Exhibit 10.2
SECOND AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Second Amendment") is executed as of the 2nd day of June, 2003, by and among
Maverick Tube Corporation, a Delaware corporation (the "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 the 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
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 by that certain First Amendment to Amended and Restated Credit Agreement
dated as of February 28, 2003 (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 Second
Amendment); and
WHEREAS, the Company has advised the Administrative Agent and the Lenders
that it intends to issue the CCS Notes in an aggregate amount up to
$120,000,000; and
WHEREAS, the issuance of the CCS Notes is prohibited under the terms of the
Credit Agreement; and
WHEREAS, the Borrowers have requested that the Lenders agree to amend
certain provisions of the Credit Agreement to permit the issuance of the CCS
Notes; and
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 Second Amendment, the Credit
Agreement is hereby amended effective as of the date hereof in the manner
provided in this Section 1.
1.1 Amended Definitions. The definitions of "Change of Control" and
"Financing Documents" contained in Section 1.1 of the Credit Agreement are
hereby amended to read in full as follows:
"Change of Control" shall be deemed to occur at any time when any of the
following occurs: (a) any Unrelated Person or any Unrelated Persons, acting
together, which would constitute a Group together with any Affiliates or Related
Persons thereof (in each case also constituting Unrelated Persons) shall at any
time either (1) Beneficially Own more than 30% of the aggregate voting power of
all classes of Voting Stock of the Company, or (2) succeed in having a
sufficient number of its or their nominees elected to the Board of Directors of
the Company such that such nominees, when added to any existing director
remaining on the Board of Directors of the Company after such election who is an
Affiliate or Related Person of such Person or Group, shall constitute a majority
of the Board of Directors of the Company, (b) the Company ceasing to directly or
indirectly own 100% of the issued and outstanding Equity of each other Credit
Party on a fully diluted basis, or (c) the occurrence of any "Fundamental
Change" as defined in the Description of Notes. As used herein (1) "Beneficially
Own" means "beneficially own" as defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended, or any successor provision thereto; provided,
however, that, for purposes of this definition, a Person shall not be deemed to
Beneficially Own securities tendered pursuant to a tender or exchange offer made
by or on behalf of such Person or any of such Person's Affiliates until such
tendered securities are accepted for purchase or exchange; (2) "Group" means a
"group" for purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended; (3) "Unrelated Person" means at any time any Person other than the
Company; and (4) "Related Person" of any Person means any other Person owning
(A) 10% or more of the outstanding common stock of such Person or (B) 10% or
more of the Voting Stock of such Person.
"Financing Documents" shall mean this Agreement, the First Amendment, the
Second 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.
1.2 Additional Definitions. Section 1.1 of the Credit Agreement is hereby
amended to add thereto in alphabetical order the following defined terms:
"Second Amendment" shall mean the Second Amendment to Amended and Restated
Credit Agreement dated as of June 2, 2003, by and among the Borrowers and the
Lenders.
"CCS Note Documents" shall mean the CCS Notes, the Indenture pursuant to
which the CCS Notes will be issued and each other material document, instrument
or agreement to which the Company or any of its Subsidiaries is or may hereafter
become a party pertaining to the CCS Notes.
"CCS Notes" shall mean Senior Convertible Subordinated Notes proposed to be
issued by the Company in an aggregate amount not exceeding $120,000,000 and
which satisfy each of the following criteria: (a) an interest rate at or below
4.5% and, to the extent applicable, contingent interest up to .25% of the
average trading price of the CCS Notes as provided in the Description of Notes,
(b) a maturity date no earlier than 30 years after date of issuance, (c) no
requirement for amortization, mandatory prepayment, mandatory redemption or
other obligation of the Company to repay, prepay, repurchase or redeem such CCS
Notes prior to the earlier of (i) the occurrence of an event of default which
continues beyond any applicable cure period, (ii) the eighth (8th) anniversary
of the date of issuance, or (iii) the occurrence of any "Fundamental Change" as
defined in the Description of Notes, (d) unsecured, (e) not guaranteed, directly
or indirectly, by any Subsidiary of the Company, (f) contractually subordinated
to the Lender Indebtedness and all other Indebtedness of the Company except as
set forth in the Description of Notes, and (g) otherwise on terms (1) approved
in writing by Administrative Agent, (2) no less favorable to the Company or the
Lenders than those set forth in the Description of Notes, and (3) which do not
conflict with, and are not inconsistent with, those set forth in the Description
of Notes.
"Description of Notes" means the Description of Notes attached as Exhibit A
to the Second Amendment.
1.3 Amendment to Permitted Indebtedness Covenant. Section 7.2 is hereby
amended to delete the "and" at the end of clause (i), to delete the period at
the end of clause (j) thereof, to insert in lieu of such period "; and", and to
add thereto a new clause (k) which shall read in full as follows:
(k) Provided that the CCS Notes are issued on or before [June 30, 2003],
the Indebtedness evidenced by the CCS Notes.
1.4 Designation of "Designated Senior Indebtedness". A new Section 7.25
shall be added to the Credit Agreement which shall read in full as follows:
Section 7.25 Designation of "Designated Senior Indebtedness". Designate any
Indebtedness other than the Lender Indebtedness as "Designated Senior
Indebtedness" (as defined in the Description of Notes) for purposes of the CCS
Note Documents.
SECTION 2. Representations and Warranties. In order to induce each Agent
and each Lender to enter into this Second Amendment, the Borrowers hereby
jointly and severally represent and warrant to each Agent and each Lender that:
2.1 Accuracy of Representations and Warranties. Each 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 warranties are expressly made as of a particular
date, in which event such representations and warranties were true and correct
as of such date).
2.2 Due Authorization, No Conflicts. The execution, delivery and
performance by the Borrowers of this Second Amendment, the Offering Documents
executed in connection herewith, and all other documents, instruments or
agreements executed by any of the Borrowers in connection with this Second
Amendment, are within the 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 the Borrowers or their Subsidiaries, or
result in the creation or imposition of any Lien upon any of the assets of the
Borrowers or their Subsidiaries except for Permitted Liens.
2.3 Validity and Binding Effect. This Second Amendment and all other
documents, instruments or agreements executed by any of the Borrowers in
connection with this Second 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 the 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 the
Lender Indebtedness (or Canadian Lender Indebtedness in the case of Canadian
Borrowers) until the Lender Indebtedness (or Canadian Lender Indebtedness in the
case of Canadian Borrowers) has been paid in full, and agree that the amendments
and modifications herein contained shall in no manner affect or impair the
Lender Indebtedness (or Canadian Lender Indebtedness in the use of Canadian
Borrowers) or the Liens securing payment and performance thereof, all of which
are ratified and confirmed.
3.2 Parties in Interest. All of the terms and provisions of this Second
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
3.3 Counterparts, Effectiveness of Second Amendment. This Second Amendment
may be executed in counterparts, and all parties need not execute the same
counterpart; however, no party shall be bound by this Second Amendment until
this Second Amendment has been executed by each Borrower and the Required
Lenders, at which time this Second 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.
3.4 COMPLETE AGREEMENT. THIS SECOND 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 Second
Amendment are, unless specified otherwise, for convenience only and shall not be
deemed to limit, amplify or modify the terms of this Second Amendment, nor
affect the meaning thereof.
3.6 No Implied Waivers. No failure or delay on the part of the Lenders in
exercising, and no course of dealing with respect to, any right, power or
privilege under this Second 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 Second 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. 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 Second Amendment with their legal
counsel, (b) the Borrowers have reviewed this Second Amendment and fully
understand the effects thereof and all terms and provisions contained herein,
(c) the Borrowers have executed this Second Amendment of their own free will and
volition, and (d) this Second Amendment shall be construed as if jointly drafted
by the Borrowers and the Lenders. The recitals contained in this Second
Amendment shall be construed to be part of the operative terms and provisions of
this Second Amendment. 3.8 Arms-Length/Good Faith. This Second 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. The headings, captions and
arrangements used in this Second Amendment are for convenience only and shall
not affect the interpretation of this Second Amendment.
3.10 Severability. In case any one or more of the provisions contained in
this Second 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 Second Amendment shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
3.11 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 by the Lenders as
necessary or advisable to carry out the intents and purposes of this Second
Amendment.
3.12 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 SECOND 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]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
DATED JUNE 2, 2003
BY AND AMONG
MAVERICK TUBE CORPORATION AND CERTAIN OF
ITS SUBSIDIARIES, AS BORROWERS,
JPMORGAN CHASE BANK, AS THE ADMINISTRATIVE AGENT,
CIT BUSINESS CREDIT CANADA INC., AS THE CANADIAN ADMINISTRATIVE AGENT,
GENERAL ELECTRIC CAPITAL CORPORATION, AS THE DOCUMENTATION AGENT,
AND FINANCIAL INSTITUTIONS PARTIES THERETO, AS THE LENDERS
IN WITNESS WHEREOF, the parties hereto have executed this Second
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/ Xxx Xxxxxx
------------------------------------------
Xxx Xxxxxx
Vice President
GENERAL ELECTRIC CAPITAL CORPORATION, as a
Lender and as the Documentation Agent
By: /s/ Xxxx Xxxxxx
------------------------------------------
Xxxx Xxxxxx
Its Duly Authorized Signatory
GENERAL ELECTRIC CAPITAL CANADA INC., as a
Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Xxxxx Xxxxxx
Vice President Risk
THE CIT GROUP/BUSINESS CREDIT, INC., as a
Lender
By: /s/ Xxxxx Xxxxx
------------------------------------------
Xxxxx Xxxxx
Vice President
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxx
Vice President
FLEET CAPITAL CANADA CORPORATION, as a Lender
By: ------------------------------------------
--------------------------------------
--------------------------------------
FLEET CAPITAL CORPORATION, as a Lender
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------------
Xxxxxx Xxxxxxxxxx
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/ R.G.M. Straghof
------------------------------------------
R.G.M. 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
DESCRIPTION OF NOTES
Exhibit A-1
