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EXHIBIT 4.4
WAIVER AND THIRD AMENDMENT
TO LOAN AND SECURITY AGREEMENT
THIS WAIVER AND THIRD AMENDMENT dated as of December __, 2000
(this "Amendment") to the Amended and Restated Loan and Security Agreement,
dated as of July 10, 2000 (the "Loan Agreement"; capitalized terms defined
therein shall have the same meanings when used herein unless otherwise defined
herein), among Grant Prideco, LP ("GPLP") and each of the other direct and
indirect Subsidiaries of Grant Prideco, Inc. ("GPI") specified on Schedule 1
thereto (the "Borrowers"), the financial institutions from time to time party
thereto as lenders (the "Lenders"), Transamerica Business Credit Corporation, as
agent for the U.S. Lenders (the "Agent"), and Transamerica Commercial Finance
Corporation, Canada, as agent for the Cdn. Lenders (together with the Agent, the
"Agents").
W I T N E S S E T H :
WHEREAS, the Borrowers, the Lenders and the Agents are parties
to the Loan Agreement, under which the U.S. Borrowers have granted to the Agent
for the ratable benefit of the Lenders a security interest in all their
Equipment, Inventory and Receivables to secure the obligations of the Borrowers
to the Agents and the Lenders under the Loan Documents;
WHEREAS, GPLP desires to acquire substantially all of the
assets (the "Acquisition") of Seam-Mac Tube, Ltd., a Texas limited partnership
("Seam-Mac"), for approximately US$20,055,000, and has the option to pay the
purchase price in cash or common stock;
WHEREAS, GPLP desires to pay the purchase price for the
Acquisition in cash; and
WHEREAS, the Borrowers have requested the Lenders to amend the
Loan Agreement to permit the payment of the purchase price for the Acquisition
in cash;
NOW, THEREFORE, the Borrowers, the Lenders and the Agents
agree as follows:
SECTION 1. AMENDMENTS TO THE LOAN AGREEMENT.
Effective as of the date hereof, but subject to the satisfaction of the
conditions to effectiveness set forth in Section 2 hereof, the Loan Agreement is
amended as follows:
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(a) Clause (iii) of the definition of "Permitted
Acquisition" in the Loan Agreement is amended by adding at the end thereof the
following:
", except that, if Grant Prideco, LP
purchases substantially all of the assets of Seam-Mac Tube,
Ltd., a Texas limited partnership, for not more than
US$20,055,000 in cash in December 2000 (the "Seam-Mac
Amount"), such maximum amount of cash consideration shall be
(A) the sum of US$45,000,000 plus the Seam-Mac Amount for the
fiscal year ending December 31, 2000 and (B) US$45,000,000
less the Seam-Mac Amount for the fiscal year ending December
31, 2001".
(b) Schedule 6.1(b) of the Loan Agreement is amended
by adding opposite "Grant Prideco, LP" the following: "600 Caporal Drive,
Stephenville, Erath County, Texas".
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall
not be effective unless and until each of the following conditions shall have
been satisfied, in the Agent's sole determination, on or before December 15,
2000:
(a) The Agent shall have received the following,
each dated the date of delivery thereof or as of an earlier date acceptable to
the Agent, in form and substance acceptable to the Agent:
(i) a counterpart of this Amendment,
duly executed by each Borrower and acknowledged by each
Guarantor;
(ii) true and correct copy of the asset
purchase agreement governing the Acquisition, certified by the
Secretary or an Assistant Secretary of the Administrative
Borrower;
(iii) (A) executed Uniform Commercial Code
financing statements (Form UCC-1) naming the Agent as secured
party and GPLP as debtor and (B) termination statements, each
in form and substance satisfactory to the Agent, in each case
in proper form for filing in all jurisdictions that the Agent
deems necessary or desirable to perfect and protect the Liens
on the assets acquired by GPLP in connection with the
Acquisition created under the Loan Agreement and the Security
Documents and the priority thereof;
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(iv) completed requests for information
listing all effective financing statements filed in the
jurisdictions referred to in clause (iii) above that name
Seam-Mac as debtor, together with copies of such financing
statements;
(v) (A) evidence of the release of all
Receivables acquired by GPLP in connection with the
Acquisition;
(vi) (A) a pro forma consolidated and
consolidating balance sheet and profit and loss statement of
each of GPI and GPLP after giving effect to the consummation
of the Acquisition and (B) a Compliance Certificate signed by
GPI's Chief Financial Officer with an attached schedule of
calculations demonstrating compliance with the Financial
Covenants on a pro forma basis after giving effect to the
Acquisition;
(vii) a certificate of a Responsible
Officer of the Administrative Borrower certifying that (A) the
representations and warranties of the Loan Parties contained
in the Loan Agreement and the other Loan Documents are true
and correct in all material respects (and subject to the
delivery to the Agent of updated schedules to the Loan
Agreement as provided in Section 6.3 thereof) on and as of the
date of such certificate as if then made, other than
representations and warranties that expressly relate solely to
an earlier date, in which case they are true and correct as of
such earlier date, and (B) no Default or Event of Default has
occurred and is continuing;
(viii) an environmental survey for each
Property acquired by GPLP in connection with the Acquisition;
and
(ix) such other agreements, instruments,
documents and evidence as the Agent deems necessary in its
sole and absolute discretion in connection with the
transactions contemplated hereby; and
(b) the Borrowers shall have reimbursed the Agent for
all fees, costs and expenses (including, without limitation, the fees and
expenses of Luskin, Xxxxx & Xxxxxx LLP) incurred by the Agent in connection with
the preparation, negotiation, approval, execution and delivery of this
Amendment.
SECTION 3. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
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(a) On and after the date hereof, each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" and
words of like import, and each reference in the other Loan Documents to the Loan
Agreement shall mean and be a reference to the Loan Agreement as amended hereby.
(b) Except as specifically amended above, the Loan
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
or an amendment to any right, power or remedy of the Agent or any Lender under
any of the Loan Documents, or constitute a waiver of or an amendment to any
provision of any of the Loan Documents.
(d) The Borrowers, the Lenders and the Agent agree
that none of the Inventory or Receivables acquired by the Borrowers in
connection with the Acquisitions shall be Eligible Inventory or Eligible
Receivables, respectively, until the Agent shall have completed its audit
thereof and determined to its satisfaction (which shall not be effective unless
and until written notice thereof has been received by the Administrative
Borrower from the Agent) the portion thereof that shall constitute Eligible
Inventory or Eligible Receivables.
(e) This Amendment shall constitute a Loan Document.
SECTION 4. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment
may be executed in counterparts and by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together shall constitute one and the same instrument.
This Amendment may be executed and delivered by telecopier or other facsimile
transmission all with the same force and effect as if the same was a fully
executed and delivered original, manual counterpart.
SECTION 5. GOVERNING LAW. This Amendment shall be governed by,
and construed in accordance with, the internal laws (as opposed to the conflicts
of law provisions other than section 5-1401 of the New York General Obligations
Law) and decisions of the State of New York.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed by its (or its general partner's or managing member's)
proper and duly authorized officer as of the date first set forth above.
U.S. BORROWERS
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GRANT PRIDECO, LP
By: Grant Prideco Holding, LLC,
its general partner
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Vice President
XL SYSTEMS, LP
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Vice President
TEXAS ARAI, INC.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Vice President
TUBE-ALLOY CORPORATION
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Vice President
STAR OPERATING COMPANY
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title:
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CDN. BORROWER
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GRANT PRIDECO CANADA LTD.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Secretary
U.S. LENDERS
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TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Executive Vice President
BANK OF AMERICA, N.A.
By: /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
Senior Vice President
THE CHASE MANHATTAN BANK
By: /s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
Vice President
FLEET CAPITAL CORPORATION
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Senior Vice President
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CDN. LENDER
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TRANSAMERICA COMMERCIAL FINANCE
CORPORATION, CANADA
By: Transamerica Business Credit
Corporation, as Attorney-in-Fact
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Executive Vice President
AGENT
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TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Executive Vice President
CDN. AGENT
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TRANSAMERICA COMMERCIAL FINANCE
CORPORATION, CANADA
By: Transamerica Business Credit
Corporation, as Attorney-in-Fact
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Executive Vice President
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ACKNOWLEDGED AND AGREED AS OF
THE DATE FIRST SET FORTH ABOVE:
GRANT PRIDECO, INC.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Vice President
GRANT PRIDECO USA, LLC
By: /s/ AUTHORIZED SIGNATURE
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Name:
Title:
XL SYSTEMS INTERNATIONAL, INC.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Vice President
TA INDUSTRIES, INC.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Vice President
GRANT PRIDECO HOLDING, LLC
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Vice President
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GP EXPATRIATE SERVICES, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title:
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