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EXHIBIT 10.1
EXECUTION
WOLVERINE TUBE, INC.
WOLVERINE TUBE (CANADA) INC.
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of
March 10, 1999 and entered into by and among, WOLVERINE TUBE INC., a Delaware
corporation ("COMPANY"), WOLVERINE TUBE (CANADA) INC., an Ontario Corporation
("WOLVERINE CANADA"; the Company and Wolverine Canada are each a "BORROWER" and
collectively, the "BORROWERS"), CREDIT SUISSE FIRST BOSTON, as administrative
agent (in such capacity, "ADMINISTRATIVE AGENT"), MELLON BANK, N.A., as
documentation agent (in such capacity, "DOCUMENTATION AGENT") and the financial
institutions listed on the signature pages hereto (each individually referred to
herein as a "LENDER" and collectively, as "LENDERS"), and is made with
reference to that certain Credit Agreement dated as of April 30, 1997, by and
among Borrowers, Lenders, Administrative Agent and Documentation Agent, as
amended by that certain First Amendment and Limited Waiver to Credit Agreement,
dated as of June 26, 1998, by and among Company, Borrowers, the financial
institutions listed on the signature pages thereof, Administrative Agent and
Documentation Agent (such Credit Agreement, as so amended, the "CREDIT
AGREEMENT"). Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Credit Agreement.
R E C I T A L S
WHEREAS, Company has requested that Requisite Lenders, pursuant to
subsection 10.6 of the Credit Agreement, agree to modify subsection 7.5 of the
Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1,
AMENDMENTS
A. AMOUNT OF RESTRICTED JUNIOR PAYMENTS. Subsection 7.5 of the Credit
Agreement is hereby amended by deleting the reference to $25,000,000 and
substituting $50,000,000 therefor.
SECTION 2.
BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, each of Company and Wolverine
Canada hereby represents and warrants to each Lender that the following
statements are true, correct and complete:
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A. CORPORATE POWER AND AUTHORITY. Company and Wolverine Canada have all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform their obligations under,
the Credit Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of Company and Wolverine Canada,
as the case may be.
C. NO CONFLICT. The execution and delivery by Company and Wolverine Canada
of this Amendment and the performance by Company and Wolverine of the Amended
Agreement do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Company, Wolverine Canada or any
of their respective Subsidiaries, the Certificate or Articles of Incorporation
or Bylaws of Company, Wolverine Canada or any of their respective Subsidiaries
or any order, judgment or decree of any court or other agency of government
binding on Company, Wolverine Canada or any of their respective Subsidiaries,
(ii) conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual Obligation of Company,
Wolverine Canada or any of their respective Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Company, Wolverine Canada or any of their respective Subsidiaries
(other than Liens created under any of the Loan Documents in favor of Agent on
behalf of Lenders), or (iv) require any approval of stockholders or any approval
or consent of any Person under any Contractual Obligation of Company, Wolverine
Canada or any of their respective Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by Company and
Wolverine Canada of this Amendment and the performance by Company and Wolverine
Canada of the Amended Agreement do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
E. BINDING OBLIGATION. This Amendment and the Amended Agreement have been
duly executed and delivered by Company and Wolverine Canada and are the legally
valid and binding obligations of Company and Wolverine Canada enforceable
against Company and Wolverine Canada in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT AGREEMENT.
The representations and warranties contained in Section 5 of the Credit
Agreement are and will be true, correct and complete in all material respects on
and as of the Second Amendment Effective Date to the same extent as though made
on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
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G. ABSENCE OF DEFAULT. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
SECTION 3.
MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the date hereof, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the provisions of
the Credit Agreement as amended and waived hereby.
(ii) Except as specifically amended or waived by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Administrative Agent or any Lender under, the Credit Agreement or any
of the other Loan Documents.
B. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
C. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective upon the execution of a
counterpart hereof by Borrowers and Requisite Lenders and receipt by Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof (the date of satisfaction of such conditions
being referred to herein as the "SECOND AMENDMENT EFFECTIVE DATE").
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
WOLVERINE TUBE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
Title:
Notice Address:
Wolverine Tube, Inc.
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
WOLVERINE TUBE (CANADA) INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
Title:
Notice Address:
Wolverine Tube, Inc.
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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CREDIT SUISSE FIRST BOSTON,
as the Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ Wm. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: Wm. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
Notice Address:
Credit Suisse First Boston
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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CREDIT SUISSE FIRST BOSTON,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ Wm. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: Wm. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
Notice Address:
Credit Suisse First Boston
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇, N.A., individually and as
Documentation Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
Mellon Bank, N.A.
Three Mellon ▇▇▇▇ ▇▇▇▇▇▇
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Attention: Loan Administration
Copy to:
Mellon Bank, N.A.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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BANK OF AMERICA ILLINOIS
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Notice Address:
Bank of America
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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CREDIT LYONNAIS ATLANTA AGENCY
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
Notice Address:
Credit Lyonnais, Atlanta Agency
One Peachtree Center
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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NATIONSBANK, N.A., (successor by merger to
NationsBank, N.A. (South))
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Notice Address:
Bank of America
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Relationship Manager
Notice Address:
The Bank of Nova Scotia
Suite 2700
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Attention: ▇▇▇ ▇▇▇▇▇
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FIRST UNION NATIONAL BANK
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
First Union Capital Markets
PA 4805
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇, NASHVILLE, N.A.
as a Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Notice Address:
Suntrust Bank, Nashville, N.A.
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Attention: ▇▇▇ ▇. ▇▇▇▇
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