1
Exhibit 10.2
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (the "SUPPLEMENTAL INDENTURE") is made
as of the 25th day of April, 1997, between WOLVERINE TUBE, INC., a corporation
duly organized and existing under the laws of the State of Delaware (the
"COMPANY"), and MELLON BANK, F.S.B., a federal savings bank, as Trustee (the
"TRUSTEE").
RECITALS
WHEREAS, Wolverine Tube, Inc. an Alabama corporation ("WTI-AL") and
Society National Bank ("SNB"), as Trustee, entered into that certain Indenture
(the "ORIGINAL INDENTURE," with the terms defined therein being used herein as
therein defined unless otherwise defined herein), dated as of September 1, 1992,
pursuant to which WTI-AL issued its 10-1/8% Senior Subordinated Notes Due 2002
(the "SECURITIES"); and
WHEREAS, pursuant to that certain First Supplemental Indenture dated as
of August 2, 1993, among WTI-AL, the Company (f/k/a Wolverine Holding Company)
and SNB (with the Original Indenture, as modified by such First Supplemental
Indenture, referred to herein as the "INDENTURE"), the Company assumed all
obligations of WTI-AL under the Securities and the Indenture; and
WHEREAS, the Trustee has heretofore been designated as successor trustee
to SNB under the Indenture, in accordance with the provisions of Section 7.09 of
the Indenture; and
WHEREAS, Section 9.02 of the Indenture provides that with the consent of
the holders of at least a majority in principal amount of the Securities at the
time outstanding (the "REQUISITE CONSENTS"), the Company and the Trustee may
amend the Indenture, subject to certain exceptions specified in Section 9.02 of
the Indenture; and
WHEREAS, the Company has obtained the Requisite Consents to amend the
Indenture in certain respects (the "PROPOSED AMENDMENTS"); and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Company;
NOW, THEREFORE, the Company hereby covenants and agrees with the Trustee
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
2
ARTICLE 1
AMENDMENTS TO CERTAIN PROVISIONS OF INDENTURE
SECTION 1.01. AMENDMENT OF CERTAIN SECTIONS OF THE INDENTURE. Subject to
Section 3.01 hereof, the Indenture is hereby amended in the following respects:
(a) The Section headings and text of each of Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09 and 5.01 of the Indenture are hereby deleted
in their entirety and replaced with the following:
"[Intentionally Deleted by Amendment]"
(b) Section 6.01 of the Indenture is hereby amended as follows:
(i) the text of clause (3) is deleted in its entirety and
replaced with the phrase "[Intentionally Deleted by
Amendment];"
(ii) the text of clause (4) is deleted and replaced in its
entirety as follows:
"the Company fails to comply with Section 4.10
and such failure continues for 30 days after the
notice specified below;"
(iii) the text of clause (5) is deleted and replaced in its
entirety as follows:
"the Company fails to comply with any of its
agreements in the Securities or this Indenture (other
than those referred to in (1), (2) or (4) above) and
such failure continues for 60 days after the notice
specified below;"
(iv) the text of clause (6) is deleted in its entirety and
replaced with the phrase "[Intentionally Deleted by
Amendment];" and
(v) the text of clause (9) is deleted in its entirety and
replaced with the phrase "[Intentionally Deleted by
Amendment]."
2
3
(c) Section 1.01 of the Indenture is hereby amended as follows:
(i) The captions and text of each of the following defined
terms are deleted in their entirety: Asset Disposition,
Average Life, Capital Stock, Change of Control,
Consolidated EBITDA Coverage Ratio, Consolidated Net
Income, Consolidated Net Tangible Assets, Consolidated Net
Worth, Credit Agreement, Exchangeable Stock, Investment,
Net Available Cash, Net Cash Proceeds, Non-Convertible
Capital Stock, Permitted Investments, Preferred Stock,
Prospectus, Redeemable Stock, Reference Period, Secured
Debt, Stated Maturity, Subordinated Obligation, Tangible
Property, WHC, Wholly Owned Subsidiary.
(d) Section 1.02 of the Indenture is hereby amended by deleting the
following terms and section references corresponding to such terms: Custodian,
Offer, Offer Amount, Offer Period, Purchase Date, Restricted Payment.
ARTICLE 2
WAIVERS
SECTION 2.01. LIMITED WAIVER OF COMPLIANCE WITH CERTAIN PROVISIONS OF
THE INDENTURE. To the extent that any actions taken or to be taken by the
Company in effecting, undertaking and consummating the Offer, the Solicitation
and the Proposed Financing, as such terms are defined in, and in accordance with
the terms set forth in, the Company's Offer to Purchase and Consent Solicitation
Statement, dated March 25, 1997 (the "Statement"), would not comply with or be
limited by the provisions of the Indenture, compliance with such provisions is
hereby waived to the extent so required.
ARTICLE 3
SUNDRY PROVISIONS
SECTION 3.01. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution and
delivery of this Supplemental Indenture by the Company and the Trustee, the
Indenture shall be supplemented in accordance herewith, and this Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder
of Securities heretofore or hereafter authenticated and delivered under the
Indenture shall be bound thereby; provided, however, that Section 1.01 hereof
shall only become operative upon the opening of business on the date the Company
deposits with Citibank, N.A., as Depositary for the Offer and the Solicitation,
the amount of money sufficient to pay all Securities accepted for purchase
pursuant to the Offer.
3
4
SECTION 3.02. INDENTURE REMAINS IN FULL FORCE AND EFFECT. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
SECTION 3.03. INDENTURE AND SUPPLEMENTAL INDENTURE CONSTRUED TOGETHER.
This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
SECTION 3.04. CONFIRMATION AND PRESERVATION OF INDENTURE. The
Indenture as supplemented by this Supplemental Indenture is in all respects
confirmed and preserved.
SECTION 3.05. CONFLICT WITH TRUST INDENTURE ACT. If any provision of
this Supplemental Indenture limits, qualifies or conflicts with any provision of
the Trust Indenture Act that is required under such Act to be part of and govern
any provision of this Supplemental Indenture, the provision of such Act shall
control. If any provision of this Supplemental Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the provision of such Act shall be deemed to apply to the Indenture as so
modified or to be excluded by this Supplemental Indenture, as the case may be.
SECTION 3.06. SEPARABILITY CLAUSE. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 3.07. TERMS DEFINED IN THE INDENTURE. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
SECTION 3.08. EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 3.09. BENEFITS OF SUPPLEMENTAL INDENTURE, ETC. Nothing in this
Supplemental Indenture, the Indenture or the Securities, express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of Securities, any benefit
of any legal or equitable right, remedy or claim under the Indenture, this
Supplemental Indenture or the Securities.
SECTION 3.10. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 3.11. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals
contained herein shall be taken as the statements of the
4
5
Company, and the Trustee assumes no responsibility for their correctness.
SECTION 3.12. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee, whether or not
elsewhere herein so provided.
SECTION 3.13. GOVERNING LAW. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflicts of law principles thereof.
SECTION 3.14. COUNTERPARTS. This Supplemental Indenture may be
executed in counterparts, each of which, when so executed, shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
5
6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date and year first
above written.
WOLVERINE TUBE, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------
Xxxx X. Xxxxxxx
Chairman and Interim
Chief Executive Officer
Attest:
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Xxxxx X. Xxxxxx
Executive Vice President,
Chief Financial Officer
and Secretary
MELLON BANK, F.S.B.,
AS TRUSTEE
By: /s/ Xxxxxx Xxxxxxx
---------------------
Title: Vice President
-------------------
Attest:
By: /s/ Xxxxxxx Xxxxxxx
---------------------
Title: Trust Officer
------------------
6
