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EXHIBIT 10.1
WOLVERINE TUBE, INC.
WOLVERINE TUBE (CANADA) INC.
FIRST AMENDMENT AND LIMITED WAIVER
TO CREDIT AGREEMENT
This FIRST AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT (this
"AMENDMENT") is dated as of June 26, 1998 and entered into by and among,
WOLVERINE TUBE INC., a Delaware corporation ("COMPANY"), WOLVERINE TUBE (CANADA)
INC., an Ontario Corporation "WOLVERINE CANADA"; the Company and Wolverine
Canada are each a "BORROWER" and collectively, the "BORROWERS"), CREDIT SUISSE
FIRST BOSTON, as Administrative Agent, MELLON BANK, N.A., as Documentation Agent
and the Lenders listed on the signature pages hereto, and is made with reference
to that certain Credit Agreement dated as of April 30, 1997 (such agreement, as
amended from time to time, the "CREDIT AGREEMENT"), by and among Borrowers,
Lenders, Administrative Agent and Documentation Agent. Capitalized terms used
herein without definition shall have the same meanings herein as set forth in
the Credit Agreement.
R E C I T A L S
WHEREAS, Company has requested that Requisite Lenders, pursuant to
Section 10.6 of the Credit Agreement, agree to modify and or waive certain
provisions of the Credit Agreement relating to (i) the Applicable Margin, (ii)
mandatory prepayments with the proceeds of certain debt, (iii) aggregate amount
of permitted unsecured Indebtedness and (iv) the Maximum Leverage Ratio.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1.
AMENDMENTS
The terms of the Credit Agreement are hereby amended as follows:
A. DEFINITION OF APPLICABLE LEVEL. The definition of Applicable Level
set forth in subsection 1.1 is hereby amended by deleting the definition in its
entirety and substituting therefor the following:
"APPLICABLE LEVEL" means, as of any date, the applicable level
determined with reference to the Company's Debt Rating by S&P and
Moody's and the Leverage Ratio Amount pursuant to the table set forth
below:
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APPLICABLE DEBT RATING DEBT RATING LEVERAGE
LEVEL BY S&P BY MOODY'S RATIO AMOUNT
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I greater than or equal to A- greater than or equal to A3 less than 1.0
- --------------------------------------------------------------------------------------------------------------------
II greater than or equal to BBB greater than or equal to Baa2 greater than or equal to
but less than A- but less than A3 1.0 but less than 1.5
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III greater than or equal to BBB- greater than or equal to Baa3 greater than or equal to
but less than BBB but less than Baa2 1.5 but less than 2.0
- -------------------------------------------------------------------------------------------------------------------
IV greater than or equal to BB greater than or equal to Ba2 greater than or equal to
but less than BBB- but less than Baa3 2.0 but less than 2.5
- --------------------------------------------------------------------------------------------------------------------
V less than or equal to BB- less than or equal to Ba3 greater than or equal to
2.5 but less than 3.25
- --------------------------------------------------------------------------------------------------------------------
VI N/A N/A greater than or equal to 3.25
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; provided that (i) if a Debt Rating by either S&P or Moody's is in
effect, the Debt Rating shall determine the Applicable Level and the
Leverage Ratio Amount shall not apply and (ii) if neither a Debt Rating
from S&P nor a Debt Rating from Moody's is in effect, (a) the
Applicable Level shall be Level III at all times during the first six
months after the Closing Date and (b) at all times thereafter, the
Leverage Ratio Amount shall determine the Applicable Level (provided
that if the Borrowers fail to deliver the financial statements required
pursuant to subsection 6.1(i) by the applicable date set forth in such
subsection, the Applicable Level shall be Level V until such financial
statements are delivered, provided further, that if the Applicable
Level at the time immediately prior to such failure was Level VI, the
Applicable Level shall remain at Level VI); provided further, that if
the Debt Ratings assigned by S&P and Moody's result in different
levels, the higher level (it being understood and agreed that Level I
shall be the highest Applicable Level and Level V the lowest for
purposes of this proviso) shall be the Applicable Level unless one of
the levels is two or more levels lower than the other level, in which
case the level immediately above the lower level shall be the
Applicable Level.
B. DEFINITION OF APPLICABLE MARGIN. The definition of Applicable Margin
set forth in subsection 1.1 is hereby amended by deleting the table contained
therein and substituting therefor the following:
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APPLICABLE APPLICABLE
LEVEL MARGIN
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I .250%
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II .375%
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III .500%
- ----------------------------------------------------
IV .650%
- ----------------------------------------------------
V .875%
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VI 1.000%
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C. COMMITMENT FEES. Section 2.3A of the Credit Agreement is hereby
amended by deleting the table contained therein and substituting therefor the
following:
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APPLICABLE PERCENT
LEVEL PER ANNUM
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- -------------------------------------------------
I .10%
- -------------------------------------------------
II .125%
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III .1875%
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IV .225%
- -------------------------------------------------
V .35%
- -------------------------------------------------
VI .50%
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D. AMOUNT OF PERMITTED UNSECURED INDEBTEDNESS. Section 7.1(vi) of the
Credit Agreement is hereby amended by deleting the reference to $75,000,000 and
substituting $175,000,000 therefor.
E. MAXIMUM LEVERAGE. Section 7.6(C) of the Credit Agreement is hereby
amended by deleting the ratio of 3.00:1.00 contained therein and substituting
3.75:1.0 therefor.
SECTION 2.
LIMITED WAIVER
The provisions of subsection 2.4A(iii)(c) are hereby waived to the
extent but only to the extent that they would require a mandatory prepayment of
the Loans or reduction of the Commitments from the Net Securities Proceeds of
unsecured indebtedness issued by the Company on or before August 30, 1998;
provided, that no payment of principal of such unsecured indebtedness is
required by its terms prior to the Maturity Date; provided further, that such
Net
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Securities Proceeds shall not be included in any calculation of Aggregate Net
Proceeds made pursuant to the proviso contained in subsection 2.4A(iii)(c) at
any time.
SECTION 3.
MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the date hereof, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement
shall mean and be a reference to the provisions of the Credit Agreement
as amended and waived hereby.
(ii) Except as specifically amended or waived by this
Amendment, the Credit Agreement and the other Loan Documents shall
remain in full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power
or remedy of Administrative Agent or any Lender under, the Credit
Agreement or any of the other Loan Documents.
B. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
C. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective upon the execution of a
counterpart hereof by Borrowers and Requisite Lenders and receipt by Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
WOLVERINE TUBE, INC.
By: /s/ James E. Deason
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Name: James E. Deason
Title:
Notice Address:
Wolverine Tube, Inc.
1525 Perimeter Parkway, Suite 210
Huntsville, Alabama 35808
Attention: James E. Deason
WOLVERINE TUBE (CANADA) INC.
By: /s/ James E. Deason
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Name: James E. Deason
Title:
Notice Address:
Wolverine Tube, Inc.
1525 Perimeter Parkway, Suite 210
Huntsville, Alabama 35808
Attention: James E. Deason
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CREDIT SUISSE FIRST BOSTON,
as the Administrative Agent
By: /s/ Thomas G. Muoio
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Name: Thomas G. Muoio
Title: Vice President
By: /s/ Jodi A. Fatto
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Name: Jodi A. Fatto
Title: Assistant Vice President
Notice Address:
Credit Suisse First Boston
11 Madison Avenue
New York, NY 10010-3629
Attention: Robert Finney
CREDIT SUISSE FIRST BOSTON,
as a Lender
By: /s/ Thomas G. Muoio
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Name: Thomas G. Muoio
Title: VP
By: /s/ Robert B. Potter
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Name: Robert B. Potter
Title: VP
Notice Address:
Credit Suisse First Boston
11 Madison Avenue
New York, NY 10010-3629
Attention: Robert Finney
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MELLON BANK, N.A., individually and as
Documentation Agent
By: /s/ Roger N. Stanier
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Name: Roger N. Stanier
Title: VP
Notice Address:
Mellon Bank, N.A.
Three Mellon Bank Center
23rd Floor
Pittsburgh, PA 15259-0003
Attention: Loan Administration
Copy to:
Mellon Bank, N.A.
One Mellon Bank Center
Pittsburgh, PA 15258-0001
Attention: Steven Prather
BANK OF AMERICA ILLINOIS
as a Lender
By: /s/ Michael J. McKenney
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Name: Michael J. McKenney
Title: VP
Notice Address:
Bank of America Illinois
231 South LaSalle Street
Chicago, IL 60697
Attention: Frank English
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CREDIT LYONNAIS ATLANTA AGENCY
as a Lender
By:
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Name:
Title:
Notice Address:
Credit Lyonnais, Atlanta Agency
One Peachtree Center
303 Peachtree Street NE
Suite 4400
Atlanta, GA 30308
Attention: Ronald Blissett
NATIONSBANK, N.A., (successor by merger to
NationsBank, N.A. (South))
as a Lender
By: /s/ Nancy S. Goldman
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Name: Nancy S. Goldman
Title: VP
Notice Address:
NationsBank, N.A.
600 Peachtree Street NE
9th Floor
Atlanta, GA 30308
Attention: Nancy Goldman
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THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ W. J. Brown
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Name: W. J. Brown
Title:
Notice Address:
The Bank of Nova Scotia
Suite 2700
600 Peachtree Street NE
Atlanta, GA 30308
Attention: Pat Brown
CORESTATES BANK, NA
as a Lender
By: /s/ Karen Leaf
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Karen Leaf
Vice President
Notice Address:
Corestates Bank, NA
FC1-8-3-12
P.O. Box 7618
Philadelphia, PA 19101
Attention: Karen Leaf
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SUNTRUST BANK, NASHVILLE, N.A.
as a Lender
By: /s/ W. W. Wooding
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Name: W. W. Wooding
Title: Senior VP
Notice Address:
Suntrust Bank, Nashville, N.A.
P.O. Box 305110
Nashville, TN 37230-5110
Attention: Woody Woodring
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