EXHIBIT 10.2
TENTH AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS TENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "TENTH
AMENDMENT") is executed as of the 31st day of March, 2005, by and among Maverick
Tube Corporation, a Delaware corporation (the "COMPANY"), XxxXXX, X.X., a Texas
limited partnership ("XXXXXX"), SEAC Acquisition, LLC, a Delaware limited
liability company ("SEAC"), Maverick C&P, Inc., a Delaware corporation ("C&P"),
Maverick Investment, LLC, a Delaware limited liability company ("INVESTMENT"),
Maverick Tube, L.P., a Delaware limited partnership ("TUBE"), Precision Tube
Holding, LLC, a Delaware limited liability company ("HOLDING"), Maverick GP,
LLC, a Delaware limited liability company ("MAVERICK GP"), Precision GP, LLC, a
Delaware limited liability company ("PRECISION GP"), Precision Tube Technology,
L.P., a Texas limited partnership ("PRECISION"), Tubular Transport Services,
Inc., a Texas corporation ("TTS" and collectively with the Company, XxxXXX,
SEAC, C&P, Investment, Tube, Holding, Maverick GP, Precision GP and Precision,
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"), Maverick Tube Canada LP, an Alberta
limited partnership ("CANADA LP"), Maverick Tube Canada GP, Ltd., an Alberta
limited corporation ("CANADA GP"), Maverick Tube Canada ULC, a Nova Scotia
unlimited liability company ("MAVERICK ULC"), Maverick Tube International
Holdings, Inc., a Delaware corporation ("INTERNATIONAL HOLDINGS"), Prudential
Steel Holdings, ULC, a Nova Scotia unlimited liability company ("PRUDENTIAL
HOLDINGS", and collectively with Prudential, Exchangeco, Tube Canada, Precision
Canada, Canada LP, Canada GP, Maverick ULC and International Holdings, 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, N.A. (formerly known as
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, the Agents and the Lenders are parties to that
certain Amended and Restated Credit Agreement dated as of December 31, 2002 (as
amended prior to the date hereof, 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), pursuant to which the Lenders provide certain financing to the
Borrowers in accordance with the terms and conditions set forth therein; and
WHEREAS, the Borrowers have requested that the Lenders agree to extend the
Maturity Date to March 31, 2007; and
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WHEREAS, subject to the terms and conditions set forth herein, the Lenders
have agreed to the Borrowers' request.
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 Tenth Amendment, the Credit Agreement
shall be amended effective as of the date hereof in the manner provided in this
Section 1.
1.1 AMENDED DEFINITIONS. The definitions of "FINANCING DOCUMENTS"
and "MATURITY DATE" 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 Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh
Amendment, the Eighth Amendment, the Ninth Amendment, the Tenth 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.
"MATURITY DATE" shall mean March 31, 2007.
1.2 ADDITIONAL DEFINITION. Section 1.1 of the Credit Agreement shall
be amended to add thereto in alphabetical order the following defined term:
"TENTH AMENDMENT" shall mean the Tenth Amendment to Amended and
Restated Credit Agreement dated as of March 31, 2005, by and among the
Borrowers, the Administrative Agent, the Issuing Bank, the Swingline
Lender and the Lenders.
SECTION 2. REPRESENTATIONS AND WARRANTIES. In order to induce each Agent
and each Lender to enter into this Tenth Amendment, the Borrowers hereby jointly
and severally represent and warrant to each Agent and each Lender that:
2.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties 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
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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).
2.2 DUE AUTHORIZATION, NO CONFLICTS. The execution, delivery and
performance by the Borrowers of this Tenth Amendment, and all other documents,
instruments or agreements executed by any of the Borrowers in connection with
this Tenth Amendment, are within the Borrowers' corporate, partnership,
unlimited liability company, or limited liability company powers, as applicable,
have been duly authorized by all necessary corporate, partnership, unlimited
liability company 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.
2.3 VALIDITY AND BINDING EFFECT. This Tenth Amendment and all other
documents, instruments or agreements executed by any of the Borrowers in
connection with this Tenth Amendment each constitute the valid and binding
obligations of the applicable Borrowers enforceable in accordance with their
respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally,
and the availability of equitable remedies may be limited by equitable
principles of general application.
2.4 ABSENCE OF DEFAULTS. Neither a Default nor an Event of Default
has occurred which is continuing.
2.5 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 3. POST-CLOSING DELIVERIES. On or before April 30, 2005, the
Borrowers shall deliver to the Administrative Agent amendments to the existing
Real Estate Mortgages dated on or prior to April 30, 2005 and duly executed by
the applicable Credit Party with respect to each Mortgaged Real Property, each
reflecting the amendment of the Maturity Date as set forth in this Tenth
Amendment and otherwise in form and substance satisfactory to the Administrative
Agent and its counsel.
SECTION 4. MISCELLANEOUS.
4.1 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.
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4.2 FEES AND EXPENSES. The Borrowers hereby agree to pay on demand
all fees and expenses due and owning in connection with this Tenth Amendment,
including, without limitation, all fees and expenses of Xxxxxx & Xxxxxx L.L.P.,
counsel to the Administrative Agent.
4.3 PARTIES IN INTEREST. All of the terms and provisions of this
Tenth Amendment shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns.
4.4 COUNTERPARTS, EFFECTIVENESS OF TENTH AMENDMENT. This Tenth
Amendment may be executed in counterparts, and all parties need not execute the
same counterpart; however, no party shall be bound by this Tenth Amendment until
this Tenth Amendment has been executed by each Borrower and all Lenders, at
which time this Tenth 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.
4.5 COMPLETE AGREEMENT. THIS TENTH 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.
4.6 HEADINGS. The headings, captions and arrangements used in this
Tenth Amendment are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify or modify the terms of this Tenth Amendment, nor
affect the meaning thereof.
4.7 NO IMPLIED WAIVERS. No failure or delay on the part of the
Lenders or the Agents in exercising, and no course of dealing with respect to,
any right, power or privilege under this Tenth 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 Tenth
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.
4.8 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 Tenth Amendment with their
legal counsel, (b) the Borrowers have reviewed this Tenth Amendment and fully
understand the effects thereof and all terms and provisions contained herein,
(c) the Borrowers have executed this Tenth Amendment of their own free will and
volition, and (d) this Tenth Amendment shall be construed as if jointly drafted
by the Borrowers and the Lenders. The recitals contained in this Tenth Amendment
shall be construed to be part of the operative terms and provisions of this
Tenth Amendment.
4.9 ARMS-LENGTH/GOOD FAITH. This Tenth Amendment has been negotiated
at arms-length and in good faith by the parties hereto.
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4.10 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 Tenth Amendment are for convenience only and shall not
affect the interpretation of this Tenth Amendment.
4.11 SEVERABILITY. In case any one or more of the provisions
contained in this Tenth 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 Tenth
Amendment shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
4.12 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 or the Agents as necessary or advisable to carry out the intents and
purposes of this Tenth Amendment.
4.13 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 TENTH AMENDMENT, 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]
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IN WITNESS WHEREOF, the parties hereto have executed this Tenth Amendment
as of the day and year first above written.
JPMORGAN CHASE BANK, N.A.,
as a Lender, as the Issuing Bank, as the
Swingline Lender and as the Administrative
Agent
By: /s/ J. Xxxxx Xxxx
-----------------------------------------
J. Xxxxx Xxxx
Vice President
JPMORGAN CHASE BANK, N.A.,
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
Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender and as the Documentation Agent
By: /s/ Xxxxxxx Canon
-----------------------------------------
Xxxxxxx Canon
Its 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.
Signature Page
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 X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx
Vice President
FLEET CAPITAL GLOBAL FINANCE, INC.,
as a Lender
By: /s/ Xxxx XxXxxxxx
-----------------------------------------
Xxxx XxXxxxxx
Vice President
FLEET CAPITAL CORPORATION, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxxx
SVP
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/ X. X. Xxxxxx
-----------------------------------------
X. X. Xxxxxx
Authorized Signatory
Signature Page
CITIZENS BUSINESS CREDIT, as a Lender
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Xxxx Xxxxxxxx
Vice President
Signature Page
MAVERICK TUBE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx
Vice President
XXXXXX, X.X.
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, LLC
By: Maverick Tube Corporation,
its sole member
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Xxxxxx X. Xxxxx
Vice President
Signature Page
MAVERICK TUBE, L.P.
By: Maverick GP, LLC,
its general partner
By: Maverick Tube Corporation,
its sole member
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx
Vice President
PRECISION TUBE HOLDING, LLC
By: Maverick Tube Corporation,
its sole member
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Xxxxxx X. Xxxxx
Vice President
MAVERICK GP, LLC
By: Maverick Tube Corporation,
its sole member
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Xxxxxx X. Xxxxx
Vice President
PRECISION GP, LLC
By: Maverick GP, LLC, its sole member
By: Maverick Tube Corporation,
its sole member
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx
Vice President
Signature Page
PRECISION TUBE TECHNOLOGY, L.P.
By: Precision GP, LLC, its general partner
By: Maverick GP, LLC, its sole
member
By: Maverick Tube Corporation,
its sole member
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
MAVERICK TUBE CANADA GP, LTD.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx
President
Signature Page
MAVERICK TUBE CANADA LP
By: Maverick Tube Canada GP, Ltd.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx
President
MAVERICK TUBE INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx
Vice President
MAVERICK TUBE CANADA ULC
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx
Director
PRUDENTIAL STEEL HOLDINGS, ULC
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx
President
TUBULAR TRANSPORT SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx
Vice President
Signature Page
