Contract
Exhibit 10.4.1
SUPPLEMENT NO. 1 dated as of April 30, 2007 (this
“Supplement”), to the PLEDGE AGREEMENT dated as of January 31, 2007, among ▇▇▇▇▇▇▇▇
Corporation, a West Virginia corporation (the “Borrower”), each of the Subsidiaries of the
Borrower listed on the signature pages thereto (each such Subsidiary being a “Subsidiary
Pledgor” and, collectively, the “Subsidiary Pledgors”; the Subsidiary Pledgors and the
Borrower are referred to collectively as the “Pledgors”) and ▇▇▇▇▇▇ Commercial Paper Inc.,
as Collateral Agent (in such capacity, the “Collateral Agent”) under the Credit Agreement
referred to below.
A. Reference is made to the Term Loan Credit Agreement dated as of January
31, 2007(as the same may be amended, restated, supplemented or otherwise modified, refinanced
or replaced from time to time, the “Credit Agreement”) among the Borrower, the lending
institutions from time to time party thereto (the “Lenders”), ▇▇▇▇▇▇ Commercial Paper
Inc., as Administrative Agent and as Collateral Agent and the Term Loan Guarantee dated as of January
31, 2007 (as the same may be amended, restated, supplemented and or otherwise modified from
time to time, the “Guarantee”), among the Guarantors party thereto and the Collateral
Agent.
B. Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Pledge Agreement.
C. The Pledgors have entered into the Pledge Agreement in order to induce the Administrative Agent, the Collateral Agent, the Syndication Agent, and the Lenders to
enter into the Credit Agreement, to induce the Lenders to make their respective Extensions of Credit
to the Borrower under the Credit Agreement and to induce one or more Lenders or affiliates of
Lenders to enter into Hedge Agreements with the Borrower.
D. The undersigned Pledgor (the “Additional Pledgor”) is (a) the legal and
beneficial owner of the Equity Interests described under Schedule 1 hereto and issued by the
entity named therein (such pledged Equity Interests, together with all other Equity Interests
required to be pledged under the Pledge Agreement (the “After-acquired Additional
Pledged Shares”), referred to collectively herein as the “Additional Pledged Shares”)
and (b) the legal and beneficial owner of the Indebtedness described under Schedule 1 hereto and issued by the
entity named therein (such Indebtedness, together with all other Indebtedness required to be pledged
under the Pledge Agreement, the “Additional Pledged Debt”), in each case as such schedule may
be amended in accordance with the Credit Agreement.
E. Section 9.12 of the Credit Agreement and Section 9(b) of the Pledge
Agreement provide that additional Subsidiaries may become Subsidiary Pledgors under the
Pledge Agreement by execution and delivery of an instrument in the form of this Supplement.
The undersigned Additional Pledgor is executing this Supplement in accordance with the
requirements of Section 9(b) of the Pledge Agreement to pledge to the Collateral Agent for the
ratable benefit of the Secured Parties the Additional Pledged Shares and the Additional
Pledged Debt in order to induce (i) the Lenders to make additional Extensions of Credit and as
consideration for Extensions of Credit previously made and (ii) the Lender Counterparties to
enter into Hedge Agreements with the Borrower.
Accordingly, the Collateral Agent and the undersigned Additional Pledgor agree as follows:
SECTION 1. In accordance with Section 9(b) of the Pledge Agreement, the Additional Pledgor by
its signature hereby transfers, assigns and pledges to the Collateral Agent for the ratable benefit
of the Secured Parties, and hereby grants to the Collateral Agent for the ratable benefit of the
Secured Parties, a security interest in all of the Additional Pledgor’s right, title and interest
in the following, whether now owned or existing or hereafter acquired or existing or arising
(collectively, the “Additional Collateral”):
(a) the Additional Pledged Shares held by the Additional Pledgor and the certificates
representing such Additional Pledged Shares and any interest of such Additional Pledgor in
the entries on the books of the issuer of the Additional Pledged Shares or any financial
intermediary pertaining to the Additional Pledged Shares and all dividends, cash, warrants,
rights, instruments and other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Additional Pledged
Shares;
(b) the Additional Pledged Debt and the instruments evidencing the Additional
Pledged Debt owed to such Additional Pledgor, and all interest, cash, instruments and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such Additional Pledged
Debt; and
(c) to the extent not covered by clauses (a) and (b) above, respectively, all Proceeds
of any or all of the foregoing Additional Collateral.
For purposes of the Pledge Agreement, (x) the Collateral shall be deemed to include the
Additional Collateral and (y) the After-acquired Pledged Shares shall be deemed to include the
Additional After-acquired Pledge Shares.
SECTION 2. The Additional Pledgor represents and warrants as follows:
(a) Schedule 1 hereto (i) correctly represents as of the date hereof (A) the
issuer, the certificate number, the Pledgor and registered owner, the number and class and
the percentage of the issued and outstanding Equity Interests of such class of all
Additional Pledged Shares and (B) the issuer, the initial principal amount, the Pledgor and
holder, date of and maturity date of all Additional Pledged Debt and (ii) together with
Schedule 1 to the Pledge Agreement and the comparable schedules to each other Supplement to
the Pledge Agreement, accurately and completely describes all Equity Interests, debt
securities and promissory notes required to be pledged under the Pledge Agreement. Except as
set forth on Schedule 1 hereto, the Additional Pledged Shares represent all (or 65% in the
case of pledges of Foreign Subsidiaries)of the issued and outstanding Equity Interests of
each class of Equity Interests of the issuer on the date hereof.
(b) The Additional Pledgor is the legal and beneficial owner of the Additional
Collateral pledged or assigned by such Additional Pledgor hereunder free and clear of any
Lien, except for the Lien created by this Supplement to the Pledge Agreement.
(c) As of the date of this Supplement, the Additional Pledged Shares pledged by the
Additional Pledgor hereunder have been duly authorized and validly issued and, in the case
of Additional Pledged Shares issued by a corporation, are fully paid and nonassessable.
(d) The execution and delivery by the Additional Pledgor of this Supplement and the
pledge of the Additional Collateral pledged by the Additional Pledgor hereunder pursuant
hereto create a valid and perfected first priority security interest in the Additional
Collateral, securing the payment of the Obligations, in favor of the Collateral Agent for
the ratable benefit of the Secured Parties.
(e) The Additional Pledgor has full power, authority and legal right to pledge all the
Additional Collateral pledged by such Additional Pledgor pursuant to this Supplement and
this Supplement constitutes a legal, valid and binding obligation of the Additional
Pledgor, enforceable in accordance with its terms, except as enforceability thereof may be
limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights
generally and subject to general principles of equity.
SECTION 3. This Supplement may be executed by one or more of the parties to this Supplement on
any number of separate counterparts (including by facsimile or other electronic transmission), and
all of said counterparts taken together shall be deemed to constitute one and the same instrument.
A set of the copies of this Supplement signed by all the parties shall be lodged with the
Collateral Agent and the Borrower. This Supplement shall become effective as to the Additional
Pledgor when the Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of such Additional Pledgor and the Collateral Agent.
SECTION 4. Except as expressly supplemented hereby, the Pledge Agreement shall remain in full
force and effect.
SECTION 5. THIS SUPPLEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Any provision of this Supplement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof and in
the Pledge Agreement, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 7. All notices, requests and demands pursuant hereto shall be made in accordance with
Section 16 of the Pledge Agreement. All communications and notices hereunder to the Additional
Pledgor shall be given to it in care of the Borrower at the Borrower’s address set forth in Section
14.2 of the Credit Agreement.
SECTION 8. The Additional Pledgor agrees to reimburse the Collateral Agent for its reasonable
out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other
charges and disbursements of counsel for the Collateral Agent.
[Signature Pages Follow]
IN WITNESS WHEREOF, the Additional Pledgor and the Collateral Agent have duly executed this
Supplement to the Pledge Agreement as of the day and year first above written.
| ▇▇▇▇▇▇▇▇ Appalachian Oilfield Supply Company, as Additional Pledgor |
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| By: | /s/ S. D. ▇▇▇▇▇▇ | |||
| Name: | S. D. ▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| ▇▇▇▇▇▇ Commercial Paper Inc., as Collateral Agent |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Supplement No. 1 to Term Pledge Agreement
IN WITNESS WHEREOF, the Additional Pledgor and the Collateral Agent have duly executed this
Supplement to the Pledge Agreement as of the day and year first above written.
| ▇▇▇▇▇▇▇▇ Appalachian Oilfield Supply Company, as Additional Pledgor |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ▇▇▇▇▇▇ Commercial Paper Inc., as Collateral Agent |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
Supplement
No. 1 to Term Loan Pledge Agreement
