INTERCREDITOR AGREEMENT (CANADIAN
FACILITY)
THIS INTERCREDITOR
AGREEMENT (CANADIAN FACILITY) dated as of August 25, 2005 is
executed by and among (i) T-3 ENERGY SERVICES, INC., a
Delaware corporation (“ U.S. Borrower ”),
(ii) T-3 OILCO ENERGY SERVICES PARTNERSHIP, an Alberta general
partnership (“ Canadian Borrower ”),
(iii) COMERICA BANK, a Michigan banking corporation and
authorized foreign bank under the Bank Act (Canada) acting through
its Canadian branch (the “ Canadian Lender ”),
and (iv) WELLS FARGO BANK, NATIONAL ASSOCIATION, as agent for
the Banks.
A. The
Canadian Lender and the other Banks (“ U.S. Lenders
”) have agreed that they shall rank pari passu with
one another in respect of certain payments or recoveries and that
certain matters related to the administration of the Credit
Agreement shall be made on the basis of their Combined Outstandings
(hereinafter defined).
B. In order
to achieve the pari passu sharing described above, it may be
necessary for the Canadian Lender or the U.S. Lenders to purchase
from each other participations in their respective Loans and Letter
of Credit Liabilities.
The parties hereto
agree as follows:
Definitions and
Interpretation
Section 1.1
Certain Definitions . When used herein, terms and
expressions defined in the Credit Agreement shall have those
meanings and the following additional terms and expressions shall
have the meanings respectively set forth below (such definitions to
be equally applicable in the singular and plural):
“
Acceleration ” means either (i) the maturity of
any of the Loans by reason of their stated maturity date or
(ii) the acceleration (after the occurrence of Event of
Default) of the due date for payment of the principal amount then
outstanding of and accrued interest on any of the Loans
automatically or by reason of a declaration or demand.
“
Agreement ” means this Intercreditor Agreement
(Canadian Facility), as the same may be amended, modified, restated
or supplemented from time to time.
“
Canadian Credit Outstandings ” as at any date of
determination thereof means the aggregate principal amount of
Canadian Advances outstanding plus the amount available for drawing
under Canadian Letters of Credit plus such other liabilities,
obligations or indebtedness of the Canadian Borrower under the Loan
Documents.
“
Combined Outstandings ” means the aggregate of all
Canadian Credit Outstandings and all U.S. Credit
Outstandings.
INTERCREDITOR
AGREEMENT (CANADIAN FACILITY) — Page 1
“ Credit
Agreement ” means that certain First Amended and Restated
Credit Agreement dated as of September 30, 2004 executed by
and among the U.S. Borrower, the U.S. Lenders, and Wells Fargo
Bank, National Association, as agent for the Banks, as the same has
been and may hereafter be amended, restated, supplemented, or
otherwise modified from time to time, including the amendment of
even date herewith pursuant to which the Canadian Borrower became a
party thereto.
“
Loans ” means, collectively, the Revolving Credit
Loans and the Canadian Revolving Loan.
“
Operative Sharing Percentages ” means the Sharing
Percentages of the U.S. Lenders and the Canadian Lender determined
as of the applicable Reference Date. The Operative Sharing
Percentages of the Banks shall be recalculated as of the first day
of each calendar month using the Combined Outstandings as of the
applicable Reference Date but using the then current Exchange Rate
to the extent applicable.
“ Post
Default Proportion ” means, at any time:
(a) for the U.S.
Lenders, a percentage determined by dividing:
(i) the aggregate
of the U.S. Credit Outstandings at such time plus any
amounts paid by U.S. Lenders pursuant to Section 3.2 in
consideration for the purchase by U.S. Lenders of participation
interests and plus any amounts distributed by U.S. Lenders
to the Canadian Lender as holders of participation interests in the
U.S. Credit Outstandings to such time and less any amounts
received by U.S. Lenders pursuant to Section 3.2 in
consideration for the sale by U.S. Lenders of participation
interests and less any amounts received by U.S. Lenders from
the Canadian Lender by virtue of U.S. Lenders holding risk sharing
interests in the Canadian Credit Outstandings to such time,
by
(ii) the Combined
Outstandings at such time; and
(b) for the
Canadian Lender, a percentage obtained by dividing:
(i) the aggregate
of the Canadian Credit Outstandings at such time plus any
amounts paid by the applicable Bank pursuant to
Section 3.2 in consideration for the purchase by such
Bank of participation interests and plus any amounts
distributed by the applicable Bank to the U.S. Lenders as holders
of risk sharing interests in the Canadian Credit Outstandings to
such time and less any amounts received by the applicable
Bank pursuant to Section 3.2 in consideration for the sale
by such Bank of participation interests and less any amounts
received by the applicable Bank from the U.S. Lenders by virtue of
the applicable Canadian Lender’s holding participation
interests in the U.S. Credit Outstandings to such time,
by
(ii) the Combined
Outstandings at such time.
INTERCREDITOR
AGREEMENT (CANADIAN FACILITY) — Page 2
“
Reallocable Payment ” means any amount received by a
Bank, after the applicable Reference Date, by virtue of any payment
or prepayment made by or for the account of one of the Borrowers
(including for greater certainty any payment made under any
Guaranty and all amounts realized from the exercise of any
foreclosure or similar rights in respect of any Collateral,
together with all proceeds of insurance in respect of the
Collateral which are received by a Bank and which such Bank applies
to reduce any Combined Outstandings) or by virtue of an exercise of
any right of set-off, combination, zero-balancing or similar
mechanisms.
“
Reference Date ” means the first to occur of
(i) the date on which any Acceleration has occurred or
(ii) the date on which any Event of Default arising under
Section 12.1 of the Credit Agreement has
occurred.
“ Sharing
Percentage ” means, at any time:
(a) for the U.S.
Lenders, the percentage determined by dividing the aggregate U.S.
Credit Outstandings by the Combined Outstandings at such time;
and
(b) for the
Canadian Lender, the percentage determined by dividing the Canadian
Outstandings by the Combined Outstandings at such time.
“ U.S.
Credit Outstandings ” of a U.S. Lender as at any date of
determination thereof means the aggregate principal amount of
Revolving Credit Advances outstanding from such Bank plus such
Bank’s Percentage of amounts available for drawing pursuant
to Letters of Credit plus any other liabilities, obligations or
indebtedness of the U.S. Borrower owed to such U.S. Lender under
the Loan Documents (other than U.S. Borrower’s guaranty of
the Canadian Borrower’s indebtedness under the Loan
Documents).
Section 1.2
Headings and Agreement References . The division of this
Agreement into Sections and the insertion of headings is for
convenience of reference only and shall not affect the construction
or interpretation of this Agreement. The term “this
Agreement”, “hereof”, “hereunder” and
similar expressions refer to this Agreement and not to any
particular Article, Section or other portion hereof and include any
amendments or supplements hereto. Unless otherwise stated,
references herein to “Sections” are to Sections of this
Agreement.
ARTICLE 2
Co-operative Administration
Section 2.1
Co-operation . The Agent (and as applicable each Bank)
agrees that:
(a) to the extent
available, it will from time to time promptly provide such
information as may be reasonably necessary to enable the necessary
Person to make any calculation referred to in or necessary to
implement Article 3 or otherwise reasonably required by
such Person for any other purpose hereof;
(b) to the extent
reasonably possible, it will from time to time consult with the
Agent and the other Banks in good faith regarding the enforcement
of its and each of the Banks’ rights and remedies under the
Credit Agreement with a view to recovering amounts due under the
Credit Agreement in an effective and cost-efficient
manner;
INTERCREDITOR
AGREEMENT (CANADIAN FACILITY) — Page 3
(c) if, after an
Event of Default, it gains access to property, assets, financial
information or
|
