EXHIBIT 10.37.10
THIRD AMENDMENT TO CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO CREDIT AGREEMENT ("Amendment") is entered into
as of October 31, 2002, by and among BLACK WARRIOR WIRELINE CORP., a Delaware
corporation ("Borrower"), the other Credit Parties signatory hereto, 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 and as
amended by that certain Second Amendment to Credit Agreement, dated as of June
10, 2002 (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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Amendments to Annex F. The Credit Agreement is hereby amended by
deleting Paragraphs (a) and (f) in Annex F of the Credit Agreement and by
substituting in lieu thereof the following:
(a) Maximum Capital Expenditures. Borrower and its Subsidiaries
on a consolidated basis shall not make Capital Expenditures during the
following periods that exceed in the aggregate the amounts set forth
opposite each of such periods:
Maximum Capital Expenditures
Period per Period
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Ten-month period commencing
January 1, 2002 and ending on
October 31, 2002 $7,000,000
Eleven-month period commencing
January 1, 2002 and ending on
November 30, 2002 $7,300,000
Twelve-month period commencing
January 1, 2002 and ending on
December 31, 2002 $7,700,000
Fiscal Month of January 2003 $ 300,000
Two-month period commencing
January 1, 2003 and ending on
February 28, 2003 $ 600,000
Three-month period commencing
January 1, 2003 and ending on
March 30, 2003 $1,000,000
Fiscal Year 2003 $8,000,000
Six-month period commencing
January 1, 2004 and ending on
June 30, 2004 $5,000,000
Notwithstanding anything in the Agreement to the contrary, the
Borrower may reinvest the insurance proceeds from lost, damaged or
destroyed equipment used to plug and abandon obsolete wells (the: "P&A
Equipment") in an amount not to exceed $600,000; provided that such
proceeds are used to replace and restore such P&A Equipment in a
diligent and expeditious manner with materials and workmanship of
substantially the same quality as existed before the loss, damage or
destruction; provided further that such proceeds shall not be used in
the calculation of the above limits on Capital Expenditures.
(f) Maintain, as of the last day of each Fiscal Month,
commencing with the Fiscal Month ending on July 31, 2002, Cumulative
Operating Cash Flow of not less than:
Fiscal Month Cumulative Operating Cash Flow
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July 31, 2002 $ (275,000)
August 31, 2002 $ 225,000
September 30, 2002 $ 975,000
October 31, 2002 $1,000,000
November 30, 2002 $1,400,000
December 31, 2002 $1,700,000
January 31, 2003 $2,200,000
February 28, 2003 $2,600,000
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B. RESERVES
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The Borrower hereby acknowledges and agrees that pursuant to Section
1.1(a)(i) of the Credit Agreement, the Agent hereby establishes an accreting
Reserve to cover (i) principal and interest payments due and payable under the
Credit Agreement on December 1, 2002 and January 1, 2003 and (ii) all fees due
and payable on December 31, 2002, including, without limitation, the $50,000
balance of the amendment fee due in connection with the Second Amendment to
Credit Agreement dated as June 10, 2002 and the $75,000 amendment fee due
hereunder.
C. 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.
D. FEES
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Borrower hereby agrees to pay an amendment fee equal to $75,000 which
fee shall be fully earned on the date hereof and due on December 31, 2002.
Failure to pay such amendment fee by December 31, 2002 shall constitute an Event
of Default under Section 8.1 of the Credit Agreement.
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E. 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
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. Reaffirmation. 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.
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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[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
4ate first written above.
BLACK WARRIOR WIRELINE
CORPORATION, as Borrower
By:/s/William L Jenkins
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Name: William L. Jenkins
Title: Chief Executive Officer
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: /s/ John Hanley
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John Hanley
Duly Authorized Signatory
SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT