AMENDMENT NO. 6 TO AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT 10.5
Execution Copy
AMENDMENT NO. 6
TO AMENDED AND RESTATED CREDIT AGREEMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 6 TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 15, 2006
(the “Agreement”) relating to the Credit Agreement referenced below, is by and among
WOLVERINE TUBE, INC., a Delaware corporation (the “Company”), certain of its Subsidiaries
identified as Subsidiary Borrowers on the signature pages hereto and any additional 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”), and 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”). Terms used but not otherwise defined herein shall have the meanings provided in the
Credit Agreement and the provisions of Sections 1.2 and 1.3 of the Credit Agreement related to the
definitions shall apply herein.
W I T N E S S E T H
WHEREAS, a $35,000,000 credit facility has been extended to the Borrowers pursuant to the
terms of that certain Amended and Restated Credit Agreement dated as of April 28, 2005 (as amended,
modified or otherwise supplemented from time to time, the “Credit Agreement”) among the
Borrowers, the Lenders, and the Administrative 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. Section 1.1 of the Credit Agreement is hereby amended by adding the following new
definition in the appropriate alphabetical order:
“BANA” has the meaning set forth in the definition of Consignment
Agreement herein.
2. Each of the following definitions in Section 1.1 of the Credit Agreement is hereby
deleted and replaced with the following definitions:
“Consignment Agreement” means the Amended and Restated Consignment
Agreement, dated as of April 28, 2005, by and between Bank of America, N.A.
(“BANA”) (as successor in interest to Fleet Precious Metals Inc.), and the
Company and Wolverine Joining Technologies, LLC, as amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
“Consignment Intercreditor Agreement” means the Amended and Restated
Intercreditor Agreement dated as of April 28, 2005 by and between BANA (as successor
in interest to Fleet Precious Metals Inc.) and the Agent, as amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
“Intercreditor Agreement” means the Amended and Restated Intercreditor
Agreement dated as of April 4, 2006 by and among Wachovia Bank, National
Association, as agent for certain secured parties to the Permitted Securitization
(in such capacity, together with the successors and assigns, the “Securitization
Agent”), the Administrative Agent, the SPC, the Company, Tube Forming, L.P., Small
Tube Manufacturing, LLC and Wolverine Joining Technologies, LLC., as amended,
modified or supplemented from time to time in accordance with the terms hereof and
thereof.
“Permitted Securitization” means the trade securitization transaction
for an aggregate principal amount of third party investments, advances or sales of
accounts receivable of up to $90,000,000, evidenced by that certain Receivables Sale
Agreement, dated as of April 28, 2005 among the Securitization Companies and the
SPC, as amended by that certain Amendment No. 1, dated as of April 4, 2006, and as
further amended by that certain Amendment No. 2, dated December 15, 2006, that
certain Receivables Sale Agreement, dated as of April 4, 2006, among Wolverine Tube
(Canada), Inc. and the SPC and that certain Amended and Restated Receivables
Purchase Agreement, dated as April 4, 2006 among the SPC, Wolverine Finance, LLC,
the Company, Variable Funding Capital Company, LLC, the liquidity banks from time to
time party thereto, The CIT Group/Business Credit, Inc., individually and as
co-agent, and Wachovia Bank, National Association, as agent, as amended by that
certain Amendment No. 1, dated as of June 9, 2006, and as further amended by that
certain Amendment No. 2, dated as of December 15, 2006.
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“Securitization Companies” means the Company, Tube Forming, L.P., Small
Tube Manufacturing, LLC and Wolverine Joining Technologies, LLC.
3. Section 1.1 of the Credit Agreement is hereby amended by deleting the definition of
“BAPM” in its entirety.
4. Each of the Schedules attached to the Credit Agreement is hereby deleted and
replaced by the corresponding Schedule attached to this Agreement.
(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.
(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. Permitted Securitization Amendments. The Administrative Agent shall have
received original fully executed copies of (i) Amendment No. 2 to the Amended and Restated
Receivables Purchase Agreement and Amended and Restated Performance Undertaking, dated as of
December 15, 2006, and (ii) Amendment No. 2 to the Amended and Restated Receivables Purchase
Agreement, dated as of December 15, 2006, in each case, which agreements shall be in full
force and effect and not subject to any unsatisfied conditions precedent, and to which the
Administrative Agent and the Lenders hereby consent.
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3. Intercreditor Agreement Amendment. The Administrative Agent shall have
received an original fully executed copy of Amendment No. 2 to the Intercreditor Agreement,
dated as of December 15, 2006, which agreement shall be in full force and effect and not
subject to any unsatisfied conditions precedent.
4. Consignment Agreement Amendment and Related Documents. The Administrative
Agent shall have received (a) a fully executed copy of the Third Amendment to the
Consignment Agreement, (b) a fully executed copy of the Pledge and Security Agreement, dated
as of December 15, 2006, by and between BANA, the Company and Wolverine Joining
Technologies, LLC, and (c) a fully executed copy of the Ratification and Second Amendment to
the Consignment Intercreditor Agreement, in each case, which agreements shall be in full
force and effect and not subject to any unsatisfied conditions precedent, and to which the
Administrative Agent and the Lenders hereby consent.
5. Blocked Account Agreements. The Administrative Agent shall have received
original fully executed copies of (i) the Amended and Restated Blocked Account Agreement,
dated as of December 15, 2006, among Wachovia Bank, National Association, in its capacity as
collateral agent for (A) the secured parties under the Permitted Securitization and (B) the
Administrative Agent, on behalf of the Lenders, the SPC, Wolverine Finance, LLC and Mellon
Bank, N.A. and (ii) the Amended and Restated Blocked Account Agreement; dated as of December
15, 2006, among the Administrative Agent, Mellon Bank, N.A., the Company and certain of its
Subsidiaries, in each case, which agreements shall be in full force and effect and not
subject to any unsatisfied conditions precedent, in form and substance satisfactory to the
Administrative Agent and to which the Administrative Agent and the Lenders hereby consent.
6. 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,
Mayer, Brown, Xxxx & Maw, LLP.
(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 or the Administrative 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 or the
Administrative Agent, and novation of any kind is hereby expressly disclaimed.
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(E) Release. In consideration of entering into this Agreement, each Credit Party (a)
represents and warrants to the Administrative 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 the Administrative 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.
[SIGNATURE PAGES FOLLOW]
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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 | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | SR. Vice President & CEO | |||
| SUBSIDIARY BORROWERS: TF INVESTOR, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| TUBE FORMING HOLDINGS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| TUBE FORMING, L.P. |
||||
| By: | Tube Forming Holdings, Inc., | |||
| its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| WOLVERINE FINANCE, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| SMALL TUBE MANUFACTURING, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| WOLVERINE JOINING TECHNOLOGIES, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| WOLVERINE CHINA INVESTMENTS, LLC |
||||
| By: | Wolverine Tube, Inc., | |||
| its Managing Member | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Service President and CFO | |||
| WT HOLDING COMPANY, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
AGENT AND LENDERS:
| WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as Administrative Agent and as a Lender |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Director | |||
(signature pages end)
