EXHIBIT 10.27
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"FOURTH AMENDMENT") is executed as of December 16, 2003, by and among Maverick
Tube Corporation, a Delaware corporation ("COMPANY"), ▇▇▇▇▇▇, ▇.▇., 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 ("MAVERICK GP"), Precision GP, LLC, a Delaware limited
liability company ("PRECISION GP"), Precision Tube Technology, L.P., a Texas
limited partnership ("PRECISION" and collectively with Company, SC Acquisition,
SEAC, C&P, Investment, Tube, Holding, Maverick GP and Precision GP, 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
"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, Borrowers, Agents and 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, that certain Second Amendment to Amended and Restated
Credit Agreement dated as of June 2, 2003, and that certain Third Amendment to
Amended and Restated Credit Agreement dated as of September 19, 2003
(collectively, 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 Fourth Amendment); and
WHEREAS, Borrowers have advised the Administrative Agent and Lenders
that Borrowers intend to complete a corporate restructuring of the Company's
Canadian and Scotish operations and more specifically to effect the following
corporate restructuring transactions (collectively referred to herein as the
"CANADIAN RESTRUCTURE"):
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A. the Company forms International Holdings as a new,
direct, wholly owned Subsidiary that will be a
Delaware corporation;
B. International Holdings forms Maverick ULC as a new,
direct, wholly owned Subsidiary that will be a Nova
Scotia unlimited liability corporation;
C. Maverick ULC forms Canada GP as a new, direct, wholly
owned Subsidiary that will be an Alberta limited
corporation;
D. Canada LP is formed; the sole general partner of
which is Canada GP and the initial limited partner of
which is Maverick ULC;
E. Canada LP forms Prudential Holdings as a new, direct,
wholly owned Subsidiary that will be a Nova Scotia
unlimited liability corporation;
F. the Company contributes the Equity of Exchangeco to
International Holdings in consideration for the
issuance of Equity by International Holdings to the
Company;
G. the Company loans up to the Dollar equivalent of
C$150,000,000 of cash to International Holdings
evidenced by an unsecured demand note in favor of the
Company in the form attached as Exhibit A hereto (the
"COMPANY/HOLDINGS NOTE");
H. International Holdings makes a loan of cash to
Maverick ULC evidenced by an unsecured note in favor
of International Holdings;
I. International Holdings contributes the Equity of
Exchangeco to Maverick ULC in consideration for cash
and Equity issued by Maverick ULC to International
Holdings;
J. International Holdings repays the Company/Holdings
Note in full;
K. Maverick ULC contributes the Equity of Exchangeco to
Canada LP in consideration for a limited partner
interest in Canada LP and then contributes a portion
of such limited partner interest to Canada GP;
L. Canada LP contributes the Equity of Exchangeco to
Prudential Holdings in consideration for the issuance
of unsecured debt evidenced by an unsecured note and
Equity by Prudential Holdings to Canada LP;
M. C&P distributes all of its assets which are located
at, or which are directly related to C&P's Counce,
Tennessee facility to Tube;
N. Investment converts to a limited liability company
("INVESTMENT LLC") and Maverick GP converts to a
limited liability company ("MAVERICK GP LLC");
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O. Tube distributes 95% of the capital stock of C&P to
Investment LLC and 5% of the capital stock of C&P to
GP LLC;
P. Investment LLC and Maverick GP LLC distribute all of
the capital stock of C&P to the Company;
Q. C&P recapitalizes its capital stock to create a class
of preferred stock;
R. C&P issues preferred stock to the Company, and the
Company contributes such preferred stock to
International Holdings in consideration for the
issuance of additional Equity by International
Holdings to the Company;
S. International Holdings contributes a portion of the
preferred stock of C&P to Maverick ULC in
consideration for the issuance of Equity, of Maverick
ULC to International Holdings.
T. Holding converts to a limited liability company
("HOLDING LLC");
U. Holding LLC distributes the Equity of Precision
Canada and Precision Scotland to the Company;
V. the Company contributes the equity of Precision
Canada and Precision Scotland to International
Holdings in consideration of the issuance of Equity
by International Holdings to the Company;
W. International Holdings contributes the Equity of
Precision Canada to Maverick ULC in consideration for
the issuance of Equity by Maverick ULC to
International Holdings;
X. Maverick ULC contributes the Equity of Precision
Canada to Canada LP in consideration for the issuance
of a limited partner interest by Canada LP to
Maverick ULC; and
Y. International Holdings contributes the remaining
portion of the preferred stock of C&P to Maverick ULC
in consideration for the issuance of unsecured debt
evidenced by an unsecured note by Maverick ULC to
International Holdings;
WHEREAS, after giving effect to the Canadian Restructure, the
organizational structure of the Borrowers and Subsidiaries will be as set forth
on Exhibit B hereto (the "POST-CONSUMMATION ORGANIZATIONAL STRUCTURE CHART");
and
WHEREAS, after giving effect to the Canadian Restructure, Borrowers
intend to amalgamate Prudential Holdings, Exchangeco, Tube Canada and Prudential
into a new Canadian corporation (the "AMALGAMATION"), and after giving effect to
the Amalgamation, the corporate structure of the Borrowers and their
Subsidiaries will be as set forth on Exhibit C hereto; and
WHEREAS, Borrowers have advised the Administrative Agent and Lenders
that Borrowers desire (i) to create Maverick de Venezuela, and (ii) to
capitalize Maverick de
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Venezuela with up to $10,000,000 (the preceding clauses (i) and (ii) are
collectively referred to herein as the "VENEZUELAN TRANSACTION"); and
WHEREAS, Maverick de Venezuela will (i) purchase raw steel from an
unrelated Venezuelan manufacturer, (ii) engage Tube to (a) ship the raw steel to
the ▇▇▇▇▇▇▇, Arkansas facility on a tolling basis (with title of the steel (in
its raw form, as work-in-process and in the form of the green tubes produced in
▇▇▇▇▇▇▇) always remaining with Maverick de Venezuela), (b) process the raw steel
into green tubes, and (c) ship the green tubes back to Venezuela, (iii) engage a
third party to convert the green tubes into finished tubes, and (iv) sell the
finished tubes to Petroleos de Venezuela (a.k.a. Pdvsa) and other entities; and
WHEREAS, Borrowers have requested that the limitation on the aggregate
of all Canadian Letter of Credit Liabilities and US Letter of Credit Liabilities
at any one time outstanding be increased from $10,000,000 to $20,000,000; and
WHEREAS, Borrowers have requested that (i) Lenders consent to
consummation of the Canadian Restructure as more fully set forth herein and on
the Post-Consummation Organizational Structure Chart, (ii) Lenders consent to
the Venezuelan Transaction, and (iii) the Credit Agreement be amended as set
forth in this Fourth Amendment; and
WHEREAS, subject to the terms and conditions set forth herein, Lenders
have agreed to 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 Fourth Amendment, and subject to the
satisfaction of each condition precedent contained in Section 3 and Sections 4
and 5, as applicable, of this Fourth Amendment the Credit Agreement shall be
amended effective as of the date hereof in the manner provided in this Section
1.
1.1. AMENDED DEFINITIONS. The definitions of "CANADIAN CREDIT PARTY",
"FINANCING DOCUMENTS", "GP INC.", "GP LLC", "HOLDING" and "US CREDIT PARTY"
contained in Section 1.1 of the Credit Agreement shall be amended to read in
full as follows:
"CANADIAN CREDIT PARTY" shall mean the Canadian Borrowers and
each other Credit Party which is formed or organized under the federal
laws of Canada or under the laws of any province or territory in
Canada; provided, that, for all purposes of this Agreement and the
other Financing Documents, International Holdings shall be deemed to be
a Canadian Credit Party.
"FINANCING DOCUMENTS" shall mean this Agreement, the First
Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Notes, the Security Instruments, the Applications,
Borrowing Requests, Borrowing Base Reports, 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,
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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.
"GP INC." shall, prior to the consummation of the Canadian
Restructure, mean Maverick GP, Inc., a Delaware corporation, and as
result of its conversion to a Delaware limited liability company as
part of the Canadian Restructure, shall thereafter mean Maverick GP.
"GP LLC" shall mean Precision GP.
"HOLDING" shall, prior to the consummation of the Canadian
Restructure, mean Precision Tube Holding Corporation, a Delaware
corporation, and as result of its conversion to a Delaware limited
liability company as part of the Canadian Restructure, shall thereafter
mean Precision Tube Holding, LLC, a Delaware limited liability company,
in each case owned 100% by the Company.
"INVESTMENT" shall, prior to the consummation of the Canadian
Restructure, mean Maverick Investment Corporation, a Delaware
corporation, and as result of its conversion to a Delaware limited
liability company as part of the Canadian Restructure, shall thereafter
mean Maverick Investment, LLC, a Delaware limited liability company, in
each case owned 100% by the Company.
"US CREDIT PARTY" shall mean the US Borrowers and any other
Credit Party which is organized under the laws of any state of the
United States or any political subdivision thereof; provided, that, for
all purposes of this Agreement and the other Financing Documents,
International Holdings shall not be deemed a US Credit Party.
1.2. ADDITIONAL DEFINITIONS. Section 1.1 of the Credit Agreement
shall be amended to add thereto in alphabetical order the following defined
terms:
"CANADA GP" shall mean Maverick Tube Canada GP, Ltd., an
Alberta limited corporation to be owned 100% by Maverick ULC.
"CANADA LP" shall mean Maverick Tube Canada LP, an Alberta
limited partnership to be owned 99% by Maverick ULC and 1% by Canada
GP.
"CANADIAN RESTRUCTURE" has the meaning assigned to such term
in the Fourth Amendment.
"FOURTH AMENDMENT" shall mean the Fourth Amendment to Amended
and Restated Credit Agreement dated as of December 16, 2003, by and
among Borrowers and Lenders.
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"INTERNATIONAL HOLDINGS" shall mean Maverick Tube
International Holdings, Inc., a Delaware corporation to be owned 100%
by the Company.
"INTERNATIONAL HOLDINGS BLOCKED ACCOUNT" shall mean the demand
deposit account established by International Holdings with the
Administrative Agent (a) which International Holdings and the
Administrative Agent jointly designate as the "International Holdings
Blocked Account," (b) into which all cash receipts of International
Holdings from whatever source (including, without limitation, all
currency, checks and drafts representing proceeds of the Collateral)
shall be deposited pursuant to Section 4.9 hereof and pursuant to the
Security Documents, and (c) which are subject to the provisions of
Section 4.9 hereof.
"MAVERICK DE VENEZUELA" shall mean Maverick Tube de Venezuela,
a Venezuelan corporation to be owned 100% by the Company.
"MAVERICK GP" shall mean Maverick GP, LLC, a Delaware limited
liability company and successor by conversion to GP, Inc.
"MAVERICK ULC" shall mean Maverick Tube Canada ULC, a Nova
Scotia unlimited liability corporation to be owned 100% by
International Holdings.
"MAVERICK ULC BLOCKED ACCOUNT" shall mean the demand deposit
account established by Maverick ULC with the Administrative Agent (a)
which Maverick ULC and the Administrative Agent jointly designate as
the "Maverick ULC Blocked Account," (b) into which all cash receipts of
Maverick ULC from whatever source (including, without limitation, all
currency, checks and drafts representing proceeds of the Collateral)
shall be deposited pursuant to Section 4.10 hereof and pursuant to the
Security Documents, and (c) which are subject to the provisions of
Section 4.10 hereof.
"PRECISION GP" shall mean Precision GP, LLC, a Delaware
limited liability company.
"PRUDENTIAL HOLDINGS" shall Prudential Steel Holdings, Ltd., a
Nova Scotia unlimited liability corporation to be owned 100% by Canada
LP.
1.3. AMENDMENT TO LETTER OF CREDIT SUB-LIMIT. Each reference to
"$10,000,000" in clauses (a) and (b) of Section 2.3 of the Credit Agreement is
amended to be "$20,000,000".
1.4. AMENDMENTS TO ARTICLE 4. Article 4 of the Credit Agreement is
hereby amended to add a new Section 4.9 and a new Section 4.10 which shall read
in full as follows:
"Section 4.9 ESTABLISHMENT OF INTERNATIONAL HOLDINGS BLOCKED
ACCOUNT. So long as this Agreement is in effect or any Lender
Indebtedness shall be outstanding, International Holdings acknowledges
and agrees that all funds received by International Holdings from any
source, have been and shall continue to be deposited directly upon
receipt into the International Holdings Blocked Account. Such deposits
shall be made in the exact form received subject only to any necessary
endorsements, if any. International Holdings hereby acknowledges and
agrees (a) it hereby irrevocably instructs the
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Administrative Agent to transfer all amounts received in the
International Holdings Blocked Account (other than the receipt of funds
set forth in recital G of the Fourth Amendment) to the US Blocked
Account not later than one Business Day following the date of receipt
thereof in the International Holdings Blocked Account, (b) except for
the transfer of funds to Maverick ULC provided for in recital H of the
Fourth Amendment, it shall not have any power of withdrawal over the
funds in the International Holdings Blocked Account, (c) that
International Holdings has granted a Lien on and pledged to the
Administrative Agent as additional collateral security for the Lender
Indebtedness, in the International Holdings Blocked Account and all
funds on deposit therein and "control" has been established with
respect to the International Holdings Blocked Account as defined in
Section 9.104 of the UCC, (d) International Holdings may not
unilaterally terminate the International Holdings Blocked Account, and
(e) after the completion of the transfer of funds to Maverick ULC
provided for in recital H of the Fourth Amendment, the International
Holdings Blocked Account and all funds on deposit therein shall be
subject to the absolute dominion and control of the Administrative
Agent. Each of International Holdings and the Administrative Agent
agree that the International Holdings Blocked Account is a "deposit
account" within the meaning of 9-102(a)(29) of the UCC and that for
purposes of Section 9-304 of this UCC, the State of New York shall be
the jurisdiction of the Administrative Agent."
"Section 4.10 ESTABLISHMENT OF MAVERICK ULC BLOCKED ACCOUNT.
So long as this Agreement is in effect or any Lender Indebtedness shall
be outstanding, Maverick ULC acknowledges and agrees that all funds
received by Maverick ULC from any source, have been and shall continue
to be deposited directly upon receipt into the Maverick ULC Blocked
Account. Such deposits shall be made in the exact form received subject
only to any necessary endorsements, if any. Maverick ULC hereby
acknowledges and agrees (a) it hereby irrevocably instructs the
Administrative Agent to transfer all amounts received in the Maverick
ULC Blocked Account to the International Holdings Blocked Account not
later than one Business Day following the date of receipt thereof in
the Maverick ULC Blocked Account, (b) it shall not have any power of
withdrawal over the funds in the Maverick ULC Blocked Account, (c) that
Maverick ULC has granted a Lien on and pledged to the Administrative
Agent as additional collateral security for the Lender Indebtedness, in
the Maverick ULC Blocked Account and all funds on deposit therein and
"control" has been established with respect to the Maverick ULC Blocked
Account as defined in Section 9.104 of the UCC, (d) Maverick ULC may
not unilaterally terminate the Maverick ULC Blocked Account, and (e)
the Maverick ULC Blocked Account and all funds on deposit therein shall
be subject to the absolute dominion and control of the Administrative
Agent. Each of Maverick ULC and the Administrative Agent agree that the
Maverick ULC Blocked Account is a "deposit account" within the meaning
of 9-102(a)(29) of the UCC and that for purposes of Section 9-304 of
this UCC, the State of New York shall be the jurisdiction of the
Administrative Agent."
1.5. AMENDMENT TO MERGERS, SALES, ETC. COVENANT. Section 7.4 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
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"Section 7.4 MERGER, SALES, ETC. Merge into or with or
consolidate or amalgamate with, or permit any other Credit Party to
merge into or with or consolidate or amalgamate with, any other Person,
or sell, lease or otherwise dispose of, or permit any other Credit
Party to sell, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or any part of its
Property to any other Person. Notwithstanding the foregoing limitation
(a) the Credit Parties may sell inventory in the ordinary course of
business, (b) any Credit Party may sell, redeem or trade cash
equivalent investments permitted under Section 7.6 hereof, (c) any US
Borrower (other than SC Acquisition) shall be permitted to consolidate
or merge with any other US Borrower (other than SC Acquisition)
(provided, that, in the case of any merger involving the Company, the
Company shall be the surviving entity), (d) any Canadian Borrower shall
be permitted to consolidate, amalgamate or merge with any other
Canadian Borrower, (e) any Borrower (other than SC Acquisition) shall
be permitted to sell, assign or convey all or any part of its Property
to any US Borrower (other than SC Acquisition), (f) any Canadian
Borrower shall be permitted to sell, assign or convey all or any part
of its Property to any other Canadian Borrower, (g) the Merger
Transactions shall be expressly permitted hereunder, (h) the Borrowers
may sell assets not material to the operations and business of the
Borrowers so long as the aggregate sale price for all assets sold in
any Fiscal Year does not exceed $1,000,000, (i) the US Borrowers may
enter into a Lay Down Real Estate Lease with Stone & ▇▇▇▇▇▇▇
Construction, Inc., a Louisiana corporation for approximately five
acres and certain improvements of the US Borrowers' Longview,
Washington facility, and (j) the Canadian Restructure shall be
expressly permitted hereunder; provided, that, with respect to
transactions described in clauses (c), (d), (e) and (f) of this Section
7.4 (other than the sale of inventory in the ordinary course of
business), Borrowers shall have given the Administrative Agent not less
then ten (10) Business Days prior written notice of such transactions
and Borrowers shall have executed and delivered such documents,
instruments and agreements and taken all such actions as the
Administrative Agent requires with respect to such transaction to fully
evidence, protect and preserve the Liens intended to be granted for the
benefit of the Lenders and the Secured Affiliates pursuant to the
Security Instruments. Upon the termination of the ▇▇▇▇▇ Note, the SC
Collateral Documents and all obligations with respect to the ▇▇▇▇▇ Note
and the Earn Out Obligations, each parenthetical contained in this
Section 7.4 which contains the phrase "other than SC Acquisition" shall
be deleted."
1.6. AMENDMENT TO DIVIDEND COVENANT. Section 7.5 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"Section 7.5 DIVIDENDS, ETC. Declare or pay any dividend on
its Equity, make any payment to purchase, redeem, retire or otherwise
acquire any of its Equity now or hereafter outstanding, return any
capital to its stockholders, partners or members, make any distribution
of its assets, Equity, obligations or securities to its stockholders,
partners or members (an "EQUITY DISTRIBUTION"), except (a) that any
Credit Party may make equity distributions to any US Borrower, (b) C&P
may make equity distributions to Maverick ULC in respect of the
preferred stock of C&P held by Maverick ULC which has been pledged by
Maverick ULC to secure the Lender Indebtedness, provided, that, (i) C&P
may make equity distributions on such preferred stock in cash only to
Maverick ULC and (ii) C&P shall deposit all such cash equity
distributions directly into the Maverick ULC
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Blocked Account (and Maverick ULC hereby irrevocably authorizes and
instructs C&P to make such deposits into the Maverick ULC Blocked
Account), (c) any Canadian Borrower may make equity distributions to
other Canadian Borrowers, provided, that, cash equity distributions by
Maverick ULC shall be deposited into the International Holdings Blocked
Account (and International Holdings hereby irrevocably authorizes and
instructs Maverick ULC to make such deposits into the International
Holdings Blocked Account), (d) the Company may purchase, redeem, retire
or otherwise acquire its outstanding Equity (a "STOCK REPURCHASE") so
long as (1) Excess Availability was not less than $40,000,000 at any
time during the thirty (30) day period ending on the date of such Stock
Repurchase assuming that such Stock Repurchase occurred on the first
day of such period, (2) Excess Availability will be not less than
$40,000,000 immediately after giving effect to such Stock Repurchase,
(3) no Default exists or will exist after giving effect to such Stock
Repurchase, (4) the aggregate amount paid for all such Stock
Repurchases does not exceed $20,000,000 during the period beginning on
March 28, 2002 and running through the term of this Agreement, and (e)
the Company may pay dividends on its outstanding Equity so long as (i)
Excess Availability was not less than $40,000,000 at any time during
the thirty (30) day period ending on the date such dividends are paid
assuming that such dividends were paid in the first day of such period,
(ii) Excess Availability will be not less than $40,000,000 immediately
after giving effect to the payment of such dividends, (iii) no Default
exists or will exist after giving effect to the payment of such
dividend, (iv) the aggregate amount of all dividends paid does not
exceed (1) $5,000,000 in any period of twelve consecutive months, or
(2) $10,000,000 during the term of this Agreement."
1.7. AMENDMENT TO INVESTMENTS COVENANT. Section 7.6 of the Credit
Agreement is hereby amended (a) to amend and restate clause (i) in its entirety
as set forth below, (b) 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 (c) to add thereto a new clause (k) which shall read in full as set
forth below:
"(i) other investments not to exceed an aggregate of
$5,000,000; provided, that, none of the investments made pursuant to
this clause (i) shall be in Maverick de Venezuela;"
"(k) investments, loans or advances in Maverick de
Venezuela not to exceed an aggregate of $10,000,000."
1.8. AMENDMENT TO NEGATIVE COVENANTS WITH RESPECT TO CERTAIN CREDIT
PARTIES. Section 7.23 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"Section 7.23 NEGATIVE COVENANTS WITH RESPECT TO CERTAIN
CREDIT PARTIES. Permit, allow or cause any of Precision International,
Maverick International, Exchangeco, International Holdings, Maverick
ULC, Canada GP, Canada LP, Prudential Holdings, to (a) conduct any
business or operations (other than (1) the payment of equity
distributions to the extent permitted by Section 7.5 hereof, (2)
Exchangeco's exercise of its rights and performance of its existing
obligations under the Precision Purchase
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Documents in connection with the exchange of the exchangeable shares of
Tube Canada, (3) the payment of the debt referenced in clauses H, L and
Y of the recitals to the Fourth Amendment by Maverick ULC and
Prudential Holdings; provided, that, any payments on debt owing to
International Holdings shall be deposited directly into the
International Holdings Blocked Account (and International Holdings
hereby irrevocably authorizes and instructs Maverick ULC to make such
deposits into the International Holdings Blocked Account), (4) the
actions permitted by Section 7.4(d), and (5) the actions necessary to
effect the Canadian Restructure), (b) own, lease, license or otherwise
have the right to use any Property (other than (i) Exchangeco's
ownership of all of the issued and outstanding Equity of Tube Canada,
(ii) International Holdings' ownership of all of the issued and
outstanding Equity of Maverick ULC and Precision Scotland, (iii)
Maverick ULC's ownership of all of the issued and outstanding Equity of
Canada GP, a portion of the issued and outstanding limited partner
interests of Canada LP, and all preferred stock of C&P, (iv) Canada
GP's ownership of all of the issued and outstanding general partner
interests and a portion of the limited partner interests of Canada LP,
(v) Canada LP's ownership of all of the issued and outstanding Equity
of Prudential Holdings and Precision Canada, and (vi) Prudential
Holdings ownership of all of the issued and outstanding Equity of
Exchangeco), (c) incur any liabilities or obligations to any Person
(other then the debt referenced in clauses H, L and Y of the recitals
to the Fourth Amendment), or (d) employ any employees."
SECTION 2. LIMITED CONSENT. Subject to the covenants, terms and conditions set
forth in this Fourth Amendment, in reliance upon the representations and
warranties of Borrowers herein contained, and subject to the satisfaction of
each condition precedent contained in Section 3 and Sections 4 and 5, as
applicable, of this Fourth Amendment, Lenders hereby consent to:
(a) the Canadian Restructure;
(b) the Venezuelan Transaction; and
(c) the sale of the Real Property located in Longview, Washington
and described on Schedule 5.24 of the Credit Agreement (the "LONGVIEW
PROPERTY").
The consents set forth in this Section 2 are expressly limited to the Canadian
Restructure and the Venezuelan Transaction as each is described in the Recitals
hereto.
SECTION 3. CONDITIONS PRECEDENT. The effectiveness of the amendments to the
Credit Agreement contained in Section 1 hereof and the consents contained in
Section 2 hereof are subject to the satisfaction of each of the following
conditions precedent (and to the extent so indicated, subject to the further
conditions precedent set forth in Sections 4 and 5 hereof):
3.1. AMENDMENT FEES. The Borrowers shall have paid to the
Administrative Agent for the benefit of each Lender (for purposes of this
provision only, each Lender and its Related Affiliate, if any, shall be deemed
to consist of a single Lender) which executes and delivers this Amendment on or
before December 26, 2003 an amendment fee in the amount of US$5,000.
3.2. ADDITIONAL FEES AND EXPENSES. The Borrowers shall have paid
all fees and expenses incurred by the Administrative Agent in connection with
the preparation, negotiation
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and execution of this Fourth Amendment, including, without limitation, all fees
and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to the Administrative Agent.
3.3. DOCUMENTATION. The Administrative Agent shall have received
such other documents, instruments and agreements as it (or any Lender acting
through it) may reasonably request, all in form and substance reasonably
satisfactory to the Administrative Agent and the Lenders.
3.4. NO DEFAULTS. No Default or Event of Default shall exist.
SECTION 4. CONDITIONS PRECEDENT TO CANADIAN RESTRUCTURE. The effectiveness of
the amendments to the Credit Agreement contained in Sections 1.1, 1.2, 1.4, 1.5,
1.6 and 1.8 hereof and the consent contained in Section 2(a) hereof are subject
to the satisfaction of each of the following conditions precedent:
4.1. OFFICERS' CERTIFICATES; RESOLUTIONS; ETC. The Borrowers shall
have delivered to the Administrative Agent such certificates of authorized
officers of the Borrowers, certificates of Governmental Authorities, certified
copies of the certificate of incorporation, as amended, of C&P (after giving
effect to the re-capitalization of C&P pursuant to the Canadian Restructure),
certified copies of resolutions of the partners, managers or members, as
applicable of the Borrowers and such other documents, instruments and agreements
as the Administrative Agent shall require to evidence the valid corporate
existence and authority to consummate the Canadian Restructure and the due
authorization, execution and delivery of this Fourth Amendment, any other
documents related to the Canadian Restructure (collectively, the "CANADIAN
RESTRUCTURE DOCUMENTS"), and any other legal maters relating to the Borrowers,
any Subsidiary or the other Financing Documents by the Borrowers, all in a form
and substance satisfactory to the Administrative Agent and its counsel.
4.2. AMENDMENT TO THE GUARANTY AND SECURITY AGREEMENT. The
Administrative Agent shall have received the First Amendment to Guaranty and
Security Agreement, in the form attached as Exhibit D hereto, duly completed and
executed by each US Borrower.
4.3. JOINDER AGREEMENTS. The Administrative Agent shall have
received Borrower Joinder Agreements, in the form attached as Exhibit L to the
Credit Agreement, duly completed and executed by each of the Canada GP, Canada
LP, International Holdings, Maverick ULC and Prudential Holdings (collectively,
the "NEW CANADIAN BORROWERS"), pursuant to which each of the New Canadian
Borrowers shall become a Canadian Borrower under the Credit Agreement, together
with all deliveries required pursuant thereto, including each of the following:
(a) A signature page to each Canadian Revolving Credit
Note held by each Canadian Lender to evidence that each New Canadian Borrower is
a maker of each such Canadian Revolving Credit Note and is jointly and severally
obligated to pay the principal and interest on each such Canadian Revolving
Credit Note in full when due. Each Canadian Lender is hereby authorized to
attach such signature page(s) to each Canadian Revolving Credit Note held by
such Lender;
(b) Certified copies of the resolutions of the Board of
Directors, Members, or Partners, as applicable, of each of the New Canadian
Borrowers dated on or prior to the date of
11
the applicable Borrower Joinder Agreement and approving the Canadian Revolving
Credit Loans, the Canadian Revolving Credit Notes, the applicable Borrower
Joinder Agreement, and all other Financing Documents, if any, to which the New
Canadian Borrower is required to become a party to pursuant to the Credit
Agreement, the applicable Borrower Joinder Agreement, and this Fourth Amendment
and evidencing corporate authorization with respect to such documents;
(c) A certificate of the Secretary or an Assistant
Secretary of each New Canadian Borrower dated as of the date hereof and
certifying (i) the name, title and true signature of each officer of such Person
authorized to execute the applicable Borrower Joinder Agreement and the other
Financing Documents, (ii) the name, title and true signature of each officer of
such Person authorized to provide the certifications required pursuant to the
applicable Borrower Joinder Agreement, and (iii) that attached to the applicable
Borrower Joinder Agreement is a true and complete copy of the certificate of
incorporation or certificate of limited partnership, as applicable, certified by
the appropriate Governmental Authority of the jurisdiction of incorporation,
formation or organization, as applicable, of each New Canadian Borrower and the
bylaws, operating agreement or limited partnership agreement, as applicable, of
such New Canadian Borrower, each as amended to date, recent good standing
certificates and/or certificates of existence for such New Canadian Borrower and
certificates of foreign qualification for such New Canadian Borrower in such
jurisdictions as the Administrative Agent shall require; and
(d) Opinions of each of Gallop, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, as applicable, each as counsel to the New Canadian
Borrowers dated as of the date of each such Borrower Joinder Agreement addressed
to the Agents, the Issuing Banks and the Lenders and covering such matters as
the Agents, the Issuing Banks or the Lenders may reasonably request.
4.4. ASSUMPTION AGREEMENTS TO THE GUARANTY AND SECURITY AGREEMENT.
The Administrative Agent shall have received Assumption Agreements (pursuant to
which each of International Holdings and Maverick ULC, respectively, shall
become an additional grantor under the Guaranty and Security Agreement) duly
completed and executed by each of International Holdings and Maverick ULC
granting to the Administrative Agent a first priority security interest in all
of the personal property, but subject to the express limitations on such grants
set forth in the Guaranty and Security Agreement, of each of International
Holdings and Maverick ULC, respectively, as security for the Lender
Indebtedness.
4.5. ASSUMPTION AGREEMENTS TO THE CANADIAN SECURITY AGREEMENT. The
Administrative Agent shall have received Assumption Agreements (pursuant to
which each of the New Canadian Borrowers, respectively, shall become an
additional grantor under the Canadian Security Agreement) duly completed and
executed by each New Canadian Borrower granting to the Canadian Administrative
Agent a first priority security interest in all of the personal property of each
New Canadian Borrower, respectively, as security for the Canadian Lender
Indebtedness.
12
4.6. CERTIFIED COPY OF CANADIAN RESTRUCTURE DOCUMENTS. The
Administrative Agent shall have received a certified copy of each of the
Canadian Restructure Documents, each of which shall be substantially in form and
substance acceptable to the Administrative Agent.
4.7. INTER-COMPANY NOTES. The Administrative Agent shall have
received the Company/Holdings Note duly executed and completed and the Canadian
Administrative Agent shall have received a duly executed and completed
promissory note with respect to each loan made as part of the Canadian
Restructure, each in form and substance satisfactory to the Administrative Agent
and the Canadian Administrative Agent, along with an executed allonge executed
in blank for each such promissory note and the Company/Holdings Note.
4.8. ACCOUNTS FOR INTER-COMPANY TRANSFERS. All bank accounts into
which any of the funds transferred as part of the Canadian Restructure shall be
held by the Administrative Agent or the Canadian Administrative Agent.
4.9. ESTABLISHMENT OF BLOCKED ACCOUNTS. The Borrowers shall have
established the Maverick ULC Blocked Account and the International Holdings
Blocked Account with the Administrative Agent.
SECTION 5. CONDITIONS PRECEDENT TO VENEZUELAN TRANSACTION. The effectiveness of
the amendment to the Credit Agreement contained in Section 1.7 hereof and the
consent contained in Section 2(b) hereof is subject to the satisfaction of each
of the following conditions precedent:
5.1. ORGANIZATIONAL DOCUMENTS. The Administrative Agent shall have
received (i) a true and complete copy of the organizational documents of
Maverick de Venezuela certified by a Responsible Officer of Maverick de
Venezuela, which organizational documents shall prohibit Maverick de Venezuela
from incurring any Indebtedness other than Indebtedness owed to a Borrower as
permitted under the Credit Agreement as amended hereby, (ii) recent good
standing certificates and/or certificates of existence for Maverick de
Venezuela, and (iii) certificates of foreign qualification for Maverick de
Venezuela in Arkansas and for such other jurisdictions as the Administrative
Agent shall require.
5.2. LETTER AGREEMENT WITH TUBE REGARDING INVENTORY. Maverick de
Venezuela and Tube shall execute and deliver to the Administrative Agent a
letter agreement, in form and substance satisfactory to the Administrative
Agent, pursuant to which (i) Maverick de Venezuela agrees that in the event that
any steel held at the ▇▇▇▇▇▇▇ facility is unidentifiable or whose ownership is
in dispute, that such steel shall be deemed the exclusive property of the
Company, free and clear of any lien or claim by Maverick de Venezuela, and (ii)
Tube agrees to label and/or segregate all steel owned by Maverick de Venezuela
such that it can be clearly identified.
SECTION 6. REPRESENTATIONS AND WARRANTIES. In order to induce each Agent and
each Lender to enter into this Fourth Amendment, Borrowers hereby jointly and
severally represent and warrant to each Agent and each Lender that:
6.1. 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
13
warranties are expressly made as of a particular date, in which event such
representations and warranties were true and correct as of such date).
6.2. DUE AUTHORIZATION, NO CONFLICTS. The execution, delivery and
performance by Borrowers of this Fourth Amendment, and all other documents,
instruments or agreements executed by any of Borrowers in connection with this
Fourth Amendment, are within 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 Borrowers or their Subsidiaries, or result
in the creation or imposition of any Lien upon any of the assets of Borrowers or
their Subsidiaries except for Permitted Liens.
6.3. VALIDITY AND BINDING EFFECT. This Fourth Amendment and all
other documents, instruments or agreements executed by any of Borrowers in
connection with this Fourth 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.
6.4. ABSENCE OF DEFAULTS. Neither a Default nor an Event of Default
has occurred which is continuing.
6.5. NO DEFENSE. No Borrower has any defense to payment,
counterclaim or rights of set-off with respect to Lender Indebtedness on the
date hereof.
6.6. SALE OF LONGVIEW PROPERTY. Promptly upon the consummation of
the sale of the Longview Property, the Borrowers shall inform the Administrative
Agent of the amount of the Net Cash Proceeds from such Disposition, the amount
of the reduction in the US Equipment Component that occurred on the date of such
Disposition, and the amount of the reduction to the US Borrowing Base that
occurred on the date of such Disposition.
SECTION 7. MISCELLANEOUS.
7.1. 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 Lender Indebtedness (or Canadian Lender Indebtedness in the case of
Canadian Borrowers) until 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 Lender Indebtedness (or Canadian Lender Indebtedness in the case of
Canadian Borrowers) or the Liens securing payment and performance thereof, all
of which are ratified and confirmed.
7.2. PARTIES IN INTEREST. All of the terms and provisions of this
Fourth Amendment shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns.
14
7.3. COUNTERPARTS, EFFECTIVENESS OF FOURTH AMENDMENT. This Fourth
Amendment may be executed in counterparts, and all parties need not execute the
same counterpart; however, no party shall be bound by this Fourth Amendment
until this Fourth Amendment has been executed by each Borrower and each Lender,
at which time this Fourth Amendment shall be binding on, enforceable against and
inure to the benefit of Borrowers, each Agent and all Lenders. Facsimiles shall
be effective as originals.
7.4. COMPLETE AGREEMENT. THIS FOURTH 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.
7.5. HEADINGS. The headings, captions and arrangements used in this
Fourth Amendment are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify or modify the terms of this Fourth Amendment,
nor affect the meaning thereof.
7.6. NO IMPLIED WAIVERS. No failure or delay on the part of Lenders
in exercising, and no course of dealing with respect to, any right, power or
privilege under this Fourth 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 Fourth 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.
7.7. REVIEW AND CONSTRUCTION OF DOCUMENTS. Borrowers hereby
acknowledge, and represent and warrant to Lenders, that (a) Borrowers have had
the opportunity to consult with legal counsel of their own choice and have been
afforded an opportunity to review this Fourth Amendment with their legal
counsel, (b) Borrowers have reviewed this Fourth Amendment and fully understand
the effects thereof and all terms and provisions contained herein, (c) Borrowers
have executed this Fourth Amendment of their own free will and volition, and (d)
this Fourth Amendment shall be construed as if jointly drafted by Borrowers and
Lenders. The recitals contained in this Fourth Amendment shall be construed to
be part of the operative terms and provisions of this Fourth Amendment.
7.8. ARMS-LENGTH/GOOD FAITH. This Fourth Amendment has been
negotiated at arms-length and in good faith by the parties hereto.
7.9. 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.
7.10. SEVERABILITY. In case any one or more of the provisions
contained in this Fourth 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 Fourth
Amendment shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
15
7.11. FURTHER ASSURANCES. 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 Lenders as necessary
or advisable to carry out the intents and purposes of this Fourth Amendment.
7.12. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT ALLOWED BY
APPLICABLE LAW, EACH OF BORROWERS, AGENTS, THE ISSUING BANKS AND LENDERS (a)
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO ANY FINANCING DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN;
(b) 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; (c) 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 (d) ACKNOWLEDGE THAT IT
HAS BEEN INDUCED TO ENTER INTO THIS FOURTH 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]
16
IN WITNESS WHEREOF, the parties hereto have executed this Fourth
Amendment as of the day and year first above written.
JPMORGAN CHASE BANK, as a Lender and as
the Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
JPMORGAN CHASE BANK, TORONTO BRANCH, as
a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Vice President
CIT BUSINESS CREDIT CANADA INC., as a
Lender and as the Canadian
Administrative Agent
By: /s/ ▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender and as the Documentation
Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Its Duly Authorized Signatory
GENERAL ELECTRIC CAPITAL CANADA INC.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Signature Page to
Fourth Amendment to Amended and Restated Credit Agreement
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
FLEET CAPITAL CANADA CORPORATION,
as a Lender
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President & General Manager
FLEET CAPITAL CORPORATION, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
RBC CENTURA BANK, as a Lender
By: /s/ E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Name: E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Market Manager/National Division
ROYAL BANK OF CANADA, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇
Title: Account Manager
Signature Page to
Fourth Amendment to Amended and Restated Credit Agreement
CITIZENS BUSINESS CREDIT, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
MAVERICK TUBE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
▇▇▇▇▇▇, ▇.▇.
By: Precision GP, LLC, its general
partner
By: Maverick Tube Corporation,
its sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
SEAC ACQUISITION, LLC
By: Maverick Tube Corporation, its
sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
MAVERICK C&P, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
MAVERICK INVESTMENT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
Signature Page to
Fourth Amendment to Amended and Restated Credit Agreement
MAVERICK TUBE, L.P.
By: Maverick GP, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
PRECISION TUBE HOLDING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
MAVERICK GP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
PRECISION GP, LLC
By: Maverick GP, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
PRECISION TUBE TECHNOLOGY, L.P.
By: Precision GP, LLC, its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
PRUDENTIAL STEEL LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President and Secretary
Signature Page to
Fourth Amendment to Amended and Restated Credit Agreement
MAVERICK TUBE (CANADA) INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President and Secretary
MAVERICK EXCHANGECO (NOVA SCOTIA) ULC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President and Secretary
PRECISION TUBE CANADA LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
President
Signature Page to
Fourth Amendment to Amended and Restated Credit Agreement
EXHIBIT A
FORM OF UNSECURED DEMAND NOTE
PROMISSORY NOTE
December _____, 2003
$______________ St. Louis, Missouri
FOR VALUE RECEIVED, MAVERICK TUBE INTERNATIONAL HOLDINGS, INC., a
Delaware corporation (the "OBLIGOR"), hereby promises to pay to the order of
MAVERICK TUBE CORPORATION, a Delaware corporation (the, "HOLDER"), the principal
sum of [AMOUNT TO BE DETERMINED, BUT THE MAXIMUM WILL BE THE US DOLLAR
EQUIVALENT OF C$150 MILLION]; without interest. The full amount of this Note
shall be payable on demand.
The Obligor shall have the right to prepay the outstanding balance of
this Note in whole or in part at any time or from time to time, without premium
or penalty.
If any payment under this Note shall not be paid at or within the time
provided herein, and this Note shall be placed in the hands of an attorney for
collection, the Obligor promises to pay all fees and expenses of such attorney
and court costs in addition to the full amount due hereon, whether or not
litigation shall be commenced.
This Note is made in the State of Missouri and shall be governed by and
interpreted in accordance with the laws of the State of Missouri. Demand for
payment, presentment, protest, notice of dishonor and notice of acceptance are
hereby waived by all who are or shall become parties of this Note.
IN CONSIDERATION OF THE ABOVE, Obligor has executed and delivered this
Note as of the day and year first above written.
MAVERICK TUBE INTERNATIONAL HOLDINGS,
INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
A-1
EXHIBIT B
POST-CONSUMMATION STRUCTURE
[MAVERICK LOGO]
Organizational Chart By Legal Entity (Post-Consummation Structure)
[ORGANIZATIONAL CHART BY LEGAL ENTITY FLOW CHART]
B-1
EXHIBIT C
POST-AMALGAMATION STRUCTURE
[MAVERICK LOGO]
Organizational Chart By Legal Entity (Post-Consummation Structure)
[ORGANIZATIONAL CHART BY LEGAL ENTITY FLOW CHART]
C-1
EXHIBIT D
FIRST AMENDMENT TO GUARANTY AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO GUARANTY AND SECURITY AGREEMENT (this
"AMENDMENT") is effective as of the ____ day of December, 2003 and executed by
JPMorgan Chase Bank in its capacity as Administrative Agent (as herein defined)
and each party designated as a Grantor on the signature page hereto (the
"GRANTORS").
W I T N E S S E T H:
WHEREAS, JPMorgan Chase Bank as Administrative Agent (in such capacity,
the "ADMINISTRATIVE AGENT"), CIT Business Credit Canada, Inc., as Canadian
Administrative Agent, General Electric Capital Corporation as Documentation
Agent, Maverick Tube Corporation and certain of its subsidiaries as Borrowers,
and certain financial institutions parties thereto as Lenders are parties to
that certain Amended and Restated Credit Agreement, dated as of December 31,
2002 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT") Unless otherwise defined herein, all terms used herein with
their initial letter capitalized shall have the meaning given such terms in the
Credit Agreement, including, to the extent applicable, after giving effect to
this Fourth Amendment; and
WHEREAS, to secure the Lender Indebtedness, the Grantors executed and
delivered to Administrative Agent that certain Guaranty and Security Agreement
dated as of ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ AND SECURITY AGREEMENT"); and
WHEREAS, Borrowers, Agents and Lenders have entered into that certain
Fourth Amendment to Amended and Restated Credit Agreement dated as of the date
hereof (the "FOURTH AMENDMENT"), pursuant to which among other things, the
Credit Agreement will be amended in certain respects and the Lenders will
consent to (i) the Canadian Restructure, and (ii) the Venezuelan Transaction (as
defined in the Fourth Amendment); and
WHEREAS, the Canadian Restructuring and the Venezuelan Transaction will
result in the creation of certain new Subsidiaries and the Equity of certain of
such new Subsidiaries will, subject to limitations set forth in the Guaranty and
Security Agreement as amended by this Amendment, be pledged to secure the Lender
Indebtedness; and
WHEREAS, contemporaneous with the execution and delivery of this
Amendment, International Holdings and Maverick ULC will enter into an Assumption
Agreement pursuant to which International Holdings and Maverick ULC will become
Grantors under and as defined in the Guaranty and Security Agreement; and
WHEREAS, the Lenders have required, as a condition precedent to the
effectiveness of the amendments and consents contained in the Fourth Amendment,
that the Guaranty and Security Agreement be amended as provided for herein.
D-1
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.
1.1. Amended Definition. The definition of "Collateral" contained
in Section 1.1 of the Guaranty and Security Agreement shall be amended to read
in full as follows:
"Collateral" shall have the meaning provided in Section 3;
provided, that, such term shall expressly exclude all Equity of Canada
LP and Precision Scotland"
1.2. Amendment to Guaranty. A new Section 2.6 shall be added to the
Guaranty and Security Agreement which shall read in full as follows:
"2.6 Grantors Excluded as Guarantors. Solely for purposes of
Sections 2.1, 2.2, 2.3, 2.4 and 2.5 hereof, the term "Grantors" shall
be deemed to exclude any Grantors that are also Canadian Borrowers."
1.3. Amendment to Grant of Security Interest. The second paragraph
of Section 3 of the Guaranty and Security Agreement shall be amended and
restated in its entirety to read as follows:
"Notwithstanding the foregoing, to the extent any Equity was
issued by a International Holdings or an Issuer organized under the
laws of any jurisdiction other than the United States of America, a
State thereof, or the District of Columbia (a "Foreign Issuer"), and to
the extent this security interest secures Lender Indebtedness or a
guarantee of Canadian Lender Indebtedness which is not Canadian Lender
Indebtedness such security interest in Equity shall be limited to all
non voting Equity and sixty five percent (65%) of the issued and
outstanding voting Equity of any Issuer. The foregoing limitation shall
not be applicable to the security interest in Equity issued by a
Foreign Issuer to the extent the security interest secures Canadian
Lender Indebtedness or a guarantee of Canadian Lender Indebtedness.
SECTION 2. Miscellaneous.
2.1. Reaffirmation of Financing Documents; Extension of Liens. Any
and all of the terms and provisions of the Guaranty and Security Agreement and
the Financing Documents shall, except as amended and modified hereby, remain in
full force and effect. Each party executing this Amendment hereby extends the
Liens granted by it to secure the Lender Indebtedness until the Lender
Indebtedness has been paid in full, and agrees that the amendments and
modifications herein contained shall in no manner affect or impair the Lender
Indebtedness or the Liens securing payment and performance thereof.
2.2 Headings. The headings, captions and arrangements used in this
Amendment are, unless specified otherwise, for convenience only and shall not be
deemed to limit, amplify or modify the terms of this Amendment, nor affect the
meaning thereof.
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2.3 Financing Document. This Amendment is a Financing Document and
is subject to all provisions of the Credit Agreement applicable to Financing
Document.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective Responsible Officers on the date and year
first above written.
ADMINISTRATIVE AGENT: JPMORGAN CHASE BANK,
as a Lender and as the Administrative
Agent
By:/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
GRANTORS: MAVERICK TUBE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
▇▇▇▇▇▇, ▇.▇.
By: Precision GP, LLC, its general
partner
By: Maverick Tube Corporation,
its sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
SEAC ACQUISITION, LLC
By: Maverick Tube Corporation, its
sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
MAVERICK C&P, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
MAVERICK INVESTMENT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
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MAVERICK TUBE, L.P.
By: Maverick GP, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
PRECISION TUBE HOLDING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
MAVERICK GP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
PRECISION GP, LLC
By: Maverick GP, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
PRECISION TUBE TECHNOLOGY, L.P.
By: Precision GP, LLC, its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
D-6