EX-10.1 AMENDMENT NO. 3 TO CREDIT AGREEMENT

EX-10.1 3 g85771exv10w1.txt EX-10.1 AMENDMENT NO. 3 TO CREDIT AGREEMENT EXHIBIT 10.1 EXECUTION COPY AMENDMENT NO. 3 TO CREDIT AGREEMENT THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT, dated as of September 28, 2003 (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. W I T N E S S E T H 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 anticipate that violations of the minimum Fixed Charge Coverage Ratio covenant set forth in Section 8.1 of the Credit Agreement and the minimum Consolidated EBITDA covenant set forth in Section 8.3 of the Credit Agreement will occur and thus the Borrowers request that the Lenders agree to amend such covenants pursuant to the terms and conditions herein; WHEREAS, the Borrowers have requested an increase in the maximum amount of LOC Obligations permitted under the Credit Agreement; 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: "Gross Availability" means at any time the U.S. Borrowing Base minus the sum of (i) the aggregate amount of Revolving Loans outstanding plus (ii) the LOC Obligations plus (iii) BA Obligations plus (iv) reserves imposed by the Agent from time to time in accordance with Section 2.1(a) hereof. 2. The definition of Excess Availability in Section 1.1 of the Credit Agreement is hereby deleted and replaced with the following: "Excess Availability" means at any time (a) the lesser of (i) the aggregate Commitments and (ii) the U.S. Borrowing Base minus (b) the sum of (i) the aggregate amount of Revolving Loans outstanding plus (ii) the LOC Obligations plus (iii) BA Obligations plus (iv) reserves imposed by the Agent from time to time in accordance with Section 2.1(a) hereof. 3. Section 2.2 of the Credit Agreement is hereby amended by deleting clause (i) of subsection (a) thereof and replacing it with the following: (i) the aggregate amount of U.S. LOC Obligations shall not at any time exceed $10,000,000 (U.S.), 4. Section 8.1 of the Credit Agreement is hereby deleted in its entirety and replaced with the following: 8.1 FIXED CHARGE COVERAGE RATIO. The Consolidated Parties shall maintain a Fixed Charge Coverage Ratio of not less than the following amounts as of the last day of the indicated fiscal quarter:

2 ; provided, however, to the extent that Excess Availability as of each of the last 30 days of such fiscal quarter is greater than $20,000,000, the Fixed Charge Coverage Ratio for such fiscal quarter shall not be tested. 5. Section 8.3 of the Credit Agreement is amended by replacing the table therein with the following table:

6. Section 8.4 of the Credit Agreement is hereby deleted in its entirety and replaced with the following: 8.4 MINIMUM AVAILABILITY. At all times (a) Excess Availability shall be at least $2,000,000 and (b) Gross Availability shall be at least $10,000,000. (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, 3 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. Secretary's Certificates. The Administrative Agent shall have received a secretary's certificates from each Borrower (except the Canadian Borrowers party to the Credit Agreement prior to the date hereof) 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. Payment of Amendment Fee. The Company shall have paid an amendment fee to the Administrative Agent in connection with this Agreement in an aggregate amount equal to $10,000 for the account of each Lender on a pro rata basis according to such Lender's Commitment Percentage as of the date hereof. 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, Moore & Van Allen PLLC. (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. (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 4 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. [Remainder of Page Intentionally Left Blank] 5 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/ James E. Deason ----------------------- Name: James E. Deason Title: Exec. VP, CFO & Secretary U.S. SUBSIDIARY BORROWERS: TF INVESTOR, INC. By: /s/ James E. Deason ----------------------- Name: James E. Deason Title: V. P. & Assistant Treasurer TUBE FORMING HOLDINGS, INC. By: /s/ James E. Deason ----------------------- Name: James E. Deason Title: V.P. & Assistant Treasurer TUBE FORMING, L.P. By: Tube Forming Holdings, Inc., its General Partner By: /s/ James E. Deason ----------------------------- Name: James E. Deason Title: V.P. & Assistant Treasurer (signature pages continue) WOLVERINE FINANCE, LLC By: Wolverine Tube, Inc., its Sole Member By: /s/ James E. Deason ----------------------- Name: James E. Deason Title: Executive V.P., CFO and Secretary SMALL TUBE MANUFACTURING, LLC By: Wolverine Tube, Inc., its Sole Member By: /s/ James E. Deason ----------------------- Name: James E. Deason Title: Executive V.P., CFO and Secretary WOLVERINE JOINING TECHNOLOGIES, LLC By: Wolverine Tube, Inc., its Sole Member By: /s/ James E. Deason ----------------------- Name: James E. Deason Title: Executive V.P., CFO and Secretary (signature pages continue) WOLVERINE CHINA INVESTMENTS, LLC By: Wolverine Tube, Inc., its Managing Manager By: /s/ James E. Deason ---------------------------- Name: James E. Deason Title: Exec. V.P., CFO & Secretary WT HOLDING COMPANY, INC. By: /s/ James E. Deason ----------------------------- Name: James E. Deason Title: Vice President & Assistant Treasurer (signature pages continue) CANADIAN SUBSIDIARY BORROWERS: 3072996 NOVA SCOTIA COMPANY By: /s/ James E. Deason ----------------------- Name: James E. Deason Title: Vice President WOLVERINE JOINING TECHNOLOGIES (CANADA) INC. By: /s/ James E. Deason ----------------------- Name: James E. Deason Title: Vice President & Assistant Treasurer ###-###-#### NOVA SCOTIA COMPANY By: /s/ James E. Deason ----------------------- Name: James E. Deason Title: Vice President ###-###-#### NOVA SCOTIA COMPANY By: /s/ James E. Deason ----------------------- Name: James E. Deason Title: Vice President WOLVERINE TUBE CANADA LIMITED PARTNERSHIP By: 3072453 NOVA SCOTIA COMPANY, its General Partner By: /s/ James E. Deason ----------------------- Name: James E. Deason Title: Vice President (signature pages continue) WOLVERINE TUBE (CANADA) INC. By: /s/ James E. Deason ----------------------- Name: James E. Deason Title: Vice President & Secretary By: /s/ Johann R. Manning, Jr. ------------------------------ Name: Johann R. Manning, Jr. Title: Vice President & Assistant Secretary (signature pages continue) LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as Administrative Agent and as a Lender By: /s/ Laurie D. Galliano ----------------------------- Name: Laurie D. Galliano Title: Vice President (signature pages continue) CONGRESS FINANCIAL CORPORATION (CANADA), in its capacity as Canadian Agent and as a Lender By: /s/ H. Rosenfeld ----------------------- Name: H. Rosenfeld Title: Sr. V.P. Congress Financial [signature pages end]