Exhibit 10.36
AMENDMENT TO CREDIT AGREEMENT
THIS Amendment to Credit Agreement (this "AMENDMENT") dated October 1,
2003, is between ALLIS CHALMERS CORPORATION, a Delaware corporation (hereinafter
referred to as "BORROWER") and XXXXX FARGO ENERGY CAPITAL, INC. ("LENDER").
RECITALS:
A. Lender and Borrower entered into that certain Credit Agreement dated
as of July 31, 2002 (as amended, the "AGREEMENT), in conjunction with that
certain senior secured credit facility from Xxxxx Fargo Credit Inc. ("SENIOR
LENDER") to STRATA Directional Technology, Inc. ("STRATA") and certain senior
secured credit facility from Senior Lender to Jens' Oil Field Service, Inc.
("JENS", Jens and Strata are herein sometimes collectively "GUARANTORS") each
dated February 1, 2002, as same has been amended from time to time (collectively
the "SENIOR CREDIT FACILITY").
B. Senior Lender has agreed to enter into amendments under the Senior
Credit Facility with each of Jens and Strata dated as of the same effective date
of this Amendment (collectively, the "SENIOR LOAN Amendments").
C. Certain Events of Default under the Agreement have occurred
including: (i) Borrower's failure to comply with the financial covenants set
forth under Section 4.09 of the Agreement, (ii) Borrower's failure to pay
accrued interest and (iii) Borrower's defaults under the Senior Credit Facility
as more particularly described under the Third Amendment to Senior Loan
Amendments (the "DESIGNATED DEFAULTS").
D. Borrower has requested that Lender, among other things, waive the
Designated Defaults, agree to amend certain financial covenants under the
Agreement and consent to the amendments to the Senior Credit Facility as set
forth in the Senior Loan Amendments, including a $2,200,000 increase in Senior
Lender's term debt to Jens for purchase of additional equipment to be used in
connection with Jens' operations in Mexico. Lender has agreed to do so, subject
to the terms and conditions contained herein.
E. Borrower and Lender now desire to enter into this Amendment on the
terms set forth herein.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
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ARTICLE 1
GENERAL TERMS
Section 1.1 TERMS DEFINED IN AGREEMENT. As used in this Amendment,
except as may otherwise be provided herein, all capitalized terms which are
defined in the Agreement, as amended, have the same meaning herein as therein,
all of such terms and their definitions being incorporated herein by reference.
Section 1.2 CONFIRMATION AND EXTENT OF CHANGES. All terms which are
defined or referred to in the Agreement shall remain unchanged except as
otherwise specifically provided in this Amendment. It is hereby confirmed that
the term "AGREEMENT" includes the Agreement as amended by this Amendment.
ARTICLE 2
AMENDMENTS AND WAIVER
Section 2.1 AMENDMENT TO SECTION 1.01. Effective as of the date hereof,
Section 1.01 of the Agreement is hereby amended to add a new subsection (c)
immediately following existing subsection (b) as follows:
"(c) VOLUNTARY PREPAYMENT. In the event Borrower desires to
prepay all, or a portion of the Term Note, it shall notify
Lender in writing of such desire and request that Lender
submit to Borrower such amount or amounts as Lender determines
are necessary to compensate it for any cost or expense
incurred by Lender as a result of any prepayment, said cost or
expense to be the actual cost or expense charged to Lender
using its customary breakage fee calculation (hereinafter
referred to as "BREAKAGE FEE"). Upon receipt of such written
notice from Borrower of its desire to make such a prepayment,
Lender shall obtain and furnish to Borrower, within five (5)
business days, in writing, the amount of the Breakage Fee.
Upon receipt of Lender's notice, Borrower shall make its
proposed prepayment, including therewith the Breakage Fee,
within five (5) business days of receipt of the written
Breakage Fee amount from Lender. There shall be no other
premium or penalty for any prepayment."
Section 2.2 AMENDMENT TO SECTION 4.09. Effective as of the date hereof,
Section 4.09 of the Agreement is hereby amended to read in its entirety as
follows:
"SECTION 4.09 FINANCIAL CONDITION. Maintain Borrower's
financial condition as follows using generally accepted
accounting principles consistently applied and used
consistently with prior practices (except to the extent
modified by the definitions herein):
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(a) FIXED CHARGE COVERAGE RATIO Borrower shall maintain a
Fixed Charge Coverage Ratio of not less than 1.1 to 1.0 for
the twelve (12) month period ending on the last day of each
fiscal quarter, beginning with the fiscal quarter ending
December 31, 2003. "FIXED CHARGE COVERAGE RATIO" is defined
herein as (i) EBITDA less unfinanced capital expenditures
divided by (ii) the aggregate of total interest charges
(excluding any applicable paid-in-kind ("PIK") charges),
scheduled principal payments, non-compete payments, cash
dividends paid and paid taxes for the same period. "EBITDA" is
defined herein as net income plus cash interest charges, plus
cash taxes, plus depreciation, amortization and non-cash
charges on a trailing twelve (12) month basis.
(b) TOTAL FUNDED DEBT TO EBITDA RATIO Borrower must maintain
for the 12-month period ending on the last day of each
quarter, beginning with the quarter ending December 31, 2003,
a Total funded Debt to EBITDA Ratio of not more than 3.5 to
1.0 for the quarters ending March 31, 2004, and of no more
than 3.0 to 1.0 for the quarters ending June 30, 2004, and for
quarters ending thereafter no more than 2.5 to 1.0. As used
herein, "TOTAL FUNDED DEBT" is defined herein as all
interest-bearing obligations of Borrower, whether secured or
unsecured, senior or subordinated, excluding the Seller Note."
Section 2.3 WAIVER OF DEFAULTS. Borrower is in default of the following
provisions of the Credit Agreement (collective, the "DESIGNATED DEFAULTS"):
Subsection 4.01 with respect to interest payment defaults; Section 4.09 with
respect to the various financial covenants therein through the effective date of
this Amendment; and Subsection 6.01(i) with respect to cross-default to the
Senior Credit Facility. Upon the terms and subject to the conditions set forth
in this Amendment, Lender hereby waives the Designated Defaults. This waiver
shall be effective only in this specific instance and for the specific purpose
for which it is given, and this waiver shall not entitle Borrower to any other
or further waiver in any similar or other circumstances.
Section 2.4 NO WAIVER OF RIGHTS. Acceptance by Lender of any payments
or property hereunder or waiver by Lender of the Designated Defaults pursuant to
the terms of this Amendment shall not be construed to be a waiver of any other
default or a waiver of any rights of Lender against Borrower in accordance with
the Agreement, or any other Loan Documents. Borrower acknowledges and agrees
that Lender shall retain all remedies and rights of default and shall be
permitted to exercise and enforce such rights and remedies as provided in the
Agreement.
Section 2.5 LIMITED SCOPE OF AGREEMENT. Except as otherwise expressly
set forth herein, all obligations of Borrower under the Agreement shall remain
in full force and effect as written and shall be enforceable in accordance with
their respective terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally. Borrower acknowledges and agrees that, except as
specifically set forth in SECTION 2.2, Lender has not waived any defaults or
agreed to forbear from exercising or enforcing any rights or remedies it may
have as a result of any other failure by Borrower to comply fully with the
Agreement or the terms of this Amendment.
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Section 2.6 COMPLIANCE WITH EXISTING LOAN DOCUMENTS; ADDITIONAL
COVENANTS. Unless expressly modified or amended herein, Borrower shall comply
with, and shall continue to be bound by, each of the terms and provisions
contained in the Agreement. In addition, Borrower shall comply with, and shall
be bound by, each of the terms and provisions contained herein.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
In order to induce Lender to enter into this Amendment Borrower
represents and warrants (which representations and warranties will survive the
execution and delivery hereof and will be deemed for all purposes to be
additional representations and warranties of the Agreement) that:
Section 3.1 REPRESENTATIONS AND WARRANTIES OF THE AGREEMENT AND THE
LOAN DOCUMENTS. The representations and warranties of Borrower contained in the
Agreement and the Loan Documents and otherwise made in writing by or on behalf
of Borrower pursuant to the Agreement and the Loan Documents were true and
correct when made, and are true and correct in all material respects at and as
of the time of delivery of this Amendment, except for such changes in the facts
represented and warranted, waived or amended by this Amendment.
Section 3.2 ACKNOWLEDGMENT OF INDEBTEDNESS. Borrower acknowledges that
it is indebted to Lender under the Term Note, that the amount of unpaid interest
under the Term Note through October 1, 2003, is $143,000 which unpaid interest
shall be paid in full and brought current on or before October 1, 2003. The
Indebtedness is due and owing by Borrower pursuant to the terms of the Agreement
as amended by this Amendment without offset, defense or counterclaim.
Section 3.3 COMPLIANCE WITH OBLIGATIONS. Except for the Designated
Defaults, Borrower has performed and complied with all agreements and conditions
contained in the Agreement and the Loan Documents required to be performed or
complied with by Borrower prior to or at the time of delivery of this Amendment.
Section 3.4 DEFAULTS. Except for the Designated Defaults, there exists,
and after giving effect to this Amendment, will exist, no default or Event of
Default, or any condition, or act which constitutes, or with notice or lapse of
time (or both) would constitute an event of default under the Senior Credit
Facility. Seller's Note, or any loan agreement, note agreement, or trust
indenture to which Borrower is a party.
ARTICLE 4
CONDITIONS
Lender has relied upon the representations and warranties contained in
this Amendment in agreeing to the amendments to the Agreement set forth herein
and the amendments to the Agreement set forth herein are conditioned upon and
subject to the accuracy of each and every representation and warranty of
Borrower made or referred to herein, to the performance by Borrower of its
obligations to be performed under the Agreement and the Loan Documents on or
before the date of this Amendment, except to the extent waived herein, and to
the following further conditions:
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Section 4.1 AMENDMENT DOCUMENTS. This Amendment shall be fully
executed. Lender, Senior Lender shall have entered into a consent to this
Amendment consenting to the terms as provided under this Amendment. Guarantors
shall have executed the Acknowledgement and Agreement of Guarantors set forth at
the end of this Amendment.
Section 4.2 PAYMENT OF OUTSTANDING INTEREST. Borrower shall pay
contemporaneously herewith all outstanding interest due and payable in the
amount of $143, 000 and shall pay all Lenders reasonable legal fees associated
with the preparation of this Amendment.
Section 4.3 OFFICER'S CERTIFICATE. Lender shall have received a
certificate of the officers of Borrower setting forth (i) resolutions of its
board of directors in form and substance satisfactory Lender authorizing
Borrower to execute this Amendment and such other documents to which it is a
party, and (ii) specimen signatures of the officers so authorized.
Section 4.4 AMENDED SECURITY DOCUMENTS. On or before October 31, 2003,
Jens shall enter into an amendment to the Pledge of Machinery and Equipment with
Lender and Senior Lender supplementing the machinery and equipment collateral
located or to be located in Mexico and shall execute such other documents
necessary to file and perfect such supplemental amendment.
Section 4.5 SENIOR LOAN AMENDMENTS. Senior Lender, Jens and Strata
shall have entered into the Senior Loan Amendments and all conditions precedent
to effectiveness thereunder shall be completed.
Section 4.6 ADDITIONAL DOCUMENTATION. Borrower shall deliver to Lender
such additional approvals, opinions or documents as Lender may reasonably
require.
ARTICLE 5
MISCELLANEOUS
Section 5.1 LOAN DOCUMENTS. All Loan Documents shall secure the
indebtedness and obligations previously secured by such Loan Documents, as such
indebtedness and obligations are affected by this Amendment (including, without
limitation, the Term Note), whether or not such Loan Documents shall be
expressly amended or supplemented in connection with this Amendment.
Section 5.2 EXTENT OF AMENDMENTS. Except as otherwise expressly
provided herein, the Agreement, the Loan Documents and the other instruments and
agreements referred to therein are not amended, modified or affected by this
Amendment.
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Section 5.3 RELEASE. Borrower and each Guarantor, by signing the
Acknowledgment and Agreement of Guarantors set forth below, each hereby
absolutely and unconditionally releases and forever discharges Lender, and any
and all participants, parent corporation, subsidiary corporations, affiliated
corporations, insurers, indemnitors, successors and assigns thereof, together
with all present and former directors, officers agents and employees of any of
the foregoing, from any and all claims, demands or causes of actions of any
kind, nature or description, whether arising in law or equity or upon contract
or tort or under any state or federal law or otherwise, which Borrower or such
Guarantor has had, now has or has made claim to have against any such person for
or by reason of any act, omission, matter or cause whatsoever arising prior to
and including the date of this Amendment, whether such claims, demands and
causes of action are matured or unmatured, or known or unknown.
Section 5.4 EFFECTIVE DATE. Except as otherwise expressly provided
herein, the effective date of all provisions of this Amendment shall be October
1, 2003.
Section 5.5 TITLES OF ARTICLES, SECTIONS AND SUBSECTIONS. All titles or
headings to articles, sections, subsections or other divisions of this Amendment
are only for the convenience of the parties and shall not be construed to have
any effect or meaning with respect to the other content of such articles,
sections, subsections, or other divisions, such other content being controlling
as to the Agreement among the parties hereto.
Section 5.6 COUNTERPARTS. This Amendment may be executed in two or more
counterparts. It will not be necessary that the signatures of all parties hereto
be contained on any one counterpart hereof; each counterpart shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 5.7 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS, AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS
AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THIS AMENDMENT AND THE OTHER INSTRUMENTS, DOCUMENTS AND
AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT, AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES TO FOLLOW.]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the 1st day of October, 2003.
LENDER:
XXXXX FARGO ENERGY CAPITAL, INC.,
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Vice President
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BORROWER:
XXXXX-XXXXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxxx
Chairman and Chief Executive
Officer
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ACKNOWLEDGEMENT AND AGREEMENT OF GUARANTORS
The undersigned, each a guarantor of the indebtedness of Allis
Chalmers, Inc. ("Borrower") to Xxxxx Fargo Energy Capital, Inc. ("Lender")
pursuant to separate Guaranties each dated as of February 1, 2002 (each a
"Guaranty"), hereby (i) acknowledges receipt of the foregoing Amendment, (ii)
consents to the terms (including without limitation the release set forth in
paragraph 5.3 of the Amendment) and execution thereof; (iii) reaffirms its
obligations to Lender pursuant to the terms of its Guaranty; and (iv)
acknowledges that Lender may amend, restate, extend renew or otherwise modify
the Agreement and any indebtedness or agreement of Borrower, or enter into any
agreement or extend additional or other credit accommodations, without notifying
or obtaining the consent of the undersigned and without impairing the liability
of the undersigned under its Guaranty for all of Borrower's present and future
indebtedness to the Lender.
STRATA Directional Technology, Inc.,
a Texas corporation
By: /s/ Munawary X. Xxxxxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxxxxx
Chairman and Chief Executive
Officer
GUARANTOR:
Jens' Oil Field Service, Inc.,
a Texas corporation
By: /s/ Munawary X. Xxxxxxxxxxxx
---------------------------------
Munawary X. Xxxxxxxxxxxx
Chairman and Chief Executive
Officer
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