EXHIBIT 10.1
AMENDMENT NO. 6
TO CREDIT AGREEMENT
THIS AMENDMENT NO. 6 TO CREDIT AGREEMENT, dated as of February 23, 2005
(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 $37,500,000.00 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 have requested that certain amendments be made
as contemplated herein and the Lenders agree to amend such provisions pursuant
to the terms and conditions herein; 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. The definition of "Canadian Maturity Date" in Section 1.1
of the Credit Agreement is amended in its entirety so that such
definition now reads as follows:
"Canadian Maturity Date" means March 29, 2006.
2. The definition of "U.S. Revolving Loan Commitment" in
Section 1.1 of the Credit Agreement is amended in its entirety so that
such definition now reads as follows:
"U.S. Revolving Loan Commitment" means $40,000,000.00
(U.S.), as such amount may be reduced in accordance with Section 2.10.
3. Each reference to "$37,500,000 (U.S.)" in Sections 2.1(a),
2.2(a), 2.3(a) and 2.4(a) of the Credit Agreement and in each of the
exhibits and schedules to the Credit Agreement (including, without
limitation, Exhibit D to the Credit Agreement) is replaced with a
reference to "$40,000,000.00 (U.S.)".
4. The reference to "$37,500,000" in Section 4.4(b)(i) of the
Credit Agreement is replaced with a reference to "$40,000,000.00
(U.S.)".
5. Those certain Schedules attached to this Agreement shall
replace the corresponding Schedules to the Credit Agreement; all other
Schedules to the Credit Agreement shall not be modified or otherwise
affected.
(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, 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.
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(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. Executed Note. The Administrative Agent shall have received
a fully executed original of the Modified and Restated Revolving Credit
Note, dated February 23, 2005, executed by the U.S. Borrowers in favor
of the Administrative Agent.
3. Secretary's Certificates. The Administrative Agent shall
have received a secretary's certificate from each U.S. Borrower 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.
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.
(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. Each of the Credit Parties acknowledges,
confirms and agrees that the Credit Documents to which it is a party remain in
full force and effect as of the date hereof and continue to secure all
Obligations of each such Credit Party to any Lender, the Administrative Agent or
the Canadian Agent, and novation of any kind is hereby expressly disclaimed.
(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 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,
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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.
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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/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive VP, CFO & Secretary
------------------------------------
U.S. SUBSIDIARY BORROWERS:
TF INVESTOR, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Vice President & Treasurer
------------------------------------
TUBE FORMING HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: VP & Treasurer
------------------------------------
TUBE FORMING, L.P.
By: Tube Forming Holdings, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------
Title: VP & Treasurer
-------------------------------
(signature pages continue)
WOLVERINE FINANCE, LLC
By: Wolverine Tube, Inc.,
its Sole Member
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive VP, CFO & Secretary
------------------------------------
SMALL TUBE MANUFACTURING, LLC
By: Wolverine Tube, Inc.,
its Sole Member
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive VP, CFO & Secretary
------------------------------------
WOLVERINE JOINING TECHNOLOGIES, LLC
By: Wolverine Tube, Inc.,
its Sole Member
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive VP, CFO & Secretary
------------------------------------
(signature pages continue)
WOLVERINE CHINA INVESTMENTS, LLC
By: Wolverine Tube, Inc.,
its Managing Manager
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------
Title: Executive VP, CFO & Secretary
-------------------------------
WT HOLDING COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: VP & Treasurer
------------------------------------
(signature pages continue)
CANADIAN SUBSIDIARY BORROWERS:
3072996 NOVA SCOTIA COMPANY
By: /s/ Xxx Xxxxxx
---------------------------------------
Name: Xxx Xxxxxx
-------------------------------------
Title: President
------------------------------------
WOLVERINE JOINING TECHNOLOGIES
(CANADA) INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Vice President & Treasurer
------------------------------------
3072452 NOVA SCOTIA COMPANY
By: /s/ Xxx Xxxxxx
---------------------------------------
Name: Xxx Xxxxxx
-------------------------------------
Title: President
------------------------------------
3072453 NOVA SCOTIA COMPANY
By: /s/ Xxx Xxxxxx
---------------------------------------
Name: Xxx Xxxxxx
-------------------------------------
Title: President
------------------------------------
WOLVERINE TUBE CANADA LIMITED PARTNERSHIP
By: 3072453 NOVA SCOTIA COMPANY,
its General Partner
By: /s/ Xxx Xxxxxx
---------------------------------------
Name: Xxx Xxxxxx
-------------------------------------
Title: President
------------------------------------
(signature pages continue)
WOLVERINE TUBE (CANADA) INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: VP & Secretary
------------------------------------
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Title: VP & Assistant Secretary
------------------------------------
(signature pages continue)
LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
in its capacity as Administrative Agent
and as a Lender
By: /s/ Xxxxxx X. X'Xxxxxx
---------------------------------------
Name: Xxxxxx X. X'Xxxxxx
-------------------------------------
Title: Director
------------------------------------
(signature pages continue)
CONGRESS FINANCIAL CORPORATION (CANADA),
in its capacity as Canadian Agent and as
a Lender
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
-----------------------------------------
Title: SENIOR VICE PRESIDENT
CONGRESS FINANCIAL CORPORATION (CANADA)
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(signature pages end)
