EXHIBIT 10.26
FORBEARANCE AGREEMENT AND SECOND AMENDMENT
AMENDED AND RESTATED CREDIT AGREEMENT
This Agreement is entered into and effective as of March 21, 2003, by
and between STRATA DIRECTIONAL TECHNOLOGY, INC., a Texas corporation (the
"Borrower") and XXXXX FARGO CREDIT, INC., a Minnesota corporation (the
"Lender").
RECITALS
The Borrower and Lender entered into an Amended and Restated Credit and
Security Agreement dated as of February 1, 2002 (the "Credit Agreement").
Capitalized terms used but not defined herein shall have the meanings given them
in the Credit Agreement.
Pursuant to the Credit Agreement, the Lender has made separate Term
Advances to the Borrower in the amounts of $1,300,000 and $1,405,735.97, and has
committed to make revolving Advances to the Borrower not to exceed $2,500,000.
The principal balance of all of the loans, together with accrued and unpaid
interest thereon, and fees and reimbursable expenses in connection with the
foregoing (collectively, the "Indebtedness") are secured by substantially all of
the assets of the Borrower pursuant to the terms of the Credit Agreement.
The Borrower is in default of the following provisions under the Credit
Agreement (collectively, the "Designated Defaults"): Section 6.12(a) and 6.12(b)
for June 30, 2002 and September 30, 2002; Section 6.13 for various periods
through and including November 30, 2002; and Sections 8.1(p) and 8.1(q) as a
result of defaults in existence as of the date of this Agreement under the Jens
Credit Agreement and the Borrower's agreements with Energy Group and Energy
Capital. At no time has the Lender waived the Designated Defaults.
As a result of the Designated Defaults, the Lender has the unrestricted
right to declare the Indebtedness immediately due and payable and to exercise
its rights and remedies with respect to the collateral for such Indebtedness.
The Borrower has requested that the Lender forbear from exercising its remedies
under the Credit Agreement, and the Lender is willing to do so on the terms and
conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual promises
herein contained, the parties hereto agree as follows:
1. DEFINED TERMS. Capitalized terms used in this Agreement which are
defined in the Credit Agreement shall have the same meanings as defined therein,
unless otherwise defined herein.
2. AGREEMENT TO FORBEAR. The Lender agrees that during the period from
the date hereof to and including the earlier of (i) June 30, 2003 or (ii) the
date on which a Forbearance Default occurs (the "Forbearance Period"), the
Lender will not demand payment of, accelerate the maturity of or otherwise
initiate collection action with respect to the Indebtedness, and will not
implement the Default Rate of interest.
3. FORBEARANCE DEFAULTS. "Forbearance Default" means any of the
following:
(a) a Default or an Event of Default, other than (i) a
Designated Default or (ii) a breach of the financial covenants in
Section 6.12(b) of the Credit Agreement; or
(b) a Forbearance Default shall occur under the Forbearance
Agreement and First Amendment to Credit Agreement, of even date
herewith, by and between the Lender and Jens.
4. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is amended by adding
or amending, as the case may be, the following definitions:
"Revolving Floating Rate" means an annual rate equal to the
sum of the Base Rate plus three and one-half percent (3.5%), which
annual rate shall change when and as the Base Rate changes.
"Term Floating Rate" means an annual rate equal to the sum of
the Base Rate plus three and one-half percent (3.5%), which annual rate
shall change when and as the Base Rate changes.
(b) Section 6.12(a) of the Credit Agreement is hereby amended
in its entirety to read as follows:
"(a) Borrower will maintain, for each period described below,
its Debt Service Coverage Ratio at not less than the amount set forth
opposite such period:
MINIMUM DEBT SERVICE
PERIOD COVERAGE RATIO
------ --------------
Three months ending March 31, 2003 0.60 to 1
Six months ending June 30, 2003 1.00 to 1"
(c) Section 6.13 of the Credit Agreement is hereby amended in
its entirety to read as follows:
"Section 6.13 Minimum Period-to-Date Net Income.
Borrower will achieve, as of each period described below, Net
Income of not less than the amount set forth opposite such
period:
MINIMUM PERIOD-TO-DATE
PERIOD NET INCOME
------ ----------
Month ending January 31, 2003 ($21,000)
Two months ending February 28, 2003 ($12,000)
Three months ending March 31, 2003 $21,000
Four months ending April 30, 2003 $78,000
Five months ending May 31, 2003 $178,000
Six months ending June 30, 2003 $326,000"
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(d) Section 7.10 of the Credit Agreement is hereby amended in
its entirety to read as follows:
"Section 7.10 Capital Expenditures. The Borrower will not
incur or contract to incur Capital Expenditures of more than
$50,000 in the aggregate during the Borrower's fiscal year
ending December 31, 2003.
5. BORROWER ACKNOWLEDGMENTS. By signing this Agreement, the Borrower
acknowledges and agrees that the Designated Defaults currently exist on the part
of the Borrower under the Credit Agreement and that as a result of such
Designated Defaults, the Lender could, in the absence of the Lender's agreement
to forbear as set forth in this Agreement, in its sole discretion, demand
immediate payment or otherwise take collection action with respect to the
Indebtedness. The Borrower further acknowledges and agrees that the Indebtedness
is the valid and enforceable obligation of the Borrower and is not subject to
any defenses or rights of set off of any kind or nature and that all of the
Indebtedness is secured by a valid and perfected lien in the Collateral.
6. CONDITIONS PRECEDENT. This Agreement shall be effective when the
Lender shall have received an executed original hereof, together with each of
the following, each in substance and form acceptable to the Lender in its sole
discretion:
(a) A certificate of the Secretary or Assistant Secretary of
the Borrower certifying as to (i) the resolutions adopted by the
Borrower's directors with respect to this Agreement; (ii) the continued
authorization of the Borrower's officers and agents previously
certified to the Lender; and (iii) the fact that the articles of
incorporation and bylaws of the Borrower have not been amended since
such documents were last certified to the Lender.
(b) The Acknowledgment and Agreement of Guarantors set forth
at the end of this Agreement, duly executed by the Guarantors.
(c) Projections showing expected revenues, expenses, cash
flows, borrowing base, and other financial information, on a monthly
basis through the end of the Forbearance Period, showing the Borrower's
ability to meet its cash needs through such period.
7. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Lender as follows:
(a) The Borrower has all requisite power and authority to
execute this Agreement and to perform all of its obligations hereunder,
and this Agreement has been duly executed and delivered by the Borrower
and constitutes the legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms.
(b) The execution, delivery and performance by the Borrower of
this Agreement have been duly authorized by all necessary corporate
action and do not (i) require any authorization, consent or approval by
any governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) violate any provision of any
law, rule or regulation or of any order, writ, injunction or decree
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presently in effect, having applicability to the Borrower, or the
articles of incorporation or by-laws of the Borrower, or (iii) result
in a breach of or constitute a default under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which
the Borrower is a party or by which it or its properties may be bound
or affected.
(c) All of the representations and warranties contained in
Article V of the Credit Agreement are correct on and as of the date
hereof as though made on and as of such date.
8. NO WAIVER. The execution of this Agreement and acceptance of any
documents related hereto shall not be deemed to be a waiver of any Default or
Event of Default under the Credit Agreement or breach, default or event of
default under any Security Document or other document held by the Lender,
whether or not known to either Lender and whether or not existing on the date of
this Agreement.
9. RELEASE. The Borrower, and each Guarantor by signing the
Acknowledgment and Agreement of Guarantors set forth below, each hereby
absolutely and unconditionally releases and forever discharges the Lender, and
any and all participants, parent corporations, subsidiary corporations,
affiliated corporations, insurers, indemnitors, successors and assigns thereof,
together with all of the present and former directors, officers, agents and
employees of any of the foregoing, from any and all known claims, demands or
causes of action of any kind, nature or description arising out of or relating
in any way to this Agreement, the Credit Agreement, or the other Loan Documents,
whether arising in law or equity or upon contract or tort or under any state or
federal law or otherwise, which the Borrower or such Guarantor has had, now has
or has made claim to have against any such person for or by reason of any act,
omission, matter, cause or thing whatsoever arising from the beginning of time
to and including the date of this Agreement, whether such claims, demands and
causes of action are matured or unmatured.
10. COSTS AND EXPENSES. The Borrower hereby reaffirms its agreement
under the Credit Agreement to pay or reimburse the Lender on demand for all
costs and expenses incurred by Lender in connection with the Credit Agreement,
the Security Documents and all other documents contemplated thereby, including
without limitation all reasonable fees and disbursements of legal counsel.
Without limiting the generality of the foregoing, the Borrower specifically
agrees to pay all fees and disbursements of counsel to the Lender for the
services performed by such counsel in connection with the preparation of this
Agreement and the documents and instruments incidental hereto. The Borrower
hereby agrees that the Lender may, at any time or from time to time in its sole
discretion and without further authorization by the Borrower, make a loan to the
Borrower under the Credit Agreement, or apply the proceeds of any loan, for the
purpose of paying any such fees, disbursements, costs and expenses.
11. MISCELLANEOUS. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Minnesota. In any action brought or
arising out of this Agreement, the Borrower hereby consents to the sole
jurisdiction of any federal or state court having proper venue within the State
of Minnesota and also consents to the service of process by any means authorized
by Minnesota law. The headings used in this Agreement are for convenience only
and shall be disregarded in interpreting the substantive provisions of this
Agreement. Except as expressly provided otherwise herein, all terms used herein
shall have the meaning given to them in the applicable Credit Agreement. If any
provision of this Agreement shall be determined by a court of competent
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jurisdiction to be invalid, illegal or unenforceable, that portion shall be
deemed severed therefrom, and the remaining parts shall remain in full force as
though the invalid, illegal or unenforceable portion had never been a part
hereof. This Agreement, together with the Credit Agreement and the other
agreements and documents referred to therein, including all amendments thereto,
comprises the complete and integrated agreement of the parties on the subject
matter hereof. This Agreement shall not be modified except by written instrument
executed by the Borrower and the Lender. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original and all of which counterparts, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
STRATA DIRECTIONAL TECHNOLOGY, INC.
By /S/ XXXXXXX XXXXXXXXXXXX
--------------------------------------
Its Chief Executive Officer
XXXXX FARGO CREDIT, INC.
By /S/ XXXXXXXX XXXXXXXXX
--------------------------------------
Xxxxxxxx Xxxxxxxxx, Vice President
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ACKNOWLEDGMENT AND AGREEMENT OF GUARANTORS
The undersigned, each a guarantor of the indebtedness of Strata
Directional Technology, Inc. (the "Borrower") to Xxxxx Fargo Credit, Inc. (the
"Lender") pursuant to a separate Guaranty each dated as of February 1, 2002
(each, a "Guaranty"), hereby (i) acknowledges receipt of the foregoing
Agreement; (ii) consents to the terms (including without limitation the release
set forth in paragraph 9 of the Agreement) and execution thereof; (iii)
reaffirms his or its obligations to the Lender pursuant to the terms of his or
its Guaranty; and (iv) acknowledges that the Lender may amend, restate, extend,
renew or otherwise modify the Credit Agreement and any indebtedness or agreement
of the Borrower, or enter into any agreement or extend additional or other
credit accommodations, without notifying or obtaining the consent of the
undersigned and without impairing the liability of the undersigned under his or
its Guaranty for all of the Borrower's present and future indebtedness to the
Lender.
XXXXX-XXXXXXXX CORPORATION
By /S/ XXXXXXX XXXXXXXXXXXX
--------------------------------
Its Chief Executive Officer
JENS' OIL FIELD SERVICE, INC.
By /S/ XXXXXXX XXXXXXXXXXXX
--------------------------------
Its Chief Executive Officer
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