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EXHIBIT 10.9
HYDRIL COMPANY
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT AND CONSENT
UNDER INTERCREDITOR AGREEMENT
As of June 7, 2000
TO EACH OF THE CURRENT NOTEHOLDERS
NAMED IN ANNEX 1 HERETO:
Ladies and Gentlemen:
HYDRIL COMPANY, a Delaware corporation (hereinafter, the "COMPANY"),
together with its successors and assigns, agrees with you as follows:
1. PRELIMINARY STATEMENTS.
1.1. NOTE ISSUANCE, ETC.
The Company issued and sold $60,000,000 aggregate principal amount of
its 6.85% Senior Secured Notes due June 30, 2003 (as may be amended, restated or
otherwise modified from time to time, the "NOTES") pursuant to a Note Purchase
Agreement dated as of June 25, 1998 (as in effect immediately prior to giving
effect to the Amendments provided for by this Amendment Agreement, the "EXISTING
NOTE AGREEMENT"). The register for the registration and transfer of the Notes
indicates that the Persons named in Annex 1 hereto (collectively, the "CURRENT
NOTEHOLDERS") are currently the holders of the entire outstanding principal
amount of the Notes.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Existing Note Agreement.
3. AMENDMENTS.
Subject to Section 5, the Existing Note Agreement is amended as
provided for by this Amendment No. 1 to Note Purchase Agreement and Consent
under the Intercreditor Agreement (this "AMENDMENT AGREEMENT") in the manner
specified in Exhibit A. The amendments referred to herein are referred to
herein, collectively, as the "AMENDMENTS".
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce you to enter into this Amendment Agreement and to consent to
the Amendments, the Company represents and warrants as follows:
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4.1. ORGANIZATION, POWER AND AUTHORITY, ETC.
The Company is a corporation duly incorporated and validly existing in
good standing under the laws of Delaware and has all requisite corporate power
and authority to enter into and perform its obligations under this Amendment
Agreement.
4.2. LEGAL VALIDITY.
The execution and delivery of this Amendment Agreement by the Company
and compliance by the Company with its obligations hereunder: (a) are within the
corporate powers of the Company; and (b) are legal and do not conflict with,
result in any breach of, constitute a default under, or result in the creation
of any Lien upon any Property of the Company under the provisions of: (i) any
charter instrument or bylaw to which the Company is a party or by which the
Company or any of its Property may be bound; (ii) any order, judgment, decree or
ruling of any court, arbitrator or governmental authority applicable to either
the Company or its Property; or (iii) any agreement or instrument to which the
Company is a party or by which the Company or any of its Property may be bound
or any statute or other rule or regulation of any governmental authority
applicable to the Company or its Property, except where such conflict, breach or
default could not reasonably be expected to have a Material Adverse Effect.
This Amendment Agreement has been duly authorized by all necessary
action on the part of the Company, has been executed and delivered by a duly
authorized officer of the Company, and constitutes a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms, except that
enforceability may be limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws affecting the
enforceability of creditors' rights generally and subject to the availability of
equitable remedies.
4.3. NO DEFAULTS.
No event has occurred and no condition exists that, upon the execution
and delivery of this Amendment Agreement, would constitute a Default or an Event
of Default.
4.4. BANK AMENDMENT.
The Fifth Amendment to Amended and Restated Loan Agreement, dated as of
June 7, 2000, among, inter alia, the Company, certain banks, and Bank One,
Texas, N.A., individually and as agent for such banks, is in full force and
effect and no default or event of default exists under the Bank Agreement, as
amended by such Fifth Amendment.
5. EFFECTIVENESS OF AMENDMENTS.
The Amendments shall become effective on the date (the "EFFECTIVE
DATE") upon which all of the following conditions precedent have been satisfied:
5.1. EXECUTION AND DELIVERY OF THIS AMENDMENT AGREEMENT.
The Company and each of the Holders shall have executed and delivered
this Amendment Agreement.
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5.2. AMENDMENT FEE.
The Company shall have paid to Principal Capital Management, LLC a fee
equal to $10,000.
5.3. FEES AND EXPENSES.
Whether or not the Amendments become effective, the Company will
promptly (and in any event within thirty days of receiving any statement or
invoice therefor) pay all fees, expenses and costs relating to this Amendment
Agreement, including, but not limited to, the reasonable fees of your special
counsel, Xxxxxxx Xxxx LLP, incurred in connection with the preparation,
negotiation and delivery of the Amendment Agreement and any other documents
related thereto. Nothing in this Section shall limit the Company's obligations
pursuant to Section 15.1 of the Existing Note Agreement.
6. CONSENT UNDER INTERCREDITOR AGREEMENT.
The Requisite Noteholders (as defined in the Intercreditor Agreement)
hereby consent, pursuant to Section 6.4 of the Intercreditor Agreement, to an
increase in the line of credit permitted under the Bank Agreement from
$15,000,000 to $25,000,000, such consent to become effective upon receipt by the
Company of not less than $40,000,000 in net proceeds from a public offering of
its common stock consummated at any time after the date hereof.
7. MISCELLANEOUS.
7.1. PART OF EXISTING NOTE AGREEMENT; FUTURE REFERENCES, ETC.
This Amendment Agreement shall be construed in connection with and as a
part of the Existing Note Agreement and, except as expressly amended by this
Amendment Agreement, all terms, conditions and covenants contained in the
Existing Note Agreement are hereby ratified and shall be and remain in full
force and effect. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Amendment Agreement may refer to the Existing Note Agreement without making
specific reference to this Amendment Agreement, but nevertheless all such
references shall include this Amendment Agreement unless the context otherwise
requires.
7.2. COUNTERPARTS.
This Amendment Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
7.3. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK
EXCLUDING
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CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN NEW YORK.
[Remainder of page intentionally left blank; signature page(s) follow(s).]
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If you are in agreement with the foregoing, please so indicate by
signing the acceptance below on the accompanying counterpart of this agreement
and returning it to the Company, whereupon it will become a binding agreement
among you and the Company.
HYDRIL COMPANY
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President and CFO
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By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Treasurer
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[Signature Page to Amendment to Note Purchase Agreement and
Consent Under Intercreditor Agreement]
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The foregoing Amendment Agreement is hereby accepted as of the date
first above written.
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital Management, LLC,
a Delaware limited liability company,
its authorized signatory
By: /s/ XXX X. XXXXX
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Name: Xxx X. Xxxxx
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Title: Counsel
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By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Counsel
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PRINCIPAL LIFE INSURANCE COMPANY,
on behalf of one or more separate accounts
By: Principal Capital Management, LLC,
a Delaware limited liability company,
its authorized signatory
By: /s/ XXX X. XXXXX
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Name: Xxx X. Xxxxx
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Title: Counsel
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By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Counsel
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[Signature Page to Amendment to Note Purchase Agreement and
Consent Under Intercreditor Agreement]
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NIPPON LIFE INSURANCE COMPANY
OF AMERICA, an Iowa corporation,
by its attorney in fact, Principal Life
Insurance Company, an Iowa corporation
By: /s/ XXX X. XXXXX
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Name: Xxx X. Xxxxx
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Title: Counsel
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By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Counsel
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ANNEX 1
CURRENT NOTEHOLDERS
Principal Life Insurance Company
Nippon Life Insurance Company of America
Annex 1-1
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EXHIBIT A
AMENDMENTS
(a) SCHEDULE B, Defined Terms. The definition of "Change in Control"
shall be and is hereby amended and restated in its entirety to read as follows:
"CHANGE IN CONTROL" means an event or series of events by
which (a) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act as in effect on June 7, 2000) or related
persons constituting a "group" (as such term is used in Rule 13d-5
under the Exchange Act as in effect on June 7, 2000), other than the
Initial Stockholder Affiliates, is or becomes or has the absolute,
unconditional right to become the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act as in effect on June 7,
2000), directly or indirectly, of 25% or more of the total voting power
of the Voting Stock of the Company unless at the time in question and
at all relevant times subsequent thereto, the Initial Stockholder
Affiliates are the beneficial owners of a greater percentage of such
total voting power than such "person" or "group"; (b) the Company
consolidates with or merges into another Person or conveys, transfers
or leases all or substantially all of its assets to any Person, or any
Person consolidates with, or merges into, the Company, in a transaction
not otherwise permitted hereunder; (c) the Company conveys, transfers
or leases all or substantially all of its assets to any Person in a
transaction not otherwise permitted hereunder; (d) the stockholders of
the Company approve any plan of liquidation or dissolution of the
Company; or (e) during any period of twelve consecutive months,
individuals who, at the beginning of such period, constituted the board
of directors of the Company (together with any new director whose
election by the Company's board of directors or whose nomination for
election by the Company's stockholders was approved by a vote of at
least a majority of the directors then still in office who either were
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason (other than due to death or disability) to constitute a majority
of the board of directors of the Company then in office.
Exhibit A-1
