Exhibit 10.1
THIRD AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "Third
Amendment") is executed as of September 19, 2003, by and among Maverick Tube
Corporation, a Delaware corporation ("Company"), XxxXXX, X.X., 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 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
"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, Borrowers, Agents and Lenders are parties to that certain Amended
and Restated Credit Agreement dated as of December 31, 2002, as amended by that
certain First Amendment to Amended and Restated Credit Agreement dated as of
February 28, 2003, and as amended by that certain Second Amendment to Amended
and Restated Credit Agreement dated as of June 2, 2003 (collectively, 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 Third Amendment); and
WHEREAS, Borrowers have advised the Administrative Agent and Lenders that
the one or more of the US Borrowers desires to acquire certain equipment from
Commercial Resins for a purchase price of $1,500,000 and contribute such
equipment to HPC; and
WHEREAS, Borrower's have advised the Administrative Agent and Lenders that
the Company desires to guaranty up to $500,000 of Indebtedness of HPC; and
WHEREAS, Borrowers have requested that the Credit Agreement be amended in
certain respects with respect to the HPC transactions described above; and
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WHEREAS, Borrowers have requested that Section 7.06(i) of the Credit
Agreement be amended to increase the amount of investments allowed pursuant to
such Section from $1,000,000 to $5,000,000; and
WHEREAS, subject to the terms and conditions set forth herein, Lenders have
agreed to 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 Third Amendment, the Credit Agreement is hereby
amended effective as of the date hereof, except for the amendment to Section 7.6
of the Credit Agreement contained in Section 1.5 hereof which shall be effective
as of December 31, 2002, in the manner provided in this Section 1.
1.1 Amended Definition. The definition of "Financing Documents" 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 Notes, the Security Instruments, the
Applications, Borrowing Requests, Borrowing Base Reports, 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.
1.2 Additional Definitions. Section 1.1 of the Credit Agreement shall be
amended to add thereto in alphabetical order the following defined terms:
"Commercial Resins" shall mean Commercial Resins Company, Inc., an Oklahoma
corporation.
"CR Assets" shall mean a 50% interest in certain equipment, inventory and
other personal property of Commercial Resins utilized in connection with its
Xxxxxxx, Arkansas coating facility.
"Third Amendment" shall mean the Third Amendment to Amended and Restated
Credit Agreement dated as of September 19, 2003, by and among Borrowers and the
Lenders.
"HPC" shall mean Xxxxxxx Pipe Coating, LLC, a Arkansas limited liability
company to be owned 50% by the Company and 50% by Commercial Resins.
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1.3 Amendment to Permitted Indebtedness Covenant. Section 7.2 of the Credit
Agreement is hereby amended to delete the "and" at the end of clause (j), to
delete the period at the end of clause (k) thereof, to insert in lieu of such
period "; and", and to add thereto a new clause (l) which shall read in full as
follows:
(l) a guaranty of not more than $500,000 of Indebtedness of HPC.
1.4 Amendment to Investments Covenant Clauses. Section 7.6 of the Credit
Agreement is hereby amended to (a) delete the reference therein to "$1,000,000"
in clause (i) and to insert in place thereof "$5,000,000", (b) to delete the
"and" at the end of clause (h), to delete the period at the end of clause (i)
thereof, to insert in lieu of such period "; and", and (c) to add thereto a new
clause (j) which shall read in full as follows:
(j) investments in HPC consisting of the contribution of the CR Assets to
HPC; provided, that, simultaneously therewith, Borrowers shall cause HPC to
execute and deliver to Administrative Agent an Acknowledgement and Consent to
Pledge substantially in the form attached to the Third Amendment as Exhibit A.
1.5 Amendment to Investments Covenant. The last paragraph of Section 7.6 of
the Credit Agreement is hereby amended to add the following sentence at the end
of such paragraph:
For purposes of this Agreement the term "investments" shall not be deemed
to include positive balances in the Disbursement Account.
1.6 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 in excess of $30,000,000 in the aggregate for all Borrowers; provided,
that, (a) 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, (b) 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, and (c) the purchase of the
CR Assets for an aggregate purchase price not in excess of $1,500,000 will not
be deemed to utilize any part of the $30,000,000 per year availability for
Capital Expenditures permitted by this Section 7.15.
Section 2. Representations and Warranties. In order to induce each Agent and
each Lender to enter into this Third Amendment, Borrowers hereby jointly and
severally represent and warrant to each Agent and each Lender that:
2.1 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
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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 Borrowers of this Third Amendment, and all other documents,
instruments or agreements executed by any of Borrowers in connection with this
Third Amendment, are within 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 Borrowers or their Subsidiaries, or result
in the creation or imposition of any Lien upon any of the assets of Borrowers or
their Subsidiaries except for Permitted Liens.
2.3 Validity and Binding Effect. This Third Amendment and all other
documents, instruments or agreements executed by any of Borrowers in connection
with this Third 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.
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 Lender Indebtedness on the date hereof.
Section 3. Miscellaneous.
3.1 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 Lender
Indebtedness (or Canadian Lender Indebtedness in the case of Canadian Borrowers)
until 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 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.
3.2 Parties in Interest. All of the terms and provisions of this Third
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
3.3 Counterparts, Effectiveness of Third Amendment. This Third Amendment
may be executed in counterparts, and all parties need not execute the same
counterpart; however, no party shall be bound by this Third Amendment until this
Third Amendment has been executed by each Borrower and the Required Lenders, at
which time this Third Amendment shall be binding on, enforceable against and
inure to the benefit of Borrowers, each Agent and all Lenders. Facsimiles shall
be effective as originals.
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3.4 COMPLETE AGREEMENT. THIS THIRD 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.
3.5 Headings. The headings, captions and arrangements used in this Third
Amendment are, unless specified otherwise, for convenience only and shall not be
deemed to limit, amplify or modify the terms of this Third Amendment, nor affect
the meaning thereof.
3.6 No Implied Waivers. No failure or delay on the part of Lenders in
exercising, and no course of dealing with respect to, any right, power or
privilege under this Third 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 Third 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.
3.7 Review and Construction of Documents. Borrowers hereby acknowledge, and
represent and warrant to Lenders, that 1. Borrowers have had the opportunity to
consult with legal counsel of their own choice and have been afforded an
opportunity to review this Third Amendment with their legal counsel, 1.
Borrowers have reviewed this Third Amendment and fully understand the effects
thereof and all terms and provisions contained herein, 1. Borrowers have
executed this Third Amendment of their own free will and volition, and 1. this
Third Amendment shall be construed as if jointly drafted by Borrowers and
Lenders. The recitals contained in this Third Amendment shall be construed to be
part of the operative terms and provisions of this Third Amendment.
3.8 Arms-Length/Good Faith. This Third Amendment has been negotiated at
arms-length and in good faith by the parties hereto.
3.9 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.
3.10 Severability. In case any one or more of the provisions contained in
this Third 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 Third Amendment shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
3.11 Further Assurances. 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 Lenders as necessary or
advisable to carry out the intents and purposes of this Third Amendment.
3.12 WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW,
EACH OF BORROWERS, AGENTS, THE ISSUING BANKS
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AND LENDERS 1. IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO ANY FINANCING DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN; 1. 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; 1. 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 1. ACKNOWLEDGE THAT IT
HAS BEEN INDUCED TO ENTER INTO THIS THIRD 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 Third 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
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 X. Weirn
------------------------------------------
Xxxx X. Weirn
Senior Vice President
FLEET CAPITAL CORPORATION, as a Lender
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Xxxx X. Xxxxxxx
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/ RGM Straghof
------------------------------------------
RGM 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
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 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
EXHIBIT A
ACKNOWLEDGMENT AND CONSENT TO PLEDGE
[date]
Xxxxxxx Pipe Coating, LLC
[Address]
Commercial Resins
[Address]
Attention:
Re: Pledge of _________ [describe the equity interest - 50% of HPC] (the
"Pledged Securities") in Xxxxxxx Pipe Coating, LLC, a Arkansas limited
liability company ("HPC"), held by Maverick Tube Corporation, a Delaware
corporation ("Grantor")
Ladies and Gentlemen:
Reference is made herein to that certain Guaranty and Security Agreement dated
as of March 28, 2002 (as amended, supplemented or otherwise modified from time
to time, the "Security Agreement"), by Grantor and certain subsidiaries of
Grantor (together with Grantor, collectively "Borrowers"), in favor of JPMorgan
Chase Bank, as the Administrative Agent (in such capacity, the "Administrative
Agent") for the ratable benefit of (a) the financial institutions (the
"Lenders") now or hereafter parties to the Amended and Restated Credit Agreement
dated as of December 31, 2003 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among Borrowers, the Administrative
Agent, the Issuing Bank (as defined in the Credit Agreement) and the Lenders,
(b) the Issuing Bank, and (c) the Secured Affiliates (as defined in the Credit
Agreement).
Pursuant to the terms of the Security Agreement and/or the terms of the Credit
Agreement, the Lenders have required that Grantor grant to the Administrative
Agent, for the benefit of the Lenders, a first priority security interest in the
Pledged Securities to secure the Lender Indebtedness (as defined in the Credit
Agreement).
By executing this letter (this "Letter Agreement"), HPC and each member, as may
be required under the applicable organization documents, hereby (a) acknowledges
and confirms that the Pledged Securities represents all of Grantor's Securities
(as defined in the Security Agreement) in HPC, (b) agrees to enter a notation in
the stock transfer register or other appropriate records of HPC reflecting the
pledge of the Pledged Securities pursuant to the Security Agreement, (c)
consents to the pledge by Grantor of the Pledged Securities to secure the Lender
Indebtedness and consents to the transfer of the Pledged Securities pursuant to
the exercise of the remedies provided for in the Security Agreement (or any
transfer in lieu thereof), (d) waives any breach or violation of the terms or
provisions of HPC's organizational documents caused by such pledge or transfer,
(e) agrees that it will be bound by the terms of the Security Agreement relating
to the Pledged Securities issued by it and will comply with such terms insofar
as such terms are
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applicable to it, (f) agrees that it will notify the Administrative Agent
promptly in writing upon the acquisition by Grantor of any Securities (as
defined in the Uniform Commercial Code as from time to time in effect in the
State of New York or, where applicable as to specific Collateral, any other
relevant state) issued by HPC, which notice shall set forth in reasonable detail
all information with respect to such Securities, (g) agrees to comply with any
instruction received from the Administrative Agent in writing that states that
(1) an Event of Default under and as defined in the Credit Agreement has
occurred and is continuing and (2) such instructions are otherwise in accordance
with the terms of the Credit Agreement and Security Agreement, without any other
or further instructions from Grantor, and (h) agrees that any sums paid upon or
in respect of the Pledged Securities, including, without limitation any dividend
or distribution or any amount paid upon the liquidation or dissolution of HPC
shall be paid deposited directly into Account No. 801-799112 established by
Borrowers with the Administrative Agent or such other account hereafter
established by Borrowers or Grantor with the Administrative Agent which
Borrowers or Grantor and the Administrative Agent jointly designate as the
"Blocked Account."
This Letter Agreement may be executed in counterparts, and all parties need not
execute the same counterpart. This Letter Agreement shall be binding on,
enforceable against and inure to the benefit of the Administrative Agent and all
Lenders. Facsimiles shall be effective as originals.
Evidence your agreement to each of the terms and conditions set forth above by
executing this Letter Agreement in the space indicated below.
Very truly yours,
MAVERICK TUBE CORPORATION
By:
------------------------------------------
Name:
Title:
Acknowledged and Agreed
As of this ___ day of ____, 200_
XXXXXXX PIPE COATING, LLC
By:
------------------------------------------
Name:
Title:
A-2
COMMERCIAL RESINS
By:
------------------------------------------
Name:
Title:
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