EXHIBIT 10.37.12
FIFTH AMENDMENT TO CREDIT AGREEMENT
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THIS FIFTH AMENDMENT TO CREDIT AGREEMENT ("Amendment") is entered into
as of April 14, 2003, by and among BLACK WARRIOR WIRELINE CORP., a Delaware
corporation ("Borrower"), the other Credit Parties signatory hereto and GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("GE Capital"), for itself,
as Lender, and as Agent for Lenders (in such capacity, the "Agent").
RECITALS
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A. Borrower, the other Credit Parties signatory thereto, GE Capital,
the other Lenders signatory thereto from time to time and the Agent are parties
to a certain Credit Agreement dated as of September 14, 2001, as amended by that
certain First Amendment to Credit Agreement, dated as of January 26, 2002, as
amended by that certain Second Amendment to Credit Agreement, dated as of June
10, 2002, as amended by that certain Third Amendment to Credit Agreement, dated
as of October 31, 2002 and as amended by that certain Fourth Amendment to Credit
Agreement, dated as of February 14, 2003 (the "Credit Agreement;" capitalized
terms used herein and not defined herein have the meanings assigned to them in
the Credit Agreement).
B. Borrower has requested that the Lenders amend the Credit Agreement
in certain respects and the Lenders have agreed to amend the Credit Agreement,
subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and intending to be legally bound, the parties
hereto agree as follows:
A. AMENDMENTS
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1. Amendment to Section 1.1(c). The Credit Agreement is hereby amended
by deleting Section 1.1(c)(i) of the Credit Agreement and by substituting in
lieu thereof the following
(i) Subject to the terms and conditions hereof, each CapEx
Lender agrees that, from time to time until the CapEx Commitment
Termination Date it will consider requests from Borrower to make its
Pro Rata Share of advances to fund capital expenditures (each, a "CapEx
Advance"), but any decision to fund a CapEx Advance will be made in the
sole and absolute discretion of the CapEx Lenders. The Pro Rata Share
of the CapEx Loan of any CapEx Lender shall not at any time exceed its
separate CapEx Loan Commitment. The obligations of each CapEx Lender
hereunder shall be several and not joint. Until the CapEx Commitment
Termination Date, Borrower may borrow under this Section 1.1(c);
provided that after giving effect to such CapEx Advance, the CapEx Loan
shall
not exceed CapEx Borrowing Availability at such time, proforma for any
Eligible CapEx Equipment to purchased with such CapEx Advance. Each
CapEx Advance shall be made on notice by Borrower to one of the
representatives of Agent identified in Schedule 1.1 at the address
specified therein. Any such notice must be given no later than 11:00
a.m. (New York time) on the date that is 10 Business Days prior to the
date of the proposed CapEx Advance. Each such notice (a "Notice of
CapEx Advance") must be given in writing (by telecopy or overnight
courier) substantially in the form of Exhibit 1.1(c)(i), and shall
include the information required in such Exhibit and in Section 2.3 and
such other information as may be required by Agent. If Borrower desires
to have the CapEx Advances bear interest by reference to a LIBOR Rate,
Borrower must comply with Section 1.5(e). Notwithstanding anything to
the contrary set forth in this Agreement, the Lenders shall not be
obligated to make any CapEx Advances to the Borrower, each such CapEx
Advance to be made in the sole and absolute discretion of the CapEx
Lenders, the Borrower shall not request more than one CapEx Advance in
any Fiscal Month, and the aggregate amount of all Cap Ex Advances in
any Fiscal Month shall not exceed $1,000,000.
2. Amendment to Section 2.3 of the Credit Agreement. The Credit
Agreement is hereby amended by deleting Section 2.3(a) of the Credit Agreement
and by substituting in lieu thereof the following:
(a) the CapEx Lenders shall have received from Borrower a
certificate executed by the Chief Financial Officer of Borrower that
(A) describes in detail the Equipment to be financed with the proceeds
of such CapEx Advance, (B) sets forth the "hard" and "soft" costs of
such Equipment, including without limitation the purchase price for
such Equipment, as well as the taxes, transportation costs,
installation costs and licensing costs associated therewith, (C)
demonstrates that after giving pro forma effect to the requested CapEx
Advance, as if such CapEx Advance (and any associated interest expense
and principal repayments) had been made on the first day of the four
fiscal quarter period ending as of the most recent Fiscal Quarter for
which Borrower is required under this Agreement to have delivered
Financial Statements to the Lenders, Borrower shall be in compliance
with paragraph (f) of Annex F;
3. Amendments to Annexes.
(A) The Credit Agreement is hereby further amended by deleting the
definition of "Cumulative Operating Cash Flow" in Annex A of the Credit
Agreement and by substituting in lieu thereof the following definition:
"Cumulative Operating Cash Flow" shall mean (A) for any Fiscal
Month commencing with the Fiscal Month ending on March 31, 2003 and
ending with the Fiscal Month ending on December 31, 2003, the sum of
(i) EBITDA for such Fiscal Month, minus Capital Expenditures paid in
cash for such Fiscal Month, plus (ii) EBITDA for each preceding Fiscal
Month commencing with the Fiscal Month ending on
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January 31, 2003, minus Capital Expenditures paid in cash for each
preceding Fiscal Month commencing with the Fiscal Month ending on
January 31, 2003, and (B) for any Fiscal Month commencing with the
Fiscal Month ending on January 31, 2004, the sum of (i) EBITDA for such
Fiscal Month minus Capital Expenditures paid in cash for such Fiscal
Month, plus (ii) EBITDA for the preceding eleven Fiscal Months, minus
Capital Expenditures paid in cash for the preceding eleven Fiscal
Months.
(B) The Credit Agreement is hereby further amended by adding the
following new paragraphs (o) and (p) to the end thereof:
(o) Weekly Accounts Payable Reports. To Agent and Lenders, as soon as
available, but not later than 3 Business Days after the end of each
week, a report setting forth an aging of accounts payable.
(p) Cash Budgets. To Agent and Lenders, as soon as available, but not
later than 3 Business Days after the end of each week, a weekly cash
budget for the immediately following thirteen (13) week period, in form
an substance satisfactory to the Agent in its sole discretion.
4. Amendments to Annex F.
(A) The Credit Agreement is hereby further amended by deleting
Paragraphs (b) through (d) and (f) in Annex F of the Credit Agreement and by
substituting in lieu thereof the following:
(b) Minimum Fixed Charge Coverage Ratio. Borrower and its
Subsidiaries shall have on a consolidated basis at the end of each
Fiscal Quarter, commencing with the Fiscal Quarter ending March 31,
2004 and continuing thereafter, a Fixed Charge Coverage Ratio for the
12-month period then ended of not less than 1.3:1.0.
(c) Minimum Interest Coverage Ratio. Borrower and its
Subsidiaries on a consolidated basis shall have at the end of each
Fiscal Quarter, commencing with the Fiscal Quarter ending March 31,
2004 and continuing thereafter, an Interest Coverage Ratio for the
12-month period then ended of not less 3.0:1.0.
(d) Senior Leverage Ratio. Commencing with the Fiscal Quarter
ending March 31, 2004 and continuing thereafter, Borrower and its
Subsidiaries on a consolidated basis shall maintain a ratio of (i)
Senior Funded Debt measured as of the last day of each Fiscal Quarter
to (ii) EBITDA minus Capital Expenditures paid in cash, in each case
for the four Fiscal Quarters then ended, of not more than to 2.0:1.0.
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(f) Maintain, as of the last day of each Fiscal Month,
commencing with the Fiscal Month ending on March 31, 2003, Cumulative
Operating Cash Flow of not less than:
Fiscal Month Cumulative Operating Cash Flow
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For the 3 Months Ending March 31, 2003 $800,000
For the 4 Months Ending April 30, 2003 $1,350,000
For the 5 Months Ending May 31, 2003 $2,000,000
For the 6 Months Ending June 30, 2003 $2,700,000
For the 7 Months Ending July 31, 2003 $3,500,000
For the 8 Months Ending August 31, 2003 $4,200,000
For the 9 Months Ending September 30, 2003 $5,000,000
For the 10 Months Ending October 31, 2003 $6,000,000
For the 11 Months Ending November 30, 2003 $7,100,000
For the 12 Months Ending December 31, 2003 $8,200,000
For the 12 Months Ending January 31, 2004 $8,900,000
For the 12 Months Ending February 28, 2004 $9,500,000
B. CONDITIONS PRECEDENT
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Notwithstanding any other provision of this Amendment and without
affecting in any manner the rights of Lenders hereunder, it is understood and
agreed that this Amendment shall not become effective, Borrower shall have no
rights under this Amendment and Lenders shall not be obligated to take, fulfill
or perform any action hereunder, until Agent shall have received the following
documents, each dated as of the date of this Amendment, in form and substance
satisfactory to Agent and its counsel:
(a) counterparts of this Amendment duly executed by all parties hereto;
(b) copies of good standing certificates (including verification of tax
status) for Borrower in its state of incorporation and good standing
certificates (including verification of tax status) and certificates of
qualification to conduct business in each jurisdiction where its ownership or
lease of property or the conduct of its business requires such qualification,
each dated a recent date prior to the date hereof and certified by the
applicable Secretary of State or other authorized Governmental Authority; and
(c) such other certificates, documents and agreements respecting
Borrower as Agent may request in its reasonable discretion.
C. CONSENT
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The Lenders hereby consent to a CapEx Advance by Borrower in the amount
of $1,000,000 to be made on or before April 15, 2003 and waive the requirement
set forth in Section 1.1(c)(i) of the Credit Agreement with respect to CapEx
Borrowing Availability.
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D. REPRESENTATIONS
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Each Credit Party hereby represents and warrants to the Lenders and the
Agent that:
1. The execution, delivery and performance by such Credit Party of this
Amendment (a) are within such Credit Party's corporate power; (b) have been duly
authorized by all necessary corporate and shareholder action; (c) are not in
contravention of any provision of such Credit Party's certificate of
incorporation or bylaws or other organizational documents; (d) do not violate
any law or regulation, or any order or decree of any Governmental Authority; (e)
do not conflict with or result in the breach or termination of, constitute a
default under or accelerate any performance required by, any indenture,
mortgage, deed of trust, lease, agreement or other instrument to which such
Credit Party or any of its Subsidiaries is a party or by which such Credit Party
or any such Subsidiary or any of their respective property is bound; (f) do not
result in the creation or imposition of any Lien upon any of the property of
such Credit Party or any of its Subsidiaries; and (g) do not require the consent
or approval of any Governmental Authority or any other person;
2. This Amendment has been duly executed and delivered for the benefit
of or on behalf of each Credit Party and constitutes a legal, valid and binding
obligation of each Credit Party, enforceable against such Credit Party in
accordance with its terms except as the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
creditors' rights and remedies in general; and
3. After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing as of the date hereof.
E. FEES
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1. Borrower hereby agrees to pay to the Lenders an amendment fee equal
to $100,000 which shall be fully earned upon execution of this Amendment, of
which fifty percent ($50,000) shall be due and payable on June 30, 2003 and
fifty percent ($50,000) shall be due and payable on December 31, 2003. Failure
to pay any portion of such amendment fee on June 30, 2003 and December 31, 2003,
as the case may be, shall constitute an immediate Event of Default under Section
8.1 of the Credit Agreement.
2. Borrower hereby agrees, upon the consummation of the sale of all or
substantially all of the assets or the stock of the Borrower, or any other event
that results in a Change in Control, to pay a success fee to the Lenders in an
amount equal to $300,000.
F. OTHER AGREEMENTS
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1. Continuing Effectiveness of Loan Documents. As amended hereby, all
terms of the Credit Agreement and the other Loan Documents shall be and remain
in full force and effect and shall constitute the legal, valid, binding and
enforceable obligations of Borrower. To the extent any terms and conditions in
any of the other Loan Documents shall contradict or be in conflict with any
terms or conditions of the Credit Agreement, after giving effect to this
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Amendment, such terms and conditions are hereby deemed modified and amended
accordingly to reflect the terms and conditions of the Credit Agreement as
modified and amended hereby. Upon the effectiveness of this Amendment such terms
and conditions are hereby deemed modified and amended accordingly to reflect the
terms and conditions of the Credit Agreement as modified and amended hereby.
2. Reaffirmations and Acknowledgments.
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(a) Borrower hereby restates, ratifies and reaffirms each and every
term and condition set forth in the Credit Agreement and the other Loan
Documents, effective as of the date hereof and after giving effect to this
Amendment, and represents that, after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing as of the date
hereof.
(b) Acknowledgment of Perfection of Security Interest. Borrower hereby
acknowledges that, as of the date hereof, the security interests and liens
granted to the Lenders under the Credit Agreement and the other Loan Documents
securing the Loans are in full force and effect, are properly perfected and are
enforceable in accordance with the terms of the Credit Agreement and the other
Loan Documents
3. Expenses. Borrower agrees to pay on demand all costs and expenses of
Agent in connection with the preparation, execution, delivery and enforcement of
this Amendment, the closing hereof, and any other transactions contemplated
hereby, including the fees and out-of-pocket expenses of Agent's counsel.
4. GOVERNING LAW. IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
BLACK WARRIOR WIRELINE CORPORATION, as Borrower
By:
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By:
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Xxxx Xxxxxx
Duly Authorized Signatory
SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT
