FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”), dated as of August 25, 2005, is by and among T-3 ENERGY SERVICES, INC., a
Delaware corporation (the “Borrower”), T-3 OILCO ENERGY SERVICES PARTNERSHIP, an Alberta
general partnership (the “Canadian Borrower”), the BANKS (as defined in the Credit
Agreement defined below) signatory hereto, XXXXX FARGO BANK, NATIONAL ASSOCIATION (in its
individual capacity, “Xxxxx Fargo”) as agent (in such capacity, together with its
successors in such capacity, the “Agent”) for the Banks under the Credit Agreement (as
defined below) and COMERICA BANK, a Michigan banking corporation and authorized foreign bank under
the Bank Act (Canada) acting through its Canadian branch, as the Canadian Lender (defined below).
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks, and the Agent are parties to that certain First Amended and
Restated Credit Agreement dated as of September 30, 2004 (as the same has been and may hereafter be
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”);
WHEREAS, the Borrower desires that its indirect Subsidiary, the Canadian Borrower, obtain
credit from the Canadian Lender pursuant to the Credit Agreement;
WHEREAS, the Borrower, the Agent and the Banks desire to amend the Credit Agreement, subject
to the terms and conditions contained herein, to add the Canadian Borrower and the Canadian Lender
as parties thereto and to provide for the Canadian Commitment.
NOW, THEREFORE, in consideration of the premises set forth above, the covenants and agreements
hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows intending to be legally bound
(all provisions of this Amendment being effective as of the Effective Date):
ARTICLE I
Definitions
Section 1.1 Definitions. Capitalized terms used in this Amendment, to the extent not
otherwise defined herein, shall have the same meanings as in the Credit Agreement, as amended
hereby.
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ARTICLE II
Amendments
Section 2.1 Addition to Recital B. The following language is added to the end of
Recital B:
The Canadian Borrower has requested, and the Canadian Lender has agreed, to
provide a US $4,000,000 revolving credit facility, subject to the terms and
conditions hereinafter set forth.
Section 2.2 Amendments to Definitions in Section 1.1. The following definitions in
Section 1.1 of the Credit Agreement are amended and restated to read in their entirety as follows:
“Advance” means, as the context may require, (a) a Revolving Credit Advance, (b) a
Swing Line Advance, (c) a Canadian Advance, or (d) a payment under a Letter of Credit.
“Advance Request Form” means (a) in the case of Revolving Credit Advances, Swingline
Advances, and payment under a letter of credit issued pursuant to the Revolving Credit Commitment,
a certificate, in substantially the form attached hereto as Exhibit “B,” properly completed and
signed by an Authorized Representative of the Borrower and (b) in the case of Canadian Advances, a
certificate, in substantially the form attached hereto as Exhibit “B-1,” properly completed and
executed by an Authorized Representative of the Canadian Borrower.
“Applicable Lending Office” means for each Bank and each Type of Advance, the Lending
Office of such Bank (or of an Affiliate of such Bank) designated for such Type of Advance below its
name on the signature pages hereof or such other office of the Bank (or of an Affiliate of such
Bank) as such Bank may from time to time specify to the applicable one of the Borrowers as the
office by which its Advances of such Type are to be made and maintained.
“Authorized Representative” means any officer or employee who has been designated in
writing to the Agent to be an Authorized Representative.
“Base Rate” means (a) with respect to the Canadian Prime Loans, the Canadian Prime
Rate, and (b) with respect to the Revolving Credit Loans, for any day, a per annum interest rate
equal to the higher of (i) the sum of 0.50% plus the Federal Funds Rate on such day or (ii) the
Prime Rate on such day. The Base Rate shall be adjusted automatically as of the opening of
business on the effective date of each change in the Canadian Prime Rate, the Prime Rate or Federal
Funds Rate, as applicable, to account for such change.
“Compliance Certificate” means a certificate, in substantially the form of Exhibit “C”
attached hereto, properly completed and signed.
“Dollars”, “US$” and “$" means lawful money of the United
States of America.
“Interest Period” means, with respect to LIBOR Advances, each period commencing on the
date such Advances are made or Converted from Advances of another Type or, in the case of each
subsequent, successive Interest Period applicable to a LIBOR Advance, the last day of the
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next preceding Interest Period with respect to such Advance, and ending on that day which is
one, two, three, or six months thereafter, as the Borrower (or the Canadian Borrower, as
applicable) may select as provided in Section 4.1 or 4.9 hereof. Notwithstanding the foregoing:
(a) each Interest Period which would otherwise end on a day which is not a Business Day shall end
on the next succeeding Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest Period shall end on the
preceding Business Day; (b) any Interest Period which would otherwise extend beyond the applicable
Termination Date shall end on such Termination Date; (c) no more than eight Interest Periods for
each LIBOR Advance shall be in effect at the same time; and (d) no Interest Period for any LIBOR
Advances shall have a duration of less than one month and, if the Interest Period for any LIBOR
Advance would otherwise be a shorter period, such Advance shall be a Base Rate Advance.
“Issuing Bank” means, as the context requires, (a) the Agent (or any of its
Affiliates) and any other Bank (or any of its Affiliates) appointed by the Borrower and approved by
the Agent that agrees to issue Letters of Credit under the Revolving Credit Commitment, and (b) the
Canadian Lender in respect of the Canadian Letters of Credit.
“Letter of Credit Agreements” means the application and letter of credit agreements
and other documents, if any, then required by the Issuing Bank now or hereafter executed by the
Borrower (or the Canadian Borrower, as applicable), such agreements to be on the Issuing Bank’s
standard form (with such changes thereto as the Borrower and the Issuing Bank may agree from time
to time) and completed in form and substance satisfactory to the Issuing Bank.
“Maximum Rate” means, with respect to any Bank and the holder of the Swing Line Note
or any Revolving Credit Note, the maximum nonusurious interest rate, if any, that at any time, or
from time to time, may be contracted for, taken, reserved, charged or received on the indebtedness
created under this Agreement, the Revolving Credit Notes, the Swing Line Note or any other Loan
Document under the laws which are presently in effect in the United States and the State of Texas
applicable to the Banks, such holders and such indebtedness or, to the extent permitted by law,
under such applicable laws of the United States and the State of Texas which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow,
or, in the case of Canadian Advances made in Canada by the Canadian Lender to the Canadian
Borrower, under applicable Canada federal law or under applicable laws of the Province of Ontario
(or the laws of any other jurisdiction whose usury laws are deemed to apply to the Canadian Note or
any other Loan Documents despite the intention and desire of the express choice of law provisions
set forth herein). To the extent that Chapter 303 of the Texas Finance Code (the “Finance Code”),
is relevant to any Bank or any holder of the Swing Line Note or any Revolving Credit Note for the
purposes of determining the Maximum Rate, each such Person shall determine such applicable legal
rate under the Finance Code pursuant to the “weekly ceiling,” from time to time in effect, as
referred to and defined in Chapter 303 of the Finance Code; subject, however, to the limitations on
such applicable ceiling referred to and defined in Chapter 303 of the Finance Code, and further
subject to any right such Person may have subsequently, under applicable law, to change the method
of determining the Maximum Rate. If no Maximum Rate is established by applicable law, then the
Maximum Rate shall be equal to 18%, per annum.
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“Obligations” means, without duplication, all obligations, indebtedness and
liabilities of each of the Borrowers and their respective Subsidiaries to the Agent, the Issuing
Banks, the Banks, the Canadian Lender, any of their respective Affiliates, or any or some of them,
arising pursuant to this Agreement or any of the Loan Documents, now existing or hereafter arising,
whether direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, joint,
several, or joint and several. For purposes of calculating the aggregate amount of Obligations,
all amounts or values expressed in Canadian Dollars shall be converted into Dollars at the
applicable Exchange Rate in effect as of the date of determination.
“Principal Office” means the principal office of the Agent, the Issuing Banks and the
Banks (other than the Canadian Lender), presently located for such Persons at the addresses shown
under the signature line of such Persons in this Agreement and, for the Canadian Lender, the
principal office of the Canadian Lender, presently located at the address shown under the signature
line of the Canadian Lender in the First Amendment.
“Required Banks” means (a) at any time while no Advances are outstanding, two or more
Banks holding at least fifty percent (50%) of the Aggregate Commitments, and (b) at any time while
Advances are outstanding, two or more Banks holding at least fifty percent (50%) of the outstanding
aggregate principal amount of the Advances (without regard to any sale by a Bank of a participation
in any Advance under Section 14.7(a)). For purposes of this definition, Swing Line Advances shall
not constitute “Advances.”
“Revolving Credit Advance” means an advance of funds by the Agent on behalf of the
Banks to the Borrower pursuant to Section 2.1(a) and includes, as applicable, a Base Rate Advance
or a LIBOR Advance.
“Revolving Credit Commitment” means, as to each Bank (other than the Canadian Lender),
the obligation to (a) make Advances (other than Canadian Advances) and (b) subject to applicable
sublimits, purchase participations in Letters of Credit (other than Canadian Letters of Credit)
pursuant to Section 4.13, in an aggregate principal amount at any one time outstanding up to but
not exceeding the amount set forth opposite the name of such Bank (other than the Canadian Lender)
on the signature pages hereto or to the most recent amendment hereto under the heading “Revolving
Credit Commitment,” or on the signature pages of an Assignment and Acceptance, as the case may be,
as such amount may be reduced pursuant to Section 2.7, increased pursuant to Section 2.10, or
terminated pursuant to Section 2.7 or Section 12.2.
Section 2.3 Additions to Definitions. The following definitions are added to Section
1.1 of the Credit Agreement in alphabetical order to read in their entirety as follows:
“Aggregate Commitments” means, collectively, the Revolving Credit Commitment and the
Canadian Commitment.
“Borrowers” means, collectively, the Borrower and the Canadian Borrower.
“Calculation Date” means the last Business Day of each month.
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“Canadian Advance” means an advance of funds by the Canadian Lender to the Canadian
Borrower pursuant to Section 2.1(b), and includes, as applicable, a Canadian Prime Rate Advance or
a LIBOR Advance.
“Canadian Borrower” means T-3 Oilco Energy Services Partnership, an Alberta general
partnership.
“Canadian Commitment” means the obligation of the Canadian Lender to make Canadian
Revolving Loans and incur or participate in Canadian Letter of Credit Liabilities in an aggregate
principal amount at any one time outstanding up to (but not exceeding) the amount, if any, set
forth opposite the Canadian Lender’s name on the signature pages hereof under the heading “Canadian
Commitment” as such amount may be reduced pursuant to Section 2.7 or terminated pursuant to
Sections 2.7 or 12.2.
“Canadian Dollars” or “C$" means lawful money of Canada.
“Canadian Lender” means Comerica Bank, a Michigan banking corporation and authorized
foreign bank under the Bank Act (Canada) acting through its Canadian branch. The Canadian Lender
is one of the Banks.
“Canadian Letter of Credit Liabilities” means, at any time, the aggregate undrawn face
amounts of all outstanding Canadian Letters of Credit.
“Canadian Letters of Credit” means Letters of Credit issued under the Canadian
Commitment.
“Canadian Note” means that certain Canadian Revolving Note dated the date of the First
Amendment, executed by the Canadian Borrower and payable to the order of the Canadian Lender, and
all extensions, renewals, replacements, modifications, supplements or rearrangements thereof from
time to time.
“Canadian Obligations” means, as at any date of determination thereof and without
duplication, a portion of the Obligations that is the sum of the following (determined without
duplication): (i) the aggregate principal amount of Canadian Revolving Loans outstanding hereunder
on such date, plus (ii) the aggregate amount of Canadian Letter of Credit Liabilities
outstanding on such date. For purposes of calculating the aggregate amount of Canadian
Obligations, all amounts or values expressed in Canadian Dollars shall be converted into Dollars at
the Exchange Rate in effect as of the date of determination.
“Canadian Prime Loans” means Canadian Revolving Loans bearing interest based on the
Canadian Prime Rate.
“Canadian Prime Rate” means, on any day, the greater of (a) the annual rate of
interest announced from time to time by the Canadian Lender as its prime rate then in effect at its
Principal Office, being the reference rate used by the Canadian Lender for determining interest
rates on commercial loans denominated in Canadian Dollars to borrowers in Canada, and (b) an annual
rate of interest equal to the sum of (i) the CDOR Rate and (ii) 1.00% per annum. The Canadian
Prime Rate is a reference rate and does not necessarily represent the lowest or best rate
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or a favored rate, and the Canadian Lender, the Agent and each Bank disclaims any statement,
representation or warranty to the contrary. The Canadian Lender, the Agent or any Bank may make
commercial loans or other loans at rates of interest at, above or below the Canadian Prime Rate.
“Canadian Revolving Credit Termination Date” means the Revolving Credit Termination
Date.
“Canadian Revolving Loan” means any Canadian Advance.
“Canadian Security Agreement” means that certain Canadian General Pledge and Security
Agreement dated the date of the First Amendment, executed by and among the Canadian Borrower and
the Agent, as the same may hereafter be amended, restated, supplemented or otherwise modified from
time to time.
“CDOR Rate” means, on any day, an annual rate of interest equal to the average 30 day
rate applicable to Canadian bankers’ acceptances appearing on the “Reuters Screen CDOR Page” on
such day, plus 0.10% or if such day is not a Business Day, then on the immediately preceding
Business Day; provided, however, if such rate does not appear on the Reuters Screen CDOR Page as
contemplated, then the CDOR Rate on any day shall be calculated as the 30 day rate applicable to
Canadian bankers’ acceptances quoted by the Canadian Lender which is listed in Schedule I to the
Bank Act (Canada) as of 12:00 noon (Toronto, Ontario time) on such day, or if such day is not a
Business Day, then on the immediately preceding Business Day.
“Exchange Rate” means, on any day, with respect to any foreign currency in relation to
Dollars or Dollars in relation to any foreign currency, the noon buying rate quoted by the Bank of
Canada; provided, however, that in the event that any applicable exchange rate cannot be determined
on any day by the foregoing procedure, then such exchange rate shall be determined for such day in
accordance with such commercially reasonable procedures as the Canadian Lender may elect.
“First Amendment” means the First Amendment to this Agreement, dated as of August 25,
2005.
“Intercreditor Agreement (Canadian Facility)” means that certain Intercreditor
Agreement (Canadian Facility) dated as of August 25, 2005 executed by and among the Canadian
Borrower, the Borrower, the Agent, and Canadian Lender, in form and substance satisfactory to the
Agent, as the same may hereafter be amended, restated, supplemented, or otherwise modified from
time to time.
“Maximum Canadian Available Amount” means, at any date, US$4,000,000. In connection
with the application of any provision hereof using the term “Maximum Canadian Available Amount”,
any amounts denominated in Canadian Dollars shall be converted to Dollars using the then current
Exchange Rate.
“Notes” means, collectively, the Revolving Credit Notes and the Canadian Note and
“Note” means one of the Notes.
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“Reset Date” has the meaning specified in Section 4.2(c).
“Termination Date” means the Revolving Credit Termination Date or the Canadian
Revolving Credit Termination Date, as the context may require.
Section 2.4 Amendment to Section 2.1. Section 2.1 of the Credit Agreement is amended
by designating the existing section as subparagraph (a) and inserting a subparagraph (b) to read as
follows:
(b) Subject to the terms and conditions of this Agreement, the Canadian Lender
agrees to make one or more Advances to the Canadian Borrower from time to time from
the effective date of the First Amendment to and including the Canadian Loan
Termination Date in an aggregate principal amount at any time outstanding up to but
not exceeding the Canadian Commitment, provided that the aggregate amount of all
Advances made under the Canadian Revolving Loan at any time outstanding shall not
exceed (i) the aggregate of the Canadian Commitment, minus (ii) the Canadian
Letter of Credit Liabilities. Subject to the foregoing limitations, and the other
terms and provisions of this Agreement, the Canadian Borrower may borrow, repay, and
reborrow hereunder the aggregate amount of the Canadian Commitments by means of
Advances. Each Advance made by the Canadian Lender shall be made and maintained at
the Canadian Lender’s Principal Office. Canadian Revolving Loans made under this
Section 2.1(b) shall be made and denominated in Canadian Dollars.
Section 2.5 Amendments to Section 2.2. Section 2.2 of the Credit Agreement is amended
by changing the heading from “The Revolving Credit Notes.” to “The Notes.” and
designating the existing section as subparagraph (a) and inserting a subparagraph (b) to read as
follows:
(b) The obligation of the Canadian Borrower to repay the Canadian Advances and
interest thereon shall be evidenced by the Canadian Note.
Section 2.6 Amendment to Section 2.3. Section 2.3 of the Credit Agreement is amended
by designating the existing section as subparagraph (a) and inserting a subparagraph (b) to read as
follows:
“(b) The Canadian Borrower shall repay the unpaid principal amount of all
Canadian Advances on the Canadian Revolving Credit Termination Date.”
Section 2.7 Amendment to Section 2.4. Section 2.4 of the Credit Agreement is amended
by changing the words “Revolving Credit Termination Date” to “Termination Date”.
Section 2.8 Addition to Section 2.5. The following language is inserted at the end of
Section 2.5:
The proceeds of the Canadian Advances shall be used by the Canadian Borrower
for (a) general corporate and working capital purposes in the ordinary
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course of business, and (b) one or more acquisitions of Canadian Persons or
assets located in Canada.
Section 2.9 Amendments to Section 2.6. The following changes are made to Section 2.6
of the Credit Agreement: (a) the words “The Borrower agrees” are changed to “The Borrowers
agree”, (b) the words “(or to the Canadian Lender, as applicable)” are added immediately after the
words “each Bank”, (c) each reference to “Revolving Credit Commitment” is changed to “Aggregate
Commitments”; and (c) each reference to “Revolving Credit Termination Date” is changed to
“Termination Date”.
Section 2.10 Amendments to Sections 2.7 and 2.8. Sections 2.7 and 2.8 of the Credit
Agreement are amended and restated in their entirety:
Section 2.7 Reduction or Termination of Aggregate Commitments. Each of
the Borrowers shall have the right to terminate in whole or reduce in part the
unused portion of the Revolving Credit Commitments (or the Canadian Commitment, as
the case may be) upon at least three Business Days’ prior notice (which notice shall
be irrevocable) to the Agent specifying the effective date thereof, whether a
termination or reduction is being made, and the amount of any partial reduction;
provided, however, that the Revolving Credit Commitments (or the Canadian
Commitment, as the case may be) shall never be reduced below an amount equal to the
aggregate outstanding Letter of Credit Liabilities (or in the case of the Canadian
Commitment, the Canadian Letter of Credit Liabilities) unless cash collateralized.
Each partial reduction shall be in the amount of $1,000,000 or a greater integral
multiple of $500,000 (or in the case of the Canadian Commitment, $150,000 or a
greater integral multiple of $100,000). The Borrower (or the Canadian Borrower, as
the case may be) shall simultaneously prepay the Advances by the amount by which the
unpaid principal amount of the Advances plus the Letter of Credit Liabilities (or in
the case of the Canadian Commitment, the Canadian Letter of Credit Liabilities)
exceeds the Revolving Credit Commitments or the Canadian Commitment (as the case may
be) after giving effect to such notice, plus accrued and unpaid interest on the
principal amount so prepaid. Subject to Section 2.10 with respect to the Revolving
Credit Commitments only, neither the Revolving Credit Commitments nor the Canadian
Commitment may be reinstated after either such commitment has been terminated or
reduced to zero.
Section 2.8 Letters of Credit.
(a) Subject to, and upon the terms, conditions, covenants and agreements
contained herein and in the Letter of Credit Agreements, prior to the Termination
Date, the Issuing Bank agrees to issue irrevocable, standby Letters of Credit, for
the account of the Borrower, the Canadian Borrower, any Domestic Guarantor, or any
Foreign Subsidiary (as the context may require). The Issuing Bank agrees with
respect to Letters of Credit issued under the Revolving Credit Commitment and
Canadian Letters of Credit issued under the Canadian Commitment, that (i) the Letter
of Credit Liabilities shall not at any time exceed
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$5,000,000 in respect of Letters of Credit issued under the Revolving Credit
Commitment, (ii) the Canadian Letter of Credit Liabilities shall not at any time
exceed $4,000,000, (iii) with respect to the Revolving Credit Commitment, the
aggregate principal amount outstanding of all Revolving Credit Advances, the Letter
of Credit Liabilities, and the aggregate principal amount outstanding of all Swing
Line Advances may at no time exceed the aggregate Revolving Credit Commitments, and
(iv) with respect to the Canadian Commitment, the aggregate principal amount
outstanding of all Canadian Advances and the Canadian Letter of Credit Liabilities
may at no time exceed the aggregate Canadian Commitment. In the event of an actual
conflict between the terms and conditions of this Agreement and the terms and
conditions of any Letter of Credit Agreement, then the terms and conditions of this
Agreement shall prevail. Letters of Credit shall expire no later than one year
after the date of issuance (but may include provision for automatic one year
renewals unless notice of non-renewal is timely sent by Issuing Bank), must be
satisfactory in form to the Issuing Bank, and must be issued pursuant to a Letter of
Credit Agreement.
(b) On or before the Termination Date, each of the Borrowers agrees to deposit
with and pledge to the Agent for the ratable benefit of the Banks cash or Cash
Equivalent Investments in an amount equal to 110% of all outstanding Letter of
Credit Liabilities.
Section 2.11 Amendments to Section 2.9. The following changes are made in Section
2.9:
(a) The words “(or the Canadian Borrower, as applicable)” are added after each
reference to the words “the Borrower” and the words “(or the Canadian Borrower’s, as
applicable)” are added after each reference to the words “the Borrower’s”; subject, however,
to the following two exceptions: (a) in the first sentence of Section 2.9(b), the words
“the Borrower agrees” are changed to “the applicable Borrower agrees,” and (b) in the second
sentence of Section 2.9(d), the word “Borrower” is changed to “Borrowers”;
(b) The words “or the Canadian Commitment (as the context may require)” are added
immediately after the words “Revolving Credit Commitment”;
(c) The words “(or the Canadian Lender, as applicable)” and “(or the Canadian Lender’s,
as applicable)” are added, respectively, after the words “the Agent” or “the Agent’s”; and
(d) The last sentence of Section 2.9(a) is revised by adding the following language at
the beginning of such sentence: “With respect to any Letter of Credit issued under the
Revolving Credit Commitment,”.
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Section 2.12 Amendments to Section 4.1. Section 4.1 of the Credit Agreement is
amended by designating the existing section as subparagraph (a) and inserting a subparagraph (b) to
read as follows:
(b) The following borrowing procedures shall apply with respect to the Canadian
Revolving Loans. The Canadian Borrower shall give the Canadian Lender notice by
means of an Advance Request Form of each requested Canadian Advance at least one
Business Day before the requested date of a Base Rate Advance, and at least three
(3) days before the requested date of a LIBOR Advance, specifying: (a) the requested
date of such Canadian Advance (which shall be a Business Day), (b) the amount of
such Canadian Advance, (c) the Type of the Canadian Advance, and (d) in the case of
a LIBOR Advance, the duration of the Interest Period for such Canadian Advance. The
Canadian Lender at its option may accept telephonic requests for Canadian Advances,
provided that such acceptance shall not constitute a waiver of the Canadian Lender’s
right to delivery of the appropriate Advance Request Form in connection with
subsequent advances. Any telephonic request for a Canadian Advance by the Canadian
Borrower shall be promptly continued by submission of a properly completed Advance
Request Form to the Canadian Lender. Each Base Rate Advance shall be in a minimum
principal amount of $250,000.00 or a greater integral multiple of $100,000.00. Each
LIBOR Advance shall be in a minimum principal amount of $250,000.00 or a greater
integral multiple of $100,000. Not later than 1:00 p.m., Toronto, Ontario time on
the date specified for each Canadian Advance hereunder, and subject to the other
terms and conditions of this Agreement, the Canadian Lender will make each Canadian
Advance available to the Canadian Borrower by depositing the same, in immediately
available funds, in an account of the Canadian Borrower (designated by the Canadian
Borrower) maintained with the Canadian Lender at the Canadian Lender’s Principal
Office. All notices under this Section shall be irrevocable and shall be given not
later than 1:00 p.m., Toronto, Ontario time on the day which is not less than the
number of Business Days specified above for such notice.
Section 2.13 Amendment to Section 4.2. Section 4.2 of the Credit Agreement is amended
by designating the existing section as subparagraph (a) and inserting subparagraphs (b) and (c) to
read as follows:
(b) The following shall apply with respect to methods of payment for the
Canadian Revolving Loans. All payments of principal, interest, and other amounts to
be made by the Canadian Borrower under this Agreement and the other Loan Documents
shall be made to the Canadian Lender at its Principal Office in Canadian Dollars and
in immediately available funds, without setoff, deduction, or counterclaim, not
later than 1:00 p.m., Toronto, Ontario time on the date on which such payment shall
become due (each such payment made after such time on such due date to be deemed to
have been made on the next succeeding Business Day). The Canadian Borrower shall,
at the time of making each such payment, specify to the Canadian Lender the sums
payable by the Canadian Borrower under this Agreement and the other Loan Documents
to
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which such payment is to be applied (and in the event that the Canadian
Borrower fails to so specify, or if an Event of Default has occurred and is
continuing, the Canadian Lender may apply such payment to the Canadian Obligations
in such order and manner as it may elect in its sole discretion, subject to Section
4.5 hereof). Whenever any payment under this Agreement or any other Loan Document
shall be stated to be due on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of the payment of interest and commitment fee,
as the case may be.
(c) Not later than 1:00 p.m., Toronto, Ontario time on each Calculation Date,
the Canadian Lender shall determine the Exchange Rate applicable to Canadian Dollars
as of such Calculation Date. For purposes of this Agreement, the Exchange Rate so
determined shall become effective on the first Business Day immediately following
the relevant Calculation Date (a “Reset Date”).
Section 2.14 Amendment to Section 4.3. Section 4.3 is amended and restated in its
entirety:
Section 4.3 Voluntary Prepayment. The Borrowers may prepay the Base
Rate Advances in whole at any time or from time to time in part without premium or
penalty upon not less than one Business Day’s prior notice to the Agent (which shall
promptly notify the Banks) or the Canadian Lender, as applicable, which notice shall
specify the prepayment date (which shall be a Business Day) and the amount of the
prepayment (which shall be at least $3,000,000 or any whole multiple of $1,000,000
in the case of the Revolving Credit Advances and at least $150,000 or any whole
multiple of $100,000 in the case of Canadian Advances, or, if less, the remaining
aggregate principal balance outstanding on the applicable Note) and shall be
irrevocable and effective only upon receipt by the Agent or the Canadian Lender, as
applicable, provided that interest on the principal prepaid, accrued to the
prepayment date, shall be paid on the prepayment date. The Borrowers may prepay
LIBOR Advances on the same conditions as for Base Rate Loans (except that prior
notice to the Agent or the Canadian Lender, as applicable, shall be not less than
three Business Days for LIBOR Advances) and in addition such prepayments of LIBOR
Advances shall not relieve the Borrower or the Canadian Borrower of its respective
obligations under Section 5.2 or 5.6 hereof.
Section 2.15 Amendments to Section 4.4(a). The following language is added to the end
of Section 4.4(a):
Additionally, if at any time the amount equal to the sum of (i) the aggregate
principal amount of all Canadian Advances, plus (ii) the Canadian Letter of Credit
Liabilities exceeds the aggregate Canadian Commitment, the Canadian Borrower shall
promptly prepay the outstanding Canadian Advances by the amount of the excess or, if
no Canadian Advances are outstanding, the
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Page 11
AND RESTATED TO CREDIT AGREEMENT — Page 11
Canadian Borrower shall immediately pledge to the Agent for the ratable benefit
of the Banks with respect to the Canadian Commitment cash or Cash Equivalent
Investments in an amount equal to the excess as cash collateral for the outstanding
Canadian Letter of Credit Liabilities.
Section 2.16 Amendment to Section 4.4(b). The words “the Borrower shall prepay
Advances and permanently reduce the Revolving Credit Commitment” are replaced with the following
language: “the Borrower or the Canadian Borrower, as applicable, shall prepay Advances and
permanently reduce the Revolving Credit Commitment or the Canadian
Commitment, as applicable”.
Section 2.17 Amendment to Section 4.4(c). The words “the Borrower shall prepay
Advances” are replaced with the following language: “the Borrower or the Canadian Borrower, as
applicable, shall prepay Advances”.
Section 2.18 Amendment to Section 4.4(d). Section 4.4(d) is amended and restated in
its entirety, as follows:
(d)(i) Subject to the Intercreditor Agreement (Canadian Facility), any
prepayment made by Borrower under Sections 4.4(a), (b), and (c) shall (i) include
accrued interest to the date of such prepayment on the principal amount prepaid,
(ii) not be subject to (A) any minimum payment provisions contained in this
Agreement or (B) the requirement set forth in Section 5.6 hereof to provide
compensation to the Banks if such prepayment results in a LIBOR Advance being paid
on a day other than the last day of an Interest Period for such LIBOR Advance, and
(iii) be applied first, to repay outstanding Revolving Credit Advances, with
a corresponding permanent reduction in the Revolving Credit Commitment (other than
in respect of prepayments under Section 4.4(a) above), and second, at any
time there are no Advances outstanding under the Revolving Credit Commitment, to
provide cash collateral for the outstanding Letter of Credit Liabilities,
provided that, in any event there shall be a permanent reduction in
the Revolving Credit Commitment in an amount equal to the applicable amount of Net
Cash Proceeds from the applicable transaction which, but for the principal amount of
Advances outstanding on the date of receipt thereof, would be required to prepay
Advances under this Section.
(ii) Subject to the Intercreditor Agreement (Canadian Facility), any prepayment
made by Canadian Borrower under Sections 4.4(a), (b), and (c) shall (i) include
accrued interest to the date of such prepayment on the principal amount prepaid,
(ii) not be subject to (A) any minimum payment provisions contained in this
Agreement or (B) the requirement set forth in Section 5.6 hereof to provide
compensation to the Banks if such prepayment results in a LIBOR Advance being paid
on a day other than the last day of an Interest Period for such LIBOR Advance, and
(iii) be applied first, to repay outstanding Canadian Advances, with a
corresponding permanent reduction in the Canadian Commitment (other than in respect
of prepayments under Section 4.4(a) above), and second, at any time there
are no Advances outstanding under the Canadian
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Page 12
AND RESTATED TO CREDIT AGREEMENT — Page 12
Commitment, to provide cash collateral for the outstanding Canadian Letter of
Credit Liabilities, provided that, in any event there shall be a
permanent reduction in the Canadian Commitment in an amount equal to the applicable
amount of Net Cash Proceeds from the applicable transaction which, but for the
principal amount of Advances outstanding on the date of receipt thereof, would be
required to prepay Advances under this Section.
Section 2.19 Amendments to Section 4.5. The words “Revolving Credit Commitment” or
“Advances” are changed, respectively, to “Aggregate Commitments” and “Revolving Credit Advances”.
Section 2.20 Amendments to Sections 4.6, 4.7, 4.8, 4.9, and 4.10. The words “or the
Canadian Borrower, as applicable,” are added after each reference to the words “the Borrower” or
“The Borrower”.
Section 2.21 Amendment to Section 4.9. In the first and last sentence of Section 4.9,
the words “or the Canadian Lender, as applicable,” are added immediately after the word “Agent”.
Section 2.22 Amendment to Section 4.11. The words “by the Borrower” are deleted from
Section 4.11.
Section 2.23 Amendments to Section 4.12. The word “applicable” is inserted between
the words “the Borrower” and “The Borrower” in Section 4.12 and the words “Revolving Credit
Termination Date” are changed to “applicable Termination Date”. Additionally, the following
language is added at the end of Section 4.12: “The Borrower shall provide each fee policy it
receives to the Canadian Borrower.”
Section 2.24 Amendments to Section 4.13, 4.14, 4.15, 4.16, and 4.17. In Sections
4.13, 4.14, 4.15, 4.16, and 4.17, the word “Borrower” is changed to the phrase “the applicable
Borrower”. In the last sentence of Section 4.13, the words “The Borrower agrees” are changed to
“The applicable Borrower agrees”. In the first sentence of Section 4.15, the words “The Borrower
assumes” are changed to “The applicable Borrower assumes”.
Section 2.25 Amendments to Article V. The following changes are made in Article V:
(a) Except as indicated below, the word “applicable” is inserted between the words “the
Borrower” and “The Borrower” each time they appear;
(b) Section 5.2(a) and (c) are amended by adding the words “or Canadian Note” after the
words “Swing Line Note”;
(c) The third sentence of the second paragraph of Section 5.2 is amended by deleting
the words “If a Bank requests compensation from the Borrower under this Section 5.2, the
Borrower may” and inserting in lieu therefore the following language: “If a Bank requests
compensation from a Borrower under this Section 5.2, such Borrower may”;
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Page 13
AND RESTATED TO CREDIT AGREEMENT — Page 13
(d) The second sentence of the second paragraph of Section 5.5 is amended by adding the
word “a” in front of the first usage of the word “Borrower” and by changing the words “the
Borrower” to “such Borrower”;
(e) Section 5.5 is amended by changing the words “Revolving Credit Commitments” to
“Aggregate Commitments”; and
(f) Section 5.6(b) is amended by changing the phrase “the Borrower” to “a Borrower”.
Section 2.26 Amendments to Section 6.2. The words “or the Canadian Borrower, as
applicable,” are added after each reference to the word “Borrower”.
Section 2.27 Addition of Section 6.3. The following language is added to Article VI
of the Credit Agreement in its appropriate numerical order as Section 6.3:
Section 6.3 Collateral Securing Canadian Loans. The Canadian Borrower has
executed the Canadian Security Agreement, pursuant to which the Canadian Borrower has
granted to the Agent for the benefit of the Canadian Lender a first priority security
interest in (a) all of the Canadian Borrower’s accounts, accessions, chattel paper,
commercial tort claims, commodity accounts, commodity contracts, deposit accounts,
documents, equipment, financial assets, fixtures, general intangibles, goods, instruments,
intellectual property, inventory, investment property, letters of credit, letter of credit
rights, payment intangibles, licenses, permits, securities, securities accounts, security
entitlements, software, supporting obligations, cash and cash accounts, and (b) all products
and proceeds related to any of the above.
Section 2.28 Amendment to Section 7.2. The words “or the Canadian Lender, as
applicable,” are added immediately after the word “Agent”.
Section 2.29 Amendments to Section 13.1.
(a) Except as provided in clause (b) below, each reference to the term “Lender” and
“Lender’s” is changed, respectively, to “Bank” and “Bank’s”; and
(b) The first three sentences of Section 13.1 are amended and restated in their
entirety to read as follows:
In order to expedite the various transactions contemplated by this Agreement, the Banks
and the Issuing Bank hereby irrevocably appoint and authorize the Agent to act as their
agent hereunder and under each of the other Loan Documents (except as to matters reserved to
the Canadian Lender in other provisions hereof) and the Agent consents to such appointment
and agrees to perform the duties of the Agent as specified herein. Except as to matters
reserved to the Canadian Lender in other provisions hereof, the Banks and the Issuing Bank
authorize and direct the Agent to take such action in their name and on their behalf under
the terms and provisions of the Loan Documents and to exercise such rights and powers
thereunder as are specifically delegated to or required of
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Page 14
AND RESTATED TO CREDIT AGREEMENT — Page 14
the Agent for the Banks and the Issuing Bank, together with such rights and powers as
are reasonably incidental thereto.
Section 2.30 Amendments to Sections 12.2, 12.3, 12.4, 13.4, and 13.7. Sections 12.2,
12.3, 12.4, 13.4, and 13.7 are each amended by changing the word “Borrower” to “Borrowers”.
Section 2.31 Amendment to Section 14.1. In Section 14.1, the words “Borrower hereby
agrees” are changed to “Borrowers hereby agree”.
Section 2.32 Amendment to Section 14.3. In Section 14.3, the words “Borrower hereby
waives, releases, and agrees” are changed to “Borrowers hereby waive, release and agree”.
Section 2.33 Amendments to Sections 14.2, 14.3, 14.4, 14.5, 14.8, 14.10, 14.19. In
Sections 14.2, 14.3, 14.4, 14.5, 14.8, 14.10, and 14.19 and in the second sentence of Section 14.7,
the word “Borrower” is changed to “Borrowers”.
Section 2.34 Amendments to Sections 14.9 and 14.10. In the second sentence of Section
14.9, and in the third sentence of Section 14.10, the word “applicable” is added immediately prior
to the word “Borrower”. In the third sentence of Section 14.10, the words “Revolving Credit” are
deleted.
Section 2.35 Amendment to Section 14.11. In Section 14.11, the words “the Borrower”
are changed to “either Borrower”.
Section 2.36 Amendments to Section 14.12. Section 14.12 is amended and restated in
its entirety to read as follows:
Section 14.12 GOVERNING LAW; VENUE; SERVICE OF PROCESS. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. THIS AGREEMENT HAS BEEN ENTERED INTO IN
XXXXXX COUNTY, TEXAS, AND IT SHALL BE PERFORMABLE FOR ALL PURPOSES IN XXXXXX COUNTY, TEXAS.
SUBJECT TO SECTION 14.19, ANY ACTION OR PROCEEDING AGAINST EITHER BORROWER UNDER OR IN
CONNECTION WITH ANY OF THE LOAN DOCUMENTS MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT IN
XXXXXX COUNTY, TEXAS. EACH BORROWER HEREBY IRREVOCABLY (A) SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURTS, AND (B) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT OR THAT ANY SUCH COURT
IS AN INCONVENIENT FORUM. EACH BORROWER AGREES THAT SERVICE OF PROCESS UPON IT MAY BE MADE
BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED OR
DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14.11. NOTHING HEREIN OR IN ANY OF
THE OTHER LOAN DOCUMENTS SHALL AFFECT THE RIGHT OF THE AGENT, THE ISSUING BANK OR THE BANKS
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR, SUBJECT TO SECTION 14.19, SHALL
LIMIT THE RIGHT OF SUCH PERSONS TO
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Page 15
AND RESTATED TO CREDIT AGREEMENT — Page 15
BRING ANY ACTION OR PROCEEDING AGAINST EITHER BORROWER OR WITH RESPECT TO ANY OF ITS
PROPERTY IN COURTS IN OTHER JURISDICTIONS. SUBJECT TO SECTION 14.19, ANY ACTION OR
PROCEEDING BY THE BORROWER AGAINST ANY OF THE AGENT, THE ISSUING BANK OR THE BANKS SHALL BE
BROUGHT ONLY IN A COURT LOCATED IN XXXXXX COUNTY, TEXAS; PROVIDED, HOWEVER, THAT EXCEPT AS
MAY BE REQUIRED UNDER APPLICABLE LAWS, THE USURY LAWS OF THE STATE OF TEXAS OR THE UNITED
STATES OF AMERICA SHALL NOT APPLY TO THE CANADIAN LOANS BUT RATHER THE USURY LAWS IN EFFECT
IN CANADA SHALL GOVERN IN SUCH CONTEXT.
Section 2.37 Addition of Sections 14.21 and 14.22. The following language is inserted
into the Credit Agreement as Sections 14.21 and 14.22:
Section 14.21. Provisions Related to Canadian Loans.
(a) Income Tax Act (Canada). The Canadian Lender is not a non-resident of
Canada for purposes of the Income Tax Act (Canada).
(b) Interest Act (Canada). Whenever interest is calculated on the basis of a
year of 360 or 365 days, for the purposes of the Interest Act (Canada), the yearly rate of
interest which is equivalent to the rate payable hereunder is the rate payable multiplied by
the actual number of days in the year and divided by 360 or 365, as the case may be. All
interest will be calculated using the nominal rate method and not the effective rate method
and the deemed reinvestment principle shall not apply to such calculations.
(c) Judgment Currency. The obligation of the Canadian Borrower to make
payments on any Obligation to the Canadian Lender or to the Agent hereunder in any currency
(the “first currency”) shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any other currency (the “second
currency”) except to the extent to which such tender or recovery shall result in the
effective receipt by the Canadian Lender or the Agent of the full amount of the first
currency payable, and accordingly the primary obligation of the Canadian Borrower shall be
enforceable as an alternative or additional cause of action for the purpose of recovery in
the second currency of the amount (if any) by which such effective receipt shall fall short
of the full amount of the first currency payable and shall not be affected by a judgment
being obtained for any other sum due hereunder.
Section 14.22. Appointment. Each of the Banks hereby irrevocably appoints the
Agent as its agent for purposes of the Intercreditor Agreement (Canadian Facility) and
irrevocably authorizes and instructs the Agent to enter into and perform the Intercreditor
Agreement (Canadian Facility). Each of the Banks agrees to be bound by the terms and
provisions of the Intercreditor Agreement (Canadian Facility) applicable to it.
Section 2.38 Addition of Exhibit B-1. “Exhibit B-1” attached hereto is the Exhibit
B-1 referred to in the definition of Advance Request Form.
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Page 16
AND RESTATED TO CREDIT AGREEMENT — Page 16
ARTICLE III
Conditions Precedent
Section 3.1 Condition Precedent to Effectiveness of Amendment. The parties hereto
agree that this Amendment shall not be effective until the satisfaction of each of the following
conditions precedent:
(a) The Agent shall have received a copy of this Amendment executed and delivered by
the Borrower, the Canadian Borrower, the Banks, and each Guarantor;
(b) The Agent shall have received the Canadian Note executed and delivered by the
Canadian Borrower;
(c) The Agent shall have received a copy of the Canadian Security Agreement dated of
even date herewith executed and delivered by the Canadian Borrower and the Canadian Lender;
(d) The Agent shall have received a copy of the Guaranty Agreement (Canadian Facility)
dated of even date herewith executed and delivered by the Canadian Borrower and certain
Canadian Subsidiaries or Affiliates of the Canadian Borrower;
(e) The Agent shall have received a copy of the Intercreditor Agreement (Canadian
Facility);
(f) The Canadian Borrower shall have delivered, or cause to be delivered to Agent
certificates in form and substance satisfactory to Agent certifying and attaching
appropriate resolutions and/or authorizations regarding the transactions contemplated hereby
and statements of incumbency;
(g) The Agent shall have received evidence that all appropriate documents have been
recorded or filed in the appropriate Canadian jurisdiction as necessary to perfect the Liens
encumbering the assets of the Canadian Borrower;
(h) Personal property registry or other applicable searches showing all financing
statements and other documents or instruments on file against the Canadian Borrower in the
Province of Alberta, Canada, and evidencing that there are no registered Liens against the
assets of the Canadian Borrower, except Liens in favor of the Agent;
(i) A favorable opinion of legal counsel to the Canadian Borrower, in form and
substance satisfactory to Agent, with respect to the provisions of the Credit Agreement, the
Canadian Security Agreement, and the other Loan Documents governed by Canadian law;
(j) The items required to be delivered under Section 7.2 of the Credit Agreement;
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Page 17
AND RESTATED TO CREDIT AGREEMENT — Page 17
(k) Each of the representations and warranties made in this Amendment shall be true and
correct on and as of the Effective Date as if made on and as of such date, both before and
after giving effect to this Amendment;
(l) The Borrowers shall have paid all the reasonable fees and out-of-pocket expenses of
counsel for the Agent to the extent invoiced prior to the effective date hereof; and
(m) The Agent shall have received, in form and substance satisfactory to the Agent and
its counsel, such other documents, agreements, certificates and instruments as the Agent
shall reasonably require.
ARTICLE IV
Ratifications; Representation and Warranties
Section 4.1 Ratifications. The terms and provisions set forth in this Amendment shall
modify and supersede all inconsistent terms and provisions set forth in the Credit Agreement and
the other Loan Documents and except as expressly modified and superseded by this Amendment, the
terms and provisions of the Credit Agreement and the other Loan Documents are ratified and
confirmed and shall continue in full force and effect. The Borrowers, the Agent and the Banks
agree that the Credit Agreement as amended hereby shall continue to be legal, valid, binding and
enforceable in accordance with its terms.
Section 4.2 Representations and Warranties. To induce the Agent and the several Banks
parties hereto to enter into this Amendment and to grant the consents and waivers contained herein,
each of the Borrowers represents to the Agent and the Banks as follows:
(a) Each of the Borrower hereby confirms that all representations and warranties made
in Article VIII of the Credit Agreement (other than those which are made at the time of an
Advance) are true and correct in all material respects on and as of the Effective Date, both
before and after giving effect to the consents and waivers contemplated in this Amendment,
as if such representations and warranties were being made on and as of the Effective Date;
(b) No Default or Event of Default exists under any of the Loan Documents.
ARTICLE V
Miscellaneous
Section 5.1 Loan Documents. This Amendment shall be deemed to be a Loan Document for
all purposes under the Credit Agreement and the other Loan Documents.
Section 5.2 Governing Law. Each of the Borrowers agrees to be bound by the terms of
Section 14.12 of the Credit Agreement, which is incorporated herein by reference.
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Page 18
AND RESTATED TO CREDIT AGREEMENT — Page 18
Section 5.3 Severability. Any provision of this Amendment which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 5.4 Fees and Expenses. Each of the Borrowers agrees to pay on demand all
reasonable costs, fees, and expenses of the Agent in connection with the preparation, reproduction,
execution, and delivery of this Amendment and any other documents prepared in connection herewith
or therewith, including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Agent.
Section 5.5 Counterparts; Facsimiles. 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 an original, but all such counterparts together shall
constitute but one and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages are physically
attached to the same document. Signatures transmitted by facsimile or other electronic means shall
be effective as originals.
Section 5.6 Effective Date. This Amendment shall become effective when the Agent has
received counterparts of this Amendment executed by each of the Borrowers and the Banks and each of
the conditions precedent set forth above has been satisfied, whether or not this Amendment has been
executed and delivered by each and every Bank named on a signature page attached hereto.
Section 5.7 WAIVER OF TRIAL BY JURY. TO THE FULLEST EXTENT PERMITTED, BY APPLICABLE
LAW, EACH OF THE BORROWER, THE CANADIAN BORROWER, THE AGENT AND THE BANKS HEREBY VOLUNTARILY,
KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THE BORROWER OR THE
CANADIAN BORROWER AND ANY OTHER PARTY TO THIS AGREEMENT ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT, ANY OTHER LOAN DOCUMENTS, OR ANY RELATIONSHIP BETWEEN ANY OTHER PARTY TO THIS
AGREEMENT AND THE BORROWER OR THE CANADIAN BORROWER. THIS PROVISION IS A MATERIAL INDUCEMENT TO
THE BANKS TO PROVIDE THE FINANCING DESCRIBED IN THE CREDIT AGREEMENT.
Section 5.8 FINAL AGREEMENT. THIS AMENDMENT, TOGETHER WITH THE CREDIT AGREEMENT AND
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. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Page 19
AND RESTATED TO CREDIT AGREEMENT — Page 19
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their proper and duly authorized officers effective as of the Effective Date.
| BORROWER: T-3 ENERGY SERVICES, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Vice President | |||
| Address for Notices: | ||
| 00000 Xxxxxxxxx Xxxxxxx, # 000 Xxxxxxx, Xxxxx 00000 Fax No.: (000) 000-0000 Telephone No.: (000) 000-0000 Attention: Xxxxxxx X. Xxxx |
||
| CANADIAN BORROWER: | ||
| T-3 OILCO ENERGY SERVICES PARTNERSHIP, by its partners, |
||
| T-3 ENERGY SERVICES CANADA, INC. |
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Vice President - and – |
|||
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Signature Page
AND RESTATED TO CREDIT AGREEMENT — Signature Page
| T-3 OILCO PARTNERS ULC | ||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: Xxxxxxx X. Xxxx Title: Vice President |
||||
| Address for Notices: | ||
| T-3 Oilco Energy Services Partnership 0000-0xx Xxxxxx, Xxxxx, Xxxxxxx XXXXXX X0X0X0 Fax No.: 000-000-0000 Telephone No.: 000-000-0000 Attention: General Manager |
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Signature Page
AND RESTATED TO CREDIT AGREEMENT — Signature Page
| AGENT AND BANKS: | ||||
| Revolving Credit Commitment: | XXXXX FARGO BANK, NATIONAL ASSOCIATION, successor-by-merger to Xxxxx Fargo Bank Texas, National Association, as Agent and a Bank |
|||
US $20,000,000.00
|
By: | /s/ Xxxx Xxxxx | ||
| Xxxx Xxxxx, Vice President | ||||
| Revolving Credit Commitment: | COMERICA BANK, | |||
US $10,000,000.00
|
By: | /s/ Xxxx X. Xxxx | ||
| Name: Xxxx X. Xxxx Title: Senior Vice President — Texas Division |
||||
| Revolving Credit Commitment: | GENERAL ELECTRIC CAPITAL CORPORATION | |||
US $20,000,000.00
|
By: | /s/ Xxxxxx X. Xxxx | ||
| Name: Xxxxxx X. Xxxx Title: Duly Authorized Signatory |
||||
| Canadian Commitment: | CANADIAN LENDER: | |||
| COMERICA BANK, a Michigan banking corporation and authorized foreign bank under the Bank Act (Canada) acting through its Canadian branch, |
||||
US $4,000,000.00
|
By: | /s/ Xxxxxx Xxxxx | ||
| Xxxxxx Xxxxx, Vice President | ||||
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Signature Page
AND RESTATED TO CREDIT AGREEMENT — Signature Page
The undersigned Guarantors hereby consent and agree to the execution and delivery of this Amendment
and the documents referred-to in Article III thereof and the consummation of the transactions
contemplated in the Amendment, and the undersigned Guarantors (i) reaffirm their respective
obligations under each of their respective Guaranty Agreements, which Guaranty Agreements shall
continue in full force and effect notwithstanding the consummation of such proposed transactions,
and (ii) confirm that the Canadian Obligations are guaranteed thereunder and entitled to the
benefit of the Collateral provided in the Loan Documents.
| GUARANTORS: | ||||||
| A & B Bolt & Supply, Inc. Cor-Val Holdings, Inc. Preferred Industries Holdings, Inc. T-3 Canadian Holdings, Inc. T-3 Custom Coating Applicators, Inc. T-3 Financial Services LP, Inc. T-3 Investment Corporation III T-3 Property Holdings, Inc. T-3 Support Services, Inc. T-3 Management Holdings, Inc. T-3 Mexican Holdings, Inc. O & M Equipment Holdings, Inc. Manifold Valve Services, Inc. Pipeline Valve Specialty, Inc. United Wellhead Services, Inc. |
||||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||
| Xxxxxxx X. Xxxx Vice President of each of the foregoing companies |
||||||
| Cor-Val, L.P. | ||||||
| By: | Cor-Val Holdings, Inc., its sole general partner |
|||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||
| Xxxxxxx X. Xxxx, Vice President | ||||||
| T-3 Management Services, L.P. | ||||||
| By: | T-3 Management Holdings, Inc., its sole general partner |
|||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||
| Xxxxxxx X. Xxxx, Vice President | ||||||
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Signature Page
AND RESTATED TO CREDIT AGREEMENT — Signature Page
| Preferred Industries, L.P. | ||||||
| By: | Preferred Industries Holdings, Inc., its sole general partner |
|||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||
| Xxxxxxx X. Xxxx, Vice President | ||||||
| O&M Equipment, L.P. | ||||||
| By: | O & M Equipment Holdings, Inc., its sole general partner |
|||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||
| Xxxxxxx X. Xxxx, Vice President | ||||||
| T-3 Financial Services, L.P. | ||||||
| By: | T-3 Management Holdings, Inc. its sole general partner |
|||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||
| Xxxxxxx X. Xxxx, Vice President | ||||||
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Signature Page
AND RESTATED TO CREDIT AGREEMENT — Signature Page
EXHIBIT B
Advance Request Form
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED TO CREDIT AGREEMENT — Exhibit B
AND RESTATED TO CREDIT AGREEMENT — Exhibit B
