COMMITMENT INCREASE AGREEMENT
Exhibit 10.2
Execution Version
This COMMITMENT INCREASE AGREEMENT (“Agreement”) dated as of April 20, 2017 (“Effective Date”), is by and among Xxxxxxxxx-UTI Energy, Inc., a Delaware corporation (“Borrower”), the subsidiaries of the Borrower party hereto (together with the Borrower, the “Loan Parties”), the undersigned Lenders party hereto (the “Increasing Lenders”), and Xxxxx Fargo Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders, as the issuer of letters of credit under the Credit Agreement referred to below (in such capacity, an “L/C Issuer”), and as the swing line lender under the Credit Agreement referred to below (in such capacity, the “Swing Line Lender”).
RECITALS
A. Reference is hereby made to that certain Credit Agreement dated as of September 27, 2012 among the Borrower, the Administrative Agent, each L/C Issuer, the Swing Line Lender and the financial institutions party thereto from time to time, as lenders (the “Lenders”), as amended, supplemented or otherwise modified by that certain Amendment No. 1 to Credit Agreement dated as of January 9, 2015, Amendment No. 2 to Credit Agreement dated as of July 8, 2016, Amendment No. 3 to Credit Agreement dated as of January 17, 2017, Amendment No. 4 to Credit Agreement dated as of April 20, 2017 and the Commitment Increase Agreement dated as of January 24, 2017 (the “January 2017 Increase Agreement”), each among the Borrower, subsidiaries of the Borrower party thereto, the Administrative Agent, each L/C Issuer, the Swing Line Lender and the financial institutions party thereto (as so amended, the “Credit Agreement”).
B. The Borrower has requested that certain Lenders increase their respective Revolving Credit Commitments pursuant to Section 2.14 of the Credit Agreement, subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual covenants, representations and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Defined Terms; Interpretation and Provisions. As used in this Agreement, each of the terms defined in the opening paragraph and the Recitals above shall have the meanings assigned to such terms therein. Each term defined in the Credit Agreement, as amended hereby, and used herein without definition shall have the meaning assigned to such term in the Credit Agreement, as amended hereby, unless expressly provided to the contrary. Article, Section, Schedule, and Exhibit references are to Articles and Sections of and Schedules and Exhibits to this Agreement, unless otherwise specified. The words “hereof”, “herein”, and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The term “including” means “including, without limitation”. Paragraph headings have been inserted in this Agreement as a matter of convenience for reference only and it is agreed that such paragraph headings are not a part of this Agreement and shall not be used in the interpretation of any provision of this Agreement.
Section 2. Increase in Revolving Credit Commitments.
(a) Pursuant to Section 2.14 of the Credit Agreement, each Increasing Lender hereby agrees and acknowledges that its respective Revolving Credit Commitment shall, automatically and without any further action, upon satisfaction of the conditions precedent set forth in Section 2(b), be increased on the Commitment Increase Date (as defined below), and on the Commitment Increase Date,
after giving effect to this Section 2(a), its Revolving Credit Commitment shall be the amount set forth next to its respective name under the caption “Revolving Credit Commitment” on Schedule 2.01 attached hereto. Additionally, on the Commitment Increase Date, after giving effect to each of this Section 2(a) and the January 2017 Increase Agreement, Schedule 2.01 of the Credit Agreement (Commitments and Applicable Percentages) shall be replaced in its entirety with Schedule 2.01 attached hereto. The parties hereto agree and acknowledge that the increase in Revolving Credit Commitments effected hereby are in addition to, and not in lieu of, the increase in Revolving Credit Commitments effected under the January 2017 Increase Agreement.
(b) The increase to the Revolving Credit Commitments of the Increasing Lenders pursuant to Section 2(a) shall become effective and enforceable against the parties hereto upon the occurrence of the following conditions precedent (the date such conditions are satisfied, “Commitment Increase Date”):
(1) the receipt by the Administrative Agent of a new Revolving Credit Note executed by a duly authorized officer of the Borrower payable to each Increasing Lender and reflecting such Increasing Lender’s revised Revolving Credit Commitment as set forth on Schedule 2.01 attached hereto;
(2) evidence satisfactory to the Administrative Agent that the Borrower has effected an issuance of common Equity Interests after January 24, 2017 but on or prior to May 31, 2017 and that the Borrower has received gross equity issuance proceeds of not less than $300,000,000 from such issuance (the “Equity Raise”);
(3) evidence satisfactory to the Administrative Agent that (A) the merger of a wholly-owned subsidiary of Borrower with and into Seventy Seven Energy Inc. (“Seventy Seven”), with Seventy Seven continuing as the surviving entity and a wholly-owned subsidiary of Borrower, pursuant to that certain Agreement and Plan of Merger, dated December 12, 2016, by and among Borrower, Pyramid Merger Sub, Inc. and Seventy Seven (the “Seventy Seven Merger”), has been consummated, (b) the credit facility evidenced by that certain Amended and Restated Credit Agreement among Seventy Seven, certain of its subsidiaries and affiliates, the lenders party thereto, Xxxxx Fargo Bank, National Association as administrative agent, joint lead arranger, joint lead book runner and co-documentation agent, and Bank of America, N.A. as joint lead arranger, joint lead book runner and co-documentation agent dated as of August 1, 2016, as it may have been amended (the “Seventy Seven Facility”) and all obligations to extend credit thereunder have been terminated and all obligations of the obligors (other than (i) obligations with respect to letters of credit so long as such obligations have been cash collateralized in a manner and subject to documentation satisfactory to the issuers of such letters of credit or such letters of credit have been deemed or otherwise constitute Letters of Credit issued under the Credit Agreement pursuant to documentation satisfactory to the issuers of such letters of credit and the Administrative Agent and (ii) contingent indemnification obligations and other contingent obligations not then due) with respect thereto have been paid in full, and (c) arrangements have been made for the release of the liens and security interests granted under the Seventy Seven Facility;
(4) the receipt by the Administrative Agent of a certificate of each Loan Party dated as of the Commitment Increase Date signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to this Agreement and the increase in the Revolving Credit Facility pursuant to Section 2(a) above, and (ii) in the case of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V of the Credit Agreement and the other Loan Documents are true and correct on and as of the Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct
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as of such earlier date, and except that for purposes of Section 2.14 of the Credit Agreement, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, and (B) no Default exists; provided, that if one certificate that meets the requirements of this Section 2(b)(4) and Section 2(b)(4) of the January 2017 Increase Agreement is delivered to the Administrative Agent, such certificate shall satisfy the requirements of this Section 2(b)(4);
(5) the receipt by the Administrative Agent of a certificate dated as of the Commitment Increase Date, signed by a Responsible Officer of the Borrower certifying that (A) the Equity Raise has occurred and noting the date such Equity Raise occurred (which date must be no earlier than January 24, 2017 and no later than May 31, 2017) and certifying that the Borrower has received at least $300,000,000 of gross equity issuance proceeds therefrom, (B) the Seventy Seven Merger has been consummated and (C) the Seventy Seven Facility and all obligations to extend credit thereunder have been terminated and all obligations of the obligors (other than (i) obligations with respect to letters of credit so long as such obligations have been cash collateralized in a manner and subject to documentation satisfactory to the issuers of such letters of credit or such letters of credit have been deemed or otherwise constitute Letters of Credit issued under the Credit Agreement pursuant to documentation satisfactory to the issuers of such letters of credit and the Administrative Agent and (ii) contingent indemnification obligations and other contingent obligations not then due) with respect thereto have been paid in full; provided, that if one certificate that meets the requirements of this Section 2(b)(5) and Section 2(b)(5) of the January 2017 Increase Agreement is delivered to the Administrative Agent, such certificate shall satisfy the requirements of this Section 2(b)(5);
(6) the receipt by the Administrative Agent of an opinion of counsel to the Borrower as to the corporate (or partnership or limited liability company) authorization of the Borrower and the Guarantors of the increase in the Revolving Credit Facility, which such opinion as to corporate authorization will be substantively in the form delivered on the Closing Date and otherwise in form and substance reasonably acceptable to the Administrative Agent; provided, that if one opinion of counsel that meets the requirements of this Section 2(b)(6) and Section 2(b)(6) of the January 2017 Increase Agreement is delivered to the Administrative Agent, such opinion shall satisfy the requirements of this Section 2(b)(6); and
(7) evidence satisfactory to the Administrative Agent of the payment in full by the Borrower of the upfront fees required to be paid under Section 5(b) below.
Notwithstanding anything herein to the contrary, if all of the conditions set forth in this Section 2(b) are not satisfied by 5:00 p.m. (Houston, Texas time) on May 31, 2017, then Section 2(b) and the increase in the Aggregate Revolving Credit Commitments contemplated thereby shall be null and void and of no force and effect.
Section 3. Loan Parties’ Representations and Warranties. The Borrower acknowledges, represents, warrants and agrees as to itself and all other Loan Parties, and each other Loan Party acknowledges, represents, warrants and agrees as to itself, that: (a) after giving effect to this Agreement, the representations and warranties contained in the Credit Agreement, as amended hereby, and the representations and warranties contained in the other Loan Documents are true and correct in all material respects on and as of the Effective Date and on the date hereof as if made on as and as of such date except to the extent that any such representation or warranty expressly relates solely to an earlier date, in which case such representation or warranty is true and correct in all material respects as of such earlier date; (b) the execution, delivery and performance of this Agreement are within the limited liability company or corporate power and authority of such Loan Party and have been duly authorized by appropriate limited
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liability company and corporate action and proceedings; (c) this Agreement constitutes the legal, valid, and binding obligation of such Loan Party enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the rights of creditors generally and general principles of equity, and no portion of the Obligations are subject to avoidance, subordination, recharacterization, recovery, attack, offset, counterclaim, or defense of any kind; (d) there are no governmental or other third party consents, licenses and approvals required to be made or obtained by it in connection with its execution, delivery, performance, validity and enforceability of this Agreement; (e) no Defaults or Events of Default shall have occurred and be continuing; and (f) since the date of the financial statements most recently delivered pursuant to Section 6.01(a) of the Credit Agreement, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
Section 4. Conditions to Effectiveness. This Agreement shall become effective on the Effective Date and enforceable against the parties hereto upon the occurrence of the following conditions precedent:
(a) the receipt by the Administrative Agent of multiple original counterparts of this Agreement executed and delivered by duly authorized officers of the Borrower, the Guarantors, the Administrative Agent, and the Increasing Lenders; and
(b) evidence satisfactory to the Administrative Agent of the payment in full by the Borrower of all the fees and expenses required to be paid as of or on the Effective Date by Section 10.04 of the Credit Agreement or any other provision of a Loan Document to the extent invoiced prior to the Effective Date.
Section 5. Acknowledgments and Agreements.
(a) Each Loan Party acknowledges that on the date hereof all outstanding Obligations are payable in accordance with their terms and each Loan Party waives any defense, offset, counterclaim or recoupment with respect thereto. The Administrative Agent, each L/C Issuer, the Swing Line Lender and the Increasing Lenders hereby expressly reserve all of their rights, remedies, and claims under the Loan Documents. Nothing in this Agreement shall constitute a waiver or relinquishment of (i) any Default or Event of Default under any of the Loan Documents, (ii) any of the agreements, terms or conditions contained in any of the Loan Documents, (iii) any rights or remedies of the Administrative Agent, each L/C Issuer, or any Lender with respect to the Loan Documents, or (iv) the rights of the Administrative Agent, each L/C Issuer, the Swing Line Lender or any Lender to collect the full amounts owing to them under the Loan Documents.
(b) In consideration of the agreements of the Increasing Lenders, the Borrower agrees to pay to the Administrative Agent, for the account of each Increasing Lender, upfront fees in an amount equal to 0.50% of the positive difference between (a) such Increasing Lender’s Revolving Credit Commitment immediately after giving effect to Section 2(a) and the increase in Revolving Credit Commitments contemplated therein and (b) such Increasing Lender’s Revolving Credit Commitment after giving effect to the January 2017 Increase Agreement and the increase in Revolving Credit Commitments contemplated therein and immediately prior to giving effect to Section 2(a) and the increase in Revolving Credit Commitments contemplated therein; provided, that such upfront fees shall only be due and payable on the Commitment Increase Date.
(c) The Borrower, each Guarantor, Administrative Agent, each L/C Issuer, Swing Line Lender and each Increasing Lender does hereby adopt, ratify, and confirm the Credit Agreement, as amended hereby, and acknowledges and agrees that the Credit Agreement, as amended hereby, is and
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remains in full force and effect, and the Borrower and the Guarantors acknowledge and agree that their respective liabilities and obligations under the Credit Agreement, as amended hereby, and the Guaranty, are not impaired in any respect by this Agreement.
(d) From and after the Effective Date, all references to the Credit Agreement and the Loan Documents shall mean the Credit Agreement and such Loan Documents as amended by this Agreement.
(e) This Agreement is a Loan Document for the purposes of the provisions of the other Loan Documents.
(f) Effective as of the Commitment Increase Date, the Borrower hereby names The Bank of Nova Scotia as a Joint Lead Arranger and Co-Syndication Agent with respect to the facility evidenced by the Credit Agreement. Notwithstanding foregoing and notwithstanding anything herein or in the Credit Agreement to the contrary, The Bank of Nova Scotia as Joint Lead Arranger and Co-Syndication Agent shall not have any powers, duties or responsibilities under this Agreement, the Credit Agreement or any of the other Loan Documents, except in its capacity as a Lender.
Section 6. Reaffirmation of the Guaranty. Each Guarantor party hereto hereby ratifies, confirms, acknowledges and agrees that its obligations under the Guaranty are in full force and effect and that such Guarantor continues to unconditionally and irrevocably guarantee the full and punctual payment, when due, whether at stated maturity or earlier by acceleration or otherwise, all of the Guaranteed Obligations (as defined in the Guaranty), and its execution and delivery of this Agreement does not indicate or establish an approval or consent requirement by such Guarantor under the Guaranty, in connection with the execution and delivery of amendments, consents or waivers to the Credit Agreement or any of the other Loan Documents.
Section 7. Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original and all of which, taken together, constitute a single instrument. This Agreement may be executed by facsimile signature or other electronic imaging means, and all such signatures shall be effective as originals.
Section 8. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted pursuant to the Credit Agreement.
Section 9. Severability. In case one or more provisions of this Agreement or the other Loan Documents shall be invalid, illegal or unenforceable in any respect under any applicable Legal Requirement, the validity, legality, and enforceability of the remaining provisions contained herein or therein shall not be affected or impaired thereby.
Section 10. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York; provided that, the Administrative Agent, each L/C Issuer, the Swing Line Lender and each Lender shall retain all rights arising under applicable federal law.
Section 11. ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
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THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized effective as of the Effective Date.
| BORROWER: | ||
| XXXXXXXXX-UTI ENERGY, INC. | ||
| By: |
/s/ Xxxx X. Xxxxxxx III | |
| Xxxx X. Xxxxxxx III | ||
| Senior Vice President—Corporate Development, Chief Financial Officer and Treasurer | ||
| GUARANTORS: | ||
| XXXXXXXXX PETROLEUM LLC | ||
| XXXXXXXXX-UTI DRILLING COMPANY LLC | ||
| XXXXXXXXX-UTI MANAGEMENT SERVICES, LLC | ||
| UNIVERSAL WELL SERVICES, INC. | ||
| UNIVERSAL PRESSURE PUMPING, INC. | ||
| DRILLING TECHNOLOGIES 1 LLC | ||
| DRILLING TECHNOLOGIES 2 LLC | ||
| WARRIOR RIG TECHNOLOGIES US LLC | ||
| Each by: |
/s/ Xxxx X. Xxxxxxx III | |
| Xxxx X. Xxxxxxx III | ||
| Senior Vice President—Corporate Development, Chief Financial Officer and Treasurer | ||
Signature page to Commitment Increase Agreement
(Xxxxxxxxx-UTI Energy, Inc.)
| ADMINISTRATIVE AGENT/LENDER/L/C ISSUER/SWING LINE LENDER/LENDERS: | ||
| XXXXX FARGO BANK, N.A., | ||
| as the Administrative Agent, an L/C Issuer, and the Swing Line Lender | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | Director | |
Signature page to Commitment Increase Agreement
(Xxxxxxxxx-UTI Energy, Inc.)
| U.S. BANK NATIONAL ASSOCIATION, as an Increasing Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Vice President | |
Signature page to Commitment Increase Agreement
(Xxxxxxxxx-UTI Energy, Inc.)
| BOKF, NA DBA BANK OF TEXAS, as an Increasing Lender | ||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxxxx | |
| Title: | SVP, Commercial Relationship Manager | |
Signature page to Commitment Increase Agreement
(Xxxxxxxxx-UTI Energy, Inc.)
SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES
| Lender |
Revolving Credit Commitment |
Initial Applicable Percentage (Revolving Credit Facility) |
Extending Lender | |||
| Xxxxx Fargo Bank, National Association | $100,000,000.00 | 15.815485997% | YES | |||
| Bank of America, N.A. | $75,000,000.00 | 11.000000000% | YES | |||
| The Bank of Nova Scotia | $65,000,000.00 | 10.000000000% | YES | |||
| The Bank of Tokyo-Mitsubishi UFJ, Ltd. | $64,583,333.33 | 10.214168039% | YES | |||
| Regions Bank | $64,583,333.33 | 10.214168039% | NO | |||
| U.S. Bank National Association | $50,000,000.00 | 7.907742998% | YES | |||
| Comerica Bank | $36,041,666.67 | 5.700164745% | YES | |||
| BOKF, NA dba Bank of Texas | $35,000,000.00 | 5.535420099% | YES | |||
| HSBC Bank USA, N.A. | $29,166,666.67 | 4.612850083% | YES | |||
| Sumitomo Mitsui Banking Corporation | $29,166,666.67 | 4.612850083% | NO | |||
| ZB, N.A. dba Amegy Bank | $22,916,666.67 | 3.624382208% | YES | |||
| Mercantil Commercebank N.A. | $12,500,000.00 | 1.976935750% | NO | |||
| UMB Bank, N.A. | $12,500,000.00 | 1.976935750% | YES | |||
| Bank of Taiwan, Los Angeles Branch | $8,333,333.33 | 1.317957166% | NO | |||
| Xxxxx Xxx Commercial Bank Ltd., Los Angeles Branch | $8,333,333.33 | 1.317957166% | NO | |||
| E.Sun Commercial Bank, Ltd., Los Angeles Branch | $8,333,333.33 | 1.317957166% | NO | |||
| Mega International Commercial Bank Co., Ltd. New York Branch | $6,666,666.67 | 1.054365734% | NO | |||
| Mega International Commercial Bank Co., Ltd. Silicon Valley Branch | $4,166,666.67 | 0.658978584% | NO | |||
| Total | $632,291,666.67 | 100% | 77.53% | |||
Schedule 2.01
