Exhibit 10.1
SEVENTH AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
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THIS SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Seventh Amendment") is executed as of the 18th day of August, 2004, 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" and
collectively with the Company, XxxXXX, SEAC, C&P, Investment, Tube, Holding,
Maverick GP and Precision GP, 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, 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 from time to time, 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 Seventh
Amendment), 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 informed the Lenders of their desire to have
the advance rates and limits used in calculating the Canadian Borrowing Base and
the US Borrowing Base modified to allow the Borrowers additional borrowing
availability; and
WHEREAS, the Borrowers have informed the Lenders that the Borrowers propose
to shut down existing operations at and sell up to three of their existing
facilities and to consolidate the operations of such existing facilities into a
newly acquired facility at a yet to be determined location, which consolidation
transactions are prohibited under the terms of the Credit Agreement; and
WHEREAS, the Borrowers have requested that the Lenders amend certain
provisions of the Credit Agreement in connection with the above matters; and
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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 Seventh 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 Definitions. The definitions of "Canadian Borrowing Base,"
"Canadian Equipment Component," "Eligible Inventory Advance Percentage,"
"Financing Documents," "Included-in-Transit Limit," "Inventory Limit," "US
Borrowing Base," "US Equipment Component" and "WIP Limit" contained in Section
1.1 of the Credit Agreement shall be amended to read in full as follows:
"Canadian Borrowing Base" shall mean, only with respect to the
Canadian Borrowers, the amount equal to the sum of:
(a) the Eligible Account Advance Percentage of the Canadian
Borrowers' Eligible Accounts, plus
(b) the lesser of (i) the sum of (A) the Eligible Inventory
Advance Percentage of the Canadian 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 Canadian Borrowers' Eligible Inventory
consisting of work in process and Eligible Bailee Inventory consisting
of work in process, and (2) Canadian WIP Limit, plus (C) the lesser of
(1) the Eligible Inventory Advance Percentage of the Canadian
Borrowers' Eligible Included-In-Transit Inventory and (2) Canadian
Included-in-Transit Limit, or (ii) the Canadian Inventory Limit, plus
(c) the Canadian Equipment Component in effect as of the date for
which the Canadian Borrowing Base is being calculated; minus
(d) any Canadian Employee Funding Liability Reserve;
provided, that, in no event will the component of the Canadian
Borrowing Base determined pursuant to clause (b) exceed 60% of the
total Canadian Borrowing Base (but solely for purposes of this
calculation, the Canadian Equipment Component shall remain constant at
the amount in effect as the Closing Date without giving effect to any
subsequent reductions in the Canadian Equipment Component pursuant to
the definition of such term). The Canadian Borrowing Base in effect
under this Agreement at any time shall be the Canadian Borrowing Base
reflected on the most recent Canadian Borrowing Base Report delivered
to the Canadian Administrative Agent and the Administrative Agent
pursuant to Section 6.10(g) hereof, subject to (a) the right of the
Canadian Administrative Agent, the 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
herein, (iii) scheduled reductions in the Canadian Equipment
Component, (iv) more frequent reporting of certain components of the
Canadian 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) any changes in the Canadian
Employee Funding Liability Reserve.
"Canadian Equipment Component" shall mean $4,848,655; provided
that the Canadian Equipment Component shall be reduced by (a) $151,515
on the first day of each month commencing on September 1, 2004 and
continuing on the first day of each month thereafter throughout the
term of this
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Agreement, and (b) on April 1 of each calendar year commencing April
1, 2005, by the Canadian Excess Cash Flow Amount for the Fiscal Year
most recently ended.
"Eligible Inventory Advance Percentage" shall mean (a) for
Eligible Inventory, Eligible Included-in-Transit Inventory and
Eligible Bailee Inventory consisting of steel coil raw material, 65%,
(b) for Eligible Inventory, Eligible Included-in-Transit Inventory and
Eligible Bailee Inventory consisting of electrical conduit finished
goods, 60%, (c) for Eligible Inventory, Eligible Included-in-Transit
Inventory and Eligible Bailee Inventory consisting of finished goods
(other than electrical conduit finished goods), 50%; and (d) for all
other Eligible Inventory, Eligible Included-in-Transit Inventory and
Eligible Bailee Inventory, 45%; provided, that, the Eligible Inventory
Advance Percentages in effect pursuant to clauses (a), (b), (c), and
(d) preceding are subject to reduction by the Administrative Agent in
its reasonable discretion based on the results of inventory appraisals
provided to the Agents and the Lenders from time to time pursuant to
Section 6.10(o) hereof.
"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 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.
"Included-in-Transit Limit" shall mean $30,000,000.
"Inventory Limit" shall mean $130,000,000.
"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;
minus
(e) any US Employee Funding Liability Reserve;
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
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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)
any changes in the US Employee Funding Liability Reserve.
"US Equipment Component" shall mean $20,151,525; provided that
the US Equipment Component shall be reduced (a) by $454,545 on the
first day of each month commencing with September 1, 2004 and
continuing on the first day of each month thereafter throughout the
term of this Agreement, and (b) on April 1 of each calendar year
commencing April 1, 2005, by the US Excess Cash Flow Amount for the
Fiscal Year most recently ended.
"WIP Limit" shall mean $20,000,000.
1.2 Additional Definitions. Section 1.1 of the Credit Agreement shall be
amended to add thereto in alphabetical order the following defined terms:
"Canadian Employee Funding Liability Reserve" shall mean all such
amounts which, under the provisions of any Plan, agreement relating
thereto or applicable law, (i) are required to be paid as
contributions to a Plan by any Canadian Credit Party and (ii) have not
been made when and at such times as required pursuant to the terms of
any such Plan, agreement relating thereto or applicable law including
any and all fines, penalties and assessments relating thereto.
"Cedar Springs Facility" shall mean the Real Property owned by a
Borrower and located at Highway 000, Xxxxx Xxxxxx, Xxxxx Xxxxxxx,
Xxxxxxx 00000.
"Consolidated Facility" shall mean the Real Property at which the
conduit operations currently conducted at the Cedar Springs Facility,
the conduit operations currently conducted at the Ferndale Facility,
and, if Borrowers determine to close the Elyria Facility, the conduit
operations currently conducted at the Elyria Facility, will be
consolidated prior to the end of the Fiscal Year ending on December
31, 2005.
"Elyria Facility" shall mean the Real Property owned by a
Borrower and located at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxx, Xxxx
00000.
"Ferndale Facility" shall mean the Real Property owned by a
Borrower and located at 000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx
Xxxxxxxx 00000.
"Seventh Amendment" shall mean the Seventh Amendment to Amended
and Restated Credit Agreement dated as of August 18, 2004, by and
among the Borrowers, the Agents and the Lenders.
"US Employee Funding Liability Reserve" shall mean all such
amounts which, under the provisions of any Plan, agreement relating
thereto or applicable law, (i) are required to be paid as
contributions to a Plan by any US Credit Party and (ii) have not been
made when and at such times as required pursuant to the terms of any
such Plan, agreement relating thereto or applicable law including any
and all fines, penalties and assessments relating thereto.
1.3 Deleted Definitions. The definitions of "Disposition," "Excess Net Cash
Proceeds" and "Net Cash Proceeds" contained in Section 1.1 of the Credit
Agreement are hereby deleted.
1.4 Amendment to US Employee Benefits Representation. Section 5.9(c) of the
Credit Agreement shall be amended and restated in its entirety to read as
follows:
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(c) Full payment when due has been made of all amounts which any
US Credit Party or any ERISA Affiliate 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 US Credit Party exists
with respect to any Plan except for accumulated funding deficiencies
that (1) could not reasonably be expected to cause a Material Adverse
Effect or (2) when combined with all other accumulated funding
deficiencies of all Credit Parties, including, but not limited to
accumulated funding deficiencies of Canadian Credit Parties, do not
exceed $15,000,000 in the aggregate.
1.5 Amendment to Canadian Employee Benefits Representation. Section 5.10(c)
of the Credit Agreement shall be amended and restated in its entirety to read as
follows:
(c) 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 except for accumulated funding deficiencies that
(1) could not reasonably be expected to cause a Material Adverse
Effect or (2) when combined with all other accumulated funding
deficiencies of all Credit Parties, , including, but not limited to
accumulated funding deficiencies of US Credit Parties, do not exceed
$15,000,000 in the aggregate.
1.6 Amendment to Reporting Covenant. Section 6.10(o) of the Credit
Agreement shall be amended and restated in its entirety to read as follows:
(o) Inventory Appraisals. Once during any Fiscal Year, the
Administrative Agent may require, at the cost of the Borrowers, an
appraisal of the Borrowers' inventory in scope and detail and prepared
by an independent appraisal firm acceptable to the Administrative
Agent; provided, that, after the occurrence and during the continuance
of a Default or if Excess Availability shall fall below $80,000,000,
the Administrative Agent shall have the option to receive at the cost
of the Borrowers such additional inventory appraisals as the
Administrative Agent or the Required Lenders shall reasonably request.
If an Event of Default exists, the Administrative Agent shall require
an inventory appraisal if the most recently conducted inventory
appraisal is more than one year old.
1.7 Amendment to Reporting Covenant. Section 6.10 of the Credit Agreement
shall be amended to add thereto a new clause (q) which shall read in full as
follows:
(q) Employee Funding Liability Reserves. Promptly after the
occurrence thereof, notice of any change in the Canadian Employee
Funding Liability Reserve or the US Employee Funding Liability
Reserve.
1.8 Amendment to Permitted Indebtedness Covenant. Section 7.2 of the Credit
Agreement shall be amended to delete the "and" at the end of clause (k), to
delete the period at the end of clause (l) thereof, to insert in lieu of such
period "; and", and to add thereto a new clause (m) which shall read in full as
follows:
(m) Indebtedness in respect of industrial revenue bonds not to
exceed $30,000,000 (the "Bonds"), which Indebtedness shall be on terms
and conditions reasonably acceptable to the Agents; provided that the
sole use of proceeds of the Bonds shall be for the acquisition and
construction of the Consolidated Facility.
1.9 Amendment to Permitted Liens Covenant. Section 7.3 of the Credit
Agreement shall be amended to delete the "and" at the end of clause (i), to
insert "and" at the end of clause (j), and to add thereto a new clause (k) which
shall read in full as follows:
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(k) Liens on the Consolidated Facility financed with the proceeds
of the Bonds to secure such Bonds.
1.10 Amendment to Mergers, Sales, etc. Covenant. Section 7.4 of the Credit
Agreement shall be amended to delete the "and" at the end of clause (j) thereof,
to insert "and" at the end of clause (k) thereof, and to add thereto a new
clause (l) which shall read in full as follows:
(l) the Borrowers may sell, transfer and/or otherwise dispose of
any one or more of the Cedar Springs Facility, the Elyria Facility and
the Ferndale Facility.
1.11 Amendment to US Plan Compliance Covenant. Section 7.9(d) of the Credit
Agreement shall be amended and restated in its entirety to read as follows:
(d) Permit to exist, or allow any other US Credit Party or any
ERISA Affiliate to permit to exist, any accumulated funding deficiency
within the meaning of Section 302 of ERISA or Section 412 of the Code,
whether or not waived, with respect to any Plan (1) in any amount
which could reasonably be expected to cause a Material Adverse Effect
or (2) that when combined with any accumulated funding deficiencies
with respect to all Plans, including, but not limited to accumulated
funding deficiencies with respect to Plans of Canadian Credit Parties,
would exceed $15,000,000.
1.12 Amendment to Canadian Plan Compliance Covenant. Section 7.9(k)(3) of
the Credit Agreement shall be amended and restated in its entirety to read as
follows:
(3) Permit to exist, or allow any other Canadian Credit Party to
permit to exist, any accumulated funding deficiency, whether or not
waived, with respect to any Plan (x) in an amount which could
reasonably be expected to have a Material Adverse Effect or (y) that
when combined with any accumulated funding deficiencies with respect
to all Plans, including, but not limited to accumulated funding
deficiencies with respect to Plans of US Credit Parties, would exceed
$15,000,000.
1.13 Amendment to 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 (except as otherwise expressly provided in this
Section 7.15) in excess of (a) $30,000,000 in the aggregate for all
Borrowers, plus (b) up to an additional $55,000,000 in Fiscal Years
2004 and 2005 (such $55,000,000 to be an aggregate limit for both such
Fiscal Years consolidated) for the construction and outfitting of the
Consolidated Facility, 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.
1.14 Amendment to Credit Agreement Exhibits. Exhibit A-1 and Exhibit A-2 to
the Credit Agreement shall be replaced with Exhibit A-1 and Exhibit A-2,
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
$92,500.00. 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).
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2.2 Officers' Certificates, etc. The Borrowers shall have delivered to the
Administrative Agent such certificates of authorized officers of the Borrowers,
certificates of Governmental Authorities, certified copies of the certificates
of formation, operating and limited partnership agreements, as applicable, of
the Borrowers (or certified confirmation that no amendments, modifications or
revisions have been to those previously certified and delivered to the
Administrative Agent, as applicable), certified copies of resolutions of the
partners, managers or members, as applicable of the Borrowers and such other
documents, instruments agreements, all in a form and substance satisfactory to
the Administrative Agent and its counsel.
2.3 Documentation. The Administrative Agent shall have received such other
documents, instruments and agreements as it or any Lender may reasonably
request, all in form and substance reasonably satisfactory to the Administrative
Agent and the Lenders.
2.4 Representations and Warranties. Each of the representations and
warranties of each Borrower contained in this Seventh Amendment shall be true
and correct.
2.5 No Defaults. No Default or Event of Default shall exist.
SECTION 3. Representations and Warranties. In order to induce each Agent
and each Lender to enter into this Seventh Amendment, the Borrowers hereby
jointly and severally represent and warrant to each Agent and each Lender that:
3.1 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 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).
3.2 Due Authorization, No Conflicts. The execution, delivery and
performance by the Borrowers of this Seventh Amendment and all other documents,
instruments or agreements executed by any of the Borrowers in connection with
this Seventh 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.
3.3 Validity and Binding Effect. This Seventh Amendment and all other
documents, instruments or agreements executed by any of the Borrowers in
connection with this Seventh Amendment each constitutes 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.
3.4 Absence of Defaults. Neither a Default nor an Event of Default has
occurred which is continuing.
3.5 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 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
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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.
4.2 Parties in Interest. All of the terms and provisions of this Seventh
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
4.3 Counterparts, Effectiveness of Seventh Amendment. This Seventh
Amendment may be executed in counterparts, and all parties need not execute the
same counterpart; however, no party shall be bound by this Seventh Amendment
until this Seventh Amendment has been executed by each Borrower and all Lenders,
at which time this Seventh 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.
4.4 COMPLETE AGREEMENT. THIS Seventh 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.
4.5 Headings. The headings, captions and arrangements used in this Seventh
Amendment are, unless specified otherwise, for convenience only and shall not be
deemed to limit, amplify or modify the terms of this Seventh Amendment, nor
affect the meaning thereof.
4.6 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 Seventh 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 Seventh
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.
4.7 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 Seventh Amendment with their legal
counsel, (b) the Borrowers have reviewed this Seventh Amendment and fully
understand the effects thereof and all terms and provisions contained herein,
(c) the Borrowers have executed this Seventh Amendment of their own free will
and volition, and (d) this Seventh Amendment shall be construed as if jointly
drafted by the Borrowers and the Lenders. The recitals contained in this Seventh
Amendment shall be construed to be part of the operative terms and provisions of
this Seventh Amendment.
4.8 Arms-Length/Good Faith. This Seventh Amendment has been negotiated at
arms-length and in good faith by the parties hereto.
4.9 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 Seventh Amendment are for convenience only and shall
not affect the interpretation of this Seventh Amendment.
4.10 Severability. In case any one or more of the provisions contained in
this Seventh 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 Seventh Amendment shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
4.11 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
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by the Lenders or the Agents as necessary or advisable to carry out the intents
and purposes of this Seventh Amendment.
4.12 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 SEVENTH 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]
9
Signature Page
IN WITNESS WHEREOF, the parties hereto have executed this Seventh 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/ 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
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
---------------------------------------------
Xxxx XxXxxxxx
Vice President and General Manager
FLEET CAPITAL CORPORATION, as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Xxxxxx Xxxxxxxxx
Senior Vice Presdient
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. Straathof
---------------------------------------------
R.G.M. Straathof
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
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
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
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
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
