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): March 18, 2014

 

 

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 March 18, 2014, Nuverra Environmental Solutions, Inc., a Delaware corporation (the “Company” or “Borrower”), entered into a Joinder and First Amendment to Amended and Restated Credit Agreement (the “Joinder and First Amendment”) by and among Wells Fargo Bank, National Association, as agent (“Agent”) for the Lenders (as named in the Existing Credit Agreement defined below) (the “Lenders”), the Lenders a party to the Joinder and First Amendment, the Borrower, Capital One Business Credit Corporation (“Capital One”) and CIT Finance LLC (“CIT”; and together with Capital One, collectively the “New Lenders” and each individually a “New Lender”). This agreement amends the Company’s existing Amended and Restated Credit Agreement, dated as of February 3, 2014, by and among the Borrower, the Agent, and certain lenders named therein (as amended, the “Existing Credit Agreement”).

The Joinder and First Amendment increases the maximum revolver availability from $200 million to $245 million and joins each New Lender as a Lender under the Existing Credit Agreement. This Joinder and First Amendment also expands the accordion feature in the Existing Credit Agreement, by increasing additional availability to up to $50 million, subject to the satisfaction of the same terms and conditions contained in the Existing Credit Agreement and related documentation.

The foregoing description of the Existing Credit Agreement and the Joinder and First Amendment is only a summary and does not purport to be complete and is qualified in its entirety by reference to the full text of the Joinder and First Amendment, a copy of which is attached hereto as Exhibit 10.1, and the Existing Credit Agreement, a copy of which is attached as Exhibit 10.1 to the Company’s Current Report on Form 8-K dated February 3, 2014.

Item 7.01. Regulation FD Disclosure

On March 19, 2014, the Company issued a press release announcing that it had entered into the Joinder and First Amendment described above. A copy of the press release is furnished herewith as Exhibit 99.1 and is incorporated herein by reference.


Item 9.01. Financial Statements and Exhibits

(d) Exhibits

 

Exhibit Number

  

Description

10.1    Joinder and First Amendment to Amended and Restated Credit Agreement by and among Wells Fargo Bank, National Association, as agent for the Lenders, the Lenders party thereto, Nuverra Environmental Solutions, Inc., a Delaware corporation, Capital One Business Credit Corporation and CIT Finance LLC
99.1    Press Release, dated March 19, 2014


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: March 24, 2014

    By:  

/s/ Jay C. Parkinson

      Name: Jay C. Parkinson
      Title: Executive Vice President and Chief Financial Officer


EXHIBIT INDEX

 

Exhibit Number

  

Description

10.1    Joinder and First Amendment to Amended and Restated Credit Agreement by and among Wells Fargo Bank, National Association, as agent for the Lenders, the Lenders party thereto, Nuverra Environmental Solutions, Inc., a Delaware corporation, Capital One Business Credit Corporation and CIT Finance LLC
99.1    Press Release, dated March 19, 2014

Exhibit 10.1

JOINDER AND FIRST AMENDMENT

TO

AMENDED AND RESTATED CREDIT AGREEMENT

THIS JOINDER AND FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “ Amendment ”) is entered into as of March 18, 2014, by and among WELLS FARGO BANK, NATIONAL ASSOCIATION, as agent (“ Agent ”) for the Lenders (as defined in the Credit Agreement referred to below), the Lenders party hereto, NUVERRA ENVIRONMENTAL SOLUTIONS, INC., a Delaware corporation (“ Borrower ”), CAPITAL ONE BUSINESS CREDIT CORP. (“ Capital One ”) and CIT FINANCE LLC, (“ CIT ”; and together with Capital One, collectively the “ New Lenders ” and each individually, a “ New Lender ”).

WHEREAS, Borrower, Agent, and Lenders are parties to that certain Amended and Restated Credit Agreement dated as of February 3, 2014 (as amended, restated, modified or supplemented from time to time, the “ Credit Agreement ”);

WHEREAS, each New Lender has agreed to join the Credit Agreement as a Lender on the First Amendment Effective Date; and

WHEREAS, Borrower has requested that Agent and the Lenders amend the Credit Agreement in certain respects as set forth herein and Agent and the Lenders have agreed to the foregoing, on the terms and conditions set forth herein.

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. Joinder; Reallocation .

(a) On the First Amendment Effective Date, each New Lender (i) hereby joins the Credit Agreement as a Lender and shall have the rights and obligations of a Lender under the Loan Documents; (ii) represents and warrants that it is legally authorized to enter into this Amendment and the Credit Agreement; (iii) confirms that it has received copies of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (iv) agrees that it will, independently and without reliance upon Agent or any other Lender, based upon such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking any action under the Loan Documents; (v) confirms that it is an Eligible Transferee; (vi) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (vi) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.


(b) In connection herewith, on the First Amendment Effective Date (i) the Revolver Commitments of Wells Fargo shall be reduced to $75,000,000, (ii) a new Revolver Commitment will be allocated to Capital One in the amount of $35,000,000, and (iii) a new Revolver Commitment will be allocated to CIT in the amount of $35,000,000, all as set forth on the attached Schedule C-1 . New Lenders agree to make settlement payments to Agent as provided in the Credit Agreement, such that after giving effect to the making of such settlement payments, each Lender’s share of the outstanding Revolver Usage shall equal its Pro Rata Share. Nothing contained herein shall constitute a novation of any Obligation.

3. Amendments to Credit Agreement . In reliance upon the representations and warranties of Borrower set forth in Section 7 below, and subject to the satisfaction of the conditions to effectiveness set forth in Section 6 below, on the First Amendment Effective Date the Credit Agreement is hereby amended as follows:

(a) Section 2.14(a) of the Credit Agreement is amended to replace each of the two references in said section to “$25,000,000” with “$50,000,000” and (ii) replace the first reference to “Closing Date” in said section with “First Amendment Effective Date.”

(b) The following defined terms are each added to Schedule 1.1 to the Credit Agreement in their proper alphabetical order:

First Amendment ” means that certain Joinder and First Amendment to Amended and Restated Credit Agreement dated as of the First Amendment Effective Date, among Agent, Lenders, Borrower, and the New Lenders (as such term is defined therein).

First Amendment Effective Date ” means March 18, 2014.

(c) The definition of “Maximum Revolver Amount” set forth in Schedule 1.1 to the Credit Agreement is amended and restated in its entirety as follows:

Maximum Revolver Amount ” means $245,000,000, as increased pursuant to Section 2.14 and as decreased by the amount of reductions in the Revolver Commitments made in accordance with Section 2.4(c) of the Agreement.

(d) Schedule C-1 to the Credit Agreement is replaced in its entirety with Schedule C-1 attached hereto.

4. Effectiveness of First Amendment; Continuing Effect . Except as expressly set forth in Section 2 and in Section 3 of this Amendment, nothing in this Amendment shall constitute a modification or alteration of the terms, conditions or covenants of the Credit Agreement or any other Loan Document, or a waiver of any other terms or provisions thereof, and the Credit Agreement and the other Loan Documents shall remain unchanged and shall continue in full force and effect, in each case as amended hereby. This Amendment is a Loan Document.

 

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5. Reaffirmation and Confirmation; Post-Closing Covenant re Real Property. 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. Within 10 Business Days after delivery to Borrower from Agent of final forms thereof (or such later date as may be agreed to by Agent in its sole discretion), Borrower shall execute (or cause the applicable Loan Party to execute) and deliver to Agent an amendment to mortgage to reflect the increase in the Maximum Revolver Amount with respect to any Mortgages executed in connection with the Original Credit Agreement. Borrower acknowledges and agrees that the failure to satisfy the forgoing covenant shall constitute an immediate Event of Default.

6. Conditions to Effectiveness . This Amendment shall become effective upon the First Amendment Effective Date and upon the satisfaction of each of the following conditions precedent, in each case satisfactory to Agent in all respects:

(a) Agent shall have received a copy of this Amendment executed and delivered by Agent, the Lenders, the New Lenders and the Loan Parties, together with opinions of Borrower’s counsel and a secretary’s certificate of Borrower;

(b) Agent shall have confirmation from each New Lender that it has received payment in full of all fees and expenses due and owing by Borrower to such New Lender on the First Amendment Effective Date; and

(c) no Default or Event of Default shall have occurred and be continuing on the date hereof or as of the date of the effectiveness of this Amendment.

7. Representations and Warranties . In order to induce Agent, Lenders and the New Lenders to enter into this Amendment, Borrower hereby represents and warrants to Agent, Lenders and the New 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) no Default or Event of Default has occurred and is continuing; and

 

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(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.

8. Miscellaneous .

(a) Expenses . Borrower agrees to pay on demand all reasonable 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.

(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.

9. 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, Issuing Bank 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, Issuing Bank, 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

 

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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. , a Delaware corporation
By:  

/s/ Jay Parkinson

Name:  
Title:  

 

Signature Page to Joinder and First Amendment to Amended and Restated Credit Agreement


WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent and as a Lender

By:

 

/s/ Gary Forlenza

Name:

 

Title:

 

 

Signature Page to Joinder and First Amendment to Amended and Restated Credit Agreement


BANK OF AMERICA, N.A., as a Lender

By:

 

/s/ James B. Allen

Name:

 

Title:

 

 

Signature Page to Joinder and First Amendment to Amended and Restated Credit Agreement


CITIZENS BANK OF PENNSYLVANIA, as a Lender
By:  

/s/ Joseph F. King

Name:  
Title:  

 

Signature Page to Joinder and First Amendment to Amended and Restated Credit Agreement


CAPITAL ONE BUSINESS CREDIT CORP., as a Lender
By:  

/s/ Edward Behnen

Name:  
Title:  

 

Signature Page to Joinder and First Amendment to Amended and Restated Credit Agreement


CIT FINANCE LLC, as a Lender

By:

 

/s/ Stewart McLeod

Name:

 

Title:

 

 

Signature Page to Joinder and First Amendment to Amended and Restated Credit Agreement


CONSENT AND REAFFIRMATION

Each of the undersigned (each a “ Guarantor ”) hereby (i) acknowledges receipt of a copy of the foregoing Joinder and First Amendment to Amended and Restated 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 9 of the foregoing Joinder and First Amendment to Amended and Restated 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 ENVIRONMENTAL SERVICES, INC.
By:  

/s/ Jay Parkinson

Name:  
Title:  
THERMO FLUIDS INC.
By:  

/s/ Jay Parkinson

Name:  
Title:  
HECKMANN WATER RESOURCES CORPORATION
By:  

/s/ Jay Parkinson

Name:  
Title:  

 

Consent and Reaffirmation to Joinder and First Amendment to Amended and Restated Credit Agreement


HECKMANN WATER RESOURCES (CVR), INC.
By:  

/s/ Jay Parkinson

Name:  
Title:  
1960 WELL SERVICES, LLC
By:  

/s/ Jay Parkinson

Name:  
Title:  
HEK WATER SOLUTIONS, LLC
By:  

/s/ Jay Parkinson

Name:  
Title:  
APPALACHIAN WATER SERVICES, LLC
By:  

/s/ Jay Parkinson

Name:  
Title:  
BADLANDS POWER FUELS, LLC, a Delaware limited liability company
By:  

/s/ Jay Parkinson

Name:  
Title:  

 

Consent and Reaffirmation to Joinder and First Amendment to Amended and Restated Credit Agreement


BADLANDS POWER FUELS, LLC , a North Dakota limited liability company
By:  

/s/ Jay Parkinson

Name:  
Title:  
LANDTECH ENTERPRISES, L.L.C.
By:  

/s/ Jay Parkinson

Name:  
Title:  
BADLANDS LEASING, LLC
By:  

/s/ Jay Parkinson

Name:  
Title:  
IDEAL OILFIELD DISPOSAL, LLC
By:  

/s/ Jay Parkinson

Name:  
Title:  

 

Consent and Reaffirmation to Joinder and First Amendment to Amended and Restated Credit Agreement


Schedule C-1

Commitments

 

Lender

   Revolver Commitment  

Wells Fargo Bank, National Association

   $ 75,000,000   

Bank of America, N.A.

   $ 50,000,000   

Citizens Bank of Pennsylvania

   $ 50,000,000   

Capital One Business Credit Corp.

   $ 35,000,000   

CIT Finance LLC

   $ 35,000,000   

All Lenders

   $ 245,000,000   

 

Exhibit B-1

Exhibit 99.1

For Immediate Release

 

LOGO

NUVERRA ENVIRONMENTAL SOLUTIONS UPSIZES REVOLVING CREDIT FACILITY TO $245 MILLION

SCOTTSDALE, Ariz. — March 19, 2014 – Nuverra Environmental Solutions (NYSE: NES), a leading provider of full-cycle environmental solutions to energy and industrial end-markets, announced today that it has revised its existing Revolving Credit Facility (the “Revised Facility”) to increase the maximum availability under the Revised Facility from $200 million to $245 million.

The Company’s borrowing base calculation as of the closing date supports the $245 million facility size and makes the full facility immediately available to the Company. The terms and pricing of the facility remain the same and are unaffected by the upsizing of the facility size.

Jay C. Parkinson, Executive Vice President and Chief Financial Officer, commented, “Upsizing our facility size to $245 million supports the organic growth initiatives we have outlined for 2014 while continuing to provide financial flexibility for Nuverra. We were very pleased to receive the strong support of existing as well as new lending partners and appreciate their participation.”

The Revised Facility was placed through a syndication of lending institutions led by Wells Fargo Bank and RBS Citizens and Bank of America, as well as CIT Finance and Capital One Business Credit.

About Nuverra Environmental Solutions, Inc.

Nuverra Environmental Solutions is among the largest companies in the United States dedicated to providing comprehensive and full-cycle environmental solutions to customers in energy and industrial end-markets. Nuverra focuses on the delivery, collection, treatment, recycling, and disposal of restricted solids, water, wastewater, used motor oil, spent antifreeze, waste fluids and hydrocarbons. The Company continues to expand its suite of environmentally compliant and sustainable solutions to customers who demand stricter environmental compliance and accountability from their service providers.

Interested parties can access additional information about Nuverra on the Company’s web site at http://www.nuverra.com, and in documents filed with the United States Securities and Exchange Commission, on the SEC’s web site at http://www.sec.gov.

Forward-Looking Statements

This press release may contain “forward-looking statements” within the meaning of the safe harbor provisions of the United States Private Securities Litigation Reform Act of 1995. Words such as “expect,” “estimate,” “project,” “budget,” “forecast,” “anticipate,” “intend,” “plan,” “may,” “will,” “could,” “should,” “believes,” “predicts,” “potential,” “continue,” and similar expressions are intended to identify such forward-looking statements. Forward-looking statements in the press release include, without limitation, statements regarding borrowing capacity and availability under credit facilities, potential or intended uses of proceeds and other matters that involve known and unknown risks, uncertainties and other factors that may cause liquidity, access to capital, operating results, financial performance or other matters to differ materially from those expressed or implied by this press release. Such risk factors include, among others: difficulties encountered in acquiring and integrating businesses; uncertainties in evaluating goodwill and long-lived assets for potential impairment; potential impact of litigation; risks of successfully consummating expected transactions within the timeframes or on the terms contemplated, including risks that such transactions may fail to close due to unsatisfied closing conditions; whether certain markets grow as anticipated; pricing pressures; risks associated with our indebtedness; changes in oil and or natural gas prices; changes in customer drilling activities and capital expenditure plans; shifts in production


For Immediate Release

 

among shale areas; control of costs and expenses; business, regulatory and other factors impacting the capital markets; changes in the Company’s asset base and borrowing capacity under credit facilities; and the competitive and regulatory environment. Additional risks and uncertainties are set forth in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013, as well as the Company’s other reports filed with the United States Securities and Exchange Commission, which are available at http://www.sec.gov/ as well as the Company’s web site at http://www/nuverra.com/. As a result of the foregoing considerations and the other limitations of non-GAAP measures described elsewhere herein, you are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this presentation. All forward-looking statements are qualified in their entirety by this cautionary statement. The Company undertakes no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.

Contacts

Nuverra Environmental Solutions, Inc.

Liz Merritt, VP-Investor Relations & Communications

602-903-7802

ir@nuverra.com

- or -

The Piacente Group, Inc.

Brandi Piacente, President

212-481-2050

nuverra@tpg-ir.com