FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “First Amendment”), made effective as
of the 16 day of August, 2006 (the “First Amendment Effective Date”), by and among
SUPERIOR WELL SERVICES, INC., a Delaware corporation (“SWS”),, SUPERIOR WELL SERVICES,
LTD., a Pennsylvania limited partnership (“Superior”), and BRADFORD RESOURCES, LTD., a
Pennsylvania limited partnership (“Bradford”) (SWS, Superior and Bradford are each a
“Borrower” and collectively, the “Borrowers”) and CITIZENS BANK OF PENNSYLVANIA, a
Pennsylvania state chartered bank (the “Lender”).
BACKGROUND
A. The Borrowers and the Lender are parties to that certain Credit Agreement dated as of
October 18, 2005 (the “Credit Agreement”) pursuant to which the Lender has made a revolving
credit facility available to the Borrowers.
B. The Borrowers have requested the Lender to make a standby term loan facility available to
the Borrowers under the Credit Agreement in a maximum principal amount up to $30,000,000, and the
Lender is willing to do so upon the terms and conditions set forth in this First Amendment.
NOW, THEREFORE, the parties hereto, intending to be legally bound, covenant and agree as
follows:
SECTION 1. USE OF TERMS; RECITALS
1.1 Capitalized terms used herein (including the Background above) shall have the same meaning
ascribed thereto in the Credit Agreement as amended by this First Amendment, unless otherwise
specified herein.
1.2 The Borrowers acknowledge that the recitals set forth above in the Background above are
true and correct and are incorporated herein by reference.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT
2.1 The following definitions as set forth in Schedule One of the Credit Agreement are
amended and restated in their entirety to read as follows:
“Loan” means individually each Revolving Credit Loan, at all times
prior to the Standby Term Loan Conversion Date, each Standby Term Loan Advance, at
all times after the Standby Term Loan Conversion Date, the Standby Term Loan, or any
other loan, if any, made by the Lender to the Borrowers under this Agreement, and
“Loans” means collectively the Revolving Credit Loans, at all times prior to
the Standby Term Loan Conversion Date, the Standby Term Loan Advances, at all times
after the Standby Term Loan Conversion Date, the Standby Term Loan, and all other
loans, if any, made by the Lender to the Borrowers under this Agreement.
“Notes” means collectively the Revolving Credit Note, the Standby Term
Loan Note and all other promissory notes hereafter issued by the Borrowers to the
Lender in connection with this Agreement.
“Obligations” means (i) all indebtedness, loans, advances, debts,
liabilities, obligations, indemnities, covenants and duties owing by the Borrowers
to the Lender or to any other direct or indirect Subsidiary or Affiliate of the
Lender under this Agreement, the Notes, the Collateral Documents, the L/C-Related
Documents, the Hedging Contracts and all other Loan Documents, including, without
limitation, (A) the aggregate principal indebtedness advanced from time to time by
the Lender to the Borrowers under the Credit Agreement, all interest accrued and
accruing thereon and all other fees or monetary obligations owed to the Lender under
the Credit Agreement or any of the other Loan Documents, (B) all amounts that would
become due from the Borrowers to the Lender but for the operation of the automatic
stay provisions of §362(a) of the Bankruptcy Code, (C) all Hedging Obligations, (D)
all costs incurred by the Lender in commencing or pursuing any enforcement action(s)
with respect to the amounts described in clauses (A) through (C), including, without
limitation, reasonable attorneys’ fees and disbursements, and (E) any advances
reasonably made by the Lender to protect any Collateral, and (ii) all indebtedness
and obligations of the Borrowers to the Lender or to any other direct or indirect
Subsidiary or Affiliate of the Lender in connection with Banking Services, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof and
substitutions therefor).
2.2 The following definitions are added to Schedule One of the Credit Agreement in the
appropriate alphabetical order:
“Banking Services” shall mean each and any of the following bank
services provided to any Borrower by the Lender or by any other direct or indirect
Subsidiary or Affiliate of the Lender: (i) commercial credit cards, and (ii)
treasury management services (including, without limitation, controlled
disbursement, automated clearinghouse transactions, return items, overdrafts and
interstate depository network services).
“Eligible Equipment” means machinery and equipment approved by the
Lender for purchase by the Borrowers with the proceeds of the Standby Term Loan
Advances for use in the ordinary course of the business operations of the Borrowers,
the purchase of which would qualify as a Capital Expenditure.
“First Amendment to Credit Agreement” means the First Amendment to
Credit Agreement made effective as of August 16, 2006 by and among the Borrowers
and the Lender.
“Fixed Charges” means for any Person, for the period of determination
determined in accordance with GAAP on a consolidated basis, the sum of (i) Interest
Expense, plus (ii) Tax Expense, plus (iii) the current portion of Indebtedness
classified as long term debt in accordance with GAAP, plus (iv) without duplication,
the current portion of the principal component of required payments of Capital Lease
obligations.
“Fixed Charge Coverage Ratio” means, for the period of determination
determined in accordance with GAAP on a consolidated basis, the ratio of (i) EBITDA
of SWS and its Subsidiaries, minus Tax Expense, minus $6,000,000, minus payments
made by SWS and its Subsidiaries to redeem or otherwise purchase stock of SWS and
its Subsidiaries, minus dividends and other distributions made by SWS and its
Subsidiaries, to (ii) Fixed Charges of SWS and its Subsidiaries.
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“Notice of Standby Term Loan Advance” shall have the meaning set forth
in Section 2.15.
“Standby Term Loan” shall have the meaning set forth in Section 2.16.
“Standby Term Loan Advance” shall have the meaning set forth in Section 2.13.
“Standby Term Loan Commitment” means the commitment of the Lender to
make Standby Term Loan Advances in an aggregate amount up to Thirty Million Dollars
($30,000,000.00) and to convert the aggregate principal balance of such Standby Term
Loan Advances outstanding on the Standby Term Loan Conversion Date into a single
Standby Term Loan.
“Standby Term Loan Conversion Date” means the earlier to occur of (i)
the date the Borrowers have drawn the entire amount of the Standby Term Loan
Commitment; and (ii) August 16, 2008.
“Standby Term Loan Maturity Date” means the day immediately prior to
the fifth (5th) anniversary of the Standby Term Loan Conversion Date.
“Standby
Term Loan Note” means the Standby Term Loan Note dated
August 16, 2006 in the original principal amount of Thirty Million Dollars
($30,000,000.00) issued by the Borrowers to the Lender, in form and substance
satisfactory to the Lender.
“Unused Standby Term Loan Commitment Fee” shall have the meaning set
forth in Section 2.18.
2.3 New Sections 2.13, 2.14, 2.15, 2.16, 2.17 and 2.18 are added to the Credit Agreement
reading as follows:
Section 2.13 Standby Term Loan Advances. Subject to the terms and
conditions of this Agreement and in reliance upon the representations and warranties
of the Borrowers contained in Article V, the Lender agrees to make, from time to
time on and after August ___, 2006 up to and including the Standby Term Loan
Conversion Date, advances (each a “Standby Term Loan Advance”) to or for the
account of the Borrowers in the aggregate principal amount not to exceed the Standby
Term Loan Commitment for the purpose of purchasing ninety percent (90.0%) of the
hard purchase cost (excluding shipping, installation, taxes, and other soft costs)
of Eligible Equipment by the Borrowers. Each Standby Term Loan Advance is
non-revolving such that when it or any portion thereof is repaid it may not be
reborrowed, and each Standby Term Loan Advance made by the Lender shall
automatically reduce the Standby Term Loan Commitment by the principal amount of
such Standby Term Loan Advance.
Section 2.14 Standby Term Loan Note. The Standby Term Loan Advances
shall be evidenced by the Standby Term Loan Note, appropriately completed and signed
by the Borrowers. Interest shall accrue and be payable on the outstanding principal
balance of each Standby Term Loan Advance at the LIBOR Rate Option.
Section 2.15 Borrowing Procedures for Standby Term Loan Advances.
Each Standby Term Loan Advance shall be made as a LIBOR Rate Tranche in a minimum
amount of $200,000 and integral multiples of $100,000 in excess of such
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amount and for the Interest Period specified by the Borrowers in the applicable
Notice of Standby Term Loan Advance, which Interest Period shall be three (3) months
if the Borrowers fail to make such a specification. By delivering to the Lender an
irrevocable written notice in form and substance satisfactory to the Lender (a
“Notice of Standby Term Loan Advance”) on or before 2:00 p.m. (prevailing
time in Pittsburgh, Pennsylvania) on a Business Day, the Borrowers may from time to
time request, on not less than two nor more than five (5) Business Days’ notice,
that a Standby Term Loan Advance be made to the Borrowers subject to the following
terms and conditions:
(i) Each Notice of Standby Term Loan Advance shall be signed by
a Responsible Officer of the Borrowers, state the date (which shall
be a Business Day) on which the Standby Term Loan Advance is to be
made, and specify the principal amount of the requested Standby Term
Loan Advance and the Interest Period applicable thereto;
(ii) Each Notice of Standby Term Loan Advance shall be
accompanied by copies of invoices, orders and such other information
as may reasonably be requested by the Lender to verify that the
requested Standby Term Loan Advance will not exceed ninety percent
(90.0%) of the hard purchase cost (excluding shipping, installation,
taxes, and other soft costs) of the Eligible Equipment to be
purchased by the Borrowers with the proceeds of such Standby Term
Loan Advance;
(iii) The Lender shall have a first priority purchase money
security interest in the Eligible Equipment being so purchased,
subject to no Liens other than those in favor of the Lender, and the
Borrowers shall pay to the Lender all filing fees and other costs,
if any, incurred by the Lender in connection with the perfection of
such security interest;
(iv) The requested Standby Term Loan Advance will be made
available by deposit to the account of the Borrowers with the
Lender; and
(v) Each Notice of Standby Term Loan Advance shall constitute
the representation and warranty of the Borrowers to the Lender that
on the date of delivery of such notice to the Lender, and before and
after giving effect to the application of the Standby Term Loan
Advance requested thereby, (A) all representations and warranties
set forth in Article V are true and correct in all material respects
as though made on the date of such request, and (B) no Potential
Default or Event of Default shall have occurred and be continuing.
Section 2.16 Conversion of the Standby Term Loan Advances. On the
Standby Term Loan Conversion Date, the then aggregate outstanding principal balance
of the Standby Term Loan Advances shall be fixed and the Borrowers’ rights to obtain
additional Standby Term Loan Advances shall terminate. On the Standby Term Loan
Conversion Date, the Lender agrees, subject to the terms and conditions set forth in
this Agreement, to convert for the account of the Borrowers the then outstanding
aggregate principal balance of the Standby Term Loan Advances to a single amortizing
term loan (the “Standby Term Loan”). The Standby Term Loan shall be
comprised of one or more LIBOR Rate Tranches and shall bear interest at the LIBOR
Rate Option. Interest shall be
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payable at the times and on the terms specified in Article III or as otherwise
provided for in this Agreement. The Standby Term Loan shall be evidenced by the
Standby Term Loan Note.
Section 2.17 Repayment of the Standby Term Loan. (a) Subject to
adjustment annually by the Lender in writing to the Borrowers to take into account
Hedging Contracts in effect from time to time, the Borrowers agree to pay to the
Lender the outstanding principal balance of the Standby Term Loan as follows:
(i) Commencing on the first day of the first calendar month
following the Standby Term Loan Conversion Date and on the first day
of each consecutive month occurring thereafter prior to the Standby
Term Loan Maturity Date, the Borrowers shall pay to the Lender equal
and consecutive monthly installments in an amount equal to
one-sixtieth (1/60th) of the outstanding principal balance of the
Standby Term Loan on the Standby Term Loan Conversion Date; and
(ii) On the Standby Term Loan Maturity Date, the Borrowers
shall pay to the Lender a final consecutive monthly installment in
an amount equal to the then outstanding principal balance of the
Standby Term Loan, together with all interest and other charges
accrued thereon;
provided, during the period(s) that a Tranche of the Standby Term Loan is classified
as a LIBOR Rate Tranche, such Tranche shall mature and become payable in full on the
last day of each Interest Period applicable thereto, and subject to the provisions
of Section 3.02 regarding continuation and conversion of outstanding Loans, upon
such maturity, such Tranche shall automatically be continued as a LIBOR Rate Tranche
with an equal Interest Period in an amount equal to the expiring LIBOR Rate Tranche
less the principal repayments made to the Lender during the Interest Period
applicable to the expiring LIBOR Rate Tranche, provided, however, no portion of the
outstanding principal amount of a LIBOR Rate Tranche may be continued as a LIBOR
Rate Tranche when an Event of Default has occurred and is continuing. If an Event
of Default has occurred and is continuing (if the Lender does not otherwise elect to
exercise any right to accelerate the Standby Term Loan it is granted under this
Agreement), the maturing LIBOR Rate Tranche shall automatically be continued as a
Prime Rate Tranche. During the period(s) that the Standby Term Loan is classified
as a Prime Rate Tranche, the Borrowers shall make regular payments of principal in
amounts equal to the applicable principal repayment amounts set forth in this
Section 2.17(a). Notwithstanding the foregoing, the outstanding principal balance
of the Standby Term Loan shall be due and payable in full on the Standby Term Loan
Maturity Date.
(b) All provisions of this Agreement relating to LIBOR Rate Tranches
(including, without limitation, the provisions of Section 2.05 (Repayments and
Prepayments of LIBOR Rate Tranches), the manner in which interest accrues and is
payable, as well as any penalties, increased costs or taxes associated with any of
the foregoing) shall be applicable to LIBOR Rate Tranches of the Standby Term Loan
Advances and the Standby Term Loan except that LIBOR Rate Tranches of the Standby
Term Loan Advances and the Standby Term Loan may not be converted into or continued
as Prime Rate Tranches or LIBOR Advantage Rate Tranches by the Borrowers.
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Section 2.18 Unused Standby Term Loan Commitment Fee. The Borrowers
agree to pay to the Lender a fee (the “Unused Standby Term Loan Commitment
Fee”) for each day (based upon a 360-day year and counting the actual number of
days elapsed) in an amount equal to the product of (i) the Applicable Margin for the
Unused Revolving Credit Commitment Fee as determined by reference to
the table set forth on Exhibit “F” attached to this Agreement, multiplied by
(ii) the average daily unused portion of the Standby Term Loan Commitment during the
period from the effective date of the First Amendment to Credit Agreement up to the
Standby Term Loan Conversion Date, computed in arrears on the last Business Day of
each calendar month based upon the daily utilization for that calendar month as
calculated by the Lender. The Unused Standby Term Loan Commitment Fee shall be
payable quarterly in arrears on the last day of each calendar quarter for the
immediately preceding calendar quarter (or portion thereof), with the first such
payment being due and payable on September 30, 2006, with a final payment on the
Standby Term Loan Conversion Date. For purposes of calculating utilization under
this Section, the Standby Term Loan Commitment shall be deemed used to the extent of
the Standby Term Loan Advances then outstanding. The Unused Standby Term Loan
Commitment Fee shall only accrue during the period from the effective date of the
First Amendment to Credit Agreement up to the Standby Term Loan Conversion Date.
2.4 Section 7.01(b) is amended and restated in its entirety to read as follows:
(b) Adjusted Tangible Net Worth. The Borrowers will not permit the Adjusted
Tangible Net Worth of SWS and its Subsidiaries, on a consolidated basis, to be less
than $75,000,000 at any time through April 30, 2006. From and after May 1, 2006,
the Borrowers will not permit the Adjusted Tangible Net Worth of SWS and its
Subsidiaries, on a consolidated basis, to be less than the sum of (i) $85,000,000,
plus (ii) an amount equal to all proceeds from the sale of stock or other securities
of the Borrowers, net of underwriting discounts and commissions and other reasonable
costs paid to non-Affiliates of the Borrowers in connection therewith, plus (iii) on
a cumulative basis, fifty percent (50.0%) of the Net Income of SWS and its
Subsidiaries, on a consolidated basis, for the Fiscal Year ending December 31, 2006
and each Fiscal Year thereafter. Adjusted Tangible Net Worth will be tested at the
end of each Fiscal Quarter of SWS; and
2.5 A new Section 7.01(c) is added to the Credit Agreement reading as follows:
(c) Fixed Charge Coverage Ratio. The Borrowers will not permit the Fixed
Charge Coverage Ratio of SWS and its Subsidiaries, on a consolidated basis, to be
less than 1.2 to 1.0 at any time. The Fixed Charge Coverage Ratio of SWS and its
Subsidiaries, on a consolidated basis, shall be tested at the end of each Fiscal
Quarter of SWS, and calculated for the four (4) consecutive Fiscal Quarters then
ended, treating each such rolling period of four (4) consecutive Fiscal Quarters as
one accounting period.
2.6 The meaning ascribed to “Loan Documents” in the Credit Agreement is hereby amended to the
extent necessary to expressly incorporate in such meaning this First Amendment.
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SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 The Borrowers hereby ratify, confirm and reaffirm, without condition, all the terms and
conditions of the Credit Agreement and the other Loan Documents to which they are a party and agree
that they continue to be bound by the terms and conditions thereof as amended by this First
Amendment. Except as specifically amended by this First Amendment, the Credit Agreement shall
remain in full force and effect in accordance with its terms. This First Amendment is not intended
to be, nor shall it be construed to create, a novation or accord and satisfaction of the Borrowers’
indebtedness and obligations under the Credit Agreement, and the Credit Agreement as herein
modified shall continue in full force and effect. The Borrowers further confirm that they have no
defense, set-off, recoupment or counterclaim against their obligations under the Credit Agreement,
and such obligations are absolute and unconditional.
3.2 The Borrowers hereby ratify, confirm, reaffirm and restate the grant and conveyance of all
liens and security interests granted by the Borrowers to the Lender in the Collateral pursuant to
the Collateral Documents, and such liens and security interests continue to secure the Obligations,
including, without limitation, the Standby Term Loan and all Standby Term Loan Advances. The
Borrowers further agree and confirm that the term “Obligations” includes within the meaning
thereof, and encompasses, all of the indebtedness and obligations of the Borrowers to the Lender
under the Standby Term Loan Note and the Credit Agreement as amended by this First Amendment.
3.3 The Borrowers represent and warrant to the Lender that:
(i) this First Amendment, the Standby Term Loan Note and each of the other
documents and instruments executed and delivered in connection herewith
(collectively, the “First Amendment Documents”) have been duly executed and
delivered by the Borrowers and constitute the legal, valid and binding obligations
of the Borrowers enforceable in accordance with their terms;
(ii) the representations and warranties set forth within Article V of the
Credit Agreement continue to be true and correct in all material respects as of the
First Amendment Effective Date except to the extent that (A) such representations
and warranties expressly relate to an earlier date, or (B) such representations and
warranties have changed, and such changes have been previously disclosed in writing
to the Lender and are reflected on revised schedules to the Credit Agreement
attached to this First Amendment;
(iii) no Event of Default or Potential Default has occurred and is continuing
on the First Amendment Effective Date;
(iv) no Material Adverse Effect has occurred since the Closing Date, and no
event or events shall have occurred and be continuing on the First Amendment
Effective Date which, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect; and
(v) Each Borrower has the power and authority to execute, deliver and perform
the First Amendment Documents to which it is a party. Each Borrower has taken all
necessary action (including, without limitation, obtaining approval of its
stockholders, if necessary) to authorize its execution, delivery and performance of
the First Amendment Documents to which it is a party. No consent, approval or
authorization of, or declaration or filing with, any Authority, and no consent of
any other Person, is required in connection with any Borrower’s execution, delivery
and
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performance of the First Amendment Documents to which it is a party, except for
those already duly obtained. No Borrower’s execution, delivery or performance of
the First Amendment Documents to which it is a party conflicts with, or constitutes
a violation or breach of, or constitutes a default under, or results in the creation
or imposition of any Lien upon the property of such Borrower by reason of the terms
of (A) any contract, mortgage, lease, agreement, indenture or instrument to which
such Borrower is a party or which is binding upon it, (B) any law or regulation or
order or decree of any court applicable to such Borrower, or (C) the certificate or
articles of incorporation or by-laws of such Borrower.
3.4 The Borrowers agree to pay the costs and reasonable fees of counsel of the Lender incurred
in preparing and closing this First Amendment and consummating the transactions contemplated
hereby.
SECTION 4. CONDITIONS PRECEDENT
4.1 The amendments set forth in this First Amendment shall become effective as of the First
Amendment Effective Date provided each of the following conditions has been satisfied or
effectively waived by the Lender:
(i) The representations and warranties set forth in Section 3.3 of this First
Amendment shall be true and correct as of the First Amendment Effective Date.
(ii) Contemporaneously with or prior to the execution hereof, the Borrowers
shall deliver, or cause to be delivered, to the Lender:
(A) The Standby Term Loan Note, duly executed by the Borrowers;
(B) An Amended and Restated Security Agreement in the form of
Exhibit “A” attached hereto, duly executed by the Borrowers;
(C) A Guarantor Acknowledgment and Confirmation in the form of
Exhibit “B” attached hereto, duly executed by the Guarantor;
(D) As to SWS, a certificate of its secretary or assistant
secretary dated the First Amendment Effective Date and certifying as
to (i) true copies of its Articles of Incorporation and Bylaws, and
all amendments thereto, as in effect on the First Amendment
Effective Date, (ii) true copies of all action taken by its Board of
Directors in authorizing the execution, delivery and performance of
this First Amendment, the Standby Term Loan Note, and the other
First Amendment Documents, and (iii) the names and true signatures
of its officers authorized to execute and deliver this First
Amendment, the Standby Term Loan Note and the other First Amendment
Documents to which it is a party;
(E) As to each of Superior and Bradford, a certificate of its
general partner dated the First Amendment Effective Date and
certifying as to (A) true copies of its Certificate of Limited
Partnership and Limited Partnership Agreement, and all amendments
thereto, as in effect on the First Amendment Effective Date, (B)
true copies of all action taken by its
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partners in authorizing the execution, delivery and performance
of the Loan Documents to which it is a party and the consummation of
the transactions contemplated thereby, and specifically authorizing
confession of judgment provisions, and (3) the names and true
signatures of the Persons authorized to execute and deliver First
Amendment, the Standby Term Loan Note and the other First Amendment
Documents to which it is a party;
(F) The opinion of Xxxxxx & Xxxxxx, LLP, counsel for the
Borrowers, addressed to the Lender, in form and substance
satisfactory to the Lender; and
(G) Such other documents, instruments and certificates
reasonably required by the Lender and its counsel in connection with
the transactions contemplated by this First Amendment.
(iii) All legal details and proceedings in connection with the transactions
contemplated by this First Amendment shall be satisfactory to counsel for the
Lender, and the Lender shall have received all such originals or copies of such
documents as the Lender may request.
SECTION 5. MISCELLANEOUS
5.1 This First Amendment shall be construed in accordance with, and governed by the internal
laws of the Commonwealth of Pennsylvania without giving effect to its conflict of laws principles.
5.2 All notices, communications, agreements, certificates, documents or other instruments
executed and delivered after the execution and delivery of this First Amendment may refer to the
Credit Agreement and the other Loan Documents without making specific reference to this First
Amendment, but nevertheless all such references shall be deemed a reference to the Credit Agreement
and the other Loan Documents as respectively amended by this First Amendment unless the context
requires otherwise. All references to the Credit Agreement and the other Loan Documents in any
document, instrument or agreement executed in connection with the Credit Agreement and the other
Loan Documents shall be deemed to refer to the Credit Agreement and the other Loan Documents as
respectively amended by this First Amendment unless the context requires otherwise.
5.3 This First Amendment shall inure to the benefit of, and shall be binding upon, the
respective successors and assigns of the Borrowers and the Lender. The Borrowers may not assign
any of their rights or obligations hereunder without the prior written consent of the Lender.
5.4 This First Amendment may be executed in any number of counterparts and by the different
parties hereto on separate counterparts each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and the same instrument. Delivery by
telecopier of an executed counterpart of a signature page to this First Amendment or any notice,
communication, agreement, certificate, document or other instrument in connection with the Credit
Agreement and the other Loan Documents shall be effective as delivery of an executed original
counterpart thereof.
5.5 Each Borrower releases, waives and forever discharges and relieves the Lender and its
Subsidiaries and Affiliates and the officers, directors, agents, attorneys and employees of each
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(hereinafter “Releasees”) from any and all claims, causes of action, suits, debts,
liens, obligations, liabilities, demands, losses, defenses, offsets, costs or expenses (including
attorneys’ fees) of any kind, character or nature whatsoever, vested or contingent, at law, in
equity or otherwise (collectively, “Claims”), which such Borrower ever had, now has, or
which may result from the past or present state of things, against or related to Releasees. Each
Borrower agrees to assume the risk of releasing any and all unknown, unanticipated or misunderstood
Claims hereby.
5.6 THE BORROWERS REAFFIRM AND RESTATE THE PROVISIONS OF SECTION 9.02 OF THE CREDIT AGREEMENT
WHEREBY THE BORROWERS GRANTED THE LENDER THE POWER TO CONFESS JUDGMENT AGAINST THE BORROWERS UPON
THE OCCURRENCE OF CERTAIN EVENTS, AND THE PROVISIONS OF SECTION 10.09 OF THE CREDIT AGREEMENT
WHEREBY THE BORROWERS WAIVED THE RIGHT TO A TRIAL BY JURY, SUCH PROVISIONS BEING INCORPORATED
HEREIN BY REFERENCE TO THE SAME EXTENT AS IF REPRODUCED HEREIN IN THEIR ENTIRETY EXCEPT REFERENCES
TO THE CREDIT AGREEMENT SHALL BE DEEMED REFERENCES TO THIS FIRST AMENDMENT.
******SIGNATURES APPEAR ON THE FOLLOWING PAGE******
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused
their duly authorized officers to execute and deliver this First Amendment to Credit Agreement the
day and year first above written.
SUPERIOR WELL SERVICES, INC. | ||||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||||
Title: | Vice President & Chief Financial Officer | |||||||
SUPERIOR WELL SERVICES, LTD. | ||||||||
By: | Superior GP, L.L.C., Its sole general partner | |||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||||
Title: | Vice President & Chief Financial Officer | |||||||
BRADFORD RESOURCES, LTD. | ||||||||
By: | Superior GP, L.L.C., Its sole general partner | |||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||||
Title: | Vice President & Chief Financial Officer | |||||||
CITIZENS BANK OF PENNSYLVANIA | ||||||||
By: | /s/ Xxxxxx Xxxx | |||||||
Title: | Senior Vice President | |||||||
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