FIRST AMENDMENT TO TERM LOAN CREDIT AGREEMENT
Exhibit 10.3.1
POSTED VERSION
FIRST AMENDMENT
TO TERM LOAN CREDIT AGREEMENT
TO TERM LOAN CREDIT AGREEMENT
THIS FIRST AMENDMENT TO TERM LOAN CREDIT AGREEMENT (this “Amendment”) is dated as of October
31, 2007 and is entered into by and among XXXXXXXX CORPORATION, a West Virginia corporation (the
“Borrower”), CERTAIN FINANCIAL INSTITUTIONS listed on the signature pages hereto (the “Lenders”),
XXXXXXX XXXXX CREDIT PARTNERS L.P., as Co-Lead Arranger, Joint Bookrunner and Syndication Agent,
XXXXXX BROTHERS INC., as Co-Lead Arranger and Joint Bookrunner, XXXXXX COMMERCIAL PAPER INC., as
Administrative Agent (“Administrative Agent”) and Collateral Agent, and, for purposes of Section V
hereof, the CREDIT SUPPORT PARTIES listed on the signature pages hereto, and is made with reference
to that certain TERM LOAN CREDIT AGREEMENT dated as of January 31, 2007 (as amended through the
date hereof, the “Credit Agreement”) by and among Borrower, the Lenders, Syndication Agent,
Administrative Agent, Collateral Agent, Joint Bookrunners and the Co-Lead Arrangers. Capitalized
terms used herein without definition shall have the same meanings herein as set forth in the Credit
Agreement after giving effect to this Amendment.
RECITALS
WHEREAS, the Credit Parties have requested that Required Lenders agree to amend certain
provisions of the Credit Agreement as provided for herein; and
WHEREAS, subject to certain conditions, Required Lenders are willing to agree to such
amendment relating to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:
SECTION I. AMENDMENTS TO CREDIT AGREEMENT
A. The following definitions set forth in Section 1.1 of the Credit Agreement are
hereby amended and restated in their entirety to read as follows:
““Applicable ABR Margin” shall mean at any date, with respect to each
ABR Loan that is a Term Loan, 2.25% per annum.”
““Applicable LIBOR Margin” shall mean at any date, with respect to
each LIBOR Loan that is a Term Loan, 3.25% per annum.”
““Consolidated Secured Debt” shall mean, as of any date of
determination, (a) the aggregate principal amount of Indebtedness of the
Borrower and the Restricted Subsidiaries outstanding on such date, determined
on a consolidated basis in accordance with GAAP (but excluding the effects of
any discounting of Indebtedness resulting from the application of purchase
accounting in connection with the Transaction or any Permitted Acquisition),
consisting of Indebtedness for borrowed money, Capital Lease Obligations and
debt obligations evidenced by promissory notes or
similar instruments, in each case secured by Liens, minus (b) the
aggregate amount of cash and cash equivalents held in accounts on the
consolidated balance sheet of the Borrower and the Restricted Subsidiaries as
at such date to the extent the use thereof for application to payment of
Indebtedness is not prohibited by law or any contract to which the Borrower
or any of the Restricted Subsidiaries is a party.”
““Revolving Loan Credit Agreement” shall mean that certain revolving
loan credit agreement dated as of the Revolving Loan Closing Date by and
among the Borrower, The CIT Group/Business Credit, Inc. as administrative
agent and co-collateral agent, Bank of America, N.A., as co-collateral agent,
Xxxxxxx Sachs Credit Partners L.P. and Xxxxxx Brothers Inc., as the co-lead
arrangers and joint bookrunners, and Xxxxxxx Sachs Credit Partners L.P., as
the syndication agent.”
““Secured Leverage Ratio” shall mean, as of any date of
determination, the ratio of (a) Consolidated Secured Debt as of the last day
of the relevant Test Period to (b) Consolidated EBITDA for such Test Period.”
B. Section 1.1 of the Credit Agreement is hereby amended by deleting the definitions
“Level I Status”, “Level II Status”, “Status” and “Trigger Date” and inserting the following
definitions in the appropriate alphabetical order:
““Red Man Acquisition Agreement” shall mean that certain stock
purchase agreement dated as of July 6, 2007, among McJ Holding LLC, a
Delaware limited liability company, Red-Man Pipe and Supply Company, an
Oklahoma corporation, West Oklahoma PVF Company, a Delaware corporation and
the shareholders of Red Man, as amended from time to time in accordance with
the terms thereof.”
““Revolving Loan Closing Date” shall mean October 31, 2007.”
C. Section 1.1 of the Credit Agreement is hereby amended by deleting subsection
(a)(ii) of the definition “Applicable Amount” and inserting the following in its place:
“(ii) the amount of any capital contributions (other than any Cure Amount)
made in cash to, or any proceeds of any equity issuance received by, the
Borrower from and including the Business Day immediately following the
Revolving Loan Closing Date through and including the Reference Time,
including proceeds from the issuance of Stock or Stock Equivalents of any
direct or indirect parent of the Borrower,”
D. Section 2.14(a) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(a) Borrower may by written notice to Administrative Agent elect to request
the establishment of one or more increases in Term Loan Commitments (the
“New Term Loan Commitments”), by an aggregate
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amount not in excess of the difference between the aggregate amounts
permitted by clauses (x) & (y) hereafter and the sum of all New Term Loan
Commitments and New Revolving Credit Commitments obtained on or prior to such
date and not less than $10,000,000 individually (or such lesser amount which
shall be approved by Administrative Agent or such lesser amount that shall
constitute the difference between the aggregate amounts permitted by clauses
(x) & (y) hereafter and the sum of all New Revolving Credit Commitments and
New Term Loan Commitments obtained on or prior to such date). Each such
notice shall specify the date (each, an “Increased Amount Date”) on
which the Borrower proposes that the New Term Loan Commitments shall be
effective, which shall be a date not less than ten Business Days after the
date on which such notice is delivered to Administrative Agent. The New Term
Loan Commitments shall not exceed the sum of: (x) up to $200,000,000 solely
to the extent used to fund the exercise of the CanHCO Call Right (as defined
under the Red Man Acquisition Agreement as in effect on the date hereof) and
the refinancing of certain indebtedness of Midfield Supply Co. plus
(y) up to an additional $100,000,000; provided that any Lender
offered or approached to provide all or a portion of the New Term Loan
Commitments may elect or decline, in its sole discretion, to provide a New
Term Loan Commitments. Such New Term Loan Commitments shall become
effective, as of such Increased Amount Date; provided that (i) no
Default or Event of Default shall exist on such Increased Amount Date before
or after giving effect to such New Term Loan Commitments, as applicable; (ii)
both before and after giving effect to the making of any Series of New Term
Loans, each of the conditions set forth in Section 7 shall be
satisfied; (iii) Borrower and its Subsidiaries shall be in Pro Forma
Compliance with each of the covenants set forth in Section 10.9 as of
the last day of the most recently ended fiscal quarter after giving effect to
such New Term Loan Commitments and any Specified Transaction to be
consummated in connection therewith; (iv) the New Term Loan Commitments shall
be effected pursuant to one or more Joinder Agreements executed and delivered
by the Borrower and Administrative Agent, and each of which shall be recorded
in the Register and shall be subject to the requirements set forth in
Section 5.4(d) and (e); (v) Borrower shall make any payments
required pursuant to Section 2.11 in connection with the New Term
Loan Commitments, as applicable; and (vi) Borrower shall deliver or cause to
be delivered any legal opinions or other documents reasonably requested by
Administrative Agent in connection with any such transaction. Any New Term
Loans made on an Increased Amount Date shall be designated, a separate series
(a “Series”) of New Term Loans for all purposes of this Agreement.”
E. Section 5.1 of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
“(a) The Borrower shall have the right to prepay Term Loans, in each case, without
premium or penalty except as set forth in subsection (b) below, in whole or in part
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from time to time on the following terms and conditions: (i) the Borrower shall give the
Administrative Agent and at the Administrative Agent’s Office written notice (or telephonic
notice promptly confirmed in writing no later than 1:00 p.m. (New York City time)) of its
intent to make such prepayment, the amount of such prepayment and (in the case of LIBOR Loans)
the specific Borrowing(s) pursuant to which made, which notice shall be given by the Borrower
no later than (x) in the case of a LIBOR Loans, 12:00 noon (New York City time) three Business
Days prior to or (y) in the case of ABR Loans, 12:00 noon (New York City time) on, the date of
such prepayment and shall promptly be transmitted by the Administrative Agent to each of the
Lenders; (ii) each partial prepayment of any Borrowing of Term Loans shall be in a multiple of
$100,000 and in an aggregate principal amount of at least $1,000,000, provided that no
partial prepayment of LIBOR Loans made pursuant to a single Borrowing shall reduce the
outstanding LIBOR Loans made pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount for LIBOR Loans and (iii) any prepayment of LIBOR Loans pursuant to this
Section 5.1 on any day other than the last day of an Interest Period applicable
thereto shall be subject to compliance by the Borrower with the applicable provisions of
Section 2.11. Each prepayment in respect of any Term Loans pursuant to this
Section 5.1 shall be (1) applied to Term Loans in such manner as the Borrower may
determine and (2) applied to reduce Repayment Amounts, and/or any New Term Loan Repayment
Amounts, as the case may be, in such order as the Borrower may determine. At the Borrower’s
election in connection with any prepayment pursuant to this Section 5.1, such
prepayment shall not be applied to any Term Loan of a Defaulting Lender.
(b) In the event that all but not less than all of the Term Loans are repaid prior to the
first anniversary of the Revolving Loan Closing Date with the proceeds of a substantially
concurrent issuance or incurrence of new bank loans which (i) are incurred solely for the
purpose of refinancing the Term Loans and decreasing the Applicable ABR Margin and/or
Applicable LIBOR Margin with respect thereto, (ii) otherwise have terms and conditions (and
are in an aggregate principal amount) substantially the same as those of the Term Loans as in
effect prior to the prepayment thereof and (iii) are not otherwise in connection with an
initial public offering by the Borrower, any of its Subsidiaries or any direct or indirect
parent thereof, such prepayment will be accompanied by a premium equal to 1.00% of the
aggregate principal amount of such prepayment.”
F. Section 5.2(a)(ii) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(ii) Not later than the date that is ninety days after the last day of any fiscal
year (commencing with and including the fiscal year ending December 31, 2007), the
Borrower shall prepay, in accordance with paragraph (c) below, the principal of Term
Loans in an amount equal to (x) 50% of Excess Cash Flow for such fiscal year,
provided that (A) the percentage in this Section 5.2(a)(ii)
shall be reduced to 25% if the Borrower’s ratio of Consolidated Total Debt on the
date of prepayment (prior to giving effect thereto) to Consolidated EBITDA for the
most recent Test Period ended prior to such prepayment date is no greater than 2.50
to 1.00 but greater than 2.00 to 1.00 and (B) no payment of any Term Loans shall be
required under this Section 5.2(a)(ii) if the Borrower’s ratio of
Consolidated Total Debt on
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the date of prepayment (prior to giving effect thereto) to Consolidated EBITDA for
the most recent Test Period ended prior to such prepayment date is no greater than
2.00 to 1.00), minus (y) the principal amount of Term Loans voluntarily prepaid
pursuant to Section 5.1 during such fiscal year.
G. Section 9.1(a) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(a) Annual Financial Statements. As soon as available and in any event on
or before the date on which such financial statements are required to be filed with
the SEC (or, if such financial statements are not required to be filed with the SEC,
on or before the date that is 105 days after the end of each such fiscal year), the
consolidated balance sheet of the Borrower and the Restricted Subsidiaries as at the
end of such fiscal year, and the related consolidated statement of operations and
consolidated statement of cash flows for such fiscal year, setting forth comparative
consolidated figures for the preceding fiscal year, and certified by independent
certified public accountants of recognized national standing whose opinion shall not
be qualified as to the scope of audit or as to the status of the Borrower or any of
the Material Subsidiaries (or group of Subsidiaries that together would constitute a
Material Subsidiary) as a going concern, together in any event with a certificate of
such accounting firm stating that in the course of its regular audit of the business
of the Borrower and the Material Subsidiaries, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm has
obtained no knowledge of any Default or Event of Default relating to Sections
10.9, 10.10 or 10.11 that has occurred and is continuing or, if
in the opinion of such accounting firm such a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof which shall be
certified by a Financial Officer of the Borrower.”
H. Section 9.1(b) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(b) Quarterly Financial Statements. As soon as available and in any event
on or before the date on which such financial statements are required to be filed
with the SEC with respect to each of the first three quarterly accounting periods in
each fiscal year of the Borrower (or, if such financial statements are not required
to be filed with the SEC, on or before the date that is sixty (60) days after the end
of each such quarterly accounting period), the consolidated balance sheet of (i) the
Borrower and the Restricted Subsidiaries and (ii) the Borrower and its Subsidiaries,
in each case as at the end of such quarterly period and the related consolidated
statement of operations for such quarterly accounting period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly period, and the
related consolidated statement of cash flows for the elapsed portion of the fiscal
year ended with the last day of such quarterly period, and setting forth comparative
consolidated figures for the related periods in the prior fiscal year or, in the case
of such consolidated balance sheet, for the last day of the prior fiscal year, all of
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which shall be certified by a Financial Officer of the Borrower, subject to changes
resulting from audit and normal year-end audit adjustments.”
I. Section 9.15 of the Credit Agreement is hereby amended by deleting the first
occurrence of the defined term “Closing Date” and inserting the defined term “Revolving Loan
Closing Date” in its place.
J. Section 10.1(n) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(n) (i) additional Indebtedness and (ii) any refinancing, refunding, renewal
or extension of any Indebtedness specified in subclause (i) above;
provided that the aggregate amount of Indebtedness incurred and
remaining outstanding pursuant to this clause (n) shall not at any time
exceed the greater of (w) $150,000,000 and (x) 5% of Consolidated Total
Assets at the time of the incurrence of such Indebtedness; provided,
however, not more than the greater of (y) $50,000,000 and (z) 1.5% of
Consolidated Total Assets at the time of the incurrence of such Indebtedness
in aggregate principal amount of Indebtedness of the Borrower or any
Subsidiary Guarantor incurred under this clause (n) shall be secured;”
K. Section 10.2(r) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(r) additional Liens so long as the aggregate principal amount of the
obligations so secured does not exceed the greater of (y) $50,000,000 at any
time outstanding and (z) 1.5% of Consolidated Total Asset at the time of the
incurrence of such obligations.”
L. Subsection (i) of Section 10.4(b) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
“(i) with respect to any Disposition pursuant to this clause (b) for a
purchase price in excess of $10,000,000, the Borrower or a Restricted
Subsidiary shall receive not less than 75% of such consideration in the form
of cash or Permitted Investments; provided that for the purposes of
this clause (i):”
M. Subsection (ii) of Section 10.4(c) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
“(ii) with respect to any Disposition pursuant to this clause (c) for a
purchase price in excess of $10,000,000, the Borrower or a Restricted
Subsidiary shall receive not less than 75% of such consideration in the form
of cash or Permitted Investments; provided that for the purposes of
this clause (ii):”
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N. Section 10.5(c) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(c) loans and advances to officers, directors and employees of the Borrower
(or any direct or indirect parent thereof) or any of its Subsidiaries (i) for
reasonable and customary business-related travel, entertainment, relocation
and analogous ordinary business purposes (including employee payroll
advances), (ii) in connection with such Person’s purchase of Stock or Stock
Equivalents of the Borrower (or any direct or indirect parent thereof) to the
extent that the amount of such loans and advances are contributed to the
Borrower in cash and (iii) for purposes not described in the foregoing
clauses (i) and (ii), in an aggregate principal amount outstanding not to
exceed $5,000,000;”
O. Section 10.5(i) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(i) (i) Investments (including Investments in Unrestricted Subsidiaries) and
(ii) Investments in joint ventures or similar entities that do not constitute
Restricted Subsidiaries, in each case, as valued at the fair market value of
such Investment at the time each such Investment is made, in an amount that,
at the time such Investment is made, would not exceed the sum of (x) the
greater of (A) $100,000,000 and (B) 3% of Consolidated Total Assets at the
time of the incurrence of such Investment, plus (y) the Applicable
Amount at such time plus (z) an amount equal to any repayments,
interest, returns, profits, distributions, income and similar amounts
actually received in cash in respect of any such Investment (which amount
shall not exceed the amount of such Investment valued at the fair market
value of such Investment at the time such Investment was made),”
P. Section 10.5(s) of the Credit Agreement is hereby amended by deleting “; and” at
the end of such subsection and inserting “;” in its place.
Q. Section 10.5(t) of the Credit Agreement is hereby amended by deleting “.” at the
end of such subsection and inserting “; and” in its place.
R. A new Section 10.5(u) is hereby added to the Credit Agreement to read as follows:
“(u) Investments with respect to the purchase of the outstanding Stock and Stock
Equivalents of Red Man Pipe and Supply Canada, Ltd. in accordance with the exercise
of the CanHCO Call Right (as defined in the Red Man Acquisition Agreement) so long as
no Default or Event of Default exists or would exist after giving effect thereto.”
S. Section 10.6(d)(ii) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
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“(ii) the proceeds of which shall be used to allow any direct or indirect
parent of Borrower to pay (A) its operating expenses incurred in the ordinary
course of business and other corporate overhead costs and expenses (including
administrative, legal, accounting and similar expenses provided by third
parties), which are reasonable and customary and incurred in the ordinary
course of business, in an aggregate amount not to exceed $2,000,000 in any
fiscal year of the Borrower plus any reasonable and customary indemnification
claims made by directors or officers of the Borrower (or any parent thereof)
attributable to the ownership or operations of the Borrower and its
Subsidiaries or (B) fees and expenses otherwise (x) due and payable by the
Borrower or any of its Subsidiaries and (y) permitted to be paid by the
Borrower or such Subsidiary under this Agreement;”
T. Section 10.6(d)(iv) of the Credit Agreement is hereby amended by deleting “; and”
at the end of such subsection and inserting “;” in its place
U. Section 10.6(d)(v) of the Credit Agreement is hereby amended by deleting “.” at
the end of such subsection and inserting “; and” in its place.
V. A new Section 10.6(d)(vi) is hereby added to the Credit Agreement to read as
follows:
“(vi) in an amount not to exceed the amount necessary to effect the Investment
described in Section 10.5(u).”
W. Section 10.9 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“The Borrower will not permit the Consolidated Total Debt to Consolidated EBITDA
Ratio for any Test Period ending during any period set forth below to be greater than
the ratio set forth below opposite such period:
| Period | Ratio | |||
March 31, 2007 |
5.75:1.00 | |||
June 30, 2007 |
5.75:1.00 | |||
September 30, 2007 |
5.75:1.00 | |||
December 31, 2007 |
4.25:1.00 | |||
March 31, 2008 |
4.25:1.00 | |||
June 30, 2008 |
4.25:1.00 | |||
September 30, 2008 |
4.25:1.00 | |||
December 31, 2008 |
4.25:1.00 | |||
March 31, 2009 |
3.50:1.00 | |||
June 30, 2009 |
3.50:1.00 | |||
September 30, 2009 |
3.50:1.00 | |||
December 31, 2009 |
3.50:1.00 | |||
March 31, 2010 |
2.75:1.00 | |||
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| Period | Ratio | |||
June 30, 2010 |
2.75:1.00 | |||
September 30, 2010 |
2.75:1.00 | |||
December 31, 2010 |
2.75:1.00 | |||
March 31, 2011 |
2.50:1.00 | |||
June 30, 2011 |
2.50:1.00 | |||
September 30, 2011 |
2.50:1.00 | |||
December 31, 2011 |
2.50:1.00 | |||
March 31, 2012 |
2.50:1.00 | |||
June 30, 2012 |
2.50:1.00 | |||
September 30, 2012 |
2.50:1.00 | |||
December 31, 2012 |
2.50:1.00 | |||
March 31, 2013 |
2.50:1.00 | |||
June 30, 2013 |
2.50:1.00 | |||
September 30, 2013 |
2.50:1.00 | |||
December 31, 2013 |
2.50:1.00 | |||
X. Section 10.10 of the Credit Agreement is hereby amended is hereby amended and
restated in its entirety to read as follows:
“The Borrower will not permit the Consolidated EBITDA to Consolidated Interest
Expense Ratio for any Test Period ending during any period set forth below to be less
than the ratio set forth below opposite such period:
| Period | Ratio | |||
March 31, 2007 |
2.00:1.00 | |||
June 30, 2007 |
2.00:1.00 | |||
September 30, 2007 |
2.00:1.00 | |||
December 31, 2007 |
3.00:1.00 | |||
March 31, 2008 |
3.00:1.00 | |||
June 30, 2008 |
3.00:1.00 | |||
September 30, 2008 |
3.00:1.00 | |||
December 31, 2008 |
3.00:1.00 | |||
March 31, 2009 |
3.25:1.00 | |||
June 30, 2009 |
3.25:1.00 | |||
September 30, 2009 |
3.25:1.00 | |||
December 31, 2009 |
3.25:1.00 | |||
March 31, 2010 |
3.25:1.00 | |||
June 30, 2010 |
3.25:1.00 | |||
September 30, 2010 |
3.25:1.00 | |||
December 31, 2010 |
3.25:1.00 | |||
March 31, 2011 |
3.25:1.00 | |||
June 30, 2011 |
3.25:1.00 | |||
September 30, 2011 |
3.25:1.00 | |||
December 31, 2011 |
3.25:1.00 | |||
March 31, 2012 |
3.50:1.00 | |||
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| Period | Ratio | |||
June 30, 2012 |
3.50:1.00 | |||
September 30, 2012 |
3.50:1.00 | |||
December 31, 2012 |
3.50:1.00 | |||
March 31, 2013 |
3.50:1.00 | |||
June 30, 2013 |
3.50:1.00 | |||
September 30, 2013 |
3.50:1.00 | |||
December 31, 2013 |
3.50:1.00 | |||
Y. Section 10.11 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“The Borrower will not, and will not permit any of its Restricted Subsidiaries
to, make, or be committed to make, Capital Expenditures which in the aggregate in any
Fiscal Year set forth below exceed the amount set forth below for such Fiscal Year:
| Fiscal Year | Amount | |||
2007 |
$ | 18,000,000 | ||
2008 |
$ | 25,000,000 | ||
2009 |
$ | 25,000,000 | ||
2010 |
$ | 25,000,000 | ||
2011 |
$ | 25,000,000 | ||
2012 |
$ | 25,000,000 | ||
The amount of permitted Capital Expenditures set forth above in respect of any Fiscal
Year commencing with Fiscal Year 2008 shall be increased by 100% of the amount of
unused permitted Capital Expenditures for the immediately preceding Fiscal Year (such
amount, a “carry-forward amount”) without giving effect to any carry-forward
amount that was added in such preceding Fiscal Year and assuming any such
carry-forward amount is utilized first.”
Z. Section 14.1 of the Credit Agreement is hereby amended by deleting the
parenthetical “(it being understood that any change to the definitions of Consolidated Total
Debt to Consolidated EBITDA Ratio or Consolidated Fixed Charge Coverage Ratio or in the
component definitions thereof shall not constitute a reduction in the rate and only the
consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to
pay interest at the “default rate” or amend Section 2.8(c))” and inserting “(it being
understood that any change to the definitions of Consolidated Total Debt to Consolidated
EBITDA Ratio, Secured Leverage Ratio or Consolidated Fixed Charge Coverage Ratio or in the
component definitions thereof shall not constitute a reduction in the rate and only the
consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to
pay interest at the “default rate” or amend Section 2.8(c))” in its place.
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SECTION II. AMENDMENT TO EXHIBIT O (FORM OF INTERCREDITOR AGREEMENT) TO CREDIT AGREEMENT
A. Section 1.1 of Exhibit O (Form of Intercreditor Agreement) to the Credit Agreement
is hereby amended by amending the definition of “Cap Amount” therein by deleting the amount
“$330,000,000” and inserting “$715,000,000” in its place.
SECTION III. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the date hereof only upon the satisfaction of all
of the following conditions precedent (the date of satisfaction of such conditions being referred
to herein as the “First Amendment Effective Date”):
A. Execution. Administrative Agent shall have received a counterpart signature page
of this Amendment duly executed by each of the Credit Parties and Required Lenders.
B. Revolving Loan Credit Agreement and Intercreditor Agreement. Administrative Agent
shall have received a fully-executed copy of the Revolving Loan Credit Agreement and the
Intercreditor Agreement as amended hereby.
C. Fees. Administrative Agent shall have received, for the account of each Lender
delivering an executed counterpart of this Amendment to the Administrative Agent, an amendment
fee in an amount equal to 0.25% on such Lender’s Commitment and any other fees and expenses
required to be paid on or before the date hereof.
D. Necessary Consents. Each Credit Party shall have obtained all material consents
necessary or advisable in connection with the transactions contemplated by this Amendment.
E. Other Documents. Administrative Agent and Lenders shall have received such other
documents, information or agreements regarding Credit Parties as Administrative Agent or
Collateral Agent may reasonably request.
SECTION IV. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the Credit Agreement in
the manner provided herein, each Credit Party which is a party hereto represents and warrants to
each Lender that the following statements are true and correct in all material respects:
A. Corporate Power and Authority; Authorization; Binding Obligation. Each Credit
Party has the corporate or other organizational power and authority to execute and deliver
this Amendment and to carry out the terms and provisions of the Credit Agreement as amended by
this Amendment (the “Amended Agreement”) and the other Credit Documents to which it is a party
and has taken all necessary corporate or other organizational action to authorize the
execution and delivery of the Amendment and performance of the Amended Agreement and the other
Credit Documents to which it is a party. Each Credit Party has duly executed and delivered
this Amendment and the
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Amendment and the Amended Agreement constitute the legal, valid and binding obligation of
such Credit Party each enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights
generally and subject to general principles of equity.
B. No Violation. Neither the execution and delivery by any Credit Party of this
Amendment or performance by any Credit Party of the Amended Agreement and the other Credit
Documents to which it is a party will (a) contravene any applicable provision of any material
law, statute, rule, regulation, order, writ, injunction or decree of any court or governmental
instrumentality, (b) result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien upon any of the property or assets of such Credit
Party or any of the Restricted Subsidiaries (other than Liens created under the Credit
Documents) pursuant to, the terms of any material indenture, loan agreement, lease agreement,
mortgage, deed of trust, agreement or other material instrument to which such Credit Party or
any of the Restricted Subsidiaries is a party or by which it or any of its property or assets
is bound or (c) violate any provision of the certificate of incorporation, by-laws or other
constitutional documents of such Credit Party or any of the Restricted Subsidiaries.
C. Governmental Approvals. The execution and delivery of this Amendment and the
performance of the Amended Agreement and the other Credit Documents does not require any
consent or approval of, registration or filing with, or any other action by, any Governmental
Authority, except for (i) such as have been obtained or made and are in full force and effect,
(ii) filings and recordings in respect of the Liens created pursuant to the Security Documents
and (iii) such licenses, approvals, authorizations or consents the failure to obtain or make
could not reasonably be expected to have a Material Adverse Effect.
D. Incorporation of Representations and Warranties From Credit Agreement. The
representations and warranties contained in Section 8 of the Amended Agreement are and will be
true and correct in all material respects on and as of the First Amendment Effective Date to
the same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which case they were
true and correct in all material respects on and as of such earlier date.
E. Absence of Default. No event has occurred and is continuing or will result from
the consummation of the transactions contemplated by this Amendment that would constitute an
Event of Default or a Default.
SECTION V. ACKNOWLEDGMENT AND CONSENT
Each Domestic Subsidiary listed on the signature pages hereto are referred to herein as a
“Credit Support Party” and collectively as the “Credit Support Parties”, and the Credit Documents
to which they are a party are collectively referred to herein as the “Credit Support Documents”.
12
Each Credit Support Party hereby acknowledges that it has reviewed the terms and provisions of
the Credit Agreement and this Amendment and consents to the amendment of the Credit Agreement
effected pursuant to this Amendment. Each Credit Support Party hereby confirms that each Credit
Support Document to which it is a party or otherwise bound and all Collateral encumbered thereby
will continue to guarantee or secure, as the case may be, to the fullest extent possible in
accordance with the Credit Support Documents the payment and performance of all “Obligations” under
each of the Credit Support Documents to which is a party (in each case as such terms are defined in
the applicable Credit Support Document).
Each Credit Support Party acknowledges and agrees that any of the Credit Support Documents to
which it is a party or otherwise bound shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support Party represents and warrants
that all representations and warranties contained in the Amended Agreement and the Credit Support
Documents to which it is a party or otherwise bound are true and correct in all material respects
on and as of the First Amendment Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically relate to an earlier
date, in which case they were true and correct in all material respects on and as of such earlier
date.
Each Credit Support Party acknowledges and agrees that (i) notwithstanding the conditions to
effectiveness set forth in this Amendment, such Credit Support Party is not required by the terms
of the Credit Agreement or any other Credit Support Document to consent to the amendments to the
Credit Agreement effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Credit Support Document shall be deemed to require the consent of such
Credit Support Party to any future amendments to the Credit Agreement.
SECTION VI. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other Credit Documents.
(i) On and after the First Amendment Effective Date, each reference in the
Credit Agreement to “this Amendment”, “hereunder”, “hereof”, “herein” or words of
like import referring to the Credit Agreement, and each reference in the other
Credit Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like
import referring to the Credit Agreement shall mean and be a reference to the Credit
Agreement as amended by this Amendment.
(ii) Except as specifically amended by this Amendment, the Credit Agreement
and the other Credit Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall not
constitute a waiver of any provision of, or operate as a waiver of any right,
13
power or remedy of any Agent or Lender under, the Credit Agreement or any of
the other Credit Documents.
B. Agent’s Direction. The Administrative Agent and Required Lenders hereby
irrevocably authorize and direct the Collateral Agent, in such capacity, to enter into any and
all Security Documents (including, for the avoidance of doubt, the Intercreditor Agreement as
amended hereby).
C. Headings. Section and Subsection headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this Amendment for any
other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
E. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts (including by facsimile or other electronic
transmission), each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument; signature
pages may be detached from multiple separate counterparts and attached to a single counterpart
so that all signature pages are physically attached to the same document.
[Remainder of this page intentionally left blank.]
14
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date above written.
|
XXXXXXXX CORPORATION |
||||
| By: | /s/ X. X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Chief Financial Officer | |||
|
XXXXXXXX APPALACHIAN OILFIELD SUPPLY COMPANY |
||||
| By: | /s/ Xxxxx X. Xxx III | |||
| Name: | Xxxxx X. Xxx III | |||
| Title: | Executive Vice President | |||
| XXXXXXXX NIGERIA LIMITED |
||||
| By: | /s/ X. X. Xxxxxx III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | Vice President | |||
| XXXXXXXX DEVELOPMENT CORPORATION |
||||
| By: | /s/ X. X. Xxxxxx III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | Vice President | |||
| XXXXXXXX-PUERTO RICO CORPORATION |
||||
| By: | /s/ X. X. Xxxxxx III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | President | |||
| XXXXXXXX-XXXX AFRICA CORPORATION |
||||
| By: | /s/ X. X. Xxxxxx III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | President | |||
[Signature Page to First Amendment to Term Loan Credit Agreement]
| XXXXXX OIL & GAS COMPANY |
||||
| By: | /s/ X. X. Xxxxxx III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | President | |||
| GREENBRIER PETROLEUM CORPORATION |
||||
| By: | /s/ X. X. Xxxxxx III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | President | |||
| XXXXXXX REALTY COMPANY |
||||
| By: | /s/ X. X. Xxxxxx III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | President | |||
| MIDWAY-TRISTATE CORPORATION |
||||
| By: | /s/ X. X. Xxxxxx III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | President | |||
| WEST OKLAHOMA PVF COMPANY |
||||
| By: | /s/ X. X. Xxxxxx III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | President | |||
[Signature Page to First Amendment to Term Loan Credit Agreement]
| RED MAN PIPE & SUPPLY CO. |
||||
| By: | /s/ Xxx Xxxxx | |||
| Name: | Xxx Xxxxx | |||
| Title: | Chief Financial Officer | |||
| WESCO ACQUISITION PARTNERS, INC. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Chairman of the Board | |||
[Signature Page to First Amendment to Term Loan Credit Agreement]
| XXXXXX COMMERCIAL PAPER INC., as Administrative Agent, as Collateral Agent and as a Lender |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Authorized Signatory | |||
[Signature Page to First Amendment to Term Loan Credit Agreement]
| XXXXXXX SACHS CREDIT PARTNERS L.P., as Co-Lead Arranger, Joint Bookrunner, Syndication Agent and as a Lender |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Authorized Signatory | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to First Amendment to Term Loan Credit Agreement]
| XXXXXX BROTHERS INC., as Co-Lead Arranger and Joint Bookrunner |
||||
| By: | /s/ X. Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to First Amendment to Term Loan Credit Agreement]
