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EXHIBIT 4.4
FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of August 8, 1997, is among EVI, INC., a Delaware
corporation formerly known as Energy Ventures, Inc. (the "Company"), the
Subsidiary Guarantors (as defined below), the banks and other financial
institutions listed on the signature pages under the heading "Lenders"
(collectively, the "Lenders"), and THE CHASE MANHATTAN BANK, as agent (in such
capacity, the "Agent") for the Lenders.
PRELIMINARY STATEMENT
(a) The Company, EVI Oil Tools, Inc., a Delaware corporation;
Grant Prideco, Inc., a Delaware corporation ("Grant Prideco"); Prideco
Holdings, Inc., a Delaware corporation; Channelview Real Property, Inc., a
Delaware corporation; EVI Management Inc., a Delaware corporation; EVI Arrow,
Inc., a Delaware corporation; and XXX Xxxxxx Packers, Inc., a Delaware
corporation (collectively, the "Subsidiary Guarantors"), the Lenders and the
Agent entered into an Amended and Restated Credit Agreement dated as of
December 6, 1996 (the "Credit Agreement").
(b) The Company proposes to transfer substantially all of the
business and assets of Grant Prideco into a limited partnership to be formed as
a Wholly Owned Restricted Subsidiary of the Company ("Grant L.P."), of which a
corporation newly formed as a Wholly Owned Restricted Subsidiary of the Company
("Newco") will own some portion of the partner interests and Grant Prideco
and/or one or more other Wholly Owned Restricted Subsidiaries of the Company
will own the remaining partner interests (the transactions described above
being, collectively, the "Grant Prideco Reorganization").
(c) The Company also has requested that Highland/Corod, Inc.
("Highland/Corod"), be permitted to incur up to 50,000,000 Canadian dollars (or
the Dollar equivalent thereof) of
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unsecured indebtedness that would be guaranteed by the Company and the material
subsidiaries of Highland/Corod.
(d) The Company has requested that the Credit Agreement be amended
to permit the increased indebtedness of Highland/Corod and, upon satisfaction
in full of all the "Conditions Subsequent", as defined in the Credit Agreement,
as amended hereby, the Grant Prideco Reorganization.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Company, the Subsidiary Guarantors, the
Lenders and the Agent hereby agree as follows:
SECTION 1. Amendments to Section 1.01 of the Credit Agreement. (a)
The definitions of the terms "Grant Prideco Eligible Inventory," "Highland
Corod," and "Highland Corod_Indebtedness") contained in Section 1.01 of the
Credit Agreement are hereby amended in their entirety to read as follows:
"Grant Prideco Eligible Inventory' means, until consummation
of the Grant Prideco Reorganization in accordance with the terms
hereof, the Eligible Inventory owned by Grant Prideco, and thereafter
means the Eligible Inventory owned by Grant L.P."
"Highland Corod' means Highland/Corod, Inc., a corporation
organized under the laws of the Province of Alberta, Canada."
"Highland Corod Indebtedness' means the unsecured
indebtedness of Highland Corod to one or more lenders in a principal
amount not to exceed 50,000,000 Canadian dollars (or the Dollar
equivalent thereof) at any time outstanding."
(b) Clause (b) of the definition of the term "Permitted
Indebtedness" in Section 1.01 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(b) the Highland Corod Indebtedness and any guarantee
thereof by the Company or any Subsidiary of Highland Corod;".
(c) Section 1.01 of the Credit Agreement is hereby amended by
adding the following defined terms:
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"Conditions Subsequent' means the receipt by the Agent of the
following, each in form and substance reasonably satisfactory to it:
(i) Subsidiary Guarantor Counterparts executed by
(A) Grant L.P. , and (B) to the extent such Person is not
already a Subsidiary Guarantor, each Grant L.P. Partner and
each other Subsidiary of the Company that directly or
indirectly owns Capital Stock of Grant L.P. (the Persons
referred to in this subclause (B), hereinbelow referred to
collectively in this definition as the 'Grant L.P. Owners');
(ii) Subsidiary Guarantors Security Agreements
executed by Grant L. P. and, to the extent such Person is not
already a Subsidiary Guarantor, each Grant L. P. Owner;
(iii) an amendment to the Company Pledge Agreement
executed by the Company pursuant to which the Company pledges
to the Agent the Capital Stock owned by it in (A) Newco, and
(B) to the extent not already pledged, each Grant L.P. Owner;
(iv) a Subsidiary Guarantors Pledge Agreement, or
an amendment to an existing Subsidiary Guarantors Pledge
Agreement, executed by each Grant L.P. Owner pursuant to
which such Grant L.P. Owner pledges to the Agent the Capital
Stock owned by it in (A) Grant L.P., and (B) to the extent not
already pledged, each Grant L.P. Owner (to the extent, in each
case, that such Capital Stock referred to in subclauses (A)
and (B) constitutes a 'security', as defined in Section
8-102(1)(c) of the UCC);
(v) an amendment to each Subsidiary Guarantors
Security Agreement (other than those referred to in clause
(ii) above) executed by each Grant L.P. Owner pursuant to
which such Grant L.P. Owner grants to the Agent a security
interest in the Capital Stock owned by it in (A) Grant L.P.,
and (B) each Grant L.P. Owner (to the extent, in each case,
that such Capital Stock referred to in subclauses (A) and (B)
does not constitute a 'security', as defined in Section
8-102(1)(c) of the UCC;
(The documents referred to in the preceding clauses (i) through (v)
are hereinbelow referred to in this definition as the 'Reorganization
Documents'.)
(vi) letters from CT Corporation System, Inc.,
evidencing the obligation of CT Corporation System, Inc., to
accept service of process in the State of New York on behalf
of Grant L.P. and, to the extent not previously delivered to
the Agent and continuing in full force and effect, each Grant
L.P. Owner;
(vii) a favorable, signed opinion addressed to the
Agent and the Lenders from Fulbright & Xxxxxxxx L.L.P.,
counsel to Newco, the other Grant L.P. Owners and Grant L.P.;
(viii) a certificate of an officer and of the
secretary or an assistant secretary of each Grant L.P. Owner
that is a corporation, or of the general partner (or, if more
than one, the managing general partner) of each Grant L.P.
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Owner that is a partnership and of Grant L.P., in each case
certifying, inter alia, (A) true and complete copies of, as
applicable, the articles or certificate of incorporation, or
partnership agreement, as amended and in effect, of such Person and of
any partnership on behalf of which it is executing any Reorganization
Documents, its bylaws, if any, as amended and in effect, and the
resolutions adopted by the Board of Directors (or a duly authorized
committee thereof) of such Person or of its general partner (or, if
more than one, its managing general partner (1) authorizing the
execution, delivery and performance of the Reorganization Documents to
which such Person is a party, (2) approving the forms of the
Reorganization Documents to which it is a party, (3) authorizing
officers of such Person to execute and deliver such Reorganization
Documents and any related documents, including any agreement
contemplated by this Agreement or the First Amendment, (B) the
incumbency and specimen signatures of the officers of such Person
executing any documents on its behalf and (C)(1) that the
representations and warranties made by such Person in any
Reorganization Document to which such Person is a party and which will
be delivered at or prior to the effective date of the Grant Prideco
Reorganization are true and correct in all material respects, (2) the
absence of any proceedings for the dissolution or liquidation of such
Person and (3) the absence of the occurrence and continuance of any
Default or Event of Default;
(ix) certificates of appropriate public officials as to
the existence, good standing and qualification to do business as a
foreign corporation or limited partnership, as applicable, of each
Grant L.P. Owner, and of Grant L.P., in each jurisdiction in which
the ownership of its properties or the conduct of its business
requires such qualifications and where the failure to so qualify
would, individually or collectively, have a Material Adverse Effect;
(x) If and to the extent then certificated, certificates
evidencing all of the shares of Capital Stock required to be pledged
pursuant to any Reorganization Document, or any Loan Document amended
by a Reorganization Document (which, together with the Capital Stock,
if any, referred to in clause (v) above, shall constitute 100% of the
shares of issued and outstanding Capital Stock of all Grant L.P.
Owners and of Grant L.P.), together with related stock powers executed
in blank by the owner thereof.
(xi) Uniform Commercial Code financing statements, or
proper notices, statements or other instruments in respect thereof, in
a form and completed to permit them to be duly recorded, published,
registered and filed in all such places as is required by applicable
law to grant to the Agent a first priority security interest in the
Collateral pledged pursuant to the Reorganization Documents, subject
only to Permitted Collateral Liens.
(xii) Reports of Uniform Commercial Code searches, tax
searches and judgment reports of the appropriate records of each state
in which each Grant L.P. Owner or Grant L.P. has assets or an office,
dated as of a then recent date; and
(xiii) Such other documents and instruments, if any, as the
Agent may reasonably request."
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"'First Amendment' means the First Amendment to Amended and
Restated Credit Agreement, dated as of August 8, 1997, among the
Company, the then existing Subsidiary Guarantors, the Lenders and the
Agent."
"'Grant L.P.' means a limited partnership to be formed by the
Company and to constitute a Wholly-Owned Restricted Subsidiary of the
Company."
"'Grant L.P. Partners' means each of (i) Newco, (ii) Grant
Prideco if it shall own any general partner or limited partner
interests in Grant L.P., and (iii) each other owner of any partner
interests in Grant L.P."
"'Newco' means a Wholly-Owned Restricted Subsidiary of the
Company to be formed by the Company to own certain of the partner
interests in Grant L.P."
"'Grant Prideco Reorganization' means collectively (i) the
creation by the Company of Newco, (ii) the creation of Grant L.P.,
(iii) the issuance by Grant L.P. of all its general partner and
limited partner interests to Grant L.P. Partners, each of which is a
Wholly-Owned Restricted Subsidiary of the Company (and to no other
Persons), and (iv) the transfer by Grant Prideco of all of its
operating assets and liabilities to Grant L.P. other than assets or
contracts which by their terms would be adversely affected if Grant
Prideco did not retain them."
(d) Clause (a) of the definition of the term "Permitted Liens" is
hereby amended in its entirety to read as follows:
"Liens existing on the Execution Date and listed on Schedule 1.01B;".
SECTION 2. Amendments to Article VI of the Credit Agreement. (a)
Section 6.01 of the Credit Agreement is hereby amended by adding the phrase "or
partnership" after the word "corporation" in clause (a) of that Section.
(b) Section 6.02 of the Credit Agreement is hereby amended by
adding the phrase "or partnership" after the word "corporate" in the first
sentence of that Section.
SECTION 3. Amendment to Section 8.10 of the Credit Agreement. The
first sentence of Section 8.10 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, conduct any business or enter
into, renew, extend or permit to exist any transaction including the
purchase, sale, lease or exchange of any assets or the rendering of
any service or series of related transactions with any Affiliate of
the Company or any holder of 5% or more of the Company's Capital Stock
(other than a Wholly Owned Restricted Subsidiary or employee benefit
plan or plan trust) (an "Affiliate Transaction") on terms that are
less favorable to the Company or such Restricted Subsidiary, as the
case may be, than would be available in a comparable arm's length
transaction with a Person who is not an Affiliate or 5% stockholder of
the
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Company or such Restricted Subsidiary, except for (i) a sale to
Alberta of the capital stock of Alberta, (ii) transfers of assets and
licenses of technology permitted under Section 8.02 (d)(iv)(A) or (B),
and (iii) upon satisfaction in full of all the Conditions Subsequent,
the Grant Prideco Reorganization."
SECTION 4. Conditions to Effectiveness. This Amendment shall become
effective when, and only when, the following conditions have been fulfilled:
(a) the Company, the Subsidiary Guarantors and the Majority
Lenders shall have executed a counterpart of this Amendment;
(b) the Agent shall have executed a counterpart of this Amendment
and shall have received counterparts of this Amendment executed by the Company,
the Subsidiary Guarantors and the Majority Lenders;
(c) the Agent shall have received a favorable, signed opinion
addressed to the Agent and the Lenders from Fulbright & Xxxxxxxx L.L.P.,
counsel to the Company; and
(d) the Company shall have delivered to the Agent such other
documents and instruments, if any, as it may reasonably request.
SECTION 5. Representations and Warranties True; No Default or Event
of Default. The Company and the Subsidiary Guarantors hereby represent and
warrant to the Agent and the Lenders that after giving effect to the execution
and delivery of this Amendment (a) the representations and warranties set forth
in the Credit Agreement are true and correct on the date hereof as though made
on and as of such date except for any such representations and warranties as
are by their terms limited to a specific earlier date (in which case such
representations and warranties shall have been true and correct on and as of
such earlier date), and (b) no Default or Event of Default has occurred and is
continuing.
SECTION 6. Reference to the Credit Agreement and Effect on the Notes.
(a) Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement," "hereunder," "herein" or words of
like import shall mean and be a reference to the Credit Agreement, as amended
and affected hereby.
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(b) Upon the effectiveness of this Amendment, each reference in
the Notes and the other Loan Documents to "the Credit Agreement" shall mean and
be a reference to the Credit Agreement, as amended and affected hereby.
(c) Upon the effectiveness of this Amendment, each reference in
the Credit Agreement, the Notes and the other Loan Documents to the "Grant
Prideco Eligible Inventory," "Highland Corod" and "Highland Corod Indebtedness"
shall mean and be a reference to such terms as modified pursuant to Section 1.
(d) The Credit Agreement, the Notes, and the other Loan Documents,
as amended and affected hereby, shall remain in full force and effect and are
hereby ratified and confirmed.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
AND APPLICABLE FEDERAL LAW AND SHALL BE BINDING UPON THE COMPANY, THE
SUBSIDIARY GUARANTORS, THE LENDERS AND THE AGENT AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
SECTION 8. Descriptive Headings. The section headings appearing in
this Amendment have been inserted for convenience only and shall be given no
substantive meaning or significance whatever in construing the terms and
provisions of this Amendment.
SECTION 9. FINAL AGREEMENT OF THE PARTIES. THIS AMENDMENT, THE
CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT OF
THE LOAN PARTIES, THE LENDERS AND THE AGENT WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND THEREOF, AND THERE ARE NO PROMISES, UNDERTAKINGS, REPRESENTATIONS OR
WARRANTIES BY THE AGENT OR ANY LENDER RELATIVE TO THE SUBJECT MATTER HEREOF OR
THEREOF NOT EXPRESSLY SET FORTH OR REFERRED TO HEREIN OR IN THE CREDIT
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
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SECTION 10. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
Company:
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EVI, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
Subsidiary Guarantors:
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EVI OIL TOOLS, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
GRANT PRIDECO, INC., a Delaware
corporation and the successor of
a merger of Prideco, Inc., a
Texas corporation, with and
into Grant Prideco, Inc.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
PRIDECO HOLDINGS, INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
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CHANNELVIEW REAL PROPERTY, INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
EVI MANAGEMENT INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
EVI ARROW, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
XXX XXXXXX PACKERS, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
Agent:
THE CHASE MANHATTAN BANK, AS AGENT
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
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Lenders:
THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
ABN AMRO NORTH AMERICA, INC.,
AS AGENT FOR ABN AMRO BANK, N.V.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Sr. Vice President
By: /s/ H. Xxxx Xxxxxx
Name: H. Xxxx Xxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Phillipe Soustra
Name: Phillipe Soustra
Title: Sr. Vice President
HIBERNIA NATIONAL BANK
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Asst. Vice President
XXXXX FARGO BANK (TEXAS), N.A.
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Xxxxx
Name: F.C.H. Xxxxx
Title: Sr. Manager-Loan Operations
BANQUE PARIBAS
By: /s/ Brain Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President & Manager
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