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EXHIBIT 10.2
WOLVERINE TUBE, INC.
WOLVERINE TUBE (CANADA) INC.
FIFTH AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT
This FIFTH AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT
(this "AMENDMENT") is dated as of August 8, 2001 and entered into by and among,
WOLVERINE TUBE INC., a Delaware corporation (the "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 (in such capacity, the
"ADMINISTRATIVE AGENT"), MELLON BANK, N.A., as documentation agent (in such
capacity, the "DOCUMENTATION AGENT") and the financial institutions listed on
the signature pages hereto (each individually referred to herein as a "LENDER"
and collectively, as "LENDERS"), and is made with reference to that certain
Credit Agreement dated as of April 30, 1997, by and among the Borrowers, the
Lenders, the Administrative Agent and the Documentation Agent, as amended as of
June 26, 1998, as of March 10, 1999, as of June 30, 1999 and as of May 31, 2000
(such Credit Agreement, as so amended, the "CREDIT AGREEMENT"). 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, the Borrowers have requested that Requisite Lenders,
pursuant to Section 10.6 of the Credit Agreement, agree to (i) modify the
provisions of certain financial covenants in the Credit Agreement and (ii) make
certain other amendments and waivers as set forth below;
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
effective, subject to Section 5D, as of Fifth Amendment Effective Date, as
follows:
A. AMENDED DEFINITIONS. The following definitions set forth in Subsection 1.1 of
the Credit Agreement shall be amended by deleting each such definition in its
entirety and substituting the following definitions therefor:
"APPLICABLE MARGIN" means as of any date and with respect to
any Applicable Level, the corresponding percentage set forth
below:
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APPLICABLE APPLICABLE
LEVEL MARGIN
========== ==========
I .750%
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II 1.000%
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III 1.250%
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IV 1.500%
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V 1.750%
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VI 2.000%
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"CONSOLIDATED ADJUSTED EBITDA" means, for any period, the sum
of the amounts for such period of (i) Consolidated Net Income,
(ii) Consolidated Interest Expense, (iii) provisions for taxes
based on income, (iv) total depreciation expense, (v) total
amortization expense, (vi) for the Fiscal Quarter ending June
30, 2001, but only to the extent included in the calculation
of Consolidated Net Income, up to $4,693,000 of the charge
incurred in connection with the restructuring of WRI, (vii)
for the Fiscal Quarter ending September 30, 2001, but only to
the extent included in the calculation of Consolidated Net
Income, up to $2,500,000 of the charge incurred in connection
with the restructuring of WRI and (viii) other non-cash items
reducing Consolidated Net Income less other non-cash items
increasing Consolidated Net Income, all of the foregoing as
determined on a consolidated basis for the Company and its
Subsidiaries in conformity with GAAP.
"WRI SECURITY AGREEMENT" means the general security agreement
executed by WRI in favor of Wolverine Canada to secure the
intercompany indebtedness in an aggregate principal amount not
in excess of Cdn.$20,220,000 owed by WRI to Wolverine Canada
and approved prior to its execution by the Administrative
Agent, with such amendments, supplements or other
modifications that are approved by Requisite Lenders from time
to time.
B. INTERCOMPANY INDEBTEDNESS. Subsection 7.1(iv) of the Credit Agreement shall
be amended by deleting the reference to "Cdn.$18,500,000" in the eight line
thereof and substituting "Cdn.$20,220,000" therefor.
C. MAXIMUM LEVERAGE. Subsection 7.6C of the Credit Agreement shall be amended by
adding the phrase "; provided that for the four-Fiscal Quarter periods ending on
September 30, 2001 and December 31, 2001, the Borrowers shall not permit such
ratio to exceed 4.25:1.00".
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SECTION 2
LIMITED WAIVER
Subject to the terms and conditions set forth herein and in
reliance on the representations and warranties of the Borrowers herein
contained, the Lenders hereby waive, for the period commencing on April 1, 2001
through and including August 17, 2001, compliance with the Cdn.$18,500,000
limitations in the definition of "WRI Security Agreement" and in subsection
7.1(iv) of the Credit agreement.
SECTION 3
LIMITATION OF WAIVER
Without limiting the generality of the provisions of
subsection 10.6 of the Credit Agreement, the waiver set forth above shall be
limited precisely as written and relates solely to the Credit Agreement in the
manner and to the extent described above, and nothing in this Amendment shall be
deemed to:
(a) constitute a waiver of compliance by the Borrowers with
respect to (i) subsection 7.1(iv) of the Credit Agreement in any other
instance or (ii) any other term, provision or condition of the Credit
Agreement or any other instrument or agreement referred to therein
(whether in connection with the Credit Agreement or otherwise); or
(b) prejudice any right or remedy that Agent or any Lender may now
have or may have in the future under or in connection with the Credit
Agreement or any other instrument or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions and conditions of
the Credit Agreement and the other Loan Documents shall remain in full force and
effect and in all other respects are hereby ratified and confirmed
SECTION 4
BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, each of the Company
and Wolverine Canada hereby represents and warrants to each Lender that the
following statements are true, correct and complete:
A. CORPORATE POWER AND AUTHORITY. The Company and
Wolverine Canada have all requisite corporate power and authority to enter into
this Amendment and to carry out the transactions contemplated by, and perform
their obligations under, the Credit Agreement as amended by this Amendment (the
"Amended Agreement").
B. AUTHORIZATION OF AGREEMENTS. The execution and
delivery of this Amendment and the performance of the Amended Agreement have
been duly authorized by all necessary corporate action on the part of the
Company and Wolverine Canada, as the case may be.
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C. NO CONFLICT. The execution and delivery by the
Company and Wolverine Canada of this Amendment and the performance by the
Company and Wolverine of the Amended Agreement do not and will not (i) violate
any provision of any law or any governmental rule or regulation applicable to
the Company, Wolverine Canada or any of their respective Subsidiaries, the
Certificate or Articles of Incorporation or Bylaws of the Company, Wolverine
Canada or any of their respective Subsidiaries or any order, judgment or decree
of any court or other agency of government binding on the Company, Wolverine
Canada or any of their respective Subsidiaries, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of the Company, Wolverine Canada or any of
their respective Subsidiaries, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of the Company,
Wolverine Canada or any of their respective Subsidiaries (other than Liens
created under any of the Loan Documents in favor of Agent on behalf of Lenders),
or (iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of the Company, Wolverine Canada or any
of their respective Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by
the Company and Wolverine Canada of this Amendment and the performance by
Company and Wolverine Canada of the Amended Agreement do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by, any federal, state or other governmental authority or
regulatory body.
E. BINDING OBLIGATION. This Amendment and the Amended
Agreement have been duly executed and delivered by the Company and Wolverine
Canada and are the legally valid and binding obligations of the Company and
Wolverine Canada enforceable against the Company and Wolverine Canada in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM
CREDIT AGREEMENT. The representations and warranties contained in Section 5 of
the Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Fifth Amendment Effective Date (as defined below) to
the same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
G. ABSENCE OF DEFAULT. No event has occurred and is
continuing or will result from the consummation of the transactions contemplated
by this Amendment that would constitute an Event of Default or a Potential Event
of Default.
SECTION 5
MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS.
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(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 the 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 (i) the execution
of a counterpart hereof by Borrowers and Requisite Lenders, (ii) receipt by the
Company and the Administrative Agent of written or telephonic notification of
such execution and authorization of delivery thereof, (iii) receipt by the
Administrative Agent from the Company for distribution to each Lender that has
executed and delivered this Amendment on or prior to 5:00 p.m. (New York City
time) on August 8, 2001, of an amendment fee in an amount equal to 0.10% of each
such Lender's Commitment (the date of satisfaction of such conditions being
referred to herein as the "FIFTH AMENDMENT EFFECTIVE DATE") and (iv) receipt by
the Administrative Agent of all other fees and expenses due and owing under the
Credit Agreement; provided that upon satisfaction of the conditions described in
clauses (i), (ii), (iii) and (iv) above, the amendment to the definition of
"Consolidated Adjusted EBITDA" set forth in Section 1 shall be deemed effective
as of June 30, 2001.
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SECTION 6
ACKNOWLEDGEMENT AND CONSENT BY GUARANTORS
Each of Tube Forming L.P., Small Tube Manufacturing Corp., and
Wolverine Finance Company hereby acknowledges that it has read this Amendment
and consents to the terms hereof and further hereby confirms and agrees that,
notwithstanding the effectiveness of this Amendment, the obligations of such
Loan Party under each of the Loan Documents to which it is a party shall not be
impaired and each of the Loan Documents to which it is a party are, and shall
continue to be, in full force and effect and are hereby confirmed and ratified
in all respects.
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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/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President, CFO
Notice Address:
Wolverine Tube, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
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WOLVERINE TUBE (CANADA) INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President, CFO
Notice Address:
Wolverine Tube, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
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TUBE FORMING L.P.,
a Delaware limited partnership
By: WOLVERINE TUBE, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President, CFO
Notice Address:
Wolverine Tube, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
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SMALL TUBE MANUFACTURING CORP.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President, CFO
Notice Address:
Wolverine Tube, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
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WOLVERINE FINANCE COMPANY,
a Tennessee corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President, CFO
Notice Address:
Wolverine Tube, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
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CREDIT SUISSE FIRST BOSTON,
as the Administrative Agent
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By:
--------------------------------------------
Name:
Title:
Notice Address:
Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
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CREDIT SUISSE FIRST BOSTON,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By:
-------------------------------------------
Name:
Title:
Notice Address:
Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
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MELLON BANK, N.A., individually and as
Documentation Agent
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
Notice Address:
Mellon Bank, N.A.
Three Mellon Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Loan Administration
Copy to:
Mellon Bank, N.A.
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx
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CREDIT LYONNAIS NEW YORK BRANCH
as a Lender
By: /s/ Xxxxxx Xxx
------------------------------------------
Name: Xxxxxx Xxx
Title: Senior Vice President
Notice Address:
Credit Lyonnais New York Branch
0000 Xxxx Xxxxxx
Xxxxx 0000X
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx
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BANK OF AMERICA, N.A.
f/k/a Bank of America National Trust and Savings
Association, (successor by merger to Bank of
America Illinois), successor by merger to Bank
of America, N.A., f/k/a NationsBank, N.A.,
(successor by merger to NationsBank, N.A. (South))
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Principal
Notice Address:
Bank of America, N. A.
000 Xxxxx Xxxxx Xx. 00xx Xxxxx
Mail Code: NC1-007-22-24
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
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THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ X. X. Xxxxx
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Name: X. X. Xxxxx
Title: Vice President
Notice Address:
The Bank of Nova Scotia
Suite 2700
000 Xxxxxxxxx Xxxxxx XX
Xxxxxxx, XX 00000
Attention: Xxx Xxxxx
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FIRST UNION NATIONAL BANK
as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
Notice Address:
First Union Securities, Inc.
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
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SUNTRUST BANK (successor in interest to
SunTrust Bank, Nashville, N.A.)
as a Lender
By: /s/ Xxx Xxxxx
-----------------------------------------
Name: Xxx Xxxxx
Title: Vice President
Notice Address:
Suntrust Bank
X.X. Xxx 000000
Xxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxx
