CONFIDENTIAL
Exhibit 10.9
Execution Version
April 4, 2023
CONFIDENTIAL
PNC Bank, National Association
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
New York, NY 10173
Attention: Xxxx Xxxxxx
Re: FEE LETTER
Ladies and Gentlemen:
Reference hereby is made to (i) that certain Revolving Credit and Security Agreement, dated as of December 16, 2020 (as amended, modified and supplemented from time to time, the “Credit Agreement”), among Xxxxxxxx Industrial Services Group Inc., a Delaware corporation (“Holdings”), Xxxxxxxx Industrial Services Group, L.L.C., a Delaware limited liability company (“WISG”), Xxxxxxxx Industrial Services, LLC, a Georgia limited liability company (“WISI”), Xxxxxxxx Specialty Services, LLC, a Georgia limited liability company (“WSS”), Xxxxxxxx Plant Services, LLC, a Georgia limited liability company (“WPS”), Xxxxxxxx Global Services, Inc., a Georgia corporation (“Global”), Construction & Maintenance Professionals, LLC, a Georgia limited liability company (“Construction”), WISG Electrical, LLC, a New York limited liability company (“Electrical”, and together with Holdings, WISG, WISI, WSS, WPS, Global, Construction, and each Person joined thereto as a Borrower from time to time, and all of their permitted successors and assigns, collectively, the “Borrowers” and each individually a “Borrower”), GLOBAL POWER PROFESSIONAL SERVICES INC. a Delaware corporation (“Power”), GPEG, LLC, a Delaware limited liability company (“GPEG”), STEAM ENTERPRISES LLC, a Delaware limited liability company (“Steam”), WISG CANADA LTD., a limited company formed in the province of British Columbia, Canada (“WISG Canada”), WISG NUCLEAR LTD., a limited company formed in the province of British Columbia, Canada (“WISG Nuclear”), WISG ELECTRICAL LTD., a limited company formed in the province of British Columbia, Canada (“WISG Electrical”, and together with Power, GPEG, Steam, WISG Canada, WISG Nuclear, and each Person joined thereto as a Guarantor from time to time, and all of their permitted successors and assigns, collectively, the “Guarantors” and together with the Borrowers, collectively, the “Loan Parties” and each individually a “Loan Party”), the financial institutions or other entities which are now or which hereafter become a party thereto (together with their respective successors and assigns, collectively, the “Lenders” and each individually a “Lender”), and PNC Bank, National Association (“PNC”), in its capacity as agent for Xxxxxxx (in such capacity, together with its successors and assigns, the “Agent”) and (ii) that certain Third Amendment to Revolving Credit and Security Agreement, dated as of January 9, 2023 (the “Third Amendment”), among the Loan Parties, Agent and Lenders. Capitalized terms used herein but not specifically defined herein shall have the meanings ascribed to them in the Credit Agreement.
In consideration of the willingness of the Agent and the Lenders to consent to certain amendments of the Term Loan Agreement, and the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the Loan Parties, jointly and severally, hereby agree to pay to Agent, in cash, for its sole and separate account and not the account of any Lender, a non-refundable amendment fee of $600,000 (the “April 2023 Fee”), which fee shall be fully earned on the date hereof and due and payable upon the earliest to occur of (i) any acceleration of the Obligations in accordance with the terms the Credit Agreement, (ii) termination of the Credit Agreement by any party thereto in accordance with the terms of
PNC Bank, National Association
April 4, 2023
Page 2
the Credit Agreement, (iii) the exercise of any remedies under the Credit Agreement following the occurrence of an Event of Default, (iv) Payment in Full of the Obligations, and (v) the expiration of the Term.
In connection with the Third Amendment, the Loan Parties, jointly and severally, agreed to pay to the Agent (and not the account of any Lender) the Amendment Fee (as defined in the Third Amendment). The parties hereto acknowledge and agree that, notwithstanding anything to the contrary contained in the Third Amendment, the Amendment Fee (as defined in the Third Amendment) was fully earned on the Third Amendment Effective Date and shall be due and payable upon the earliest to occur of (i) any acceleration of the Obligations in accordance with the terms the Credit Agreement, (ii) termination of the Credit Agreement by any party thereto in accordance with the terms of the Credit Agreement, (iii) the exercise of any remedies under the Credit Agreement following the occurrence of an Event of Default, (iv) Payment in Full of the Obligations, (v) the expiration of the Term, and (vi) June 30, 2023.
Loan Parties shall pay all amounts due and payable hereunder and under the Third Amendment in the manner set forth in the Credit Agreement. Agent hereby is expressly authorized by each Loan Party to (i) charge such amounts due and owing to Borrower’s Account, and (ii) designate such amounts as a request to incur a Revolving Loan under the Credit Agreement.
Each Loan Party hereby acknowledges and agrees that (i) each fee payable hereunder and under the Third Amendment is fully earned and non-refundable on the date such fee is due and payable as provided above and shall not be subject to rebate or proration upon termination of the Credit Agreement for any reason, (ii) that each such fee constitutes part of the Obligations, and (iii) each such fee is in addition to any other fees payable by Loan Parties under the Credit Agreement or any other Financing Document.
All references to “Fee Letter” referred to in the Credit Agreement and the Other Documents shall be deemed to mean, individually and collectively, (i) this letter and (ii) the fee letter, dated as of the Closing Date, executed by the Loan Parties in favor of Agent, in each case as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, and the Credit Agreement is hereby deemed amended to so provide.
This letter shall be governed by and construed in accordance with the laws of the State of New York applied to contracts to be performed wholly within the State of New York. This letter may be executed in any number of and by different parties hereto on separate counterparts, all of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same agreement. Any signature delivered by a party by facsimile transmission or other similar method of electronic transmission shall be deemed to be an original signature hereto.
The contents of this letter are confidential. Except as required by law, this letter shall not be disclosed or displayed or its contents otherwise disclosed to any third Person (other than, on a confidential basis, other advisors to the Loan Parties, and their respective counsel) without the prior written consent of Agent.
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| Very truly yours, | |
| | |
BORROWERS: | XXXXXXXX INDUSTRIAL SERVICES GROUP INC. | |
| | |
| By: | /s/ Xxxxxxx X. Xxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxx |
| Title: | Senior Vice President |
| | |
| XXXXXXXX INDUSTRIAL SERVICES GROUP, L.L.C. | |
| | |
| XXXXXXXX GLOBAL SERVICES, INC. | |
| | |
| CONSTRUCTION & MAINTENANCE PROFESSIONALS, LLC | |
| | |
| WISG ELECTRICAL, LLC | |
| | |
| By: | /s/ Xxxxxxx X. Xxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxx |
| Title: | Secretary |
| | |
| XXXXXXXX INDUSTRIAL SERVICES, LLC | |
| | |
| XXXXXXXX SPECIALTY SERVICES, LLC | |
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| XXXXXXXX PLANT SERVICES, LLC | |
| | |
| By: | /s/ Xxxxxxx X. Xxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxx |
| Title: | Assistant Secretary |
Signature Page to Fee Letter
GUARANTORS: | WISG CANADA LTD. | |
| | |
| By: | /s/ Xxxxxxx X. Xxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxx |
| Title: | Secretary |
| | |
| WISG NUCLEAR LTD. | |
| | |
| WISG ELECTRICAL LTD. | |
| | |
| By: | /s/ Xxxxxx X. Xxxxxxx |
| Name: | Xxxxxx X. Xxxxxxx |
| Title: | Chief Financial Officer |
| | |
| GLOBAL POWER PROFESSIONAL SERVICES INC. | |
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| STEAM ENTERPRISES LLC | |
| | |
| By: | /s/ Xxxxxxx X. Xxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxx |
| Title: | President |
| | |
| GPEG, LLC | |
| | |
| By: | /s/ Xxxxxxx X. Xxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxx |
| Title: | Vice President |
Signature Page to Fee Letter
Accepted and agreed to | | |
| | |
PNC BANK, NATIONAL ASSOCIATION | | |
| | |
By: | /s/ Xxxx Xxxxxx | |
Name: | Xxxx Xxxxxx | |
Title: | Vice President | |
Signature Page to Fee Letter