EX-10.3 2 d343882dex103.htm EX-10.3 MASTER AGREEMENT
THIS MASTER AGREEMENT, dated as of June 6, 2012 (this “Master Agreement”), is among: (a) TX Energy Services, LLC, a Delaware limited liability company, file number 4379582, and X.X. Xxxxxx, LLC, a Delaware limited liability company, file number 4379586, (each a “Company” and collectively, the “Companies”), each with a principal place of business at 0000 Xxxxx Xxxxxxxx Xxxxxxx 000, Xxxxx, Xxxxx and (b) REGIONS EQUIPMENT FINANCE CORPORATION, an Alabama corporation (“REFCO”), and REGIONS COMMERCIAL EQUIPMENT FINANCE, LLC, an Alabama limited liability company (“RCEF”) both with an office at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxx 00000. Certain definitions and constructions of terms used in this Master Agreement are provided in Section XIV hereof.
I. General Provisions. This Master Agreement contains provisions under which REFCO, RCEF or one of their Affiliates will from time to time lease to the Companies, or provide financing for the Companies to acquire, fixed assets that are secured by liens in such fixed assets (collectively, the “Equipment” and each individually, an “Item”). This Equipment shall be described on each equipment schedule incorporating the terms of this Master Agreement (each, a “Schedule”). Schedules may document a “true lease” pursuant to which REFCO, RCEF or an Executing Affiliate (as defined below) will be the owner of the Equipment for all purposes. Schedules may document a financing whereby a Company will be the owner of the Equipment and REFCO, RCEF or an Executing Affiliate will be granted a security interest in the Equipment as collateral for a Company’s obligations and those transactions may be documented either as “leases intended as security” or as “equipment financing agreements.” Each Schedule shall constitute a separate agreement and the terms “Agreement” or “this Agreement” refer to each Schedule and this Master Agreement as incorporated therein. Except to the extent otherwise expressly provided herein, the term “Regions” shall mean: (a) REFCO with respect to all Schedules executed by REFCO; (b) RCEF with respect to all Schedules executed by RCEF; and (c) the applicable Executing Affiliate with respect to all Schedules executed by such Executing Affiliate. One or more Schedules incorporating the terms of this Master Agreement may be executed by one or more Affiliates (including subsidiaries) of Regions Bank (each such Affiliate executing a Schedule shall hereinafter be referred to as an “Executing Affiliate”). For the purposes of avoiding any doubt as to the intention of the parties: (i) the terms of this Master Agreement and any and all addenda, amendments or other modifications hereto shall apply to each Schedule executed by such Executing Affiliate as if such Executing Affiliate were a party to this Master Agreement; provided, however, that, except with respect to the provisions of Section XV regarding liens as to which this Master Agreement shall govern, the express terms of any Schedule shall supersede any contrary terms in this Master Agreement; and (ii) any reference herein to a “Schedule” or an “Agreement” shall include each Schedule executed by an Executing Affiliate which incorporates this Master Agreement, together with this Master Agreement and any and all addenda, amendments or other modifications thereto, to the extent related to such Schedules executed by such Executing Affiliate. This Master Agreement is not a legal commitment to enter into any Schedule and, after executing a Schedule, Regions shall have no obligation to purchase or finance any Equipment until receipt by Regions of all documentation requested by Regions. Each Agreement may be terminated or prepaid only if and as expressly provided therein.
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of such Equipment; (C) all requirements of any insurance maintained hereunder; and (D) the prudent practice of other similar companies in the same business as the Companies, but in any event, to no lesser standard than that employed by the Companies for comparable equipment owned or leased by it; (iii) the Equipment will be operated only by employees or authorized agents of the Companies and each Company will obtain and make available to all users of the Equipment all safety and operating manuals available from the Supplier of the Equipment; (iv) each Company shall obtain Regions’ prior written consent before using the Equipment to ship, store, process, create or use any materials regulated under the Hazardous Materials or Substances Transportation Act, 49 U.S.C. 1801 et seq; the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq, or the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq, as amended by the Superfund Amendments and Reauthorization Act; (v) without in any way limiting the restrictions contained in Section IV(a)(iv) above, each Company shall comply with all acts, rules, regulations and orders of any state, federal or local judicial, legislative or regulatory body, including any license, permit or registration requirement relating to environmental protection or remediation; (vi) each Company shall not attach or incorporate the Equipment to or in any other item of equipment in such a manner that the Equipment may be deemed to have become an accession to or part of such other item of equipment; and (vii) without in any way limiting the foregoing, each Company shall maintain and use the Equipment, at its sole cost and expense, in good and safe operating order, in like new condition excepting only the following (“Reasonable Wear and Tear”): the results of normal use of the Equipment as originally intended assuming (A) use and maintenance in substantial compliance with the Supplier’s recommendations; (B) the complete absence of any casualty, misuse, abuse, abandonment, improper care, accident, negligence or similar occurrence with respect to the Equipment, whether or not the Equipment is in use at the time of said occurrence; and (C) use that does not, in any way, impair the function of the Equipment or prevent the Equipment from immediately being placed into use. Each Company will give prompt oral and written notice to Regions of its receipt of any demand, notice, summons, complaint or legal proceeding relating to any Item including any violation of any law, regulation or standard covered by this Section.
(b) All replacement parts for the Equipment shall be purchased from sources capable of providing parts in substantial compliance with the recommendations of the Supplier, according to its specifications and generally consistent with the requirements of any and all warranties and service agreements. It is the intention of the parties hereto that the Equipment shall consist solely of personal property and that the same shall not constitute fixtures under the laws of the states where the Equipment is located. The parties acknowledge and agree that the Equipment is and shall remain removable from, and not essential to, the premises where the Equipment is located and Company hereby covenants and agrees not to affix or install any Item to or in any real property in such a manner that may cause it to be a fixture. Provided that no Event of Default has occurred and is continuing, the Companies may, at its sole cost and expense, make any alterations, additions, modifications or attachments (“Improvements”) to the Equipment that do not violate the terms of this Agreement provided that Company notifies Regions of such action in writing and provided further that such Improvements: (i) do not reduce the value or general usefulness of the Equipment; (ii) do not impair the certification, performance, safety, quality, capability, use or character of the Equipment or alter the purpose for which such Equipment was leased or financed under this Agreement; (iii) are not inconsistent with applicable laws or any warranty or service agreement; (iv) do not expose Regions’ or any of the Equipment to any Lien or other adverse interest or circumstance; (v) do not adversely affect insurance coverage benefiting Regions hereunder; and (vi) are of a kind that customarily are made by lessees or owners of equipment similar to the Equipment.
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maintain insurance that includes: (i) special form replacement cost insurance for damage to the Equipment (or any portion thereof), which insurance amount shall not be less than the Casualty Value of each Item; (ii) commercial general liability insurance insuring against liability for property damage, death and bodily injury resulting from the transportation, ownership, possession, use, operation, performance, maintenance, storage, repair or reconstruction of the Equipment, which insurance as to an Item under any Schedule shall not be less than the amount set forth in the applicable Schedule (or of which Regions otherwise notifies the Companies in writing thereafter); and (iii) if reasonably requested by Regions, other or additional coverage, including motor vehicle coverage. In addition, the Companies shall, at no expense to Regions cause the Equipment to be covered by the insurance specified above commencing upon the placement thereof in transit for shipment of such Item from the Supplier to the Companies.
(b) All such policies shall be with companies and on terms satisfactory from time to time to Regions and all insurance policies shall: (i) name Regions as sole loss payee and additional insured with respect to the Equipment leased or financed hereunder; (ii) provide that the policies will not be invalidated as against Regions because of any violation of a condition or warranty of the policy or the application therefor by any Company; (iii) provide that the policies may be materially altered or canceled by the insurer only after at least thirty (30) days prior written notice to Regions and to any and all of Regions’ assignees; and (iv) provide for a Lender’s loss payable endorsement in Regions’ favor and any other endorsements related to the Equipment leased or financed hereunder which Regions may require from time to time. Each comprehensive physical loss or damage insurance policy shall also provide that any proceeds payable by said insurer with respect to any loss or destruction of, or damage to, any Item, shall be payable solely to Regions. The Companies agree to inform Regions immediately in writing of any notices from, or other communications with, any insurers that may in any way adversely affect the insurance policies being maintained pursuant to this Section VII. No insurance related to the Equipment leased or financed hereunder shall be subject to any co-insurance clause. Any deductibles and retentions shall be subject to Region’s approval. All insurance premiums shall be prepaid by the Companies. The Companies hereby appoint Regions as the Companies’ attorney-in-fact with respect to claims relating to this Agreement or the Equipment under policies of insurance maintained in accordance with the terms hereof. The Companies agree to deliver to Regions evidence of compliance with this Section VII satisfactory to Regions, including any requested copies of policies, certificates and endorsements, with premium receipts therefor, on or before the date of execution by the Companies of the applicable Schedule and thereafter within five (5) business days after Regions’ request.
VIII. Negative Covenants of the Companies. No Company shall: (a) sell, assign, lease or otherwise transfer (including by operation of law) any Item or any of its interest in or rights under this Agreement or as to any Item, without Regions’ prior written consent; (b) change Company’s legal name, state of organization, organizational structure (by merger or otherwise) or organizational identification number, without providing Regions with written notice five (5) business days in advance; (c) mortgage, pledge, grant a security interest in or otherwise permit, suffer or cause any Lien to exist or remain on any Item except Permitted Liens; (d) record or attempt to record a termination statement under Article 9 of the UCC, without Regions’ prior written consent; or (e) fail to promptly provide Regions with any notice required hereunder. For the purpose of this Section VIII, “Permitted Lien” shall mean any Lien for impositions, liens of mechanics, materialmen, or suppliers and similar liens arising by operation of law, provided that any such lien is incurred by Company in the ordinary course of business, for sums that are not yet delinquent or are being contested in good faith and with due diligence, by negotiations or by appropriate proceedings which suspend the collection thereof and, in Regions’ reasonable discretion, (i) do not involve any substantial danger of the sale, forfeiture or loss of the Equipment or any interest therein, and (ii) for the payment of which adequate assurances or security have been provided to Regions. If for any reason Regions determines that any Lien is not a Permitted Lien, Company will pay within five (5) business days after receipt of notice from Regions, the Casualty Value of the Equipment affected by such Lien.
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Amount” set forth in the applicable Schedule; (B) all costs and expenses incurred by Regions in any repossession, transportation, recovery, storage, refurbishing, advertising, repair, sale, re-lease, or other disposition of the Equipment or Regions enforcement of its rights hereunder, including Attorneys’ Fees and any brokers’ or similar fees or any other fees, costs or expenses resulting from the Event of Default; plus (C) interest on the amounts due in Sections X(a)(vii) (A) and (B) from the date due until paid at a rate of eighteen percent (18%) per annum or the highest rate allowed by law, whichever is lower. Notwithstanding the foregoing, upon the occurrence of an Event of Default under Section IX(d) or (e) above, the Companies’ obligations hereunder shall automatically accelerate and the Companies shall be deemed to immediately owe to Regions, without notice or demand from Regions, the Required Default Amount. The Companies expressly acknowledge that this Agreement sets forth a reasonable amount and reasonable formula for calculation of liquidated damages in light of the anticipated harm caused by any default by the Companies hereunder and that such harm would otherwise be difficult or impossible to calculate or ascertain.
(b) In the event the Companies pay to Regions the Required Default Amount and any and all other amounts due and payable to Regions hereunder as a result of the Event of Default (in good, collected and indefeasible funds) prior to the date Regions enters into a contract or otherwise determines that it is obligated to a third party with respect to the disposition of the Equipment, Regions shall release its security interest in the Equipment or transfer to the Companies (without recourse, representation or warranty, “AS IS, WHERE IS”) any right, title or interest Regions may have in such Equipment. In the event Regions disposes of the Equipment, it shall apply the Net Proceeds (as hereinafter defined) to the Companies’ obligations in the order Regions determines. As used herein, the term “Net Proceeds” shall mean: (i) in the case of a purchase of the Equipment in immediately available funds by the purchaser, the amount received by Regions from said purchaser; or (ii) in the case of a purchase of the Equipment which Regions finances pursuant to a lease intended as security or other equipment finance arrangement or in the case of a disposition pursuant to a true lease (any such leases or finance agreements being referred to hereinafter as a “Replacement Agreement”), an amount equal to the sum of all non-cancellable periodic payments and any purchase election, purchase requirement or balloon payment set forth in the Replacement Agreement, discounted to present value at the implicit rate of the Replacement Agreement as determined by Regions.
(c) With respect to any exercise by Regions of its right to dispose of the Equipment or any Items, Company acknowledges and agrees that Regions shall have no obligation, subject to any legal requirements of commercial reasonableness, to clean-up or otherwise prepare the Equipment or any Items for disposition; Regions may comply with any state or federal law requirements that Regions deems to be applicable or prudent to follow in connection with any such disposition; and any actions taken in connection therewith shall not be deemed to have adversely affected the commercial reasonableness of any such disposition. If Equipment delivered to or picked up by Regions contains goods or other property not constituting of Equipment, Company agrees that Regions may take such other goods or property, provided that Regions makes reasonable efforts to make such goods or property available to Company after repossession upon Company’s written request.
(d) If, after an Event of Default, this Agreement is placed in the hands of an attorney, collection agent or other professional for collection of Payments or enforcement of any other right or remedy of Regions, the Companies shall pay all Attorneys’ Fees and associated costs and expenses. Forbearance as to any Event of Default shall not be deemed a waiver, all waivers to be enforceable only if specifically provided in writing by Regions, and waiver of any Event of Default shall not be a waiver of any other or subsequent Event of Default. To the fullest extent permitted by applicable law, the Companies hereby waive any rights now or hereafter conferred by statute or otherwise that may require Regions to sell, lease or otherwise use any Equipment in mitigation of Regions’ damages set forth in this Agreement or that may otherwise limit or modify any of Regions’ rights or remedies set forth in this Agreement.
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other corporate or business restriction, materially and adversely affecting its business, properties, assets, operations or condition (financial or otherwise), and such Company is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any material agreement for borrowed money or other material agreement or instrument to which it is a party or by which it may be bound in any manner; (i) all annual or quarterly balance sheets, profit and loss statements, statements of income or other financial statements of the Guarantor, heretofore or hereinafter delivered to Regions, have been prepared in accordance with generally accepted accounting principles and fairly present the financial position of the Guarantor, on a consolidated basis, on and as of the date thereof and the results of its operations for the period or periods covered thereby (subject to footnotes and year-end audit adjustments), and since the date of the latest such balance sheet, profit and loss statements of income or other financial statements, there has been no material adverse change in the financial position of the Guarantor; (j) such Company is not in default under this Agreement; (k) there are no pending or threatened actions or proceedings before any court, administrative agency or other tribunal or body or judgments which may materially and adversely affect such Company’s financial position or results of operations; and (l) such Company shall notify Regions in writing within five (5) business days after any Lien shall attach to any Item, and any such notice shall specify the location of such Item on the date of such notification, the amount and circumstances of any claim giving rise to such Lien and the identity and address of the lienholder.
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the parties with respect to the subject matter hereof. Any Schedule to this Master Agreement may, by its express terms, supplement or amend this Master Agreement as it applies to said Schedule and other Schedules to this Master Agreement to, among other things, add additional Events of Default or covenants.
(b) As additional security for the Companies obligations under each Schedule, the Companies’ grant to Regions, to the extent permitted under the language of subsection (6) of the definition of Permitted Liens as set forth in the Indenture (as in effect as of the date hereof, without giving effect to any subsequent amendment, discharge or termination) and under the language of subsection (f) of the definition of Permitted Encumbrances as set forth in the Loan Agreement (as in effect as of the date hereof, without giving effect to any subsequent amendment, discharge or termination), a security interest in: (i) all of the Equipment leased or financed pursuant to each and every other Schedule (the “Other Schedules”) irrespective of whether REFCO, RCEF or an Executing Affiliate is “Regions” under such Other Schedules; (ii) without limitation of the restrictions set forth in Section VIII, any leases, subleases, chattel paper, accounts, security deposits and proceeds relating to any Equipment leased or financed pursuant to said Schedule or any Other Schedules; and (iii) all proceeds of the foregoing described collateral. Anything herein to the contrary notwithstanding: (A) the security interests granted pursuant to Section XV(b) shall be (1) for the benefit of any assignee of Regions that is not an Affiliate of Regions so long as but only to the extent that such assignee is the lessor or lender of one or more Other Schedules; and (2) for the benefit of REFCO, RCEF, any Executing Affiliate and any assignee that is an Affiliate of any of them only to the extent and so long as any of REFCO, RCEF, such Executing Affiliate or any other such Affiliate is the lessor or lender of one or more Other Schedules, it being the intention of the parties that all Schedules with REFCO, RCEF, any Executing Affiliate or any such other Affiliate shall be cross collateralized notwithstanding the fact that different entities are the lessor or lender of any such Schedules. Notwithstanding anything to the contrary herein, including the Commencement Date, any security interest granted pursuant to this Agreement shall become effective between the parties with respect to each Item as soon as a Company receives possession thereof. In addition to, and without limiting the foregoing, the Companies hereby further agree that any security interests granted in this Master Agreement, any Schedule or any other document, instrument or agreement executed in connection with the foregoing shall also secure all obligations of the Companies to each Affiliate of Regions (including the Companies’ obligations under or in connection with any existing and future swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time) with Regions or any of its Affiliates), provided, however, that such security interest shall be for the benefit of any assignee of Regions or any such Affiliates so long as but only to the extent that such assignee is also an Affiliate of Regions.
(c) Regions may assign this Agreement and any and all Schedules hereto, as well as all of its right, title and interest hereunder, to any person or entity whatsoever without notice to or consent of the Companies. In such event, Regions’ assignee shall have all of the rights, but none of the obligations, of Regions hereunder and each Company agrees that it will not assert against any assignee of Regions any defense, counterclaim or offset that the Company may have against Regions with respect to this Agreement or any other matter. Each Company acknowledges that any assignment or transfer by Regions, in whole or in part, does not materially change the Companies’ duties or obligations under this Agreement nor materially increase the burdens or risks imposed on the Companies. Only Regions’ original counterpart of each Schedule constitutes Chattel Paper for purposes of the UCC, and no security interest can be perfected by possession of any other duplicate original or counterpart, whether or not signed by the parties.
(d) Timeliness of the Companies’ payment and other performance is of the essence of this Agreement. The provisions of this Agreement shall be severable and if any provision shall be invalid, void or unenforceable in whole or in part for any reason, the remaining provisions shall remain in full force and effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns (subject nevertheless to restrictions against assignment provided in Section VIII). All representations, warranties and agreements made herein by any of the parties hereto shall survive consummation of the transactions contemplated hereby. The Companies’ obligations as to events or conditions occurring during the Term shall survive termination, cancellation or expiration of this Agreement as to any Item. Regions’ failure at any time to require strict performance by the Companies with any of the provisions hereof shall not waive or diminish Regions’ right thereafter to demand strict compliance therewith. Nothing herein shall be deemed to provide or imply that Regions is a “merchant” as to any Item within the meaning of the UCC as currently in force or as subsequently revised or re-enacted. The Companies acknowledges that Regions’ approval of any Equipment, Supplier or other parties or documentation relating to any Agreement will be solely for the protection of Regions’ interests in the Equipment and under such Agreement and under no circumstances shall be construed to impose any responsibility or liability of any nature whatsoever on Regions.
(e) Federal law requires all financial institutions to obtain, verify and record information regarding customers. Regions has or will obtain and will keep on file information complying with 31 CFR Part 103.121 regarding the Companies, including the Companies’ name, address and copies of various identifying documents.
(g) Neither this Master Agreement nor any Agreement shall become effective unless and until accepted by execution by an officer of Regions in Birmingham, Alabama. This Master Agreement and each Agreement shall be governed in all respects by, and construed and enforced in accordance with, the laws of the State of New York, excluding conflicts-of-law principles. Each of the Companies and Regions hereby waives all rights to trial by jury in any litigation arising under this Agreement or regarding the Equipment. For purposes of any action or proceeding involving this Agreement, each party hereby expressly submits to the jurisdiction and venue of all federal and state courts located in the State of New York, New York County, and consents to be served with any process on paper by registered mail or by personal service within or without said state and county in accordance with applicable law, provided a reasonable time for appearance is allowed. Each party hereby waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of any such action or proceeding. Nothing in this paragraph shall affect the right of any party to serve legal process in any other manner permitted by law or affect the right of any party to bring any action or proceeding in the courts of any other jurisdiction. Following expiration or termination of all Schedules, if the Companies are not then in default, either party may terminate
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this Master Agreement by written notice to the other party. The terms of any letter of intent or proposal are superseded hereby and declared null and void. The parties intend and agree that a carbon copy, photocopy or facsimile of this Agreement or any document executed in connection herewith with their signature thereon and all counterparts when taken together, shall be deemed to be as binding, valid, genuine, and authentic as an original-signature document for all purposes, including all matters of evidence and the “best evidence” rules. No variation or modification of this Agreement or any term or provision hereof, or waiver, discharge, cancellation or termination of any of its provisions or conditions, shall be valid unless in a writing and signed by an authorized representative of the party against whom the enforcement of such variation, modification, waiver, discharge, cancellation or termination is sought. The Companies acknowledge having read this Section XV(g). INITIAL HERE: /s/ LMC .
[Signature Page to Follow]
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| Company: | TX Energy Services, LLC | WITNESS | /s/ Xxxxx Xxxxxx | |||
| By: | /s/ L. Xxxxxx Xxxxxx | Print Name: | Xxxxx Xxxxxx | |||
| Print Name: | L. Xxxxxx Xxxxxx | Signature | ||||
| Title: | Senior Vice President, Chief Financial Officer and Assistant Secretary | |||||
| Company: | X. X. Xxxxxx, LLC | WITNESS | /s/ Xxxxx Xxxxxx | |||
| By: | /s/ L. Xxxxxx Xxxxxx | Print Name: | Xxxxx Xxxxxx | |||
| Print Name: | L. Xxxxxx Xxxxxx | Signature | ||||
| Title: | Senior Vice President, Chief Financial Officer and Assistant Secretary | |||||
| Accepted by Regions in Birmingham, Alabama, this the 6th day of June, 2012. | ||||||
| RCEF: | REGIONS COMMERCIAL EQUIPMENT FINANCE, LLC | REFCO | REGIONS EQUIPMENT FINANCE CORPORATION | |||
| By: | /s/ Xxxxx XxXxxxx | By: | /s/ Xxxxx XxXxxxx | |||
| Title: | Senior Vice President | Title: | Senior Vice President |
Addresses:
REGIONS EQUIPMENT FINANCE CORPORATION
Attn: Manager, Equipment Finance Operations
P. O. Xxx 0000
Xxxxxxxxxx, XX 00000
Addresses:
REGIONS COMMERCIAL EQUIPMENT FINANCE, LLC
Attn: Manager, Equipment Finance Operations
P. O. Xxx 0000
Xxxxxxxxxx, XX 00000
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FIRST AMENDMENT TO MASTER AGREEMENT
THIS FIRST AMENDMENT TO MASTER AGREEMENT (this “Amendment”) is entered into as of July 12, 2012 (the “Effective Date”), by and among: (a) TX Energy Services, LLC, a Delaware limited liability company, file number 4379582, and X.X. Xxxxxx, LLC, a Delaware limited liability company, file number 4379586, (each a “Company” and collectively, the “Companies”), each with a principal place of business at 0000 Xxxxx Xxxxxxxx Xxxxxxx 000, Xxxxx, Xxxxx and (b) Regions Equipment Finance Corporation, an Alabama corporation (“REFCO”), and Regions Commercial Equipment Finance, LLC, an Alabama limited liability company (“RCEF”), both with an office at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxx 00000.
R E C I T A L S:
1. Existing Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the meanings set forth in the Master Agreement.
2. Amendment to the Master Agreement.
(a) Effective July 12, 2012, the Master Agreement is hereby amended to delete subsection (o) of Section XIV in its entirety and replace it with the following:
“(o) the term “Indenture” means that certain indenture dated as of June 7, 2011 among the Parent, the guarantors named therein and Xxxxx Fargo Bank, National Association, as trustee, as now in effect without regard to any future amendment; and the term “Loan Agreement” means that certain Loan and Security Agreement dated September 9, 2011 by and among the Parent, the Companies, certain other subsidiaries of the Parent, certain lenders named therein and Regions Bank, as agent for the secured parties, as amended by that certain First Amendment to Loan and Security Agreement dated as of December 13, 2011, and as further amended by that certain Second Amendment to Loan and Security Agreement dated as of July 3, 2012, as now in effect without regard to any future amendment.”
(b) Effective July 12, 2012, the Master Agreement is hereby amended to delete subsection (b) of Section XV in its entirety and replace it with the following:
“(b) Subject to, and to the extent permitted under the language of subsection (6) of the definition of Permitted Liens as set forth in the Indenture (as in effect as of the date hereof, without giving effect to any subsequent amendment, discharge or termination) and under the language of subsection (f) of the definition of Permitted Encumbrances as set forth in the Loan Agreement (without giving effect to any subsequent amendment, discharge or termination), the parties agree that:
As additional security for the Companies’ obligations under each Schedule, the Companies grant to Regions a security interest in: (i) all of the Equipment leased or financed pursuant to each and every other Schedule (the “Other Schedules”) irrespective of whether REFCO, RCEF or an Executing Affiliate is “Regions” under such Other Schedules; (ii) without limitation of the restrictions set forth in Section VIII, any leases, subleases, chattel paper, accounts, security deposits and proceeds relating to any Equipment leased or financed pursuant to said Schedule or any Other Schedules; and (iii) all proceeds of the foregoing described collateral. Anything herein to the contrary notwithstanding: (A) the security interests granted pursuant to Section XV(b) shall be (1) for the benefit of any assignee of Regions that is not an Affiliate of Regions so long as but only to the extent that such assignee is the lessor or lender of one or more Other Schedules; and (2) for the benefit of REFCO, RCEF, any Executing Affiliate and any assignee that is an Affiliate of any of them only to the extent and so long as any of REFCO, RCEF, such Executing Affiliate or any other such Affiliate is the lessor or lender of one or more Other Schedules, it being the intention of the parties that all Schedules with REFCO, RCEF, any Executing Affiliate or any such other Affiliate shall be cross collateralized notwithstanding the fact that different entities are the lessor or lender of any such Schedules. Notwithstanding anything to the contrary herein, including the Commencement Date, any security interest granted pursuant to this Agreement shall become effective between the parties with respect to each Item as soon as a Company receives possession thereof. In addition to, and without limiting the foregoing, the Companies hereby further agree that any security interests granted in this Master Agreement, any Schedule or any other document, instrument or agreement executed in connection with the foregoing shall also secure all obligations of the Companies to each Affiliate of Regions (including the Companies’ obligations under or in connection with any existing and future swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time) with Regions or any of its Affiliates), provided, however, that such security interest shall be
for the benefit of any assignee of Regions or any such Affiliates so long as but only to the extent that such assignee is also an Affiliate of Regions.”
3. Reference to and Effect on the Master Agreement.
(a) On and after the date hereof, each reference in the Master Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import, shall mean and be a reference to the Master Agreement as amended hereby.
(b) Except as specifically amended above, the Master Agreement and the Schedules thereof shall remain in full force and effect and are hereby ratified and confirmed.
4. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument.
5. Facsimile Documents and Signatures. For purposes of negotiating and finalizing this Amendment, if this document or any document executed in connection with it is transmitted by facsimile machine, it shall be treated for all purposes as an original document. Additionally, the signature of any party on this document transmitted by way of a facsimile machine shall be considered for all purposes as an original signature. Any such faxed document shall be considered to have the same binding legal effect as an original document. At the request of any party, any faxed document shall be re-executed by each signatory party in an original form.
6. Final Agreement. THIS WRITTEN AMENDMENT OF THE MASTER AGREEMENT 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.
[Signature Pages to Follow]
| COMPANIES: | ||
| TX ENERGY SERVICES, LLC | ||
| By: | /s/ L. Xxxxxx Xxxxxx | |
| Name: | L. Xxxxxx Xxxxxx | |
| Title: | SVP & CFO |
| X.X. XXXXXX, LLC | ||
| By: | /s/ L. Xxxxxx Xxxxxx | |
| Name: | L. Xxxxxx Xxxxxx | |
| Title: | SVP & CFO |
| RCEF: | ||
| REGIONS COMMERCIAL EQUIPMENT FINANCE, LLC | ||
| By: | /s/ Xxxxx XxXxxxx | |
| Name: | B. Xxxxx XxXxxxx | |
| Title: | Senior Vice President |
| REFCO: | ||
| REGIONS EQUIPMENT FINANCE CORPORATION | ||
| By: | /s/ Xxxxx XxXxxxx | |
| Name: | B. Xxxxx XxXxxxx | |
| Title: | Senior Vice President |
[Signatures Continued on Following Page]
Signature Page to First Amendment to Master Agreement
| Agreed and Acknowledged to by CapitalSource Bank (“CapitalSource”) pursuant to the terms of that certain Notice and Acknowledgment of Assignment dated July 6, 2012, by and among CapitalSource, RCEF, Forbes Energy Services Ltd. and each Company. | ||
| CAPITALSOURCE BANK | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxxxxx X. Xxxxx | |
| Title: | Senior Vice President |
| Agreed and Acknowledged to by NewStar Equipment Finance I, LLC (“NewStar”) pursuant to the terms of that certain Notice and Acknowledgement of Assignment dated July 11, 2012, by and among NewStar, RCEF, Forbes Energy Services, Ltd. and each Company | ||
| NEWSTAR EQUIPMENT FINANCE I, LLC | ||
| By: | /s/ Xxxxxxx X’Xxxxx | |
| Name: | Xxxxxxx X. X’Xxxxx | |
| Title: | Managing Director |
Signature Page to First Amendment to Master Agreement