EXHIBIT 10.5
AMENDMENT NO. 5
TO CREDIT AGREEMENT
THIS AMENDMENT NO. 5 TO CREDIT AGREEMENT, dated as of September 27, 2004
(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.
WITNESSETH
WHEREAS, a $37,500,000 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 Permitted Investments in Section 1.1 of the
Credit Agreement is hereby amended by deleting "and" at the end of clause
(o), re-lettering existing clause (p) as clause (r) and adding the
following new clauses (p) and (q) in the appropriate alphabetical order:
(p) the Guaranty to be dated on or about the date hereof by the
Company in favor of Cambridge 16, S. de X.X. de C.V. ("Landlord"), which
will be substantially in the form previously provided to the
Administrative Agent, guarantying obligations under that certain Lease to
be dated on or about the date hereof between Landlord and WLVN de
Latinoamerica, S. de. X.X. de C.V. not exceeding $10.0 million in the
aggregate;
(q) Investments (other than the Guaranty permitted under clause (p)
hereof) in WLVN de Latinoamerica, S. de. X.X. de C.V. and WLV Mexico, S.
de. X.X. de C.V. not exceeding $12.5 million in the aggregate (when added
to any dispositions of equipment made as permitted under clause (g) of
Section 9.5); and
2. Section 9.1 of the Credit Agreement is hereby amended by deleting "and"
at the end of clause (j), re-lettering existing clause (k) as clause (1) and
adding the following new clause (k) in the appropriate alphabetical order:
(k) the Guaranty to be dated on or about the date hereof by the
Company in favor of Cambridge 16, S. de X.X. de C.V. ("Landlord"), which
will be substantially in the form previously provided to the
Administrative Agent, guarantying obligations under that certain Lease to
be dated on or about the date hereof between Landlord and WLVN de
Latinoamerica, S. de. X.X. de C.V. not exceeding $10.0 million in the
aggregate; and
3. Section 9.5 of the Credit Agreement is hereby amended by deleting "and"
at the end of clause (f), re-lettering existing clause (g) as clause (h) and
adding the following new clause (g) in the appropriate alphabetical order:
(g) dispositions of equipment to WLVN de Latinoamerica, S. de. X.X.
de C.V. and WLV Mexico, S. de. X.X. de C.V. not to exceed equipment with a
net book value of $12.5 million in the aggregate (when added to any
Investments made as permitted under clause (q) of the definition of
Permitted Investments); and
4. 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
2
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, (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, (vi) the Board
of Directors of the Company (or any committee thereof) has taken no action
pursuant to the 2009 Senior Note Indenture to designate any subsidiary of the
Company an "Unrestricted Subsidiary," as that term is defined in the 2009 Senior
Note Indenture, (vii) the primary business of each of WLVN de Latinoamerica, S.
de X.X. de C.V. and WLV Mexico, S. de X.X. de C.V. is a "Related Business," as
that term is defined in the 2009 Senior Note Indenture, and (viii) that certain
Lease to be dated on or about the date of this Agreement between Cambridge 16,
S. de X.X. de C.V. and WLVN de Latinoamerica, S. de X.X. de C.V. does not
constitute a "Capital Lease Obligation," as that term is defined in the 2009
Senior Note Indenture
(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. Secretary's Certificates. The Administrative Agent shall have
received a secretary's certificates 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.
3. Legal Opinions. The Administrative Agent shall have received a
legal opinion from U.S. Borrowers' outside counsel in form and substance
reasonably 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.
3
(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, 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.
4
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: Executive VP, CFO and Secretary
U.S. 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
(signature pages continue)
Wolverine Tube, Inc.
Amendment No. 5
WOLVERINE FINANCE, LLC
By: Wolverine Tube, Inc.,
its Sole Member
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive VP, CFO and 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 and 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 and Secretary
(signature pages continue)
Wolverine Tube, Inc.
Amendment No. 5
WOLVERINE CHINA INVESTMENTS, LLC
By: Wolverine Tube, Inc.,
its Managing Manager
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive VP, CFO and Secretary
WT HOLDING COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
(signature pages continue)
Wolverine Tube, Inc.
Amendment No. 5
CANADIAN SUBSIDIARY BORROWERS:
3072996 NOVA SCOTIA COMPANY
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
WOLVERINE JOINING TECHNOLOGIES (CANADA) INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
3072452 NOVA SCOTIA COMPANY
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
3072453 NOVA SCOTIA COMPANY
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title : Vice President
WOLVERINE TUBE CANADA LIMITED PARTNERSHIP
By: 3072453 NOVA SCOTIA COMPANY,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
(signature pages continue)
Wolverine Tube, Inc.
Amendment No. 5
WOLVERINE TUBE (CANADA) INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President and Assistant Secretary
(signature pages continue)
Wolverine Tube, Inc.
Amendment No. 5
LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
in its capacity as Administrative Agent
and as a Lender
By: /s/ Xxxxxx X. Galliano
----------------------------------
Name: Xxxxxx X. Galliano
Title: Director
(signature pages continue)
CONGRESS FINANCIAL CORPORATION
(CANADA)
in its capacity as Canadian Agent and as a
Lender
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: VP, Loan Officer
Congress Financial Corporation (Canada)
(signature pages end)
Wolverine Tube, Inc.
Amendment No. 5
