{"id":41330,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/subordinated-note-and-warrant-purchase-agreement-the-prudential.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"subordinated-note-and-warrant-purchase-agreement-the-prudential","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/subordinated-note-and-warrant-purchase-agreement-the-prudential.html","title":{"rendered":"Subordinated Note and Warrant Purchase Agreement &#8211; The Prudential Insurance Co. of America and Boots &#038; Coots International Well Control Inc."},"content":{"rendered":"<pre>                                                                  EXECUTION COPY\n\n                     AMENDMENT NO. 1 TO SUBORDINATED NOTE\n                        AND WARRANT PURCHASE AGREEMENT\n\n     THIS AMENDMENT NO. 1 TO SUBORDINATED NOTE AND WARRANT PURCHASE AGREEMENT\n(this 'AMENDMENT') is entered into as of October 28, 1998 by and between THE\nPRUDENTIAL INSURANCE COMPANY OF AMERICA ('PRUDENTIAL') and BOOTS &amp; COOTS\nINTERNATIONAL WELL CONTROL, INC., a Delaware corporation (the 'COMPANY').\n\n                                   RECITALS\n\n     A. The Company and Prudential have entered into that certain Subordinated \nNote and Warrant Purchase Agreement dated as of July 23, 1998 (as amended, \nrestated or modified from time to time, including as amended by this Amendment \nbelow, the 'NOTE AGREEMENT'), pursuant to which the Company has issued and sold \nto Prudential $30,000,000 aggregate principal amount of its Senior Subordinated\nNotes due July 23, 2006 (such Senior Subordinated Notes, together with each \nsuch Senior Subordinated Note delivered in substitution or exchange for any \nother such Senior Subordinated Note, are collectively referred to herein as the \n'NOTES'). Capitalized terms used and not otherwise defined in this Amendment \nshall have the respective meanings ascribed to them in the Note Agreement.\n\n     B. The Company has requested that, subject to the terms and conditions set \nforth herein, the Note Agreement be amended to the effect and as set forth \nherein to among other things, reflect the negotiated release of the Collateral \n(as such term was defined in the Note Agreement prior to the effectiveness of \nthis Amendment) in connection with the prepayment of amounts due under the \nBridge Loan Agreement (as such term was defined in the Note Agreement prior to \nthe effectiveness of this Amendment.\n\n     NOW, THEREFORE, in consideration of the foregoing and other good and \nvaluable consideration, the receipt and sufficiency of which are hereby \nacknowledged, the parties hereto agree as follows:\n\n     1. Amendment to Paragraph 5F. Paragraph 5F of the Note Agreement is hereby\namended by deleting in its entirety the second sentence thereof.\n\n     2. Amendment to Paragraph 5I. paragraph 5I of the Note Agreement is hereby \namended by deleting the phrase and punctuation 'after the earlier of (i) January\n6, 1999 or (ii) the effective date of the initial Credit Agreement' contained \ntherein.\n\n\n \n     3. Amendment to Paragraph 5J. Paragraph 5J of the Note Agreement is hereby\namended and restated to read in its entirety as follows:\n\n  '5J.  NEW SUBSIDIARIES; FOREIGN SUBSIDIARIES.\n\n        (i) At the cost and expense of the Company, the Company will cause each\n    subsequently acquired or organized Domestic Subsidiary to execute and\n    deliver a Guaranty Agreement in favor of the holders of the Notes\n    contemporaneously with such Domestic Subsidiary possessing or acquiring any\n    tangible or intangible assets or properties.\n\n        (ii) At the cost and expense of the Company and upon the request of the \nRequired Holders, the Company will cause each Significant Foreign Subsidiary \n(or, during the existence of a Default or an Event of Default, any Subsidiary) \nto execute and deliver a Guaranty Agreement, in favor of the holder of the \nNotes.'\n\n     4. Amendment to Paragraph 6A(1). The table contained in paragraph 6A(1) of \nthe Note Agreement is hereby amended and restated to read in its entirety as \nfollows:\n\n'       Period                                         Maximum Ratio\n        ------                                         ------------- \n        Date of Closing through the earlier of (i)\n        the closing date of the sale of the \n        Contemplated Preferred Stock and (ii)\n        June 30, 1999                                  4.75 to 1.00\n\n        If the closing date of the sale of the \n        Contemplated Preferred Stock is prior to \n        June 30, 1999, then from the closing date\n        of the sale of the Contemplated Preferred\n        Stock through June 30, 1999                    4.25 to 1.00\n\n        July 1, 1999 through June 30, 2000             3.75 to 1.00\n\n        July 1, 2000 through June 30, 2001             3.50 to 1.00\n\n        July 1, 2001 until all Notes have been paid    3.25 to 1.00'\n\n     5. Amendment to Paragraph 6A(4). Paragraph 6A(4) of the Note Agreement is \nhereby amended and restated to read in its entirety as follows:\n\n  '6A(4). EBITDA TO CONSOLIDATED INTEREST EXPENSE AND PREFERRED DIVIDENDS RATIO.\nAt any time, the ratio of EBITDA to Consolidated Interest Expense and Preferred \nDividends, each for the four fiscal quarters most recently ended, to be less \nthan 1.75 to 1.00.'\n\n                                    -2-    \n\n\n \n        6. Amendment to Paragraph 6A(5). Paragraph 6A(5) of the Note Agreement \nis hereby amended to read on its entirety as follows:\n\n        '6A(5). EBITDA TO CONSOLIDATED INTEREST EXPENSE AND PREFERRED DIVIDENDS\n        PLUS SCHEDULED PRINCIPAL PAYMENTS RATIO. At any time, the ratio of\n        EBITDA to Consolidated Interest Expense and Preferred Dividends, plus\n        Scheduled Principal Payments, each for the four fiscal quarters most\n        recently ended, to be less than 1.25 to 1.00.'\n\n        7. Amendment to Paragraph 6C(1). Paragraph 6C(1) of the Note Agreement \nis hereby amended by (a) deleting the phrase 'the Collateral Agent' contained in\nclause (i) thereof and replacing such phrase with the word 'you', (b) deleting \nthe phrase 'applicable Senior Loan Agreement' contained in clause (ii) thereof \nand replacing such phrase with the phrase 'Credit Agreement', (c) deleting the\nphrase 'Senior Loan Documents' contained in clause (ii) thereof and replacing\nsuch phrase with the phrase 'Credit Agreement Documents', (d) adding the word\n'and' at the end of clause (iv) thereof, (e) deleting the punctuation and word\n';and' at the end of clause (v) thereof and replacing such punctuation and word\nwith the punctuation '.' and (f) deleting in its entirety clause (vi) thereof.\n\n        8. Amendment to Paragraph 6C(2). Paragraph 6C(2) of the Note Agreement \nis hereby amended by (a) deleting the phrase 'applicable Senior Loan Agreement' \ncontained in clause (ii) thereof and replacing such phrase with the phrase \n'Credit Agreement' and (b) deleting the figure '$55,000,000' contained in clause\n(ii) thereof and replacing such figure with the figure '$30,000,000'.\n\n        9. Amendment to Paragraph 6C(4). Paragraph 6C(4) of the Note Agreement \nis hereby amended by (a) deleting the phrase 'and the Collateral Agent' \ncontained in clause (i)(a)(3) thereof, (b) deleting the phrase 'and the \nCollateral Agent are' contained in clause (i)(b)(5) thereof and replacing such \nphrase with the word 'is', (c) deleting the phrase 'applicable Senior Loan \nAgreement' contained in two separate instances in clause (i)(c) thereof and \nreplacing such phrase in each instance with the phrase 'Credit Agreement', (d) \ndeleting the phrase 'Senior Loan Documents' contained in two separate instances \nin clause (i)(c) thereof and replacing such phrase in each instance with the \nphrase 'Credit Agreement Documents' and (e) deleting the phrase 'the Collateral \nAgent' found in two separate instances in clause (i)(c) thereof and replacing \nsuch phrase in each instance with the word 'you'.\n\n        10. Amendment to Paragraph 6G. Paragraph 6G of the Note Agreement is \nhereby amended by (a) deleting the phrase 'applicable Senior Loan Agreement' \ncontained therein and replacing such phrase with the phrase 'Credit Agreement' \nand (b) deleting the phrase 'Senior Loan Documents' contained therein and \nreplacing such phrase with the phrase 'Credit Agreement Documents'.\n\n        11. Amendment to Paragraph 6I. Paragraph 6I of the Note Agreement is \nhereby amended by (a) deleting the phrase and punctuation 'and such Security \nDocuments as the Required Holders may reasonably require,' contained in clause \n(iii)(b) thereof and (b) deleting in its entirety\n\n                                      -3-\n\n \n\n \nclause (iii)(c) thereof and replacing such clause with the following: '(c) the \nholder of each Note is given reasonable prior notice of such formation, creation\nor acquisition, unless such Subsidiary has no tangible or intangible assets or \nproperties, in which case the holder of each Note shall be given reasonable \nprior notice of the date upon which such Subsidiary is expected to first possess\nor acquire any tangible or intangible assets or properties'.\n\n        12. Amendment to Paragraph 7D. the definition of 'Senior Debt' contained\nin paragraph 7D of the Note Agreement is hereby amended by deleting the phrase \n'applicable Senior Loan Agreement' contained therein and replacing such phrase \nwith the phrase 'Credit Agreement'.\n\n        13. Amendment to Paragraph 8A. Paragraph 8A of the Note Agreement is \nhereby amended by (a) deleting the word 'or' contained at the end of clause \n(xvi) thereof and (b) deleting clause (xvii) thereof in its entirety.\n\n        14. Amendment to Paragraph 8D. Paragraph 8D of the Note Agreement is \nhereby amended by (a) deleting the notation '(i)' appearing immediately after \nthe phrase and punctuation 'be continuing,' in the first sentence thereof, (b) \ndeleting the phrase and punctuation ', and (ii) both the Collateral Agent and \nthe holders of the Notes may exercise any rights or remedies in their respective\ncapacities under the Security Documents in accordance with the provisions\nthereof' contained in the first sentence thereof and (c) deleting the phrase 'or\nthe Collateral Agent' contained in the second sentence thereof.\n\n        15. Amendment to Paragraph 9H. Paragraph 9H of the Note Agreement is \nhereby amended by deleting the parenthetical notation '(except Liens created \nunder the Security Documents)' contained in the second sentence thereof.\n\n        16. Amendment of Paragraph 11B to Amend and Restate Certain Definitions.\nParagraph 11B of the Note Agreement is hereby amended by amending and restating \nthe following definitions contained therein to read, in their entirety, as \nfollows:\n\n        'BANK' shall mean Comerica Bank - Texas, a Texas banking association, as\nagent bank.\n\n        'CREDIT AGREEMENT' shall mean that certain Loan Agreement dated as of \nOctober 28, 1998 by and among the Company and the Bank, as such credit agreement\nmay be amended, supplemented and otherwise modified from time to time.\n\n        'CREDIT AGREEMENT DOCUMENTS' shall mean the Credit Agreement, the other \nLoan Documents (as such term is defined in the Credit Agreement) and all other\npromissory notes, guaranty agreements, security agreements, pledge agreements, \nmortgages or deeds of trust, financing statements, assignments, pledges, lien \nentry forms, documents and other writings executed and delivered from time to \ntime to secure the Indebtedness incurred pursuant to the Credit Agreement and \nthe obligations owed to any lenders in connection with the Credit Agreement and \nall other instruments, certificates, documents and other writings now or\nhereafter executed and delivered by\n\n                                      -4-\n\n \nany Transaction Party or any other Person pursuant to or in connection with any\nof the foregoing or any of the transactions contemplated thereby, and any and\nall amendments, restatements, supplements and other modifications to any of the\nforegoing.\n\n        'PERMITTED SUBORDINATED DEBT' shall mean (i) subordinated Indebtedness \nof the Company (and Guarantees thereof by any Domestic Subsidiary) that (a) has\nprincipal payments and prepayments due on the same dates and in the same\nrelative amounts as the Notes, (b) is pari passu with the Indebtedness incurred\npursuant to this Agreement or the Guaranty Agreements, as applicable, (c) is\nissued on terms (including, without limitation, interest rate, yield and voting\nrights) substantially identical to the terms of this Agreement and the Guaranty\nAgreements, respectively, (d) the issuance of which does not violate any term or\ncovenant of this Agreement or any other Subordinated Note Document and (e) in\nconnection therewith, the Required Holders and each Person to which the Company\nhas issued such subordinated Indebtedness shall have entered into an\nintercreditor agreement with respect to such subordinated Indebtedness in form\nand substance reasonably satisfactory to the Required Holders and (ii) until May\n1, 1999 indebtedness of ITS Supply Corporation, a Delaware corporation and\nDomestic Subsidiary of the Company, to Harbison-Fischer, Inc. evidenced by that\ncertain Subordinated Note due May 1, 1999 in the original principal amount of up\nto $3,833,021.44 (and the Guarantee thereof by the Company).\n\n        'PRIORITY DEBT' shall mean, at any time, without duplication, an amount \nequal to the sum of the amount of all Indebtedness of Subsidiaries, other than\nIndebtedness in the form of Guarantees in respect of Indebtedness of the Company\noutstanding pursuant to the Credit Agreement or this Agreement or the agreement\npursuant to which the Permitted Subordinated Debt is outstanding (in each case,\nwhether or not secured by any Lien), outstanding at such time plus the amount of\nall Indebtedness of the Company and its Subsidiaries outstanding at such time\nthat is secured by one or more Liens not otherwise permitted under clauses (i),\n(ii), or (iv) of paragraph 6C(1).\n\n        'SENIOR LENDER' shall mean the Bank, in its capacity as a lender under\nthe Credit Agreement, and any other lender or lenders from time to time party to\nthe Credit Agreement.\n\n        'TOTAL DEBT' shall mean the total Indebtedness of the Company and its \nSubsidiaries on a consolidated basis, provided, that Total Debt shall not\ninclude Indebtedness of the Company and its Subsidiaries permitted by clause\n(iii) of paragraph 6C(2).\n\n        17. Amendment to Paragraph 11B to Delete Certain Definitions. Paragraph \n11B of the Note Agreement is hereby amended by deleting, in their entirety, the \nfollowing definitions contained therein: 'Bridge Loan Agreement'; 'Bridge Loan \nDocuments'; 'Collateral'; 'Collateral Agent'; 'Mortgages'; 'Pledge Agreements'; \n'Security Agreements'; 'Security Documents'; 'Senior Loan Agreement'; and \n'Senior Loan Documents'.\n\n        18. Amendment to Paragraph 11B to Amend Certain Definitions. Paragraph\n11B of the Note Agreement is hereby amended by (a) adding the parenthetical\n'(but excluding accounts payable in the ordinary course of business)'\nimmediately after the phrase 'group of Persons'\n\n                                      -5-\n\n \ncontained in clause (i) of the definition of 'Indebtedness' contained therein, \n(b) deleting the phrase and punctuation ', the Security Documents' contained in\nthe definition of 'Obligations' contained therein, (c) deleting the phrase \n'Senior Loan Agreement' contained in the definition of 'Scheduled Principal \nPayments' contained therein and replacing such phrase with the phrase 'Credit \nAgreement' and (d) deleting the phrase and punctuation ', the Security \nDocuments' contained in the definition of 'Subordinated Note Documents' \ncontained therein.\n\n        19. Amendment to Paragraph 12B. Paragraph 12B of the Note Agreement is \nhereby amended by (a) deleting the punctuation ',' appearing in three separate \ninstances immediately after the word 'you' contained therein and replacing such \npunctuation in each instance with the word 'and' and (b) deleting the phrase \n'and the Collateral Agent' contained in three separate instances therein.\n\n        20. Amendment to Paragraph 12M. Paragraph 12M of the Note Agreement is \nhereby amended by (a) deleting the punctuation ',' appearing immediately after \nthe phrase 'ACTIONS OF THE COMPANY' contained in clauses (i) and (ii) thereof \nand replacing such punctuation with the word 'OR' and (b) deleting the phrase \n'OR THE COLLATERAL AGENT' contained in clauses (i) and (ii) thereof.\n\n        21. Amendment to the Purchaser Schedule to the Note Agreement. The \nPurchase Schedule attached to the Note Agreement is hereby amended by deleting \nthe reference to '11.28% Senior Secured Subordinated Notes' contained in \nparagraph (I) thereof and replacing such phrase with the phrase 'Amended and \nRestated 11.28% Senior Subordinated Notes'.\n\n        22. Amendment to Exhibit A of the Note Agreement. Exhibit A of the Note \nAgreement is hereby amended and restated in its entirety and replaced by Exhibit\nA attached hereto.\n\n        23. Deletion of Exhibits F, H and J of the Note Agreement. Exhibit F of \nthe Note Agreement, Exhibit H of the Note Agreement and Exhibit J of the Note \nAgreement are each hereby deleted in their entirety.\n\n        24. Effective Date. Each of the foregoing Sections of this Amendment \nshall become effective on the date hereof (the 'EFFECTIVE DATE'), subject in all\ncases to the following having been received by and being satisfactory to \nPrudential:\n        \n            (i) duly executed counterparts of this Amendment;\n\n            (ii) certified copies of the Credit Agreement Documents, duly\nexecuted by the parties thereto;\n\n            (iii) payment in full for all Indebtedness outstanding pursuant to\nthe Bridge Loan Agreement and the other Bridge Loan Documents (as such terms\nwere defined in the Note Agreement prior to the effectiveness of this\nAmendment);\n\n                                      -6-\n\n        \n\n \n            (iv) Amended and Restated Note, in the form attached hereto as\nExhibit A, duly executed by the Company;\n\n            (v) Consents, in the form attached hereto as Exhibit B, duly\nexecuted by each Guarantor; and\n\n            (vi) without limiting the provisions of paragraph 12B of the Note\nAgreement, Baker &amp; Botts, L.L.P. shall have received its fees and expenses\nincurred since the Date of Closing to the extent such fees and expenses are\nreflected in a statement rendered to the Company at least one Business Day prior\nto the Effective Date.\n\n        25. Representations and Warranties. The Company represents and warrants \nas follows:\n\n            (i) Organization. The Company is a corporation duly organized and \nexisting in good standing under the laws of the State of Delaware.\n\n            (ii) Power and Authority. The Company has all requisite corporate \npower to execute, deliver and perform its obligations under this Amendment and \nthe Note Agreement is amended hereby (collectively, the 'AMENDMENT DOCUMENTS'). \nThe execution, delivery and performance by the Company of the Amendment \nDocuments have been duly authorized by all requisite corporate action on the \npart of the Company. The Company has duly executed and delivered each of the \nAmendment Documents, and each of the Amendment Documents constitutes the legal, \nvalid and binding obligation of the Company, enforceable against the Company in\naccordance with its respective terms.\n\n            (iii) No Conflicts. Neither the execution and delivery of the \nAmendment Documents by the Company, nor the consummation of the transactions \ncontemplated hereby or thereby, nor fulfillment of nor compliance with the terms\nand provisions hereof or thereof will conflict with, or result in a breach of \nthe terms, conditions or provisions of, or constitute a default under, or result\nin any violation of, or result in the creation of any security interest, lien or\nother encumbrance upon any of the properties or assets of the Company pursuant\nto, the charter or by-laws of the Company, any award of any arbitrator or any\nagreement, instrument, order, judgment, decree, statute, law, rule or regulation\nto which the Company is subject.\n\n            (iv) Consents. Neither the nature of the business conducted by the \nCompany, nor any of its properties, nor any relationship between the Company and\nany other Person, nor any circumstance in connection with the transactions\ncontemplated by the Amendment Documents is such as to require any authorization,\nconsent, approval, exemption or other action by or notice to or filing with any\ncourt or administrative or governmental body or any other Person in connection\nwith the execution and delivery of any Amendment Document or fulfillment of or\ncompliance with the terms and provisions hereof or thereof.\n\n                                      -7-\n\n \n            (v) No Material Adverse Effect.  Except as previously disclosed to \nPrudential in writing, there has been no Material Adverse Effect since December \n31, 1997.\n\n            (vi) No Event of Default or Default.  Both immediately prior to and \nimmediately following the effectiveness of this Amendment, no Event of Default \nor Default exists that has not been temporarily waived in writing by Prudential.\n\n        26. Miscellaneous.\n\n        (i) Upon and after the Effective Date, each reference to the Note \nAgreement in the Note Agreement and each Note shall mean and be a reference to \nthe Note Agreement as amended by this Amendment.\n\n        (ii) Except as specifically amended herein, the Note Agreement shall \nremain in full force and effect, and is hereby ratified and confirmed.\n\n        (iii) Other than as expressly set forth herein, the execution, delivery \nand effectiveness of this Amendment shall not operate as a waiver of any right, \npower or remedy of Prudential, nor constitute a waiver of any provision of the \nNote Agreement, the Notes or any other document, instrument or agreement \nexecuted and delivered in connection with the Note Agreement.\n\n        (iv) The Company confirms its agreement, pursuant to paragraph 12B of \nthe Note Agreement, to pay promptly all expenses of Prudential related to this \nAmendment and all matters contemplated by the Amendment Documents, including \nwithout limitation all fees and expenses of Prudential's special counsel.\n\n        (v) THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, \nAND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW \nYORK.\n\n        (vi) This Amendment may be executed in counterparts, each of which shall\nbe deemed an original and all of which taken together shall constitute one and \nthe same document.  Delivery of this Amendment may be made by telecopy of a duly\nexecuted counterpart copy hereof.\n\n        [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]\n\n                                      -8-\n\n \n        IN WITNESS WHEREOF, the parties hereto have caused their duly authorized\nofficers to execute this Amendment as of the day and year first above written.\n\n                                             THE PRUDENTIAL INSURANCE\n                                             COMPANY OF AMERICA\n\n\n                                             By: \/s\/ Signature appears here\n                                                 ___________________________\n                                                     Vice President\n\n\n\n                                             BOOTS &amp; COOTS INTERNATIONAL\n                                             WELL CONTROL, INC.\n\n\n                                             By:\n                                                 ____________________________\n                                                     Title\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6924,8598],"corporate_contracts_industries":[9445,9413],"corporate_contracts_types":[9560,9572],"class_list":["post-41330","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-boots---coots-international-well-control-inc","corporate_contracts_companies-prudential-financial-inc","corporate_contracts_industries-insurance__life","corporate_contracts_industries-energy__services","corporate_contracts_types-finance","corporate_contracts_types-finance__warrant"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41330","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41330"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41330"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41330"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41330"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}