Exhibit 10.2
------------
SECOND AMENDMENT TO CREDIT AGREEMENT
------------------------------------
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
November 15, 2005, is entered into among TEAM, INC., a Texas corporation (the
"Borrower"), the lenders that are parties to the Credit Agreement defined below
(collectively, the "Lenders"), and BANK OF AMERICA, N.A., as Administrative
Agent for itself and the Lenders (in said capacity, the "Administrative Agent"),
and as Swing Line Lender and L/C Issuer.
BACKGROUND
----------
A. The Borrower, the Lenders, the Administrative Agent, the Swing Line
Lender and the L/C Issuer are parties to that certain Credit Agreement, dated as
of August 11, 2004 (as amended through the date hereof, the "Credit Agreement").
Terms defined in the Credit Agreement and not otherwise defined herein shall be
used herein as defined in the Credit Agreement.
B. The Borrower, the Lenders, the Administrative Agent, the Swing Line
Lender and the L/C Issuer desire to make certain amendments to the Credit
Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders, the Administrative Agent, the Swing Line Lender and the L/C Issuer
covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby amended
by amending Schedule 2.01 thereto, effective as of November 16, 2005, in the
form of, and all references to Schedule 2.01 in the Credit Agreement, effective
as of November 16, 2005, shall be deemed to be references to, Schedule 2.01
attached to this Amendment.
2. COMMITMENT FEE. Borrower shall pay to the Administrative Agent, for
the pro rata benefit of the Lenders increasing their Revolving Commitments
pursuant hereto, a commitment fee in an amount equal to $50,000 (the "Commitment
Fee"). Such Commitment Fee shall be paid in immediately available funds and
shall be due and payable on the date hereof.
3. WAIVER. The Borrower has notified the Administrative Agent that, if
the Climax Sale is consummated on or prior to November 30, 2005, the Borrower
may be unable to comply with Section 7.14(b) of the Credit Agreement for the
Fiscal Quarter ended November 30, 2005 (the "Specified Item"). The Required
Lenders hereby waive any resultant Event of Default that may occur solely as a
result of the Specified Item, provided that such waiver shall only be effective
if the Climax Sale is consummated on or prior to November 30, 2005.
4. REPRESENTATIONS AND WARRANTIES. By its execution and delivery hereof,
the Borrower represents and warrants to the Lenders that, as of the date hereof:
(a) after giving effect to this Amendment, the representations and
warranties contained in the Credit Agreement and the other Loan Documents
are true and correct on and as of the date hereof as if made on and as of
such date, except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate in all
material respects on and as of such earlier date);
(b) after giving effect to this Amendment, no event has occurred and
is continuing which constitutes an Event of Default;
(c) the Borrower has legal power and authority to execute and deliver
this Amendment, and this Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy or other
debtor relief laws and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and
except as rights to indemnity may be limited by federal or state securities
laws;
(d) neither the execution, delivery and performance of this Amendment
nor the consummation of any transactions contemplated herein will violate
or conflict with, or result in a breach of, or constitute a default under,
or require any consent under (i) the articles of incorporation, bylaws or
other organizational documents of the Borrower, (ii) any applicable law,
rule, or regulation or any order, writ, injunction, or decree of any
Governmental Authority or arbitrator, or (iii) any agreement or instrument
to which the Borrower is a party or by which it or any of its property is
bound or subject; and
(e) no authorization, approval, consent, or other action by, notice
to, or filing with, any Governmental Authority or other Person (including
the Board of Directors of Borrower), is required for the execution,
delivery or performance by the Borrower of this Amendment.
5. CONDITIONS OF EFFECTIVENESS. This Amendment shall be effective only
after each of the following conditions precedent shall have been satisfied:
(a) the Administrative Agent shall receive counterparts of this
Amendment executed by the Required Lenders and the Borrower;
(b) the Administrative Agent shall receive new Revolving Loan Note(s)
executed by the Borrower, payable to the order of each Lender increasing
its Revolving Commitment pursuant to this Amendment
(c) the representations and warranties set forth in Section 4 of this
Amendment shall be true and correct;
(d) the Commitment Fee and any other fee agreed to by the Borrower
under separate agreement in connection herewith shall have been paid;
(e) all reasonable out-of-pocket fees and expenses of the
Administrative Agent in connection with the Loan Documents, including this
Amendment, including legal fees and expenses incurred on or prior to the
date of this Amendment by the Administrative Agent, including, without
limitation, the reasonable fees and expenses of Winstead Sechrest & Minick
P.C., shall have been paid; and
2
(f) the Administrative Agent shall receive, in form and substance
satisfactory to the Administrative Agent and its counsel, such other
documents, certificates and instruments as the Administrative Agent shall
reasonably require.
6. REFERENCE TO CREDIT AGREEMENT. Upon the effectiveness of this
Amendment, each reference in the Credit Agreement to "this Agreement,"
"hereunder," or words of like import shall mean and be a reference to the Credit
Agreement, as affected and amended by this Amendment.
7. COUNTERPARTS; EXECUTION VIA FACSIMILE. This Amendment may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. This Amendment
may be validly executed and delivered by facsimile or other electronic
transmission.
8. GOVERNING LAW: BINDING EFFECT. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and shall be binding
upon the Borrower, the Administrative Agent, each Lender and their respective
successors and assigns.
9. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
10. LOAN DOCUMENT. This Amendment is a Loan Document and is subject to all
provisions of the Credit Agreement applicable to Loan Documents, all of which
are incorporated in this Amendment by reference the same as if set forth in this
Amendment verbatim.
11. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN 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 BETWEEN THE
PARTIES.
Remainder of page intentionally blank.
Signature pages follow.
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
TEAM, INC.
By: /s/ Ted W. Owen
---------------
Name: Ted W. Owen
Title: Senior Vice President
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Suzanne M. Paul
-------------------
Suzanne M. Paul
Vice President
Second Amendment
Signature Page
AGREED TO this 15th day of November, 2005.
BANK OF AMERICA, N.A., COMERICA BANK
as Swing Line Lender, L/C Issuer and a Lender
By: /s/ Gary L. Mingle
-------------------
Gary L. Mingle By:/s/ Kirby Sandford
Senior Vice President ------------------
Name: Kirby Sandford
Title: Vice President
JPMORGAN CHASE BANK, N.A. COMPASS BANK
By: /s/ Brad Hughes By:/s/ Tom Brosig
---------------- ---------------
Name: Brad Hughes Name: Tom Brosig
Title: Vice President Title: Senior Vice President
AMEGY BANK, N.A. GUARANTY BANK
By:/s/ David C. Moriniere
----------------------
Name: David C. Moriniere By:/s/ Scott Brewer
Title: Vice President ----------------
Name: Scott Brewer
Title: Man. Dir.
Second Amendment
Signature Page
Each of the undersigned hereby (a) consents and agrees to this Amendment's
execution and delivery, (b) ratifies and confirms its obligations under its
guaranty, (c) acknowledges and agrees that its obligations under its guaranty
are not released, diminished, impaired, reduced, or otherwise adversely affected
by this Amendment, and (d) acknowledges and agrees that it has no claims or
offsets against, or defenses or counterclaims to, its guaranty.
GUARANTORS:
TEAM INDUSTRIAL SERVICES, INC.
TEAM INVESTMENT, INC.
LEAK REPAIRS, INC.
CLIMAX PORTABLE MACHINE TOOLS, INC.
THERMAL SOLUTIONS, INC.
X-RAY INSPECTION, INC.
TEAM COOPERHEAT-MQS, INC.
TEAM INDUSTRIAL SERVICES OF CANADA, INC.
By: /s/ Ted W. Owen
----------------
Name: Ted W. Owen
Title: Sr. Vice President
TEAM FACILITIES & SERVICES, L.P.
By: Team, Inc., its General Partner
By: /s/ Ted W. Owen
----------------
Name: Ted W. Owen
Title: Sr. Vice President
Second Amendment
Signature Page
SCHEDULE 2.01
REVOLVING COMMITMENTS
AND REVOLVING PRO RATA SHARES
Revolving Revolving
Lender Commitment Pro Rata Share
- ---------------------------------------------------- ------------------------- -------------------------
Bank of America, N.A. $ %
--------------------- ---------
JPMorgan Chase Bank, N.A. $ %
Compass Bank $ %
--------------------- ---------
Comerica Bank $ %
--------------------- ---------
Amegy Bank, N.A. $ %
--------------------- ---------
Guaranty Bank $ %
--------------------- ---------
Total $60,000,000 100.000000000%