EXHIBIT 10.1
EXECUTION COPY
AMENDMENT NO. 3
TO CREDIT AGREEMENT
THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT, dated as of September 28,
2003 (the "Agreement") relating to the Credit Agreement referenced below, is by
and among WOLVERINE TUBE, INC., a Delaware corporation (the "Company"), its U.S.
and Canadian Subsidiaries identified as Subsidiary Borrowers on the signature
pages hereto and any additional U.S. or Canadian Subsidiaries of the Company
which become parties to the Credit Agreement in accordance with the terms
thereof (collectively referred to as the "Subsidiary Borrowers" and individually
referred to as a "Subsidiary Borrower") (hereinafter, the Company and the
Subsidiary Borrowers are collectively referred to as the "Borrowers" or referred
to individually as a "Borrower"), each of the financial institutions identified
as Lenders on the signature pages hereto (the "Lenders" and each individually, a
"Lender"), WACHOVIA BANK, NATIONAL ASSOCIATION, ("Wachovia"), acting in the
manner and to the extent described in Article XIII of the Credit Agreement (in
such capacity, the "Administrative Agent") and CONGRESS FINANCIAL CORPORATION
(CANADA) acting in the manner and to the extent described in Article XIII of the
Credit Agreement (in such capacity, the "Canadian Agent"). Terms used but not
otherwise defined herein shall have the meanings provided in the Credit
Agreement and the provisions of Sections 1.2, 1.3 and 1.4 of the Credit
Agreement related to the definitions shall apply herein.
W I T N E S S E T H
WHEREAS, a $37,500,000 credit facility has been extended to the
Borrowers pursuant to the terms of that certain Credit Agreement dated as of
March 27, 2002 (as amended, modified or otherwise supplemented from time to
time, the "Credit Agreement") among the Borrowers, the Lenders, the
Administrative Agent and the Canadian Agent;
WHEREAS, the Borrowers anticipate that violations of the minimum Fixed
Charge Coverage Ratio covenant set forth in Section 8.1 of the Credit Agreement
and the minimum Consolidated EBITDA covenant set forth in Section 8.3 of the
Credit Agreement will occur and thus the Borrowers request that the Lenders
agree to amend such covenants pursuant to the terms and conditions herein;
WHEREAS, the Borrowers have requested an increase in the maximum amount
of LOC Obligations permitted under the Credit Agreement; and
WHEREAS, the undersigned Lenders have agreed to amend the Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
(A) AMENDMENTS.
1. Section 1.1 of the Credit Agreement is hereby amended
by adding the following new definition in the appropriate alphabetical order:
"Gross Availability" means at any time the U.S. Borrowing Base
minus the sum of (i) the aggregate amount of Revolving Loans
outstanding plus (ii) the LOC Obligations plus (iii) BA Obligations
plus (iv) reserves imposed by the Agent from time to time in accordance
with Section 2.1(a) hereof.
2. The definition of Excess Availability in Section 1.1
of the Credit Agreement is hereby deleted and replaced with the following:
"Excess Availability" means at any time (a) the lesser of (i)
the aggregate Commitments and (ii) the U.S. Borrowing Base minus (b)
the sum of (i) the aggregate amount of Revolving Loans outstanding plus
(ii) the LOC Obligations plus (iii) BA Obligations plus (iv) reserves
imposed by the Agent from time to time in accordance with Section
2.1(a) hereof.
3. Section 2.2 of the Credit Agreement is hereby amended
by deleting clause (i) of subsection (a) thereof and replacing it with the
following:
(i) the aggregate amount of U.S. LOC Obligations shall
not at any time exceed $10,000,000 (U.S.),
4. Section 8.1 of the Credit Agreement is hereby deleted
in its entirety and replaced with the following:
8.1 FIXED CHARGE COVERAGE RATIO.
The Consolidated Parties shall maintain a Fixed Charge
Coverage Ratio of not less than the following amounts as of the last
day of the indicated fiscal quarter:
Minimum Fixed Charge
Fiscal Quarter Ending Coverage Ration
- --------------------------------------------- --------------------
March 31, 2002 1.00 to 1.0
June 30, 2002 1.00 to 1.0
September 30, 2002 1.00 to 1.0
December 31, 2002 1.00 to 1.0
March 31, 2003 1.10 to 1.0
June 30, 2003 1.10 to 1.0
September 30, 2003 1.05 to 1.0
December 31, 2003 1.05 to 1.0
Each fiscal quarter ending after December 31, 1.10 to 1.0
2003
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; provided, however, to the extent that Excess Availability as of each
of the last 30 days of such fiscal quarter is greater than $20,000,000,
the Fixed Charge Coverage Ratio for such fiscal quarter shall not be
tested.
5. Section 8.3 of the Credit Agreement is amended by
replacing the table therein with the following table:
Minimum Consolidated
Fiscal Quarter Ending EBITDA
- ---------------------------------------------- --------------------
March 31, 2002 $ 7,800,000
June 30, 2002 $21,500,000
September 30, 2002 $34,500,000
December 31, 2002 $45,000,000
March 31, 2003 $40,000,000
June 30, 2003 $40,000,000
September 30, 2003 $27,000,000
December 31, 2003 $27,000,000
Each fiscal quarter ending in fiscal year 2004 $55,000,000
6. Section 8.4 of the Credit Agreement is hereby deleted
in its entirety and replaced with the following:
8.4 MINIMUM AVAILABILITY.
At all times (a) Excess Availability shall be at least
$2,000,000 and (b) Gross Availability shall be at least $10,000,000.
(B) REPRESENTATIONS AND WARRANTIES. Each Credit Party hereby
represents and warrants that (i) the representations and warranties contained in
Article VI of the Credit Agreement are true and correct in all material respects
on and as of the date hereof as though made on and as of such date (except for
those representations and warranties which by their terms relate solely to an
earlier date) and after giving effect to the transactions contemplated herein,
(ii) no Default or Event of Default exists under the Credit Agreement on and as
of the date hereof and after giving effect to the transactions contemplated
herein, (iii) it has the corporate, limited liability company or limited
partnership power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and has taken all necessary organizational
action to authorize the execution, delivery and performance by it of this
Agreement; (iv) it has duly executed and delivered this Agreement, and this
Agreement constitutes its legal, valid and binding obligation enforceable in
accordance with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or other similar laws affecting the rights of creditors
generally or by general principles of equity and (v) neither the execution and
delivery of this Agreement, nor the consummation of the transactions
contemplated therein, nor performance of and compliance with the terms and
provisions thereof will violate or conflict in any material respect with any
material provision of its articles or certificate of incorporation or
certificate of limited partnership or certificate of formation, bylaws,
agreement of limited partnership or limited liability company agreement or
violate, contravene or conflict in any material respect with contractual
provisions of, or cause an event of default under, any indenture,
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including without limitation the 2008 Senior Note Indenture and 2009 Senior Note
Indenture, loan agreement, mortgage, deed of trust, contract or other agreement
or instrument to which it is a party or by which it may be bound.
(C) EFFECTIVENESS. This Agreement shall become effective upon
satisfaction of all of the following conditions precedent:
1. Executed Agreement. The Administrative Agent shall
have received a fully executed counterpart of this Agreement from each
party hereto.
2. Secretary's Certificates. The Administrative Agent
shall have received a secretary's certificates from each Borrower
(except the Canadian Borrowers party to the Credit Agreement prior to
the date hereof) dated as of the date hereof either substantially in
the form required by Section 5.1(d) of the Credit Agreement, mutatis
mutandis, or a bring-down certificate if no change has occurred to the
secretary's certificate since the last delivery thereof to the
Administrative Agent, in accordance with the Credit Agreement, and, in
each case, otherwise in form and substance acceptable to the
Administrative Agent.
3. Payment of Amendment Fee. The Company shall have paid
an amendment fee to the Administrative Agent in connection with this
Agreement in an aggregate amount equal to $10,000 for the account of
each Lender on a pro rata basis according to such Lender's Commitment
Percentage as of the date hereof.
4. Other Conditions Precedent. The Borrowers shall have
completed all proceedings taken in connection with the transactions
contemplated by this Agreement and delivered to the Administrative
Agent all other documentation and other items incident thereto and each
shall be satisfactory to the Administrative Agent and its legal
counsel, Moore & Van Allen PLLC.
(D) NO OTHER MODIFICATION. Except to the extent specifically
provided to the contrary in this Agreement, all terms and conditions of the
Credit Agreement (including Exhibits and Schedules thereto) and the other Credit
Documents shall remain in full force and effect, without modification or
limitation. This Agreement shall not operate as a consent to any other action or
inaction by the Borrowers or any other Credit Party, or as a waiver or amendment
of any right, power, or remedy of any Lender, the Administrative Agent or the
Canadian Agent under the Credit Agreement or any other Credit Document nor
constitute a consent to any such action or inaction, or a waiver or amendment of
any provision contained in the Credit Agreement or any other Credit Document
except as specifically provided herein.
(E) RELEASE. In consideration of entering into this Agreement,
each Credit Party (a) represents and warrants to each Agent and each Lender that
as of the date hereof there are no causes of action, claims, actions,
proceedings, judgments, suits, demands, damages or offsets against or defenses
or counterclaims to its Obligations or Secured Obligations under the Credit
Documents and furthermore, such Credit Party waives any and all such causes of
action, claims, actions, proceedings, judgments, suits, demands, damages,
offsets, defenses or counterclaims
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whether known or unknown, arising prior to the date of this Agreement and (b)
releases each Agent and each Lender and each of their respective Affiliates,
Subsidiaries, officers, employees, representatives, agents, counsel and
directors from any and all actions, causes of action, claims, actions,
proceedings, judgments, suits, demands, damages and liabilities of whatever kind
or nature, in law or in equity, now known or unknown, suspected or unsuspected
to the extent that any of the foregoing arises from any action or failure to act
with respect to any Credit Document, on or prior to the date hereof.
(F) GOVERNING LAW. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of North
Carolina, without regard to the principles governing conflicts of laws thereof.
(G) INCORPORATION BY REFERENCE OF CERTAIN PROVISIONS. THE
PROVISIONS IN SECTIONS 14.5, 14.6, 14.8, 14.9, 14.10, 14.12, 14.13, 14.14,
14.15, 14.19 AND 14.24 OF THE CREDIT AGREEMENT ARE HEREBY INCORPORATED BY
REFERENCE HEREIN, MUTATIS MUTANDIS.
[Remainder of Page Intentionally Left Blank]
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Each of the parties hereto has caused a counterpart of this Agreement
to be duly executed and delivered as of the date first above written.
COMPANY:
WOLVERINE TUBE, INC.
By: /s/ James E. Deason
-----------------------
Name: James E. Deason
Title: Exec. VP, CFO & Secretary
U.S. SUBSIDIARY BORROWERS:
TF INVESTOR, INC.
By: /s/ James E. Deason
-----------------------
Name: James E. Deason
Title: V. P. & Assistant Treasurer
TUBE FORMING HOLDINGS, INC.
By: /s/ James E. Deason
-----------------------
Name: James E. Deason
Title: V.P. & Assistant Treasurer
TUBE FORMING, L.P.
By: Tube Forming Holdings, Inc.,
its General Partner
By: /s/ James E. Deason
-----------------------------
Name: James E. Deason
Title: V.P. & Assistant Treasurer
(signature pages continue)
WOLVERINE FINANCE, LLC
By: Wolverine Tube, Inc.,
its Sole Member
By: /s/ James E. Deason
-----------------------
Name: James E. Deason
Title: Executive V.P., CFO and Secretary
SMALL TUBE MANUFACTURING, LLC
By: Wolverine Tube, Inc.,
its Sole Member
By: /s/ James E. Deason
-----------------------
Name: James E. Deason
Title: Executive V.P., CFO and Secretary
WOLVERINE JOINING TECHNOLOGIES, LLC
By: Wolverine Tube, Inc.,
its Sole Member
By: /s/ James E. Deason
-----------------------
Name: James E. Deason
Title: Executive V.P., CFO and Secretary
(signature pages continue)
WOLVERINE CHINA INVESTMENTS, LLC
By: Wolverine Tube, Inc.,
its Managing Manager
By: /s/ James E. Deason
----------------------------
Name: James E. Deason
Title: Exec. V.P., CFO & Secretary
WT HOLDING COMPANY, INC.
By: /s/ James E. Deason
-----------------------------
Name: James E. Deason
Title: Vice President & Assistant Treasurer
(signature pages continue)
CANADIAN SUBSIDIARY BORROWERS:
3072996 NOVA SCOTIA COMPANY
By: /s/ James E. Deason
-----------------------
Name: James E. Deason
Title: Vice President
WOLVERINE JOINING TECHNOLOGIES
(CANADA) INC.
By: /s/ James E. Deason
-----------------------
Name: James E. Deason
Title: Vice President & Assistant Treasurer
3072452 NOVA SCOTIA COMPANY
By: /s/ James E. Deason
-----------------------
Name: James E. Deason
Title: Vice President
3072453 NOVA SCOTIA COMPANY
By: /s/ James E. Deason
-----------------------
Name: James E. Deason
Title: Vice President
WOLVERINE TUBE CANADA LIMITED PARTNERSHIP
By: 3072453 NOVA SCOTIA COMPANY,
its General Partner
By: /s/ James E. Deason
-----------------------
Name: James E. Deason
Title: Vice President
(signature pages continue)
WOLVERINE TUBE (CANADA) INC.
By: /s/ James E. Deason
-----------------------
Name: James E. Deason
Title: Vice President & Secretary
By: /s/ Johann R. Manning, Jr.
------------------------------
Name: Johann R. Manning, Jr.
Title: Vice President & Assistant Secretary
(signature pages continue)
LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
in its capacity as Administrative Agent and as a
Lender
By: /s/ Laurie D. Galliano
-----------------------------
Name: Laurie D. Galliano
Title: Vice President
(signature pages continue)
CONGRESS FINANCIAL CORPORATION
(CANADA),
in its capacity as Canadian Agent and as a Lender
By: /s/ H. Rosenfeld
-----------------------
Name: H. Rosenfeld
Title: Sr. V.P. Congress Financial
[signature pages end]