JOINDER NO. 1 TO SECURITY AGREEMENT
Exhibit 10.24
JOINDER NO. 1 TO SECURITY AGREEMENT
Joinder No. 1 (this Joinder), dated as of December 28, 2011 to the Security Agreement, dated as of December 28, 2011 (as amended, restated, supplemented, or otherwise modified from time to time, the Security Agreement), by and among each of the parties listed on the signature pages thereto and those additional entities that thereafter become parties thereto (collectively, jointly and severally and solidarily, Grantors and each, individually, a Grantor) and JPMorgan Chase Bank, N.A. (together with its successors and assigns, the Lender).
W I T N E S S E T H:
WHEREAS, Platinum Energy Solutions, Inc., a Nevada corporation (the Borrower), the other Grantors party thereto, and the Lender are parties to that certain Credit Agreement, dated as of December 28, 2011 (as amended, supplemented, amended and restated or otherwise modified from time to time, the Credit Agreement), pursuant to which the Lender has extended a revolving line of credit to Borrower in the maximum aggregate principal amount of Fifteen Million and No/100 Dollars ($15,000,000.00); and
WHEREAS, initially capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement or, if not defined therein, in the Credit Agreement; and
WHEREAS, Grantors have entered into the Security Agreement in order to induce the Lender to make certain financial accommodations to Borrower; and
WHEREAS, pursuant to the Credit Agreement and Section 24 of the Security Agreement, certain Subsidiaries of the Borrower, must execute and deliver certain First Lien Documents, including the Security Agreement, and the joinder to the Security Agreement by the undersigned new Grantor or Grantors (collectively, the New Grantors) may be accomplished by the execution of this Joinder in favor of Lender; and
WHEREAS, each New Grantor (a) is a direct or indirect domestic subsidiary of Borrower and, as such, will benefit by virtue of the financial accommodations extended to Borrower and (b) by becoming a Grantor will benefit from certain rights granted to the Grantors pursuant to the terms of the First Lien Documents;
NOW, THEREFORE, for and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each New Grantor hereby agrees as follows:
1. In accordance with Section 24 of the Security Agreement, each New Grantor, by its signature below, becomes a Grantor under the Security Agreement with the same force and effect as if originally named therein as a Grantor and each New Grantor hereby (a) agrees to all of the terms and provisions of the Security Agreement applicable to it as a Grantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof) on and as of the date hereof. In furtherance of the foregoing, each New Grantor does hereby unconditionally grant, assign, and pledge to Lender, for the benefit of the Lender, to secure the Secured Obligations, a continuing security interest in and to all of such New Grantors right, title and interest in and to the Collateral. Schedule 1, Commercial Tort Claims, Schedule 2, Copyrights, Schedule 3, Intellectual Property Licenses, Schedule 4, Patents, Schedule 5, Trademarks, Schedule 6, Pledged Companies, Schedule 6(k), Controlled Account Banks, Schedule 7,
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Owned Real Property and Schedule 8, List of Uniform Commercial Code Filing Jurisdictions, attached hereto supplement Schedule 1, Schedule 2, Schedule 3, Schedule 4, Schedule 5, Schedule 6, Schedule 6(k), Schedule 7 and Schedule 8, respectively, to the Security Agreement and shall be deemed a part thereof for all purposes of the Security Agreement. Each reference to a Grantor in the Security Agreement shall be deemed to include each New Grantor. The Security Agreement is incorporated herein by reference. Each New Grantor authorizes Lender at any time and from time to time to file, transmit, or communicate, as applicable, financing statements and amendments thereto (i) describing the Collateral as all personal property of debtor or all assets of debtor or words of similar effect, (ii) describing the Collateral as being of equal or lesser scope or with greater detail, or (iii) that contain any information required by part 5 of Article 9 of the Code for the sufficiency or filing office acceptance. Each New Grantor also hereby ratifies any and all financing statements or amendments previously filed by Lender in any jurisdiction in connection with the First Lien Documents.
2. Each New Grantor represents and warrants to Lender that this Joinder has been duly executed and delivered by such New Grantor and constitutes its legal, valid, and binding obligation, enforceable against it in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium, or other similar laws affecting creditors rights generally and general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
3. This Joinder is a First Lien Document. This Joinder may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Joinder. Delivery of an executed counterpart of this Joinder by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Joinder. Any party delivering an executed counterpart of this Joinder by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Joinder but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Joinder.
4. The Security Agreement, as supplemented hereby, shall remain in full force and effect.
5. THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
6. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS JOINDER SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. THIS SUBMISSION TO JURISDICTION IS EXCLUSIVE AND PRECLUDES A PARTY FROM OBTAINING JURISDICTION OVER ANOTHER PARTY IN ANY COURT OTHERWISE HAVING JURISDICTION.
7. EACH PARTY TO THIS JOINDER HEREBY (i) IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN; (ii) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR
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RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (iii) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OF COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (iv) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE FIRST LIEN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION.
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IN WITNESS WHEREOF, the parties hereto have caused this Joinder to the Security Agreement to be executed and delivered as of the day and year first above written.
NEW GRANTOR: | PLATINUM PRESSURE PUMPING, INC., a Delaware corporation | |||||
By: | /s/ J. Clarke Legler | |||||
Name: | J. Clarke Legler | |||||
Title: | CFO |
LENDER: | JPMORGAN CHASE BANK, N.A. | |||||
By: | /s/ Ed Hebert | |||||
Name: Ed Hebert | ||||||
Title: Market Manager President |