Exhibit 10.1
FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "First
Amendment") is executed as of the 28th day of February, 2003, by and among
Maverick Tube Corporation, a Delaware corporation (the "Company"), SC
Acquisition, L.P., a Texas limited partnership ("SC Acquisition"), SEAC
Acquisition, LLC, a Delaware limited liability company ("SEAC"), Maverick C&P,
Inc., a Delaware corporation ("C&P"), Maverick Investment Corporation, a
Delaware corporation ("Investment"), Maverick Tube, L.P., a Delaware limited
partnership ("Tube"), Precision Tube Holding Corporation, a Delaware corporation
("Holding"), Maverick GP, Inc., a Delaware corporation ("GP Inc."), Precision
GP, LLC, a Delaware limited liability company ("GP LLC"), Precision Tube
Technology, L.P., a Texas limited partnership ("Precision" and collectively with
the Company, SC Acquisition, SEAC, C&P, Investment, Tube, Holding, GP Inc. and
GP LLC, the "US Borrowers" and individually, a "US Borrower"), Prudential Steel
Ltd., an Alberta corporation ("Prudential"), Maverick Exchangeco (Nova Scotia)
ULC, a Nova Scotia unlimited liability company ("Exchangeco"), Maverick Tube
(Canada) Inc., an Alberta corporation ("Tube Canada"), Precision Tube Canada
Limited, an Alberta corporation ("Precision Canada" and collectively with
Prudential, Exchangeco and Tube Canada, the "Canadian Borrowers" and
individually, a "Canadian Borrower") (the US Borrowers and the Canadian
Borrowers are together referred to herein as the "Borrowers" and individually, a
"Borrower"), JPMorgan Chase Bank, individually as a Lender, as an Issuing Bank,
as the Swingline Lender and as the Administrative Agent, CIT Business Credit
Canada Inc., individually as a Lender, as an Issuing Bank and as the Canadian
Administrative Agent, General Electric Capital Corporation, as a Lender and as
the Documentation Agent, and each of the other Lenders that is a signatory
hereto.
W I T N E S S E T H:
WHEREAS, the Borrowers other than SC Acquisition and SEAC (the "Pre-Merger
Borrowers"), the Agents and the Lenders are parties to that certain Amended and
Restated Credit Agreement dated as of December 31, 2002 (the "Credit Agreement;"
unless otherwise defined herein, all capitalized terms used herein which are
defined in the Credit Agreement shall have the meaning given such terms in the
Credit Agreement, including, to the extent applicable, after giving effect to
this First Amendment), pursuant to which the Lenders extended certain financing
to the Pre-Merger Borrowers in accordance with the terms and conditions set
forth therein; and
WHEREAS, the Company, SC Acquisition, XxxXXX, Xxxxx and Xxxxx Family
Investment Partnership, Ltd., a Texas limited partnership ("FLP" together with
Xxxxx are referred to herein as the "Holders"), have entered into the Merger
Agreement, pursuant to which, among other things, (a) XxxXXX will be merged with
and into SC Acquisition, with SC Acquisition being the surviving entity and
which will remain a wholly-owned subsidiary of GP LLC and SEAC and change its
name to "XxxXXX, X.X.", (b) the Holders will receive common stock of the Company
valued at $10,000,000 and a cash payment of $4,000,000, (c) Xxxxx will receive
the Xxxxx Note, and (d) the Company will incur the Earn Out Obligations in an
aggregate amount of up to $750,000; and
WHEREAS, the transactions contemplated by the Merger Agreement, including,
without limitation, (a) the issuance of the Xxxxx Note by the Company, (b) the
grant by SC Acquisition of Liens in the SC Collateral in favor of Xxxxx, and (c)
the incurrence of the Earn Out Obligations by the Company, are prohibited under
the terms of the Credit Agreement; and
WHEREAS, the Borrowers have requested that the Lenders (a) consent to the
transactions contemplated by the Merger Agreement, and (b) amend certain
provisions of the Credit Agreement in connection therewith; and
WHEREAS, subject to the terms and conditions set forth herein, the Lenders
have agreed to the Borrowers' requests.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and confessed, the
parties hereto hereby agree as follows:
SECTION 1. Amendments. In reliance on the representations, warranties,
covenants and agreements contained in this First Amendment, but subject to the
satisfaction of each condition precedent contained in Section 2 hereof, the
Credit Agreement shall be amended effective as of the date hereof in the manner
provided in this Section 1.
1.1 Amended Definition. The definitions of "Financing Documents,"
"Temporary Lockbox Institutions" and "US Borrowing Base" contained in Section
1.1 of the Credit Agreement shall be amended to read in full as follows:
"Financing Documents" shall mean this Agreement, the First Amendment, the
Notes, the Security Instruments, the Applications, Borrowing Requests, Borrowing
Base Reports, the Cash Collateral Account Agreements, the Canadian Fee Letter,
the Fee Letter, and the other documents, instruments or agreements described in
Section 3.1 and Section 3.2, together with any other document, instrument or
agreement (other than participation, agency or similar agreements among the
Lenders or between any Lender and any other bank or creditor with respect to any
indebtedness or obligations of the Company or its Subsidiaries hereunder or
thereunder) now or hereafter entered into in connection with the Loans, the
Lender Indebtedness or the Collateral, as such documents, instruments or
agreements may be amended, modified or supplemented from time to time.
"Temporary Lockbox Institutions" shall mean Mellon Bank and Bank One,
Texas, N.A.
"US Borrowing Base" shall mean, only with respect to the US Borrowers, the
amount equal to the sum of:
(a) the Eligible Account Advance Percentage of the US Borrowers' Eligible
Accounts, plus
(b) the lesser of (i) the sum of (A) the Eligible Inventory Advance
Percentage of the US Borrowers' Eligible Inventory (other than work in process)
and Eligible Bailee Inventory (other than work in process), plus (B) the lesser
of (1) the Eligible Inventory Advance Percentage of the US Borrowers' Eligible
Inventory consisting of work in process and Eligible Bailee Inventory consisting
of work in process and (2) US WIP Limit, plus (C) the lesser of (1) the Eligible
Inventory Advance Percentage of the US Borrowers' Eligible Included-In-Transit
Inventory and (2) US Included-In-Transit Limit, or (ii) the US Inventory Limit,
plus
(c) the US Equipment Component in effect as of the date for which the US
Borrowing Base is being calculated; plus
(d) the lesser of (i) the Eligible Account Advance Percentage of US
Borrowers' Eligible Xxxx and Hold Accounts and (ii) $10,000,000.
provided, that, in no event will the component of the US Borrowing Base
determined pursuant to clause (b) exceed 60% of the total US Borrowing Base (but
solely for purposes of this calculation, the US Equipment Component shall remain
constant at the amount in effect on the Closing Date without giving effect to
any subsequent reductions in the US Equipment Component pursuant to the
definition of such term). The US Borrowing Base in effect under this Agreement
at any time shall be the US Borrowing Base reflected on the most recent US
Borrowing Base Report delivered to the Administrative Agent and the Canadian
Administrative Agent pursuant to Section 6.10(g) hereof subject to (a) the right
of the Administrative Agent, the Canadian Administrative Agent or the Required
Lenders to contest any components thereof or the calculation thereof, and (b)
immediate adjustment as result of (i) establishment of Availability Reserves,
(ii) reductions in advance rates permitted hereunder, (iii) scheduled reductions
in the US Equipment Component, (iv) more frequent reporting of certain
components of the US Borrowing Base to the extent required in accordance with
Section 6.10(g), (v) any changes in eligibility standards required by the
Administrative Agent, and (vi) the occurrence of any Disposition.
provided, further, that, prior to the date on which (a) the final
appraisals and field audits on the Collateral owned by SC Acquisition after the
consummation of the Merger Transactions have been completed and reports with
respect thereto have been issued in final form, (b) the Administrative Agent has
determined, in its sole and absolute discretion, (i) the Eligible Account
Advance Percentage for the Eligible Accounts comprising the Collateral owned by
SC Acquisition, and (ii) the Eligible Inventory Advance Percentage (x) for
Eligible Inventory, Eligible Included-in-Transit Inventory and Eligible Bailee
Inventory consisting of steel coil raw material and coiled tubing finished goods
comprising the Collateral owned by SC Acquisition, and (y) for all other
Eligible Inventory, Eligible Included-in-Transit Inventory and Eligible Bailee
Inventory comprising the Collateral owned by SC Acquisition; provided, that,
such advance percentages shall not be set at percentages which are higher than
the corresponding advance rates for accounts or inventory sub-categories
existing with respect to the other Collateral of the US Borrowers at such time,
and (c) the Administrative Agent has established reserves, if any, with respect
to the Collateral owned by SC Acquisition, the term "US Borrowers," solely as
such term is used in the definition of "US Borrowing Base," shall be deemed to
exclude SC Acquisition.
1.2 Additional Definitions. Section 1.1 of the Credit Agreement shall be
amended to add thereto in alphabetical order the following defined terms:
"Earn Out Obligations" shall mean those certain additional payments to the
Holders' Representative (as defined in the Merger Agreement) in an aggregate
amount of up to $750,000 made in accordance with and as more particularly
described in Section 2.12 of the Merger Agreement.
"First Amendment" shall mean the First Amendment to Amended and Restated
Credit Agreement dated as of February 28, 2003, by and among the Borrowers and
the Lenders.
"Xxxxx" shall mean Xxxxxx X. Xxxxx.
"Xxxxx Note" shall mean a certain Subordinated Non-Transferable Promissory
Note dated as of February 28, 2003 in the principal amount of $5,000,000 issued
by the Company, secured by Liens in and to the property described in the SC
Collateral Documents and in form and substance satisfactory to the
Administrative Agent in its sole and absolute discretion.
"Xxxxx Subordination Agreement" shall mean that certain Subordination
Agreement dated as of February 28, 2003 among Xxxxx, the Administrative Agent
and the Canadian Administrative Agent, in form and substance satisfactory to the
Agents in their sole and absolute discretion.
"Merger Agreement" shall mean that certain Plan of Reorganization and
Agreement of Merger dated as of February 19, 2003 among the Company, SC
Acquisition, XxxXXX Corporation, a Texas corporation, Xxxxx and Xxxxx Family
Investment Partnership, Ltd., a Texas limited partnership.
"Merger Closing Date" shall mean the "Closing Date" as defined in the
Merger Agreement.
"Merger Documents" shall mean the Merger Agreement, the Xxxxx Note, the SC
Collateral Documents and all other documents, instruments or agreements
evidencing, securing or otherwise pertaining to the Xxxxx Note and/or the Earn
Out Obligations.
"Merger Transactions" shall mean the transactions contemplated by the
Merger Agreement, including, without limitation, (a) the merger of XxxXXX with
and into SC Acquisition, with SC Acquisition being the surviving entity, (b) the
issuance of the Xxxxx Note by the Company, (c) the grant by SC Acquisition of
Liens in the SC Collateral in favor of Xxxxx, and (d) the incurrence of the Earn
Out Obligations by the Company.
"XxxXXX" shall mean XxxXXX Corporation, a Texas corporation.
"SC Acquisition" shall mean SC Acquisition, L.P., a Texas limited
partnership.
"SC Collateral" shall mean the property described in the SC Collateral
Documents and for which second priority Liens are granted by SC Acquisition to
secure the Xxxxx Note.
"SC Collateral Documents" shall mean the Subordinate DOT and the
Subordinate Security Agreement, each as defined in, attached to and incorporated
in the Xxxxx Subordination Agreement, and each in form and substance
satisfactory to the Administrative Agent in its sole and absolute discretion.
1.3 Canadian Employee Benefits Amendment. Clause (c) of Section 5.10 of the
Credit Agreement shall be amended and restated in its entirety to read as
follows:
(c) Except for the funding deficiencies in (1) the Prudential Steel, Ltd.
Hourly Plan in an amount not the exceed C$6,007,501, and (2) the Prudential
Steel, Ltd. "SERP" in an amount not to exceed C$3,808,296, full payment when due
has been made of all amounts which any Canadian Credit Party is required under
the terms of each Plan or applicable law to have paid as contributions to such
Plan (excluding any nonpayment involving an amount that is not material), and no
accumulated funding deficiency, whether or not waived, resulting from the action
or inaction of any Canadian Credit Party exists with respect to any Plan.
1.4 Merger Documents. A new Section 5.31 shall be added to the Credit
Agreement which shall read in full as follows:
Section 5.31 Merger Documents. The Borrowers have provided to the
Administrative Agent a true and correct copy of the Merger Agreement and all
other Merger Documents. No material rights or obligations of any party to any of
the Merger Documents have been waived (other than the permanent waiver by Xxxxx
of the condition to closing in the Merger Agreement that requires the Company to
have its S-3 registration statement effective for the common stock of the
Company that Xxxxx is to receive as part of the Aggregate Merger Consideration
(as defined in the Merger Agreement)) and no party to any of the Merger
Documents is in default of its obligations or in breach of any representations
or warranties made thereunder. Each of the Merger Documents is a valid, binding
and enforceable obligation of each party thereto in accordance with its terms
and is in full force and effect. Each representation and warranty made by each
party in the Merger Documents is true and correct on the date hereof and will be
true and correct on the Merger Closing Date.
1.5 Amendment to Permitted Indebtedness Covenant. Section 7.2 shall be
amended to delete the period at the end of clause (h) thereof, to insert in lieu
of such period ";", and to add thereto a new clause (i) and a new clause (j)
which shall read in full as follows:
(i) Indebtedness owing pursuant to the Xxxxx Note; and
(j) the Earn Out Obligations.
1.6 Amendment to Permitted Lien Covenant. Section 7.3 shall be amended to
delete the "and" at the end of clause (h) thereof, to insert "and" at the end of
clause (i) thereof, and to add thereto a new clause (j) which shall read in full
as follows:
(j) Liens securing Indebtedness permitted by Section 7.2(i) hereof;
provided, that, (1) such Liens shall only cover the SC Collateral, and (2) such
Liens shall be of a second priority nature to the Liens granted to the Lenders
in the SC Collateral.
1.7 Amendment to the Merger, Sales, etc. Covenant. Section 7.4 of the
Credit Agreement shall be amended and restated in its entirety to read as
follows:
Section 7.4 Merger, Sales, etc. Merge into or with or consolidate or
amalgamate with, or permit any other Credit Party to merge into or with or
consolidate or amalgamate with, any other Person, or sell, lease or otherwise
dispose of, or permit any other Credit Party to sell, lease or otherwise dispose
of (whether in one transaction or in a series of transactions) all or any part
of its Property to any other Person. Notwithstanding the foregoing limitation
(a) the Credit Parties may sell inventory in the ordinary course of business,
(b) any Credit Party may sell, redeem or trade cash equivalent investments
permitted under Section 7.6 hereof, (c) any US Borrower (other than SC
Acquisition) shall be permitted to consolidate or merge with any other US
Borrower (other than SC Acquisition) (provided, that, in the case of any merger
involving the Company, the Company shall be the surviving entity), (d) any
Canadian Borrower shall be permitted to consolidate, amalgamate or merge with
any other Canadian Borrower, (e) any Borrower (other than SC Acquisition) shall
be permitted to sell, assign or convey all or any part of its Property to any US
Borrower (other than SC Acquisition), (f) any Canadian Borrower shall be
permitted to sell, assign or convey all or any part of its Property to any other
Canadian Borrower, (g) the Merger Transactions shall be expressly permitted
hereunder, (h) the Borrowers may sell assets not material to the operations and
business of the Borrowers so long as the aggregate sale price for all assets
sold in any Fiscal Year does not exceed $1,000,000, and (i) the US Borrowers may
enter into a Lay Down Real Estate Lease with Stone & Xxxxxxx Construction, Inc.,
a Louisiana corporation for approximately five acres and certain improvements of
the US Borrowers' Longview, Washington facility. Upon the termination of the
Xxxxx Note, the SC Collateral Documents and all obligations with respect to the
Xxxxx Note and the Earn Out Obligations, each parenthetical contained in this
Section 7.4 which contains the phrase "other than SC Acquisition" shall be
deleted.
1.8 Amendment to the Negative Pledge Agreements Covenant. Section 7.11 of
the Credit Agreement shall be amended and restated in its entirety to read as
follows:
Section 7.11 Negative Pledge Agreements. Create, incur, assume or suffer to
exist, any contract, agreement or understanding which in any way prohibits or
restricts the granting, conveying, creation or imposition of any Lien on any
Property of any Credit Party, or which requires the consent of or notice to
other Persons in connection therewith, other than (a) this Agreement and the
other Financing Documents, (b) any agreements governing any purchase money Liens
or Capital Lease Obligations otherwise permitted hereby provided that any such
prohibition or limitation is only effective against the Property financed
thereby, and (c) the SC Collateral Documents to the extent, but only to the
extent, they limit the grant of Liens (other than Liens in favor of the
Administrative Agent) in the SC Collateral.
1.9 Amendment to the Capital Expenditures Covenant. Section 7.15 of the
Credit Agreement shall be amended and restated in its entirety to read as
follows:
Section 7.15 Capital Expenditures. Make Capital Expenditures in any Fiscal
Year in excess of $30,000,000 in the aggregate for all Borrowers; provided,
that, no Capital Expenditures shall be made (and no Borrower shall enter into
any commitment to make any Capital Expenditure) if, before or after giving
effect to the making of such Capital Expenditure (or entering into such
Commitment), a Default exists or would result therefrom; provided, further,
that, the Borrowers shall not make Capital Expenditures consisting of
improvements to the real property comprising the SC Collateral or the attachment
of fixtures thereto in any Fiscal Year in an aggregate amount in excess of
$500,000.
1.10 Amendment to the Acquisitions; Creation of Subsidiaries Covenant.
Section 7.17 of the Credit Agreement shall be amended and restated in its
entirety to read as follows:
Section 7.17 Acquisitions; Creation of Subsidiaries. Create or acquire any
Subsidiary or any asset or operating division of any other Person other than (i)
the Acquisition Transactions, (ii) the Merger Transactions, (iii) the formation
of SC Acquisition, (iv) the purchase of inventory in the ordinary course of
business, and (v) the purchase of capital assets expressly permitted hereunder.
1.11 Amendment to the Accounts Covenant. Section 7.18 of the Credit
Agreement shall be amended and restated in its entirety to read as follows:
Section 7.18 Accounts. The Borrowers will not maintain accounts with any
bank or other depository institution or otherwise maintain cash or cash
equivalents other than (a) as permitted by Section 7.6 hereof, (b) the
Disbursement Accounts and Blocked Accounts maintained with the Administrative
Agent and the Canadian Lockbox Bank, (c) a payroll account maintained by Tube at
a local bank in Xxxxxxx, Arkansas for the purpose of funding payroll at Tube's
Xxxxxxx, Arkansas facility, (d) an unemployment payroll account maintained by
C&P at Enterprise Bank and Trust in Clayton, Missouri for the purpose of funding
supplemental unemployment expenses at C&P's Youngstown, Ohio, Elyria, Ohio and
Counce, Tennessee facilities, (e) payroll accounts maintained with Canadian
Lockbox Bank and the Administrative Agent for the limited purpose of funding
payroll, and (f) lockbox accounts and/or restricted accounts at the Temporary
Lockbox Institutions; provided, that, (x) such lockbox accounts held with Mellon
Bank shall be closed as soon as reasonably practical following the Closing Date,
but not later than February 28, 2003 and (y) such accounts held with Bank One,
Texas, N.A. shall be closed as soon as reasonably practical following the
effective date of the First Amendment, but not later than March 31, 2003, and
provided, further, that, such Temporary Lockbox Institutions shall have entered
into Tri-Party Agreements and/or Restricted Account Agreements with the
Administrative Agent in form and substance satisfactory to the Administrative
Agent in its sole and absolute discretion. In no event will the Borrowers
maintain in any payroll account permitted pursuant to this Section 7.18 funds in
an amount in excess of the aggregate payroll for one pay period for the
employees of such Borrowers paid from such accounts.
1.12 Modification of Merger Documents. A new Section 7.24 shall be added to
the Credit Agreement which shall read in full as follows:
Section 7.24 Modification of Merger Documents. Amend, modify or waive any
provision of any of the Merger Documents.
1.13 Amendment to Amendment and Waivers. Clause (c) of Section 10.2 of the
Credit Agreement shall be amended and restated in its entirety to read as
follows:
(c) release any part of the Collateral, without the written consent of all
of the Lenders, except as expressly permitted hereby, provided that the
Administrative Agent or the Canadian Administrative Agent, as applicable, shall
release (without consent from the Lenders) any Collateral (1) sold, transferred
or otherwise disposed of as permitted by Section 7.4 or (2) to the extent
required under the terms of the Xxxxx Subordination Agreement;
1.14 Amendment to Credit Agreement Schedules. Schedule 5.19, Schedule 5.21,
Schedule 5.23, Schedule 5.24 and Schedule 7.3 to the Credit Agreement shall be
replaced with Schedule 5.19, Schedule 5.21, Schedule 5.23, Schedule 5.24 and
Schedule 7.3, respectively, attached hereto.
SECTION 2. Conditions Precedent. The effectiveness of the amendments to the
Credit Agreement contained in Section 1 hereof is subject to the satisfaction of
each of the following conditions precedent:
2.1 Amendment Fees. The US Borrowers shall have paid to the Administrative
Agent for the ratable benefit of the Lenders in accordance with their respective
percentages of the Revolving Credit Commitments a fee in the amount of
$100,000.00. Such fee shall be distributed by the Administrative Agent to each
US Lender ratably based on the percentage, expressed as a decimal, determined by
dividing the Revolving Credit Commitments of such Lender by the aggregate
Revolving Credit Commitments of all Lenders (for purposes of this provision
only, each Lender and its Related Affiliate, if any, shall be deemed to consist
of a single Lender).
2.2 Additional Fees and Expenses. The Borrowers shall have paid all fees
and expenses incurred by the Administrative Agent in connection with the
preparation, negotiation and execution of this First Amendment, including,
without limitation, all fees and expenses of Xxxxxx & Xxxxxx L.L.P., counsel to
the Administrative Agent.
2.3 Officers' Certificates; Opinions, etc. The Borrowers shall have
delivered to the Administrative Agent such certificates of authorized officers
of Precision GP and SC Acquisition, certificates of Governmental Authorities,
certified copies of the certificates of formation, operating and limited
partnership agreements, as applicable, of Precision GP and SC Acquisition (or
certified confirmation that no amendments, modifications or revisions have been
to those previously certifies and delivered to the Administrative Agent, as
applicable), certified copies of resolutions of the partners, managers or
members, as applicable of Precision GP and SC Acquisition and such other
documents, instruments and agreements as the Administrative Agent shall require
to evidence the valid corporate existence and authority to conduct business of
Precision GP and SC Acquisition and the due authorization, execution and
delivery of this First Amendment any other documents related to this First
Amendment and any other legal maters relating to the Borrowers, any Subsidiary
or the other Financing Documents by the Borrowers, all in a form and substance
satisfactory to the Administrative Agent and its counsel.
2.4 US Revolving Credit Notes. SC Acquisition and SEAC shall have delivered
to the Administrative Agent a duly completed and executed signature page to each
US Revolving Credit Note held by each US Revolving Lender to evidence that each
of SC Acquisition and SEAC is a maker of each such US Revolving Credit Note and
is jointly and severally obligated to pay the principal and interest on each
such US Revolving Credit Note in full when due.
2.5 US Swingline Note. SC Acquisition and SEAC shall have delivered to the
Administrative Agent a duly completed and executed signature page to the
Swingline Note held by the Swingline Lender to evidence that each of SC
Acquisition and SEAC is a maker of the Swingline Note and is jointly and
severally obligated to pay the principal and interest on the Swingline Note in
full when due.
2.6 SOFA Notes. SC Acquisition and SEAC shall have delivered to the
Administrative Agent a duly completed and executed signature page to each SOFA
Note held by each SOFA Lender to evidence that each of SC Acquisition and SEAC
is a maker of each such SOFA Note and is jointly and severally obligated to pay
the principal and interest on each such SOFA Note in full when due.
2.7 Joinder Agreements. The Administrative Agent shall have received
Borrower Joinder Agreements, in the form attached as Exhibit L to the Credit
Agreement, duly completed and executed by each of SC Acquisition and SEAC.
2.8 Assumption Agreements. The Administrative Agent shall have received
Assumption Agreements (pursuant to which each of SC Acquisition and SEAC,
respectively, shall become an additional grantor under the Guaranty and Security
Agreement) duly completed and executed by SC Acquisition and SEAC (a)
guaranteeing the repayment of the Canadian Lender Indebtedness by SC Acquisition
and SEAC, respectively, and (b) granting to the Administrative Agent a first
priority security interest in all of the personal property of SC Acquisition and
SEAC, respectively, as security for the Lender Indebtedness.
2.9 Real Estate Mortgage. The Administrative Agent shall have received a
Real Estate Mortgage dated as of the Merger Closing Date and duly executed by SC
Acquisition granting to the Administrative Agent a first priority perfected lien
in and to all Mortgaged Real Property owned by SC Acquisition as of the Merger
Closing Date subject to Permitted Liens.
2.10 Survey Affidavit. The Administrative Agent shall have received a
survey affidavit duly executed and acknowledged, in form and substance
acceptable to the title company issuing the Mortgagee's Policy of Title
Insurance and the Administrative Agent, with respect to the Mortgaged Real
Property comprising the SC Collateral.
2.11 Title Commitment. The Administrative Agent shall have received a
Commitment for a Mortgagee's Policy of Title Insurance in form and substance
satisfactory to the Administrative Agent with respect to the Mortgaged Real
Property comprising the SC Collateral, together with evidence satisfactory to
the Administrative Agent that Mortgagees' Policy of Title Insurance will be
issued pursuant to such commitment and all premiums therefor have been paid.
2.12 The Consummation of the Merger. The Merger Transactions scheduled to
occur on the Merger Closing Date in accordance with the Merger Agreement shall
have occurred and been consummated on the terms and conditions set forth in the
Merger Documents, and as a result thereof, SC Acquisition shall have succeeded
to all right, title and interest of XxxXXX in and to all rights, interests and
Property of XxxXXX, including without limitation, the SC Collateral, in each
case, free and clear of all Liens, claims and encumbrances other than Permitted
Liens.
2.13 Certified Copy of Merger Documents. The Administrative Agent shall
have received a certified copy of each of the Merger Documents, each of which
shall be substantially in the form of the final drafts thereof provided to the
Administrative Agent.
2.14 Cash Management Arrangements. The Administrative Agent shall be
satisfied in its sole discretion with all aspects of the SC Acquisitions' cash
management arrangements, both prior to and after giving effect to this First
Amendment and the Merger. Without limiting the foregoing, each Temporary Lockbox
Institution shall have executed and delivered to the Administrative Agent, a
Tri-Party Agreement and/or Restricted Account Agreement in form and substance
acceptable to the Administrative Agent in its sole discretion.
2.15 Xxxxx Subordination Agreement. The Administrative Agent shall have
received the Xxxxx Subordination Agreement, duly executed by Xxxxx and each
Borrower.
2.16 Documentation. The Administrative Agent shall have received such other
documents, instruments and agreements as it (or any Lender acting through it)
may reasonably request, all in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders.
2.17 No Defaults. After giving effect to this First Amendment, no Default
or Event of Default shall exist.
2.18 Insurance. The Administrative Agent shall have received a certificate
of insurance coverage, dated as of the Merger Closing Date evidencing that the
Borrowers, including, without limitation, SC Acquisition and SEAC, maintain
insurance in accordance with Section 6.5 of the Credit Agreement.
SECTION 3. Post-Closing Deliveries. On or before March 14, 2003, the
Borrowers shall deliver, or cause to be delivered by the applicable parties, a
final certified survey for the Mortgaged Real Property comprising the SC
Collateral, in the form approved, or with such revisions requested, by the
Administrative Agent's counsel and bearing a surveyor's certification in form
and substance acceptable to the Admistrative Agent's counsel, and, on or before
March 31, 2003, the Administrative Agent shall have received a revised
Commitment for the Mortgagee's Policy of Title Insurance based upon the final
certified survey, evidencing a first priority perfected lien in and to the
Mortgaged Real Property comprising the SC Collateral, subject only to Permitted
Liens, which Commitment for the Mortgagee's Policy of Title Insurance shall
otherwise be in a form and substance satisfactory to the Administrative Agent.
SECTION 4. Representations and Warranties. In order to induce each Agent
and each Lender to enter into this First Amendment, the Borrowers hereby jointly
and severally represent and warrant to each Agent and each Lender that:
4.1 Accuracy of Representations and Warranties. Each representation and
warranty of each Borrower contained in the Financing Documents is true and
correct in all material respects as of the date hereof (except to the extent
that such representations and warranties are expressly made as of a particular
date, in which event such representations and warranties were true and correct
as of such date).
4.2 Merger Documents. No material rights or obligations of any party to any
of the Merger Documents have been waived (other than the permanent waiver by
Xxxxx of the condition to closing in the Merger Agreement that requires the
Company to have its S-3 registration statement effective for the common stock of
the Company that Xxxxx is to receive as part of the Aggregate Merger
Consideration (as defined in the Merger Agreement)) and no party to any of the
Merger Documents is in default of its obligations or in breach of any
representations or warranties made thereunder, each of the Merger Documents is a
valid, binding and enforceable obligation of each party thereto in accordance
with its terms and is in full force and effect, and each representation and
warranty made by each party in the Merger Documents is true and correct on the
date hereof and will be true and correct on the Merger Closing Date.
4.3 Due Authorization, No Conflicts. The execution, delivery and
performance by the Borrowers of this First Amendment, the Notes executed in
connection herewith, the Borrower Joinder Agreements and the Assumption
Agreements executed by SC Acquisition and SEAC, the Xxxxx Subordination
Agreement, and all other documents, instruments or agreements executed by any of
the Borrowers in connection with this First Amendment, are within the
Borrowers', as applicable, corporate, partnership or limited liability company
powers, have been duly authorized by all necessary corporate, partnership or
limited liability company action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not violate or
constitute a default under any provision of applicable law or any material
agreement binding upon the Borrowers or their Subsidiaries, or result in the
creation or imposition of any Lien upon any of the assets of the Borrowers or
their Subsidiaries except for Permitted Liens.
4.4 Validity and Binding Effect. This First Amendment, the Notes executed
in connection herewith, the Borrower Joinder Agreements and the Assumption
Agreements executed by SC Acquisition and SEAC, the Xxxxx Subordination
Agreement, and all other documents, instruments or agreements executed by any of
the Borrowers in connection with this First Amendment each constitutes the valid
and binding obligations of the applicable Borrowers enforceable in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditor's rights generally,
and the availability of equitable remedies may be limited by equitable
principles of general application.
4.5 Absence of Defaults. After giving effect to the amendments set forth
herein, neither a Default nor an Event of Default has occurred which is
continuing.
4.6 No Defense. No Borrower has any defense to payment, counterclaim or
rights of set-off with respect to the Lender Indebtedness on the date hereof.
SECTION 5. Miscellaneous.
5.1 Reaffirmation of Financing Documents; Extension of Liens. Any and all
of the terms and provisions of the Credit Agreement and the Financing Documents
shall, except as amended and modified hereby, remain in full force and effect.
Each Borrower hereby extends each Lien granted by such Borrower to secure the
Lender Indebtedness (or Canadian Lender Indebtedness in the case of Canadian
Borrowers) until the Lender Indebtedness (or Canadian Lender Indebtedness in the
case of Canadian Borrowers) has been paid in full, and agree that the amendments
and modifications herein contained shall in no manner affect or impair the
Lender Indebtedness (or Canadian Lender Indebtedness in the use of Canadian
Borrowers) or the Liens securing payment and performance thereof, all of which
are ratified and confirmed.
5.2 Parties in Interest. All of the terms and provisions of this First
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
5.3 Counterparts, Effectiveness of First Amendment. This First Amendment
may be executed in counterparts, and all parties need not execute the same
counterpart; however, no party shall be bound by this First Amendment until (a)
this First Amendment has been executed by each Borrower and all Lenders, and (b)
the Borrowers have paid the fees required by Section 2 hereof, at which time
this First Amendment shall be binding on, enforceable against and inure to the
benefit of the Borrowers, each Agent and all Lenders. Facsimiles shall be
effective as originals.
5.4 COMPLETE AGREEMENT. THIS FIRST AMENDMENT, THE CREDIT AGREEMENT AND THE
OTHER FINANCING DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
5.5 Headings. The headings, captions and arrangements used in this First
Amendment are, unless specified otherwise, for convenience only and shall not be
deemed to limit, amplify or modify the terms of this First Amendment, nor affect
the meaning thereof.
5.6 No Implied Waivers. No failure or delay on the part of the Lenders in
exercising, and no course of dealing with respect to, any right, power or
privilege under this First Amendment, the Credit Agreement or any other
Financing Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege under this First Amendment,
the Credit Agreement or any other Financing Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
5.7 Review and Construction of Documents. The Borrowers hereby acknowledge,
and represent and warrant to the Lenders, that (a) the Borrowers have had the
opportunity to consult with legal counsel of their own choice and have been
afforded an opportunity to review this First Amendment with their legal counsel,
(b) the Borrowers have reviewed this First Amendment and fully understand the
effects thereof and all terms and provisions contained herein, (c) the Borrowers
have executed this First Amendment of their own free will and volition, and (d)
this First Amendment shall be construed as if jointly drafted by the Borrowers
and the Lenders. The recitals contained in this First Amendment shall be
construed to be part of the operative terms and provisions of this First
Amendment.
5.8 Arms-Length/Good Faith. This First Amendment has been negotiated at
arms-length and in good faith by the parties hereto.
5.9 Interpretation. Wherever the context hereof shall so require, the
singular shall include the plural, the masculine gender shall include the
feminine gender and the neuter and vice versa. The headings, captions and
arrangements used in this First Amendment are for convenience only and shall not
affect the interpretation of this First Amendment.
5.10 Severability. In case any one or more of the provisions contained in
this First Amendment shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof, and this First Amendment shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
5.11 Further Assurances. The Borrowers agree to execute, acknowledge,
deliver, file and record such further certificates, instruments and documents,
and to do all other acts and things, as may be requested by the Lenders as
necessary or advisable to carry out the intents and purposes of this First
Amendment.
5.12 WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW,
EACH OF THE BORROWERS, THE AGENTS, THE ISSUING BANKS AND THE LENDERS (i)
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO ANY FINANCING DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN;
(ii) IRREVOCABLY WAIVE ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (iii) CERTIFY THAT NO PARTY
HERETO NOR ANY REPRESENTATIVE OR 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) ACKNOWLEDGE THAT IT
HAS BEEN INDUCED TO ENTER INTO THIS FIRST AMDNMENT, THE CREDIT AGREEMENT, THE
OTHER FINANCING DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY
BASED UPON, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED
IN THIS SECTION.
[Signature Pages Follow]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
DATED FEBRUARY 28, 2003
BY AND AMONG
MAVERICK TUBE CORPORATION AND CERTAIN OF
ITS SUBSIDIARIES, AS BORROWERS,
JPMORGAN CHASE BANK, AS THE ADMINISTRATIVE AGENT,
CIT BUSINESS CREDIT CANADA INC., AS THE CANADIAN ADMINISTRATIVE AGENT,
GENERAL ELECTRIC CAPITAL CORPORATION, AS THE DOCUMENTATION AGENT,
AND FINANCIAL INSTITUTIONS PARTIES THERETO, AS THE LENDERS
Signature Page
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as of the day and year first above written.
JPMORGAN CHASE BANK, as a Lender and as the
Administrative Agent
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxxxxxxxx X. Xxxxxxxxx
Vice President
JPMORGAN CHASE BANK, TORONTO BRANCH, as a
Lender
By: /s/ Xxxxxxxxx Xxxx
------------------------------------------
Xxxxxxxxx Xxxx
Vice President
CIT BUSINESS CREDIT CANADA INC., as a Lender
and as the Canadian Administrative Agent
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Xxxxxx Xxxxxx
Vice President
GENERAL ELECTRIC CAPITAL CORPORATION, as a
Lender and as the Documentation Agent
By: /s/ Xxxx Xxxxxx
------------------------------------------
Xxxx Xxxxxx
Duly Authorized Signatory
GENERAL ELECTRIC CAPITAL CANADA INC., as a
Lender
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxx X. Xxxxx
Senior Vice President General Electric
Capital Canada Inc.
THE CIT GROUP/BUSINESS CREDIT, INC., as a
Lender
By: /s/ Xxxxx Xxxxx
------------------------------------------
Xxxxx Xxxxx
Vice President
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------------
Xxxxxx Xxxxxxxx
Vice President
FLEET CAPITAL CANADA CORPORATION, as a Lender
By: /s/ Xxxx XxXxxxxx
------------------------------------------
Vice President & General Manager
FLEET CAPITAL CORPORATION, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxx
Senior Vice President
RBC CENTURA BANK, as a Lender
By: /s/ E. Xxxx Xxxxxxxxxxxx
------------------------------------------
E. Xxxx Xxxxxxxxxxxx
Market Manager
ROYAL BANK OF CANADA, as a Lender
By: /s/ R.G.M. Straghof
------------------------------------------
R.G.M. Straghof
Senior Manager
CITIZENS BUSINESS CREDIT, as a Lender
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Xxxx Xxxxxxxx
Vice President
MAVERICK TUBE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President
SC ACQUISITION, L.P.
By: Precision GP, LLC, its general partner
By: Maverick Tube Corporation, its sole member
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President
SEAC ACQUISITION, LLC
By: Maverick Tube Corporation, its sole member
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President
MAVERICK C&P, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President
MAVERICK INVESTMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President
MAVERICK TUBE, L.P.
By: Maverick GP, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President
PRECISION TUBE HOLDING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President
MAVERICK GP, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President
PRECISION GP, LLC
By: Maverick GP, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President
PRECISION TUBE TECHNOLOGY, L.P.
By: Precision GP, LLC, its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President
PRUDENTIAL STEEL LTD.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President and Secretary
MAVERICK TUBE (CANADA) INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President and Secretary
MAVERICK EXCHANGECO (NOVA SCOTIA) ULC
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Vice President and Secretary
PRECISION TUBE CANADA LIMITED
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
President