large, complex
commercial disputes to be referred to, as applicable, as the "Rules"). If there
is any inconsistency between the terms hereof and the Rules, the terms and
procedures set forth herein shall control. Any party who fails or refuses to
submit to arbitration following a demand by any other party shall bear all costs
and expenses incurred by such other party in compelling arbitration of any
dispute. Nothing contained herein shall be deemed to be a waiver by any party
that is a bank of the protections afforded to it under 12 U.S.C. Section 91 or
any similar applicable state law.
(c) No Waiver of Provisional Remedies, Self-Help and Foreclosure. The
arbitration requirement does not limit the right of any party to (i) foreclose
against real or personal property collateral; (ii) exercise self-help remedies
relating to collateral or proceeds of collateral such as setoff or repossession;
or (iii) obtain provisional or ancillary remedies such as replevin, injunctive
relief, attachment or the appointment of a receiver, before during or after the
pendency of any arbitration proceeding. This exclusion does not constitute a
waiver of the right or obligation of any party to submit any dispute to
arbitration or reference hereunder, including those arising from the exercise of
the actions detailed in sections (i), (ii) and (iii) of this paragraph.
(d) Arbitrator Qualifications and Powers. Any arbitration proceeding in
which the amount in controversy is $5,000,000.00 or less will be decided by a
single arbitrator selected according to the Rules, and who shall not render an
award of greater than $5,000,000.00. Any dispute in which the amount in
controversy exceeds $5,000,000.00 shall be decided by majority vote of a panel
of three arbitrators; provided however, that all three arbitrators must actively
participate in all hearings and deliberations. The arbitrator will be a neutral
attorney licensed in the State of Texas with a minimum of ten years experience
in the substantive law applicable to the subject matter of the dispute to be
arbitrated. The arbitrator will determine whether or not an
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issue is arbitratable and will give effect to the statutes of limitation in
determining any claim. In any arbitration proceeding the arbitrator will decide
(by documents only or with a hearing at the arbitrator's discretion) any
pre-hearing motions which are similar to motions to dismiss for failure to state
a claim or motions for summary adjudication. The arbitrator shall resolve all
disputes in accordance with the substantive law of Texas and may grant any
remedy or relief that a court of such state could order or grant within the
scope hereof and such ancillary relief as is necessary to make effective any
award. The arbitrator shall also have the power to award recovery of all costs
and fees, to impose sanctions and to take such other action as the arbitrator
deems necessary to the same extent a judge could pursuant to the Federal Rules
of Civil Procedure, the Texas Rules of Civil Procedure or other applicable law.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction. The institution and maintenance of an action for judicial
relief or pursuit of a provisional or ancillary remedy shall not constitute a
waiver of the right of any party, including the plaintiff, to submit the
controversy or claim to arbitration if any other party contests such action for
judicial relief.
(e) Discovery. In any arbitration proceeding discovery will be permitted
in accordance with the Rules. All discovery shall be expressly limited to
matters directly relevant to the dispute being arbitrated and must be completed
no later than 20 days before the hearing date and within 180 days of the filing
of the dispute with the AAA. Any requests for an extension of the discovery
periods, or any discovery disputes, will be subject to final determination by
the arbitrator upon a showing that the request for discovery is essential for
the party's presentation and that no alternative means for obtaining information
is available.
(f) Class Proceedings and Consolidations. The resolution of any dispute
arising pursuant to the terms of this Agreement shall be determined by a
separate arbitration proceeding and such dispute shall not be consolidated with
other disputes or included in any class proceeding.
(g) Payment of Arbitration Costs And Fees. The arbitrator shall award all
costs and expenses of the arbitration proceeding.
(h) Miscellaneous. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business or by applicable law or
regulation. If more than one agreement for arbitration by or between the parties
potentially applies to a dispute, the arbitration provision most directly
related to the documents between the parties or the subject matter of the
dispute shall control. This arbitration provision shall survive termination,
amendment or expiration of any of the documents or any relationship between the
parties.
21. NOTICES. All notices, requests and demands which any party is required
or may desire to give to any other party under any provision of this Agreement
must be in writing delivered to each party at the following address, provided
that (a) all such notices, requests and demands required to be delivered to
Junior Lenders may be delivered to Junior Agent and (b) all such notices,
requests and demands required to be delivered to Senior Lenders may be delivered
to Senior Agent:
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BORROWER: T-3 ENERGY SERVICES, INC.
00000 Xxxxxxxxx Xxxxxxx #000
Xxxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
JUNIOR AGENT: XXXXX FARGO ENERGY CAPITAL, INC.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxxxxx
SENIOR AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
0000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx X. Xxxx
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (i) if sent by hand delivery, upon delivery; (ii) if sent by
mail, upon the earlier of the date of receipt or three (3) days after deposit in
the U.S. mail, first class and postage prepaid; and (c) if sent by telecopy,
upon receipt.
22. BORROWER'S ACKNOWLEDGEMENT AND CONSENT. Borrower herein executes this
Agreement to evidence its consent and acknowledgement of the terms and
provisions herein and agrees to be subject to the terms and conditions hereof.
23. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and it shall not be necessary that the signatures of all parties
hereto be contained on any one counterpart hereof, each counterpart shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
NOTICE: THIS DOCUMENT AND ALL OTHER DOCUMENTS RELATING TO THE INDEBTEDNESS
CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES RELATING TO THE INDEBTEDNESS.
[SIGNATURES BEGIN ON NEXT PAGE]
10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BORROWER:
T-3 ENERGY SERVICES, INC.,
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Xxxxxxx X. Xxxx, Vice President
GUARANTORS:
A & B Bolt & Supply, Inc.
Cor-Val Holdings, Inc.
Preferred Industries Holdings, Inc.
T-3 Custom Coating Applicators, Inc.
T-3 Financial Services LP, Inc.
T-3 Investment Corporation III
T-3 Support Services, Inc.
T-3 Management Holdings, Inc.
T-3 Property Holdings, Inc.
O & M Equipment Holdings, Inc.
Manifold Valve Services, Inc.
Pipeline Valve Specialty, Inc.
United Wellhead Services, Inc.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Xxxxxxx X. Xxxx, Vice President of
each of the foregoing companies
Cor-Val, L.P.
By: Cor-Val Holdings, Inc.,
its sole general partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Xxxxxxx X. Xxxx, Vice President
T-3 Management Services, L.P.
By: T-3 Management Holdings, Inc.,
its sole general partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Xxxxxxx X. Xxxx, Vice President
(Signature Page to First Amended and Restated Subordination and Intercreditor
Agreement)
Preferred Industries, L.P.
By: Preferred Industries Holdings, Inc.,
its sole general partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Xxxxxxx X. Xxxx, Vice President
O&M Equipment, L.P.
By: O & M Equipment Holdings, Inc.,
its sole general partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Xxxxxxx X. Xxxx, Vice President
T-3 Financial Services, L.P.
By: T-3 Management Holdings, Inc.
its sole general partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Xxxxxxx X. Xxxx, Vice President
JUNIOR AGENT AND JUNIOR LENDERS:
as Junior Agent and a Junior Lender
XXXXX FARGO ENERGY CAPITAL, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx, Senior Vice President
(Signature Page to First Amended and Restated Subordination and Intercreditor
Agreement)
SENIOR AGENT AND SENIOR LENDERS:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Senior Agent and a Senior Lender
By: /s/ Xxxx X. Xxxx
----------------------------
Xxxx X. Xxxx, Vice President
(Signature Page to First Amended and Restated Subordination and Intercreditor
Agreement)
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Senior Lender
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
Title: Duly Authorized Signatory
COMERICA BANK,
as a Senior Lender
By: /s/ Xxxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President - Texas Division
(Signature Page to First Amended and Restated Subordination and Intercreditor
Agreement)
