SIXTH AMENDMENT TO LOAN AGREEMENTS
SIXTH AMENDMENT TO LOAN AGREEMENTS
THIS SIXTH AMENDMENT TO LOAN AGREEMENTS (this “Amendment”), dated as of August 20, 2013, is made among TULSA INSPECTION RESOURCES, INC., an Oklahoma corporation (the “Borrower”), Tulsa Inspection Resources-Nondestructive Examination, Inc., an Oklahoma corporation (“TIR-NE”), Regent Private Capital, LLC, an Oklahoma limited liability company (the “Sponsor”), TRIANGLE MEZZANINE FUND, LLLP, a North Carolina limited liability limited partnership (“Triangle”), FIDUS MEZZANINE CAPITAL, L.P., a Delaware limited partnership (“Fidus”), SPP MEZZANINE FUNDING II HOLDINGS, LLC, a Delaware limited liability company (“SPP II”), SPP MEZZANINE FUNDING II-A, L.P., a Delaware limited partnership (“SPP II-A”), and SALEM HALIFAX CAPITAL PARTNERS, LIMITED PARTNERSHIP, a North Carolina limited partnership (“ Salem” and, together with Triangle, Fidus, SPP II, SPP II-A, the “Lenders”). Capitalized terms used herein without definition shall have the meaning given to them in the 2010 Loan Agreement referred to below.
RECITALS
A. The Borrower, the Sponsor, Triangle, as the Agent and a Lender, and the Lenders, are parties to a Loan Agreement, dated as of March 12, 2009 (as amended, modified or supplemented, the “2009 Loan Agreement”), pursuant to which the Lenders provided a $17,000,000 term loan to the Borrower upon the terms and conditions set forth therein.
B. The Borrower, the Sponsor, Triangle, as the Agent and a Lender, and the Lenders, are parties to a Loan Agreement, dated as of July 8, 2010 (as amended, modified or supplemented, the “2010 Loan Agreement” and, together with the 2009 Loan Agreement, the “Loan Agreements”), pursuant to which the Lenders provided a $2,756,001 term loan to the Borrower upon the terms and conditions set forth therein.
C. The Borrower and its Subsidiaries have entered into receivables-based financing facilities with Xxxxx Fargo Bank and its Affiliates, the Borrower desires to increase the maximum indebtedness permitted thereunder and the Lenders are willing to amend the Loan Agreements to accommodate such increase in permitted indebtedness.
D. The parties hereto have agreed to the amendments to the Loan Agreements and the limited waivers as set forth below.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
amendments to THE LOAN AGREEMENTS
1.1 Indebtedness. Section (6.1)(a)(xii) of each Loan Agreement is hereby amended and restated in its entirety as follows:
“(xii) (A) Indebtedness of the Subsidiaries of the Borrower (other than TIR-NE) owed to the Senior Lender under the Senior Loan Documents in an aggregate amount outstanding at any time not to exceed $11,250,000 and (B) Indebtedness of the Borrower and TIR-NE owed to the Senior Lender under the Senior Loan Documents in an aggregate amount outstanding at any time not to exceed an amount equal to $55,000,000 less the aggregate amount of Indebtedness described in the preceding clause (A).”
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Borrower, each other Credit Party and the Sponsor hereby represents and warrants to the Lenders and the Agent as follows:
2.1 Representations and Warranties. After giving effect to this Amendment, each of the representations and warranties of the Borrower, each other Credit Party and the Sponsor contained in each Loan Agreement and the other Loan Documents (both as defined in the 2009 Loan Agreement and as defined in the 2010 Loan Agreement) is true and correct in all material respects on and as of the date hereof with the same effect as if made on and as of the date hereof (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date).
2.2 No Default. After giving effect to this Amendment, no Default or Event of Default under the 2009 Loan Agreement has occurred and is continuing. After giving effect to this Amendment, no Default or Event of Default under the 2010 Loan Agreement has occurred and is continuing.
2.3 Authorization. The execution, delivery and performance of this Amendment and the transactions contemplated hereby (i) are within the corporate authority of the Borrower, each other Credit Party and the Sponsor, (ii) have been duly authorized by all necessary corporate action of the Borrower, each other Credit Party and the Sponsor, (iii) do not and will not violate any provision of law, statute, rule or regulation to which the Borrower, any other Credit Party or the Sponsor is subject or any judgment, order, writ, injunction, license or permit applicable to the Borrower, any other Credit Party or the Sponsor and (iv) do not violate or breach any provision of the governing documents of the Borrower, any other Credit Party or the Sponsor, or any agreement or other instrument binding upon the Borrower, any other Credit Party or the Sponsor.
2.1 Enforceability. This Amendment has been duly executed and delivered by the Borrower, each other Credit Party and the Sponsor and constitutes the Borrower’s, each other Credit Party’s and the Sponsor’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be limited by general principles of equity and conflicts of laws or by bankruptcy, reorganization, insolvency, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights.
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ARTICLE III
effectiveness
3.1 This Amendment shall become effective as of the date hereof upon the delivery to the Lenders of the following:
(a) an executed counterpart of this Amendment from the Borrower, each other Credit Party and the Sponsor;
(b) all fees and expenses due in accordance with Section 5.3 hereof and under the Loan Agreements required to have been paid on or prior to the effectiveness of this Amendment; and
(c) such other documents, agreements, instruments, certificates, opinions or other confirmations as the Lenders may reasonably request.
ARTICLE IV
AFFIRMATION OF OBLIGATIONS
4.1 Affirmation of Borrower, each Credit Party and Sponsor. Each of the Borrower, each other Credit Party and the Sponsor hereby approves and consents to the transactions contemplated by this Amendment and agrees that its obligations under the Loan Agreements and the other Loan Documents (both as defined in the 2009 Loan Agreement and as defined in the 2010 Loan Agreement) to which it is a party shall not be diminished as a result of the execution of this Amendment. This acknowledgement by the Borrower, each other Credit Party and the Sponsor is made and delivered to induce the Lenders to enter into this Amendment, and the Borrower, each other Credit Party and the Sponsor acknowledges that the Lenders would not enter into this Amendment in the absence of the acknowledgements contained herein.
4.2 Liens. The Borrower and each other Credit Party hereby ratifies and confirms the grant of a security interest in and Lien on the Collateral (both as defined in the 2009 Loan Agreement and as defined in the 2010 Loan Agreement) contained in the Security Documents (both as defined in the 2009 Loan Agreement and as defined in the 2010 Loan Agreement) that were executed in connection with each Loan Agreement, which security interest and Lien shall continue in full force and effect without interruption, and shall constitute the single grant of a security interest and Lien.
ARTICLE V
MISCELLANEOUS
5.1 Effect of Amendment. From and after the effectiveness of this Amendment, all references to the Loan Agreements set forth in any Loan Document (both as defined in the 2009 Loan Agreement and as defined in the 2010 Loan Agreement) or other agreement or instrument shall, unless otherwise specifically provided, be references to the Loan Agreements, as applicable, as amended by this Amendment and as it may be further amended, modified, restated or supplemented from time to time. The parties hereto acknowledge and agree that this Amendment is a Loan Document (both as defined in the 2009 Loan Agreement and as defined in the 2010 Loan Agreement) for all purposes under the Loan Agreement and the other Loan Documents (both as defined in the 2009 Loan Agreement and as defined in the 2010 Loan Agreement).
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5.2 Governing Law. This Amendment shall be governed by, and construed in accordance with, the law of the State of Delaware (excluding conflicts of laws provisions).
5.3 Expenses. The Borrower agrees to pay upon demand all reasonable out-of-pocket costs and expenses of the Lenders (including, without limitation, the reasonable fees and expenses of counsel to the Lenders) in connection with the preparation, negotiation, execution and delivery of this Amendment.
5.4 Severability. To the extent any provision of this Amendment is prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in any such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of this Amendment in any jurisdiction.
5.5 Successors and Assigns. This Amendment shall be binding upon, inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto.
5.6 Construction. The headings of the various sections and subsections of this Amendment have been inserted for convenience only and shall not in any way affect the meaning or construction of any of the provisions hereof.
5.7 Counterparts; Effectiveness. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. This Amendment shall become effective upon the execution and delivery of a counterpart hereof by each of the parties hereto.
5.8 Authorization and Consent Regarding Subordination Agreement. Each Lender (as defined in each of the Loan Agreements) hereby authorizes Triangle, as Agent (as defined in each of the Loan Agreements), to execute on behalf of such Lender (as defined in each of the Loan Agreements) the Third Amendment to the Intercreditor Agreement substantially in the form attached as Exhibit A hereto. This Section 5.8 is solely for the benefit of the Agent (as defined in each of the Loan Agreements) and the Lenders (as defined in each of the Loan Agreements) and no other party shall have any rights with respect hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers as of the date first above written.
| TULSA INSPECTION RESOURCES, INC. | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | C.E.O | |
| TULSA INSPECTION RESOURCES-NONDESTRUCTIVE EXAMINATION, INC. | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | C.E.O | |
(Signatures continue on following page)
Signature Page to Sixth Amendment to
Loan Agreements
| S-1 |
| TRIANGLE MEZZANINE FUND, LLLP | |||
| By: | New Triangle GP, LLC, | ||
| its General Partner | |||
| By: | Triangle Capital Corporation, | ||
| its Manager | |||
| By: | /s/ Xxxxx Xxxxxxx | ||
| Name: | Xxxxx Xxxxxxx | ||
| Title: | CIO | ||
| FIDUS MEZZANINE CAPITAL, L.P. | |||
| By: | Fidus Investment GP, LLC, | ||
| its General Partner | |||
| By: | Fidus Investment Advisors, LLC, | ||
| its Manager | |||
| By: | /s/ W. Adrew Worth | ||
| Name: | W. Xxxxxx Worth | ||
| Title: | Manager | ||
| SALEM HALIFAX CAPITAL PARTNERS, LIMITED PARTNERSHIP | |||
| By: | SCP Management, LLC, its General Partner | ||
| By: | /s/ X. Xxxxxxxx White Jr. | ||
| Name: | X. Xxxxxxxx White Jr | ||
| Title: | Manager | ||
(Signatures continue on following page)
Signature Page to Sixth Amendment to
Loan Agreements
| S-2 |
| SPP MEZZANINE FUNDING II HOLDINGS, LLC | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | Managing Partner | |
| SPP MEZZANINE FUNDING II-A, L.P. | ||
| By: SPP Partners II, L.P., its General Partner | ||
| By: SPP Partners II GP, LLC, its General Partner | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | Managing Partner | |
Signature Page to Sixth Amendment to
Loan Agreements
| S-3 |
Exhibit A
Third Amendment to the Intercreditor Agreement
See Attached
