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AMENDMENT NO. 12
TO AMENDED AND RESTATED CREDIT AGREEMENT,
AMENDMENT NO. 1 TO AMENDED AND RESTATED PLEDGE
AGREEMENT
AND CONSENT
THIS
AMENDMENT NO. 12 TO AMENDED AND RESTATED CREDIT AGREEMENT,
AMENDMENT NO. 1 TO AMENDED AND RESTATED PLEDGE AGREEMENT AND
CONSENT, dated as of March 14, 2008 (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 ”
or the “
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 obligations of the Credit Parties under the Credit
Agreement are secured by substantially all the assets of the
Credit Parties and their respective future U.S. Subsidiaries
pursuant to the terms of the Security Documents, including,
without limitation, that certain Amended and Restated Pledge
Agreement, dated as of April 28,
2005 (as
amended or otherwise modified prior to the date hereof, the
“
Pledge Agreement ”),
among the Borrowers and the Administrative Agent;
WHEREAS,
the Company intends (i) to enter into that certain Preferred
Stock Purchase Agreement (the “
Series B Preferred Stock Purchase Agreement ”)
with The Alpine Group, Inc. (“
Alpine ”)
pursuant to which the Company and Alpine have agreed to enter into
certain transactions, including the purchase by Alpine of certain
shares of the Company’s Series B Preferred Stock (as defined
therein) (collectively, the transactions described under this
clause (i) being hereinafter referred to as the “
Alpine Series B Transaction ”)
and (ii) to enter into a Note Exchange and Debenture Agreement (the
“
2009 Senior Exchange and Debenture Agreement
”) with Plainfield Special Situations Master Fund Limited
(“
Plainfield ”)
pursuant to which the Company and Plainfield have agreed to enter
into certain transactions, including the issuance by the Company of
up to $38,300,000 in 10 1/2 % senior exchange notes due March 28,
2009 (the “
2009 Senior Exchange Notes ”)
to Plainfield in exchange for the 2008 Senior Notes held by
Plainfield under the 2008 Senior Note Indenture (collectively, the
transactions described under this clause (ii) being hereinafter
referred to as the “
Plainfield Exchange Note Transaction ”);
WHEREAS,
the Company has informed the Administrative Agent that it (i)
has formed Wolverine Wieland Singapore Holdings Private
Limited, a company organized under the laws of Singapore
(“
W/W Singapore Holdings ”),
as a wholly-owned direct Subsidiary of Wolverine China Investments,
LLC, a Delaware limited liability company (“
Wolverine China ”),
(ii) will cause W/W Singapore Holdings to become the owner of 100%
of the issued and outstanding shares of Wolverine Tube Shanghai
Co., Ltd., a corporation organized under the laws of the Peoples
Republic of China (“
Wolverine Shanghai ”)
and (iii) will cause Wolverine China to initially sell 30% of the
Capital Stock of W/W Singapore Holdings to Wieland-Werke AG, a
corporation of the Federal Republic of Germany (“
Wieland ”)
pursuant to the terms of a Purchase Agreement (the “
Wolverine/Wieland Purchase Agreement ”),
among the Company, Wolverine China and Wieland, with an option (the
“
Wieland Option ”)
for Wieland to purchase an additional 20% of the issued and
outstanding shares of W/W Singapore Holdings, and the Company has
further requested that the Administrative Agent waive the
requirement that Wolverine China pledge the Capital Stock it owns
in W/W Singapore Holdings to the Agent as security for the
Obligations pursuant to the terms of the Pledge Agreement
(collectively, the transactions described herein being hereinafter
referred to as the “
Wolverine/Wieland Transaction ”,
and together with the Alpine Series B Transaction and the
Plainfield Exchange Note Transaction, collectively, the
“
Transactions ”);
WHEREAS,
the Borrowers have requested that the Lenders consent to the
Transactions and in connection therewith, have requested that
certain amendments be made to the Credit Agreement;
and
WHEREAS,
the undersigned Lenders have agreed to consent to the
Transactions and to amend the Credit Agreement as contemplated
herein pursuant to the terms and conditions
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 to Credit Agreement
. Effective
on (and subject to the occurrence of) the Amendment No. 12
Effective Date (as hereinafter defined), the Credit Agreement shall
be amended as follows:
1.
The
definition of “Change of Control” as set forth in
Section 1.1 of the Credit Agreement is hereby amended by (i)
deleting the word “and” at the end of clause (c)
and inserting a “
,” in
lieu thereof and (ii) inserting the phrase
“and (e) the occurrence of a “Change of Control”
under the 2009 Senior Exchange and Debenture Agreement, the 2009
Senior Exchange Notes, or other documents evidencing the 2009
Senior Exchange Notes” immediately
following the end of clause (d) thereof.
2.
Section
1.1 of the Credit Agreement is hereby amended by adding the
following new definitions in the appropriate alphabetical
order:
“
Series A Preferred Stock Certificate of
Designations
” means the Certificate of Designations of Series A
Convertible Preferred Stock, attached as
Exhibit A
to the Series A Preferred Stock Purchase
Agreement.
“
Series A Preferred Stock Purchase Agreement
” means that certain Preferred Stock Purchase Agreement dated
as of January 31, 2007 among the Company, Alpine and
Plainfield.
“
Series B Preferred Stock Certificate of
Designations
” means the Certificate of Designation of Series B
Convertible Preferred Stock s, attached as
Exhibit A
to the Series B Preferred Stock Purchase
Agreement.
“
Series B Preferred Stock Purchase Agreement
” means that certain Preferred Stock Purchase Agreement
between the Company and Alpine.
“
Series B Preferred Stock
” means the convertible preferred stock designated as the
Series B Convertible Preferred Stock of the Company having the
rights, preferences, privileges and restrictions set forth in the
Preferred Stock Certificate of Designations which shall be
convertible into the Common Stock, par value $1.00 per share, of
the Company in accordance with the terms thereof.
“
2009 Senior Exchange and Debenture
Agreement
” means the Note Exchange and Debenture Agreement, by and
among the Company, the guarantors named therein and Plainfield, as
initial purchaser thereunder, as the same may be amended, modified,
restated or supplemented and in effect from time to time in
accordance with the terms hereof.
“
2009 Senior Exchange Noteholders
” means a collective reference to the holders from time to
time of the 2009 Senior Exchange Notes and “
2009 Senior Exchange Noteholder
” means any one of them.
“
2009 Senior Exchange Notes
” means a collective reference to the Company's $38,300,000
10 1/2% Senior Exchange Notes, due March 28, 2009, issued by the
Company in favor of the 2009 Senior Exchange Noteholders, pursuant
to the 2009 Senior Exchange and Debenture Agreement, as such 2009
Senior Exchange Notes may be amended, modified, restated or
supplemented and in effect from time to time in accordance with the
terms hereof.
3.
Section
1.1 of the Credit Agreement is hereby amended by deleting in
their entirety the definitions of “Preferred Stock
Certificate Designations” and Preferred Stock Purchase
Agreement”.
4.
Section
5.2 of the Credit Agreement is hereby amended by (i)
re-lettering clauses (h) and (i) thereof as clauses (i) and
(j), respectively, (ii) inserting a new clause (h) to read as
follows:
(h)
2009 Senior Exchange and Debenture Agreement
. Immediately after giving effect to the making of a Loan or the
issuance of a Letter of Credit, the Company shall not be in
violation of the terms of the 2009 Senior Exchange and Debenture
Agreement and shall demonstrate in writing compliance with Section
4.5(i) of the 2009 Senior Exchange and Debenture
Agreement.
(iii)
amending and restating clause (i) in its entirety to read as
follows:
(i)
Lien Sharing Provisions
. Immediately after giving effect to the making of a Loan or the
issuance of a Letter of Credit, no requirement shall be in effect
that any of the Borrowers make effective provision whereby any or
all of the 2008 Senior Notes, the 2009 Senior Notes or the 2009
Senior Exchange Notes will be secured by a Lien equally and ratably
with the Obligations.
and
(iv) amending and restating the last paragraph thereof in its
entirety to read as follows:
The delivery of each Notice of Borrowing and each request for a
Letter of Credit shall constitute a representation and warranty by
the applicable Borrower of the correctness of the matters specified
in subsections (b), (c), (d), (e), (f), (g), (h), (i) and (j)
above.
5.
Section
7.1(j) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
(j)
As soon as available and in any event within
thirty (30) days after the end of each Production Month of the
Consolidated Parties, a certificate of a Senior Financial Officer
of the Company demonstrating compliance with each of Section 4.3(i)
of the 2008 Senior Note Indenture, Section 4.11(i) of the 2009
Senior Note Indenture and Section 4.5(i) of the 2009 Senior
Exchange and Debenture Agreement by calculation thereof as of the
end of each such Production Month (the certificate for the
12
th
Production Month of each year may be based on interim
financials,
provided
, that as soon as audited financial statements are available, if
there are any discrepancies between the interim financials and
audited financials affecting the calculations referred to
hereinabove, a corrected certificate shall be resubmitted promptly
to the Administrative Agent and the Lenders).
6.
Section
9.1 of the Credit Agreement is hereby amended by (i) adding
the phrase
“and the Series B Preferred Stock”
to
clause (m) thereof immediately following the word
“Stock” appearing therein, (ii)
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