EXECUTION COPY
EXHIBIT 10.2
AMENDMENT NO. 5
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 5 TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
June 9, 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. The definition of "Permitted Securitization" in Section 1.1 of
the Credit Agreement is hereby deleted and replaced with the following:
"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, 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.
(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 Amendment. The Administrative Agent
shall have received an original fully executed copy of Amendment No. 1 to
the Amended and Restated Receivables Purchase Agreement, dated as of June
9, 2006, which agreement
2
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.
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, 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.
(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]
3
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. VP & CFO
SUBSIDIARY BORROWERS:
TF INVESTOR, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: XXXXX X. XXXXXX
Title: VP & SECRETARY
TUBE FORMING HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: XXXXX X. XXXXXX
Title: VP & SECRETARY
TUBE FORMING, L.P.
By: Tube Forming Holdings, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: XXXXX X. XXXXXX
Title: VP & SECRETARY
WOLVERINE FINANCE, LLC
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: XXXXX X. XXXXXX
Title: VICE MANAGER & TREASURER
SMALL TUBE MANUFACTURING, LLC
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: XXXXX X. XXXXXX
Title: VP & SECRETARY
WOLVERINE JOINING TECHNOLOGIES, LLC
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: XXXXX X. XXXXXX
Title: VP & SECRETARY
WOLVERINE CHINA INVESTMENTS, LLC
By: Wolverine Tube, Inc.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxx
------------------------
Name: XXXXX X. XXXXXX
Title: VP & SECRETARY
WT HOLDING COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: XXXXX X. XXXXXX
Title: VP & SECRETARY
AGENT AND LENDERS:
WACHOVIA BANK,
NATIONAL ASSOCIATION, in its capacity
as Administrative Agent and as a Lender
By: Xxxxxx X. X'Xxxxxx
---------------------------
Name: Xxxxxx X. X'Xxxxxx
Title: Director
(signature pages end)
