UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): September 22, 2016
Nuverra Environmental Solutions, Inc.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 001-33816 | 26-0287117 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
| 14624 N. Scottsdale Road, Suite #300, Scottsdale, Arizona | 85254 | |||
| (Address of Principal Executive Offices) | (Zip Code) | |||
Registrant’s telephone number, including area code: (602) 903-7802
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions (see General Instruction A.2.):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01 | Entry into a Material Definitive Agreement |
On September 22, 2016, Nuverra Environmental Solutions, Inc. (the “Company”) entered into an amendment (the “Term Loan Amendment”) to that certain Term Loan Credit Agreement, dated April 15, 2016, by and among Wilmington Savings Fund Society, FSB, as administrative agent (the “Term Loan Agent”), the lenders identified therein (the “Term Lenders”), and the Company, as borrower (as amended, the “Term Loan Agreement”). The Term Loan Amendment amends the Term Loan Agreement to permit the Company to reinstate the annual salary of Mark D. Johnsrud, the Company’s Chief Executive Officer.
The foregoing description of the Term Loan Amendment is only a summary and does not purport to be a complete description of the terms and conditions under the Term Loan Amendment, and such description is qualified in its entirety by reference to the full text of the Term Loan Amendment, a copy of which is attached hereto as Exhibit 10.1.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers |
The Board of Directors of the Company reinstated Mr. Johnsrud’s annual base salary to $700,000 effective September 26, 2016. Mr. Johnsrud previously agreed to a voluntary reduction in his annual base salary from $700,000 to $1.00 pursuant to that certain First Amendment to Executive Employment Agreement, dated January 25, 2016 (the “First Amendment to Executive Employment Agreement”), between the Company and Mr. Johnsrud. Under the First Amendment to Executive Employment Agreement, the reduction in Mr. Johnsrud’s annual base salary was voluntary and could be increased to an amount not exceeding his prior annual salary of $700,000 at any time by the Company or by Mr. Johnsrud.
| Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
| Exhibit Number |
Description | |
| 10.1 | Amendment to Term Loan Agreement, dated September 22, 2016, by and among the Term Loan Agent, the Term Lenders, and the Company | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| NUVERRA ENVIRONMENTAL SOLUTIONS, INC. | ||||||
| Date: September 28, 2016 | By: | /s/ Joseph M. Crabb | ||||
| Name: Joseph M. Crabb | ||||||
| Title: Executive Vice President and Chief Legal Officer | ||||||
| Exhibit Number |
Description | |
| 10.1 | Amendment to Term Loan Agreement, dated September 22, 2016, by and among the Term Loan Agent, the Term Lenders, and the Company | |
Exhibit 10.1
EXECUTION COPY
SECOND AMENDMENT TO
TERM LOAN CREDIT AGREEMENT
THIS SECOND AMENDMENT TO TERM LOAN CREDIT AGREEMENT (this “Amendment”) is entered into as of September 22, 2016, by and among the Required Lenders (as defined in the Credit Agreement referred to below) and NUVERRA ENVIRONMENTAL SOLUTIONS, INC., a Delaware corporation (“Borrower”).
WHEREAS, Borrower, Wilmington Savings Fund Society, FSB, as Administrative Agent (“Agent”), and Lenders are parties to that certain Term Loan Credit Agreement dated as of April 15, 2016 (as amended, restated, modified or supplemented from time to time, the “Credit Agreement”);
WHEREAS, the Required Lenders and Borrower have agreed to amend the Credit Agreement in certain respects.
NOW THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Credit Agreement.
2. Amendments to Credit Agreement. In reliance upon the representations and warranties of Borrower set forth in Section 5 below, and subject to the satisfaction of the conditions to effectiveness set forth in Section 4 below, the Credit Agreement is hereby amended as follows:
(a) Section 6.15 of the Credit Agreement is hereby amended and restated in its entirety as follows:
6.15. Compensation. Borrower will not, and will not permit any of its Subsidiaries to pay or otherwise compensate Mark D. Johnsrud (including in the form of a salary, or a bonus award or other incentive compensation, and regardless of whether such compensation is paid in cash or in kind) in his capacity as chief executive officer of the Borrower or otherwise, except that, beginning on September 22, 2016, Borrower and/or its Subsidiaries may, in the aggregate, award Mark D. Johnsrud an annual salary not exceeding $700,000.
3. Reaffirmation and Confirmation. Borrower hereby ratifies, affirms, acknowledges and agrees that the Credit Agreement and the other Loan Documents to which it is a party represent the valid, enforceable and collectible obligations of Borrower, and further acknowledges that there are no existing claims, defenses, personal or otherwise, or rights of setoff whatsoever with respect to the Credit Agreement or any other Loan Document. Borrower hereby agrees that this Amendment in no way acts as a release or relinquishment of the Liens and rights securing payments of the Obligations. The Liens and rights securing payment of the Obligations are hereby ratified and confirmed by Borrower in all respects.
4. Conditions to Effectiveness of Effective Date Amendments. The amendments set forth in Section 2 shall become effective upon the satisfaction of each of the following conditions precedent, in each case satisfactory to Agent in all respects (the “Effective Date”):
(a) Agent shall have received a copy of this Amendment executed and delivered by Agent, the Lenders party hereto, and the Loan Parties; and
(b) after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing on the date hereof or as of the Effective Date.
5. Representations and Warranties. In order to induce Agent and Lenders to enter into this Amendment, Borrower hereby represents and warrants to Agent and Lenders that:
(a) after giving effect to this Amendment, all representations and warranties contained in the Loan Documents to which Borrower is a party are true, correct and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date of this Amendment, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true, correct and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of such earlier date);
(b) after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing; and
(c) this Amendment and the Loan Documents, as amended hereby, constitute legal, valid and binding obligations of Borrower and are enforceable against Borrower in accordance with their respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally.
6. Miscellaneous.
(a) Expenses. Borrower agrees to pay on demand all reasonable out-of-pocket costs and expenses of Agent (including reasonable attorneys’ fees) incurred in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and all other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith. All obligations provided herein shall survive any termination of this Amendment and the Credit Agreement as amended hereby.
(b) Choice of Law and Venue; Jury Trial Waiver; Reference Provision. Without limiting the applicability of any other provision of the Credit Agreement or any other Loan Document, the terms and provisions set forth in Section 12 of the Credit Agreement are expressly incorporated herein by reference.
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(c) Counterparts. This Amendment may be executed in any number of counterparts, and by the parties hereto on the same or separate counterparts, and each such counterpart, when executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment. Delivery of an executed counterpart of this Amendment by telefacsimile or other electronic method of transmission shall be equally effective as delivery of an original executed counterpart of this Agreement.
(d) Severability. Each provision of this Amendment shall be severable from every other provision of this Amendment for the purpose of determining the legal enforceability of any specific provision.
7. Release.
(a) In consideration of the agreements of Agent and Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of Borrower and each Guarantor that executes a Consent and Reaffirmation to this Amendment, on behalf of itself and its successors, assigns, and other legal representatives (Borrower, each Guarantor and all such other Persons being hereinafter referred to collectively as the “Releasors” and individually as a “Releasor”), hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent, and Lenders, and their successors and assigns, and their present and former shareholders, Affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (Agent, each Lender and all such other Persons being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which any Releasor may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Amendment, in any way related to or in connection with the Credit Agreement, or any of the other Loan Documents or transactions thereunder or related thereto.
(b) Each of Borrower and each Guarantor that executes a Consent and Reaffirmation to this Amendment understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.
(c) Each of Borrower and each Guarantor that executes a Consent and Reaffirmation to this Amendment agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized and delivered as of the date first above written.
| NUVERRA ENVIRONMENTAL SOLUTIONS, INC., as Borrower | ||
| By: | /s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Executive Vice President | ||
Signature Page to Second Amendment to Term Loan Credit Agreement
| ASCRIBE II INVESTMENTS LLC, as a Lender | ||
| By: | /s/ Lawrence First | |
| Name: Lawrence First | ||
| Title: Managing Director | ||
| ASCRIBE III INVESTMENTS LLC, as a Lender | ||
| By: | /s/ Lawrence First | |
| Name: Lawrence First | ||
| Title: Managing Director | ||
Signature Page to Second Amendment to Term Loan Credit Agreement
| ECF VALUE FUND, LP, as a Lender | ||
| By: |
/s/ Jeffrey Gates | |
| Name: Jeffrey Gates | ||
| Title: Managing Partner | ||
Signature Page to Second Amendment to Term Loan Credit Agreement
| ECF VALUE FUND II, LP, as a Lender | ||
| By: | /s/ Jeffrey Gates | |
| Name: Jeffrey Gates | ||
| Title: Managing Partner | ||
Signature Page to Second Amendment to Term Loan Credit Agreement
| ECF VALUE FUND INTERNATIONAL MASTER, LP, as a Lender | ||
| By: |
/s/ Jeffrey Gates | |
| Name: Jeffrey Gates | ||
| Title: Managing Partner | ||
Signature Page to Second Amendment to Term Loan Credit Agreement
| Acknowledged by: | ||
| WILMINGTON SAVINGS FUND SOCIETY, FSB as Administrative Agent | ||
| By: | /s/ Geoffrey J. Lewis | |
| Name: Geoffrey J. Lewis | ||
| Title: Vice President | ||
Signature Page to Second Amendment to Term Loan Credit Agreement
EXECUTION COPY
CONSENT AND REAFFIRMATION
Each of the undersigned (each a “Guarantor”) hereby (i) acknowledges receipt of a copy of the foregoing Second Amendment to Term Loan Credit Agreement (terms defined therein and used, but not otherwise defined, herein shall have the meanings assigned to them therein); (ii) consents to Borrower’s execution and delivery thereof; (iii) agrees to be bound thereby, including Section 8 of the foregoing Second Amendment to Term Loan Credit Agreement; and (iv) affirms that nothing contained therein shall modify in any respect whatsoever any Loan Documents to which the undersigned is a party and reaffirms that each such Loan Document is and shall continue to remain in full force and effect. Although each Guarantor has been informed of the matters set forth herein and has acknowledged and agreed to same, each Guarantor understands that Agent and Lenders have no obligation to inform such Guarantor of such matters in the future or to seek such Guarantor’s acknowledgment or agreement to future consents, amendments or waivers, and nothing herein shall create such a duty.
| HECKMANN WATER RESOURCES CORPORATION | ||
| By: | /s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
| HECKMANN WATER RESOURCES (CVR), INC. | ||
| By: | /s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
| 1960 WELL SERVICES, LLC | ||
| By: | /s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
| HEK WATER SOLUTIONS, LLC | ||
| By: |
/s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
| APPALACHIAN WATER SERVICES, LLC | ||
| By: |
/s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
| BADLANDS POWER FUELS, LLC, a Delaware limited liability company | ||
| By: |
/s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
| BADLANDS POWER FUELS, LLC, a North Dakota limited liability company | ||
| By: |
/s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
| LANDTECH ENTERPRISES, L.L.C. | ||
| By: |
/s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
Signature Page to Second Amendment to Term Loan Credit Agreement
| BADLANDS LEASING, LLC | ||
| By: |
/s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
| IDEAL OILFIELD DISPOSAL, LLC | ||
| By: |
/s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
| NUVERRA TOTAL SOLUTIONS, LLC | ||
| By: |
/s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
| NES WATER SOLUTIONS, LLC | ||
| By: |
/s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
| HECKMANN WOODS CROSS, LLC | ||
| By: | /s/ Joseph M. Crabb | |
| Name: Joseph M. Crabb | ||
| Title: Vice President and Secretary | ||
Signature Page to Second Amendment to Term Loan Credit Agreement