Exhibit 10.12a
FIRST AMENDMENT TO FIRST LIEN
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FIRST LIEN
CREDIT AGREEMENT (this “ Amendment ”) is
executed as of the 12th day of September, 2008, by and among
EDGEN MURRAY II, L.P. , a Delaware limited partnership (the
“ Partnership ”) EDGEN MURRAY
CORPORATION , a Nevada corporation (the “ US
Borrower ”), EDGEN MURRAY CAYMAN CORPORATION ,
a Cayman Islands exempted company (the “ Cayman
Borrower ”) and LEHMAN COMMERCIAL PAPER INC. ,
as administrative agent for the Lenders (in such capacity, the
“ Administrative Agent ”).
W I T N E S S E T H:
WHEREAS, the Partnership, the
Borrowers, the Lenders and the Agents, among others, are parties to
that certain First Lien Credit Agreement, dated as of May 11,
2007 (as amended, supplemented and modified from time to time, the
“ Credit Agreement ;” unless otherwise
defined herein, all capitalized terms used herein which are defined
in the Credit Agreement shall have the meanings given such terms in
the Credit Agreement), pursuant to which the Lenders agreed to
provide certain financing to the Borrowers in accordance with the
terms and conditions set forth therein;
WHEREAS, the Partnership and the
Borrowers may desire to effect a restructuring of certain of the
affiliates of the Borrowers whereby, among other things,
(i) one or more entities may be formed (such entities being
referred to collectively as “ Newcos ”
and individually as a “ Newco ”) and
through a series of substantially contemporaneous transactions, all
of the ownership interests in the US Borrower and the Cayman
Borrower may be contributed by the Partnership (and/or its partners
following a distribution of such ownership interests on, or
redemption of, partnership interests) to one or more of the Newcos
(which may in turn contribute it to another Newco and so on) (the
contribution of all of the ownership interests in the US Borrower
and the Cayman Borrower to one or more of the Newcos being referred
to as the “ Contribution ”), (ii) as
a result of the Contribution, (a) one or more of the Newcos
will become the direct or indirect parent holding company(ies) of
the US Borrower and the Cayman Borrower and will hold, directly or
indirectly, all of the Capital Stock in the US Borrower and the
Cayman Borrower (the top most Newco being referred to as “
New Holdco ” and each other Newco being
referred to as an “ Interco ” ),
(b) each Interco will be a direct or indirect wholly-owned
subsidiary of New Holdco, and (c) prior to a Qualified Public
Offering, greater than 50% of the outstanding voting Capital Stock
of New Holdco will be owned, directly or indirectly, by the
Permitted Investors, and (iii) the ownership interests in
Edgen Murray Pte. Ltd., an entity organized under the laws of
Singapore (“ Edgen Singapore ”), and
Edgen Murray FZE, a limited company organized under the laws of the
UAE (“ Edgen Murray FZE ”), may be
dividended or transferred to New Holdco, an Interco or another Loan
Party, subject to the preservation of the Secured Parties’
Lien on the Capital Stock of Edgen Singapore to secure the UK
Obligations ((i) through (iii), collectively, the “
Restructuring ”);
WHEREAS, upon such Contribution, and
subject to compliance with the other terms and conditions of this
Amendment, the Lenders are willing to release the Partnership of
its obligations under the Loan Documents; and
WHEREAS, the Partnership, the
Borrowers and the Lenders desire to amend the Credit Agreement as
set forth herein to permit the Restructuring.
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 confirmed, the
parties hereto hereby agree as follows:
Section 1.
Restructuring . In reliance on the representations,
warranties, covenants and agreements contained in this Amendment,
and subject to satisfaction of the conditions precedent set forth
in Section 3 hereof (the date on which all such
conditions are satisfied, the “ Effective Date
”), the Lenders hereby consent to the Restructuring as
described above and waive any provisions of the Credit Agreement
that otherwise would prohibit any of the steps described above
necessary to effectuate such Restructuring, to the limited extent
necessary to permit such steps to occur. Subsequent to the
Effective Date, all provisions of the Credit Agreement and the
other Loan Documents shall apply as written, except as expressly
amended hereby. For the avoidance of doubt (i) no Default or
Event of Default that may be in existence as of the Effective Date
immediately before giving effect to the Restructuring is waived
hereby and (ii) no provision of the Credit Agreement or any
other Loan Document not prohibiting any of the steps of the
Restructuring is waived hereby.
Section 2. Amendments to the
Credit Agreement . In reliance on the representations,
warranties, covenants and agreements contained in this Amendment,
and subject to the satisfaction of the conditions precedent set
forth in Section 3 hereof, the Credit Agreement shall
be amended in the manner provided in this Section 2 ,
effective as of the Effective Date.
2.1 Amendment to
Preamble . The preamble shall be amended by deleting the
defined term “(“ Holdings ”)” after
the words “EDGEN MURRAY II, L.P., a Delaware limited
partnership” in the second sentence of the
preamble.
2.2 Amendments to Definitional
Provisions in Section 1.1 .
a. Change of Control .
(i) Clause (a) of the definition of “ Change
of Control ” shall be amended and restated in its
entirety to read as follows:
“(a) prior to a Qualified
Public Offering, the Permitted Investors shall cease to own,
directly or indirectly, greater than 50.1% of the outstanding
voting Capital Stock of Holdings or the Jefferies Entities shall
cease to own, directly or indirectly, greater than 20% of the
outstanding voting Capital Stock of Holdings;”
(ii) Clause (b) of the
definition of “ Change of Control ” shall
be amended by deleting the term “Qualified IPO” in the
first line thereof and replacing it with the term “Qualified
Public Offering.”
b. Holdings . As used
in the Credit Agreement and the other Loan Documents, for all
periods prior to the Effective Date, the defined term “
Holdings ” shall mean Edgen Murray II, L.P., a
Delaware limited partnership. On and after the Effective Date,
the
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defined term “ Holdings
” shall mean New Holdco, except (i) with respect to
obligations satisfied or representations and warranties made on or
as of the Closing Date, (ii) where used in clause
(iii) of the definition of “Permitted Investors”
and in the definitions of agreements executed on, as of or prior to
the Closing Date and (iii) with respect to Section 2.9 of
the Credit Agreement, with respect to which “Holdings”
means either Edgen Murray II, L.P. or New Holdco.
c. Permitted Issuance
. Clause (v) of the definition of “ Permitted
Issuance ” shall be amended and restated in its
entirety to read as follows:
“(v) the issuance of Capital
Stock by Holdings to the Jefferies Entities or other Persons
holding Capital Stock of Holdings (other than any Jefferies Entity
or other such Person if such Jefferies Entity or other such Person
is acting as a conduit for the substantially concurrent resale of
such Capital Stock in an underwritten public offering), to the
extent the Administrative Agent has received at least 5 Business
Days’ prior written notice of such issuance and such proceeds
are contributed to any Loan Party.”
d. Subsidiary
Guarantor . The definition of “ Subsidiary
Guarantor ” shall be amended and restated in its
entirety to read as follows:
“‘ Subsidiary
Guarantor ’: (a)(i) each Interco and (ii) each
other Subsidiary of Holdings other than, in the case of this clause
(ii), the US Borrower and any Foreign Subsidiary and (b) each
Subsidiary that becomes a Subsidiary Guarantor pursuant to
Section 6.10(e).”
2.3 New Definition .
The following new definition is added to the Credit Agreement in
appropriate alphabetical order:
“‘ Interco
’: Any Subsidiary of Holdings that is also a direct or
indirect parent of the US Borrower or the Cayman
Borrower.”
2.4 Repayment of Loans;
Evidence of Debt . Section 2.8(a) of the Credit
Agreement shall be amended by adding the words “(other than
any Interco)” immediately after the words “or any
Foreign Subsidiary Guarantor” in the last sentence
thereof.
2.5 Additional Collateral,
etc .
a. Notwithstanding any limitations
in the Credit Agreement (including, without limitation, in
Section 6.10 thereof), (i) each Interco shall comply with
all of the provisions of Section 6.10 of the Credit Agreement
applicable to Domestic Subsidiaries and thereafter shall be deemed
to be both a Subsidiary Guarantor and, in the case of any Interco
that is not a Domestic Subsidiary, a Foreign Subsidiary Guarantor
and (ii) any other Foreign Subsidiary (at its option) may
comply with all of the provisions of Section 6.10 of the
Credit Agreement applicable to Domestic Subsidiaries and thereafter
shall be deemed to be both a Subsidiary Guarantor (other than for
purposes of Section 2 of the Credit Agreement) and a Foreign
Subsidiary Guarantor; provided that such Foreign Subsidiary
also complies with the
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provisions of Section 6.10 of the Second
Lien Credit Agreement, so long as the Second Lien Credit Agreement
is in effect.
b. Section 6.10(a) of the
Credit Agreement shall be amended by adding the words “(other
than any Interco)” immediately after the words “any
Foreign Subsidiary” in clauses (w) and
(z) thereof.
c. Section 6.10(c) of the
Credit Agreement shall be amended by adding the words “(other
than any Interco)” immediately after the words “a
Foreign Subsidiary” in clause (x) in the third line
thereof.
d. Section 6.10(e) of the
Credit Agreement shall be amended by adding the words “(other
than any Interco)” in the parenthetical clause in the first
line thereof, immediately after the words “other than a
Foreign Subsidiary”.
e. Section 6.10(f) of the
Credit Agreement shall be amended by adding the words “(other
than any Interco)” immediately after the words “of any
such Foreign Subsidiary” in the thirteenth line
thereof.
2.6 Foreign Guarantor
Limitations . Section 6.17 of the Credit Agreement
shall be amended by adding the words “(other than any
Interco)” immediately after the words “nor any Foreign
Subsidiary” in the second line thereof.
2.7 Limitation on Fundamental
Changes .
a. Section 7.4(b) of the Credit
Agreement shall be amended by adding the words “(other than
any Interco)” immediately after the words “any Foreign
Subsidiary Guarantor” in the first line thereof.
b. Section 7.4(d) of the Credit
Agreement shall be amended by adding the words “(other than
any Interco)” immediately after the words “any Foreign
Subsidiary Guarantor” in the third line thereof.
2.8 Limitation on Disposition
of Property . Section 7.5(d) of the Credit Agreement
shall be amended and restated in its entirety to read as
follows:
“(d) the sale or issuance of
any Subsidiary’s Capital Stock to the US Borrower or any
Subsidiary Guarantor, or the sale or issuance of any Foreign
Subsidiary Guarantor’s Capital Stock (other than any Interco)
to either Borrower or any Guarantor or Foreign Subsidiary
Guarantor; provided that any Interco may also sell or issue
its Capital Stock to Holdings (subject in each case in this
subsection (d) to the preservation of the Lien, if any, of the
Secured Parties on the Capital Stock of such Subsidiary or Foreign
Subsidiary being sold, to secure the Obligations purported to be
secured by such Lien prior to such sale);”
2.9 Limitation on Activities
of Holdings . Section 7.17 of the Credit Agreement
shall be amended and restated in its entirety to read as
follows:
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