Exhibit 10.15
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("Amendment") is made and
entered into as of August 4, 2000 (the "Amendment Date"), by and between NESCO,
Inc., an Oklahoma corporation (the "Borrower"), and Bank One, Oklahoma, NA, a
national banking association (the "Lender"), with reference to the following:
A. The Borrower and the Lender are parties to that certain
Credit Agreement dated as of May 12, 2000 (the "Credit Agreement"), pursuant
to which the Lender established three Facilities (as therein described) in
favor of the Borrower. Capitalized terms used herein but not otherwise
defined have the respective meanings assigned to them in the Credit Agreement.
B. The Borrower has requested that the Lender modify the terms
and provisions of the Working Capital Revolving Credit Facility to provide
for the issuance of letters of credit from time to time at the request of and
for the account of the Borrower or any of its Subsidiaries.
C. The Lender has agreed to the requested modification in the
terms of the Working Capital Revolving Credit Facility, subject to the terms
and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereby amend the Credit Agreement, effective as of the Amendment Date,
as follows:
1. DEFINITIONS.
A. ADDITIONAL DEFINITIONS. The following defined terms are
hereby added to Section 1.1 of the Credit Agreement:
"Collateral Shortfall Amount" is defined in Section 8.1(i).
"Credit Extension" means the making of a Loan or the issuance
of a Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an
Advance or the issuance date for a Facility LC.
"Facility LC" is defined in Section 2.20.1.
"Facility LC Application" is defined in Section 2.20.2.
"Facility LC Collateral Account" is defined in Section 2.20.8.
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Facility LC Sublimit" means the sum of $500,000 or such other
amount as may be established by the Lender from time to time, in its
sole discretion, as the Facility LC Sublimit.
"LC Fee" is defined in Section 2.12(iii).
"LC Obligations" means, at any time, the sum, without
duplication, of (i) the aggregate undrawn stated amount under all
Facility LC's outstanding at such time plus (ii) the aggregate unpaid
amount at such time of all Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.20.3.
"Modify" and "Modification" are defined in Section 2.20.1.
"Outstanding Working Capital Credit Exposure" means, at any
time, the sum of (i) the aggregate principal amount of all Working
Capital Revolving Loans outstanding at such time, plus (ii) the
aggregate principal amount of all Working Capital Term Loans
outstanding at such time, plus (iii) the total LC Obligations at such
time.
"Reimbursement Obligations" means, at any time, the aggregate
of all obligations of the Borrower then outstanding under Section 2.20
to reimburse the Lender for amounts paid by the Lender in respect of
any one or more drawings under Facility LC's.
B. MODIFICATION OF DEFINITIONS. The definitions of the
following terms appearing in Section 1.1 of the Credit Agreement are amended
in their entirety to read as follows:
"Loan Documents" means this Agreement, the Notes, the Facility
LC Applications, the Collateral Documents, the Guaranty, and any other
documents, agreements, instruments and writings executed by the
Borrower or any of its Subsidiaries in connection with this Agreement
or the Facilities.
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Loans, all Reimbursement Obligations, all
accrued and unpaid fees and all expenses, reimbursements, indemnities
and other obligations of the Borrower to the Lender or any indemnified
party arising under the Loan Documents.
"Working Capital Revolving Credit Commitment" means the sum of
$8,000,000, as such amount may be modified from time to time pursuant
to the terms hereof. As the context requires, "Working Capital
Revolving Credit Commitment" also refers to the obligation of the
Lender to make Working Capital Revolving Loans and Working Capital Term
Loans to the Borrower and to issue Facility LC's under the Working
Capital Revolving Loan Facility.
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C. CERTAIN REFERENCES. As the context requires: (i) all
references in the Credit Agreement to the making of Loans are hereby modified
to mean the making of "Credit Extensions"; (ii) all references to outstanding
"Loans" are hereby modified to include both outstanding Loans and LC
Obligations; and (iii) all references in the Credit Agreement to "Borrowing
Date" are hereby amended to read "Credit Extension Date." The Borrower
acknowledges that, as a result of the amendment to the definition of the term
"Obligations" effected by this Amendment, the prompt payment of all LC
Obligations will be secured by the Collateral and all Collateral Documents
and will be guaranteed by the Guaranty executed by each of its Subsidiaries.
2. AMENDMENTS TO THE FACILITIES.
A. MODIFICATION OF WORKING CAPITAL REVOLVING CREDIT FACILITY
TO PROVIDE FOR ISSUANCE OF FACILITY LC'S. Section 2.1.1(a) of the Credit
Agreement is amended in its entirety to read as follows:
2.1.1. WORKING CAPITAL REVOLVING CREDIT FACILITY.
(a) From and including the Closing Date and prior to the
Working Capital Revolving Credit Facility Termination Date, the Lender
agrees, on the terms and conditions set forth in this Agreement, (i) to
make Working Capital Revolving Loans to the Borrower from time to time
(each individually a "Working Capital Revolving Loan" and,
collectively, the "Working Capital Revolving Loans") and (ii) to issue
Facility LC's from time to time upon the request of the Borrower,
PROVIDED, HOWEVER, that, after giving effect to the making of each such
Working Capital Revolving Loan and the issuance of each such Facility
LC, the Outstanding Working Capital Credit Exposure shall not exceed
the Working Capital Revolving Credit Commitment, and PROVIDED FURTHER,
that the aggregate LC Obligations shall not at any time exceed the
Facility LC Sublimit. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Working Capital Revolving Loans
at any time prior to the Working Capital Revolving Credit Facility
Termination Date. The obligation of the Lender to make Working Capital
Revolving Loans and to issue Facility LC's under the Working Capital
Revolving Credit Facility shall expire on the Working Capital Revolving
Credit Facility Termination Date.
B. MATURITY. Section 2.3.1(a) of the Credit Agreement is
amended in its entirety to read as follows:
2.3.1. WORKING CAPITAL REVOLVING CREDIT FACILITY.
(a) All outstanding Working Capital Revolving Loans,
other than NAC Project Loans which have been converted to Working
Capital Term Loans, all LC
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Obligations, and all other unpaid Obligations arising under or
relating to the Working Capital Revolving Credit Facility shall be
due and payable in full on the Working Capital Revolving Credit
Facility Termination Date.
C. APPLICATION OF MANDATORY PREPAYMENTS. Section 2.3.4 of the
Credit Agreement is amended in its entirety to read as follows:
2.3.4. MANDATORY PREPAYMENTS. Within three (3) Business Days
after receipt thereof, the Borrower shall make a mandatory prepayment
on the Loans in an amount equal to the net proceeds received by the
Borrower from (i) the creation or incurrence of additional Indebtedness
(other than Loans and additional Indebtedness permitted under Section
6.11) or (ii) the sale of a Substantial Portion of its Properties. Any
mandatory prepayment made pursuant to clause (i) or (ii) preceding
shall be applied as follows (to the extent of available proceeds):
first, to the principal installments payable under Section 2.3.2 with
respect to the Term Loans in the inverse order of maturity; then, to
the principal installments payable under Section 2.3.3 with respect to
the Acquisition Term Loans in the inverse order of maturity; then, to
any outstanding Acquisition Loans; then to the principal installments
payable under Section 2.3.1(b) with respect to the Working Capital Term
Loans in the inverse order of maturity; then to the Facility LC
Collateral Account, in an amount equal to the LC Obligations then
existing; and finally, to any outstanding Working Capital Revolving
Loans. To the extent any mandatory prepayment is applied to the
outstanding Working Capital Revolving Loans, the Working Capital
Revolving Credit Commitment shall be permanently reduced by a like
amount. Nothing contained in this Section 2.3.4 shall nullify the
requirements, as set forth in Section 6.11 and 6.13, respectively, for
consent of the Lender to the creation or incurrence of additional
Indebtedness or any sale by the Borrower of a Substantial Portion of
its Properties.
D. REDUCTIONS IN COMMITMENTS. Section 2.5 of the Credit
Agreement is amended in its entirety to read as follows:
2.5. REDUCTIONS IN COMMITMENTS. The Borrower may
permanently reduce the Working Capital Revolving Credit Commitment or
the Acquisition Loan Commitment, in whole or in part, in integral
multiples of $1,000,000, upon at least three Business Days' written
notice to the Lender, which notice shall specify the amount of any such
reduction; provided, however, that (i) the amount of the Working
Capital Revolving Credit Commitment may not be reduced below the
Outstanding Working Capital Credit Exposure, and (ii) the amount of the
Acquisition Loan Commitment may not be reduced below the aggregate
principal amount of the outstanding Acquisition Loans and Acquisition
Term Loans.
E. CALCULATION OF COMMITMENT FEE. Section 2.12(i) of the
Credit Agreement is amended in its entirety to read as follows:
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2.12 FEES.
(i) The Borrower agrees to pay to the Lender a
commitment fee (the "Commitment Fee") at a per annum rate equal to the
Applicable Fee Rate on the daily unused portion of the Lender's
Working Capital Revolving Credit Commitment and Acquisition Loan
Commitment from the date hereof to and including the latter to occur
of the Working Capital Revolving Credit Facility Termination Date or
the Acquisition Loan Facility Termination Date, payable on each
Payment Date commencing May 31, 2000. For purposes of this
Section 2.12, all outstanding Working Capital Revolving Loans, Working
Capital Term Loans and Facility LC's shall be regarded as usages of
the Working Capital Revolving Credit Commitment, and all outstanding
Acquisition Loans and Acquisition Term Loans shall be regarded as
usages of the Acquisition Loan Commitment. Any accrued Commitment Fee
shall be payable on the effective date of any termination of the
obligations of the Lender to make Working Capital Revolving Loans
and/or Acquisition Loans hereunder.
F. LC FEES. A new Section 2.12(iii) is hereby added to the
Credit Agreement reading as follows:
(iii) On the date of issuance of each Facility LC (and
annually thereafter, if such Facility LC has a term of more than one
year) and on the date of any Modification of any Facility LC which
increases the stated amount thereof, the Borrower shall pay to the
Lender with respect to such Facility LC (or Modification) a letter of
credit fee in an amount equal to the GREATER of (x) the amount
calculated at the rate of 1.5% per annum on the stated (face) amount
thereof (or, with respect to a Modification which increases the stated
amount thereof, such increase in the stated amount) for the stated term
of such Facility LC, or (y) $125 (each such fee described in this
sentence, an "LC Fee"). In the event a Facility LC has a stated term of
more than one year, the LC Fee payable upon issuance will be for the
first year of the term of such Facility LC, and the LC Fee payable on
each anniversary date thereafter will be for the next following year
(or portion thereof). The Borrower shall also pay to the Lender all
documentary and processing charges in connection with the issuance or
Modification of and draws under Facility LC's in accordance with the
Lender's standard schedule for such charges as in effect from time to
time.
G. ISSUANCE OF FACILITY LC'S AT LENDING INSTALLATIONS. Section
2.17 of the Credit Agreement is amended in its entirety to read as follows:
2.17. LENDING INSTALLATIONS. The Lender may book the Loans
and the Facility LC's at any Lending Installation selected by the
Lender and may change its Lending Installation from time to time. All
terms of this Agreement shall apply to
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any such Lending Installation and to all Loans made and Facility LC's
made or issued at any such Lending Installation, and all Notes issued
hereunder shall be deemed held by the Lender for the benefit of any
such Lending Installation. The Lender may, by written notice to the
Borrower in accordance with Article XI, designate replacement or
additional Lending Installations through which Loans will be made by
it or Facility LC's will be issued by it and for whose account Loan
payments or payments with respect to Facility LC's are to be made.
H. REGARDING THE FACILITY LC'S. A new Section 2.20 is hereby
added to the Credit Agreement reading as follows:
2.20. FACILITY LC'S.
2.20.1. ISSUANCE. The Lender hereby agrees, on the terms and
conditions set forth in this Agreement, to issue standby and commercial
letters of credit (each, a "Facility LC") for the account of the
Borrower or any of its Subsidiaries and to renew, extend, increase,
decrease or otherwise modify each Facility LC ("Modify," and each such
action a "Modification"), from time to time prior to the Working
Capital Facility Termination Date upon the request of the Borrower;
provided that immediately after each such Facility LC is issued or
Modified, (i) the aggregate amount of the outstanding LC Obligations
shall not exceed the Facility LC Sublimit and (ii) the Outstanding
Working Capital Credit Exposure shall not exceed the Working Capital
Revolving Credit Commitment. No Facility LC shall have an expiry date
later than the earlier of (x) 18 months after its issuance or (y) the
Working Capital Facility Termination Date.
2.20.2. REQUEST FOR ISSUANCE. Subject to Section 2.20.1, the
Borrower shall give the Lender notice prior to 10:00 a.m. (local time)
at least five (5) Business Days prior to the proposed date of issuance
or Modification of each Facility LC, specifying the beneficiary, the
proposed date of issuance (or Modification) and the expiry date of such
Facility LC, and describing the proposed terms of such Facility LC and
the nature of the transactions proposed to be supported thereby. The
issuance or Modification by the Lender of any Facility LC shall, in
addition to the conditions precedent set forth in Article IV (the
satisfaction of which the Lender shall have no duty to ascertain), be
subject to the conditions precedent that such Facility LC shall be
satisfactory to the Lender and that the Borrower shall have executed
and delivered such application agreement and/or such other instruments
and agreements relating to such Facility LC as the Lender shall have
reasonably requested (each, a "Facility LC Application"). In the event
of any conflict between the terms of this Agreement and the terms of
any Facility LC Application, the terms of this Agreement shall control.
2.20.3. ADMINISTRATION. Upon receipt from the beneficiary of
any Facility LC of any demand for payment under such Facility LC, the
Lender shall promptly
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notify the Borrower as to the amount to be paid by the Lender as a
result of such demand and the proposed payment date (the "LC Payment
Date"). The responsibility of the Lender to the Borrower shall be only
to determine that the documents (including each demand for payment)
delivered under each Facility LC in connection with such presentment
shall be in conformity in all material respects with such Facility LC.
2.20.4. REIMBURSEMENT BY BORROWER. The Borrower shall be
irrevocably and unconditionally obligated to reimburse the Lender on or
before the applicable LC Payment Date for any amounts to be paid by the
Lender upon any drawing under any Facility LC, without presentment,
demand, protest or other formalities of any kind; PROVIDED that the
Borrower shall hereby be precluded from asserting any claim for direct
(but not consequential) damages suffered by the Borrower to the extent,
but only to the extent, caused by (i) the willful misconduct or gross
negligence of the Lender in determining whether a request presented
under any Facility LC issued by it complied with the terms of such
Facility LC or (ii) the Lender's failure to pay under any Facility LC
issued by it after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC. All such
amounts paid by the Lender and remaining unpaid by the Borrower shall
bear interest, payable on demand, for each day until paid at a rate per
annum equal to (x) the rate applicable to Floating Rate Advances for
such day if such day falls on or before the applicable LC Payment Date
and (y) the sum of 2% plus the rate applicable to Floating Rate
Advances for such day if such day falls after such LC Payment Date.
Subject to the terms and conditions of this Agreement (including
without limitation the submission of a Borrowing Notice in compliance
with Section 2.8 and the satisfaction of the applicable conditions
precedent set forth in Article IV), the Borrower may request a Working
Capital Revolving Loan hereunder for the purpose of satisfying any
Reimbursement Obligation.
2.20.5. OBLIGATIONS ABSOLUTE. The Borrower's obligations
under this Section 2.20 shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower may have or have had against the
Lender or any beneficiary of a Facility LC. The Borrower further agrees
with the Lender that the Lender shall not be responsible for, and the
Borrower's Reimbursement Obligation in respect of any Facility LC shall
not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents should
in fact prove to be in any or all respects invalid, fraudulent or
forged, or any dispute between or among the Borrower, any of its
Affiliates, the beneficiary of any Facility LC or any financing
institution or other party to whom any Facility LC may be transferred
or any claims or defenses whatsoever of the Borrower or of any of its
Affiliates against the beneficiary of any Facility LC or any such
transferee. The Lender shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted,
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in connection with any Facility LC. The Borrower agrees that any
action taken or omitted by the Lender under or in connection with
each Facility LC and the related drafts and documents, if done without
gross negligence or willful misconduct, shall be binding upon the
Borrower and shall not put the Lender under any liability to the
Borrower. Nothing in this Section 2.20.5 is intended to limit the
right of the Borrower to make a claim against the Lender for damages
as contemplated by the proviso to the first sentence of Section 2.20.4.
2.20.6. ACTIONS OF LENDER. The Lender shall be entitled to
rely, and shall be fully protected in relying, upon any Facility LC,
draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Lender.
2.20.7. INDEMNIFICATION. The Borrower hereby agrees to
indemnify and hold harmless the Lender and its directors, officers,
agents and employees from and against any and all claims and damages,
losses, liabilities, costs or expenses which the Lender may incur (or
which may be claimed against the Lender by any Person whatsoever) by
reason of or in connection with the issuance, execution and delivery or
transfer of or payment or failure to pay under any Facility LC or any
actual or proposed use of any Facility LC, including, without
limitation, any claims, damages, losses, liabilities, costs or expenses
which the Lender may incur by reason of or in connection with by reason
of or on account of the Lender issuing any Facility LC which specifies
that the term "Beneficiary" included therein includes any successor by
operation of law of the named Beneficiary, but which Facility LC does
not require that any drawing by any such successor Beneficiary be
accompanied by a copy of a legal document, satisfactory to the Lender,
evidencing the appointment of such successor Beneficiary; PROVIDED that
the Borrower shall not be required to indemnify the Lender for any
claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, caused by (x) the willful misconduct or gross
negligence of the Lender in determining whether a request presented
under any Facility LC complied with the terms of such Facility LC or
(y) the Lender's failure to pay under any Facility LC after the
presentation to it of a request strictly complying with the terms and
conditions of such Facility LC. Nothing in this Section 2.20.7 is
intended to limit the obligations of the Borrower under any other
provision of this Agreement.
2.20.8 FACILITY LC COLLATERAL ACCOUNT. The Borrower agrees
that it will, upon the request of the Lender and until the final
expiration date of any Facility LC and thereafter as long as any amount
is payable to the Lender in respect of any Facility LC, maintain with
the Lender a special collateral account pursuant to arrangements
satisfactory to the Lender (the "Facility LC Collateral Account"), in
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the name of the Borrower but under the sole dominion and control of the
Lender, and in which the Borrower shall have no interest other than as
set forth in Section 8.1. The Borrower hereby pledges, assigns and
grants to the Lender a security interest in all of the Borrower's
right, title and interest in and to all funds which may from time to
time be on deposit in the Facility LC Collateral Account to secure the
prompt and complete payment and performance of the Obligations. The
Lender will invest any funds on deposit from time to time in the
Facility LC Collateral Account in certificates of deposit of the Lender
having a maturity not exceeding 30 days. Nothing in this Section 2.20.8
shall either obligate the Lender nor require the Borrower to deposit
any funds in the Facility LC Collateral Account or limit the right of
the Lender to release any funds held in the Facility LC Collateral
Account in each case other than as required by Section 8.1.
3. OTHER CONFORMING AMENDMENTS TO CREDIT AGREEMENT.
A. CONDITIONS TO BE SATISFIED. Section 4.5 of the Credit
Agreement is amended in its entirety to read as follows:
4.5. EACH CREDIT EXTENSION. The Lender shall not be
required to make a Credit Extension under any Facility unless on the
applicable Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in
Article V are true and correct as of such Credit Extension Date except
to the extent any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation or
warranty shall have been true and correct on and as of such earlier
date.
(iii) All legal matters incident to the making of such
Credit Extension shall be satisfactory to the Lender and its counsel.
B. EFFECT OF BORROWING NOTICE OR REQUEST FOR FACILITY LC.
Section 4.5 of the Credit Agreement is amended in its entirety to read as
follows:
4.5 EFFECT OF BORROWING NOTICE OR REQUEST FOR FACILITY
LC. The Borrowing Notice or request for issuance of a Facility LC with
respect to each Credit Extension shall constitute a representation and
warranty by the Borrower that the applicable conditions precedent set
forth in this Article IV have been satisfied and that the statements
contained in Sections 4.5(i) and (ii) are true and correct. The Lender
may require a duly completed Compliance Certificate as a condition to
making any Credit Extension.
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C. PERMITTED INDEBTEDNESS. Section 6.11(i) of the Credit
Agreement is amended in its entirety to read: "The Loans and the
Reimbursement Obligations."
D. CONTINGENT OBLIGATIONS. Section 6.20 of the Credit
Agreement is amended in its entirety to read as follows:
6.20. CONTINGENT OBLIGATIONS. The Borrower will not, nor
will it permit any of its Subsidiaries to, make or suffer to exist any
Contingent Obligation (including, without limitation, any Contingent
Obligation with respect to the obligations of a Subsidiary), except (i)
by endorsement of instruments for deposit or collection in the ordinary
course of business, and (ii) the Reimbursement Obligations.
E. PROHIBITION AGAINST OTHER LETTERS OF CREDIT. Section 6.21
of the Credit Agreement is amended in its entirety to read as follows:
6.21. LETTERS OF CREDIT. The Borrower will not apply for or
become liable upon or in respect of any Letter of Credit, other than
Facility LC's.
F. EVENTS OF DEFAULT. Section 7.2 of the Credit Agreement is
amended in its entirety to read as follows:
7.2. NONPAYMENT. Nonpayment of principal of any Loan when
due, nonpayment of any Reimbursement Obligation within one (1) Business
Day after the same becomes due, or nonpayment of interest upon any Loan
or of any Commitment Fee, LC Fee or other obligations under any of the
Loan Documents within five (5) days after the same becomes due.
G. REMEDIES UPON DEFAULT. Section 8.1 of the Credit Agreement
is amended in its entirety to read as follows:
8.1. ACCELERATION; FACILITY LC COLLATERAL ACCOUNT.
(i) If any Default described in Section 7.6 or 7.7
occurs with respect to the Borrower, (x) the obligation of the Lender
to make Credit Extensions hereunder shall automatically terminate and
the Secured Obligations shall immediately become due and payable
without any election or action on the part of the Lender, and (y) the
Borrower will be and become thereby unconditionally obligated, without
any further notice, act or demand, to pay to the Lender an amount in
immediately available funds, which funds shall be held in the Facility
LC Collateral Account, equal to the difference of (1) the amount of LC
Obligations at such time, less (2) the amount on deposit in the
Facility LC Collateral Account at such time which is free and clear of
all rights and claims of third parties and has not been applied against
the Secured Obligations (such difference, the "Collateral
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Shortfall Amount"). If any other Default occurs, the Lender may
(x) terminate or suspend the obligations of the Lender to make Credit
Extensions hereunder, or declare the Secured Obligations to be due and
payable, or both, whereupon the Secured Obligations shall become
immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which the Borrower hereby expressly waives,
and (y) upon notice to the Borrower and in addition to the continuing
right to demand payment of all amounts payable under this Agreement,
make demand on the Borrower to pay, and the Borrower will, forthwith
upon such demand and without any further notice or act, pay to the
Lender the Collateral Shortfall Amount, which funds shall be deposited
in the Facility LC Collateral Account.
(ii) If at any time while any Default is continuing, the
Lender determines that the Collateral Shortfall Amount at such time is
greater than zero, the Lender may make demand on the Borrower to pay,
and the Borrower will, forthwith upon such demand and without any
further notice or act, pay to the Lender the Collateral Shortfall
Amount, which funds shall be deposited in the Facility LC Collateral
Account.
(iii) The Lender may at any time or from time to time after
funds are deposited in the Facility LC Collateral Account, apply such
funds to the payment of the Secured Obligations and any other amounts
as shall from time to time have become due and payable by the Borrower
to the Lender under the Loan Documents.
(iv) At any time while any Default is continuing, neither
the Borrower nor any Person claiming on behalf of or through the
Borrower shall have any right to withdraw any of the funds held in the
Facility LC Collateral Account. After all of the Secured Obligations
have been indefeasibly paid in full and the Commitments have been
terminated, any funds remaining in the Facility LC Collateral Account
shall be returned by the Lender to the Borrower or paid to whomever
may be legally entitled thereto at such time.
4. CONDITIONS PRECEDENT. This Amendment shall become effective as of the
Amendment Date, subject to the Borrower's satisfaction of the following
conditions precedent (in addition to the conditions precedent set forth in
Article IV of the Credit Agreement):
A. EXECUTION OF DOCUMENTS. This Amendment shall have been duly
and validly authorized, executed and delivered to the Lender by the Borrower.
B. RESOLUTIONS. The Bank shall have received a copy of the
resolutions of the Board of Directors of the Borrower authorizing the
Borrower to request Facility L/C's from time to time under the Working
Capital Revolving Credit Facility (as modified hereby) and to execute,
deliver
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and perform its obligations under this Amendment and the Credit Agreement (as
amended by this Amendment).
C. ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by the Borrower in the Credit Agreement
and the other Loan Documents and in Section 5 hereof shall be true and
correct in all material respects as of the Amendment Date (except to the
extent any of such representations and warranties with respect to the
financial condition of the Borrower refer to an earlier specified date).
D. NO DEFAULT. There shall not have occurred any Default or
Unmatured Default as of the Amendment Date, and the Borrower shall be current
in payment of all principal, interest and fees due and owing to the Lender as
of the Amendment Date.
5. REPRESENTATIONS AND WARRANTIES. All representations and warranties of
Borrower contained in Article V of the Credit Agreement are hereby remade and
restated as the date hereof and shall survive the execution and delivery of this
Amendment. The Borrower further represents and warrants as follows:
A. AUTHORITY. The Borrower has all requisite power and
authority and has been duly authorized to request Facility L/C's from time to
time under the Working Capital Revolving Credit Facility (as modified hereby)
and to execute, deliver and perform its obligations under this Amendment and
the Credit Agreement (as amended by this Amendment).
B. BINDING OBLIGATIONS; ENFORCEABILITY. This Amendment and the
Credit Agreement (as amended by this Amendment) are valid and legally binding
obligations of the Borrower, enforceable in accordance with their respective
terms, except as limited by applicable bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights generally.
C. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by the Borrower of this Amendment, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions thereof,
will violate (i) any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any of its
Subsidiaries, or (ii) the Borrower's or any Subsidiary's articles or
certificate of incorporation, partnership agreement, certificate of
partnership, articles or certificate of organization, by-laws, or operating
or other management agreement, as the case may be, or (iii) the provisions of
any indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the Property of
the Borrower or any of its Subsidiaries pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which
has not been obtained by the Borrower or any of its Subsidiaries, is required
to be obtained by the Borrower or any of its Subsidiaries in connection with
the execution and delivery of this Amendment, the borrowings and other credit
extensions
12
under the Credit Agreement (as amended hereby), the payment and performance
by the Borrower of the Obligations, or the legality, validity, binding effect
or enforceability of this Amendment or the Credit Agreement (as amended by
this Amendment).
D. NO MATERIAL ADVERSE CHANGE. Since June 30, 2000 (the date
of the latest financial statements of the Borrower which have been delivered
to the Lender), there has been no adverse change in the business, Property,
prospects, condition (financial or otherwise) or results of operations of the
Borrower and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
6. MISCELLANEOUS.
A. EFFECT OF AMENDMENT. The terms of this Amendment shall be
incorporated into and form a part of the Credit Agreement. Except as amended,
modified and supplemented by this Amendment, the Credit Agreement and all
other Loan Documents shall continue in full force and effect in accordance
with their original stated terms, all of which are hereby reaffirmed in every
respect as of the date hereof. In the event of any irreconcilable
inconsistency between the terms of this Amendment and the terms of the Credit
Agreement, the terms of this Amendment shall control and govern, and the
agreements shall be interpreted so as to carry out and give full effect to
the intent of this Amendment. All references to the "Credit Agreement"
appearing in any of the Loan Documents shall hereafter be deemed references
to the Credit Agreement as amended, modified and supplemented by this
Amendment.
B. DESCRIPTIVE HEADINGS. The descriptive headings of the
several sections of this Amendment are inserted for convenience only and
shall not be used in the construction of the content of this Amendment.
C. GOVERNING LAW. This Amendment shall be construed and
enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of Oklahoma.
D. REIMBURSEMENT OF EXPENSES. The Borrower agrees to pay the
reasonable fees and out-of-pocket expenses of Xxxxx & Xxxxxxx, counsel to the
Lender, incurred in connection with the preparation of this Amendment and the
consummation of the transactions contemplated hereby.
IN WITNESS WHEREOF, the Borrower and the Lender have executed this
Agreement as of the date first above written.
NESCO, INC.
By:
-------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
13
BANK ONE, OKLAHOMA, NA,
By:
-------------------------------------------
Name: Xxxxx X. Page
Title: First Vice President
CONSENT OF SUBSIDIARIES
Each of the undersigned hereby (i) acknowledges and consents to the
execution and delivery of the above and foregoing First Amendment to Credit
Agreement, (ii) confirms that the Security Agreement and the Subsidiary
Guaranty, each previously executed or subscribed to by the undersigned, will
continue in full force and effect as security for payment and performance of all
of the "Secured Obligations," as such term is used in the Security Agreement,
and the "Guaranteed Obligations," as such term is used in the Subsidiary
Guaranty, in each case including all LC Obligations, and (iii) ratifies and
reaffirms each of the Security Agreement and the Subsidiary Guaranty.
Capitalized terms used in this Consent and not otherwise defined have the
respective meanings assigned to them in the Credit Agreement referred to in the
above and foregoing First Amendment to Credit Agreement.
LAB ONE ANALYTICAL, INC.
By:
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chairman
FUEL RECOVERY SYSTEMS, INC.,
an Oklahoma corporation
By:
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chairman and President
THH ALPHA, INC.,
a North Carolina corporation
By:
---------------------------------
Name: Xxxx X. Xxxxxxxxx
14
Title: President
CAROLINA DRILLING SERVICES, INC.,
a North Carolina corporation
By:
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
SUMMIT ENVIRONMENTAL SERVICES, INC.,
an Oklahoma corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
NESCO ACCEPTANCE CORPORATION,
an Oklahoma corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXXXX APPRAISAL SERVICES, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
15
