Exhibit 10.23
MAVERICK TUBE CORPORATION
NINTH AMENDMENT TO SECURED CREDIT AGREEMENT
Xxxxxx Trust and Savings bank
Chicago, Illinois
Mercantile Bank National Association
(formerly known as Mercantile Bank of St. Louis
National Association)
St. Louis, Missouri
Ladies and Gentlemen:
Reference is hereby made to that certain Secured Credit Agreement
dated as of May 15, 1992, as heretofore amended (the "Credit Agreement") among
the undersigned, Maverick Tube Corporation, a Delaware corporation (the
"Borrower"), you (the "Banks") and Xxxxxx Trust and Savings Bank, as agent for
the Banks (the "Agent"). All defined terms used herein shall have the same
meaning as in the Credit Agreement unless otherwise defined herein.
Concurrently herewith the Borrower is transferring all or substantially
all of its assets and liabilities to Maverick Tube, L.P., a Delaware limited
partnership ("L.P.") in which Maverick Investment Corporation, A Delaware
corporation ("Investment") and a wholly-owned subsidiary of the Borrower, is the
sole limited partner and in which the Borrower is the sole general partner,
having a 95% and 5% equity interest, respectively, therein. In connection with
such transfers the Banks have required the L.P. and Investment guaranty the
payment when due of all of the Borrower's indebtedness, obligations and
liabilities to the Banks. The Borrower, the Agent and the Banks now wish to
amend the Credit Agreement to reflect such transfers and such guaranty by L.P.
and Investment, all on terms and conditions set forth in this Amendment.
Section 1. AMENDMENTS TO CREDIT AGREEMENT.
Upon satisfaction of all of the conditions precedent set forth in
Section 2 hereof, the Credit Agreement shall be
amended as follows:
1.1 Section 4 of the Credit Agreement shall be amended by adding
thereto the following definitions:
""Guarantors" shall mean Maverick Tube L.P., a Delaware
limited partnership, and Maverick Investment Corporation, A Delaware
corporation, and "Guarantor" shall mean any of the Guarantors.
"Subsidiary Guaranty" shall mean the Guaranty Agreement dated
as of October 1, 1997 from the Guarantors to the Banks, as the same may be
supplemented and amended from time to time."
1.2 Section 4.50 of the Credit Agreement shall be amended by adding the
phrase "the Subsidiary Guaranty," after the phrase "the Revolving Notes,"
appearing therein.
1.3 Section 5.9 of the Credit Agreement shall be amended and as
so amended shall be restated in its entirety to read as
follows:
"Section 5.9. Subsidiaries. As of the date hereof, the Borrower's
only Subsidiaries are identified on Exhibit E hereof. Each of said
Subsidiaries is duly organized and validly existing under the laws of
the state or country of its incorporation, has full and adequate cor-
porate power to carry on its business as now conducted, is duly licensed
or qualified to do business in all jurisdictions wherein the nature of its
activities requires such licensing or qualification except when the fail-
ure to be so licensed or qualified would not have material adverse
effect on the condition, financial or otherwise, of such Subsidiary. Each
Guarantor has full right, power and authority to enter into the Subsidiary
Guaranty, to guaranty the payment of the Borrower's indebtedness, obliga-
tions and liabilities to the Agent and the Banks, and to perform each and
all of the matters and things therein provided for; and the Subsidiary
Guaranty does not, nor does the performance or observance by any Guarantor
of any of the matters or things provided for therein, contravene any
provision of law or any charter, partnership agreement or b-law provi-
sion or any covenant, indentures or agreement of or judgment, order or
decree applicable to or affecting any Guarantor or any of their
respective Property."
1.4 Section 5.11 of the Credit Agreement shall be amended and as so
amended shall be restated in its entirety to read as follows:
"Section 5.11. Enforceability. This Agreement, when executed and
delivered by the Borrower, will be a legal, valid and binding agreement
of the Borrower, enforceable against it in accordance with its terms,
except as may be limited by (i) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws or judicial
decisions for the relief of debtors or the limitation of creditors'
rights generally; and (ii) any equitable principles relating to or
limiting the rights of creditors generally or any equitable remedy
which may be granted to cure any defaults; and the Revolving Notes, the
other Loan Documents to which the Borrower is a party and any other
instrument or agreement required hereunder to which the Borrower is a
party has been so authorized and, when executed and delivered, will be
similarly valid, binding and enforceable against the Borrower, except
as may be limited by (i) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws or judicial
decisions for the relief of debtors or the limitation of creditors'
rights generally; and (ii) any equitable principles relating to or
limiting the rights of creditors generally or any equitable remedy
which may be granted to cure any defaults; and the Subsidiary Guaranty,
when executed and delivered by each Guarantor, will be a legal, valid
and binding agreement of such Guarantor, enforceable against it in
accordance with its terms, except as may be limited by (i) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws or judicial decisions for the relief of debtors or the
limitation of creditors' rights generally; and (ii) any equitable
principles relating to or limiting the rights of creditors generally or
any equitable remedy which may be granted to cure any defaults.
1.5 Section 7.15 of the Credit Agreement shall be amended by deleting
the word "and" appearing after the semi-colon at the end of subsection (i)
thereof, by replacing the period appearing at the end of subsection (j) thereof
with the phrase "; and" and by adding thereto the following provision as
subsection (k) thereof:
"(k) indebtedness of the Guarantors to the Borrower and indebted-
ness of the Guarantors to the Agent and the Banks under the Subsidiary
Guaranty."
1.6 Section 7.16 of the Credit Agreement shall be amended by deleting
the word "and" appearing after the semi-colon at the end of subsection (g)
thereof, by replacing the period appearing at the end of subsection (h) thereof
with the phrase "; and" and by adding thereto the following provision as
subsection (i) thereof:
"(i) investments in and loans and advances to the Guarantors."
1.7 Section 7.17 of the Credit Agreement shall be amended by deleting
the word "and" appearing after the semi-colon at the end of subsection (a)
thereof, by replacing the period appearing at the end of subsection (b) thereof
with the phrase "; and" and by adding thereto the following provision as
subsection (c) thereof:
"(c) the transfer of all or substantially all of the Borrower's
assets and liabilities to the Guarantors."
1.8 The Credit Agreement shall be amended by adding the following
provision thereto as Section 7.26 thereof:
"Section 7.26. Guarantor Collateral. No later than November 30, 1997,
each Guarantor shall grant to the Agent for the benefit of the Banks a
security interest in its inventory and accounts and related proper-
ties pursuant to security agreements substantially identical to the
Security Agreement and shall take such actions as the Agent
may reasonably request in order to perfect the Agent's security
interests therein."
1.9 Section 8.1 of the Credit Agreement shall be amended by deleting
the word "or" appearing after the semi-colon at the end of subsection (h)
thereof, by replacing the period appearing at the end of subsection (i) thereof
with the phrase "; or" and by adding thereto the following provision as
subsection (j) thereof.:
"(j) Any Guarantor shall breach, repudiate, disavow or purport to
terminate its obligations under the Subsidiary Guaranty or any part
thereof, or the Subsidiary Guaranty or any part thereof shall for any
reason not be the legal, valid and binding obligation of any Guarantor
Subsidiary."
1.10 Exhibit E to the Credit Agreement shall be replaced by Exhibit
E attached to this Amendment.
SECTION 2. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:
2.1 The Borrower, the Agent and the Banks shall have executed this
Amendment (such execution may be in several counterparts and the several parties
hereto may execute on separate counterparts).
2.2 L.P. and Investment shall have executed and delivered to the
Agent for the benefit of the Banks a Guaranty Agreement satisfactory in form
and substance to each of the Banks.
2.3 The Agent for the benefit of the Banks shall have received:
(a) a good standing certificate or certificate of existence for the
Borrower and each Guarantor dated as of the date no earlier than
September 1, 1997, from the office of the Secretary of State of the
states of their respective organization;
(b) copies of the Certificate of Incorporation or Certificate of
Limited Partnership, and all amendments thereto, of each Guarantor,
certified by the office of the Secretary of State of Delaware as of the
date no earlier than September 1, 1997.
(c) copies of the By-Laws or Limited Partnership Agreement, and all
amendments thereto, of each Guarantor certified as true, correct and
complete on the date hereof by the Secretary of each Guarantor;
(d) copies, certified by the Secretary or Assistant Secretary of the
Borrower and each Guarantor, of resolutions regarding the transactions
contemplated by this Amendment, duly adopted by the Board of Directors
of the Borrower an each Guarantor, respectively, and satisfactory in
form and substance to all of the Banks;
(e) an incumbency signature certificate for the Borrower and each
Guarantor satisfactory in form and substance to all of the Banks; and
(f) the favorable written opinions of counsel for the Borrower and the
Guarantors in form and substance satisfactory to each of the Banks and
their respective legal counsel.
2.4 The Borrower shall be in full compliance with all of the terms and
conditions of the Loan Documents and no Event of Default or Potential Default
shall have occurred and be continuing thereunder or shall result after giving
effect to this Amendment.
2.5 Legal matters incident to the execution and delivery of this
Amendment shall be satisfactory to each of the Banks and their legal counsel.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
The Borrower, by its execution of this Amendment, hereby certifies and
warrants the following:
(a) each of the representations and warranties set forth in Section 5
of the Credit Agreement is true and correct as of the date hereof as if
made on the date hereof, except that the representations and warranties
made under Section 5.2 shall be deemed to refer to the most recent
annual report furnished to the Banks by the Borrowers; and
(b) the Borrower is in full compliance with all of the terms and
conditions of the Credit Agreement and no Event of Default or Potential
Default has occurred and is continuing thereunder.
SECTION 4. MISCELLANEOUS.
4.1 The Borrower has heretofore executed and delivered to the Agent the
Security Agreement and the Equipment Security Agreement, and the Borrower hereby
agrees that notwithstanding the execution and delivery hereof, such Security
Agreements shall be and remain in full force and effect and that any rights and
remedies of the Agent thereunder, obligations of the Borrower thereunder and any
liens or security interests created or provided for thereunder shall be and
remain in full force and effect, shall not be affected, impaired or discharged
thereby and shall secure all of its indebtedness, obligations and liabilities to
the Agent and the banks under the Credit Agreement as amended hereby. Nothing
herein contained shall in any manner affect or impair the priority of the liens
and security interests created and provided for by the Security Agreement or the
Equipment Security Agreement as to the indebtedness which would be secured
thereby prior to giving effect hereto.
4.2 Reference to this specific Amendment need not be made in any note,
document, letter, certificate, any security agreement, or any communication
issued or made pursuant to or with respect to the Credit Agreement, any
reference to the Credit Agreement being sufficient to refer to the Credit
Agreement as amended hereby.
4.3 This Amendment may be executed in any number of counterparts, and
by the different parties on different counterparts, all of which taken together
shall constitute one and the same agreement. Any of the parties hereby may
execute this agreement by signing any such counterpart and each of such
counterparts shall for all purposes by deemed to be an original. This agreement
shall be governed by the internal laws of the State of Illinois.
4.4 The Borrower agrees to pay all reasonable costs and expenses,
including without limitation attorneys fees, incurred by the Agent and each of
the Banks in connection with the preparation, negotiation, execution and
delivery of this Amendment and the other documents contemplated hereby.
Upon acceptance hereof by the Agent and the Banks in the manner
hereinafter set forth, this Amendment shall be a contract between us for the
purposes hereinabove set forth.
Dated October 1, 1997.
MAVERICK TUBE CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
Its: President
By: /s/ Xxxxxxx Xxxxxxxxxx
Its: Chief Financial Officer
Accepted and agreed to at Chicago, Illinois, as of the date and year
last above written.
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx X. Xxxxx
Its: Vice President
MERCANTILE BANK NATIONAL
ASSOCIATION
By: /s/ Xxxxx Xxxxxx
Its: Vice President
