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AMENDMENT NO. 14 TO AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER

Waiver Agreement

AMENDMENT NO. 14 TO AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER You are currently viewing:
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WACHOVIA BANK, NATIONAL ASSOCIATION | WOLVERINE TUBE, INC

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Title: AMENDMENT NO. 14 TO AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER
Governing Law: North Carolina     Date: 8/29/2008
Industry: FABPRD     Law Firm: Winston Strawn     Sector: BASICM

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Exhibit 10.8

AMENDMENT NO. 14

TO AMENDED AND RESTATED CREDIT AGREEMENT

AND WAIVER

THIS AMENDMENT NO. 14 TO AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER, dated as of August 28, 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 Borrowers have advised the Administrative Agent that the Borrowers have failed to comply with Section 8.3 of the Credit Agreement for the period ending June 29, 2008, resulting in the occurrence of an Event of Default;

WHEREAS, the Borrowers have requested that the Lenders waive the foregoing Event of Default and agree to amend certain of the provisions of the Credit Agreement; and

WHEREAS, the undersigned Lenders have agreed to waive the above-described Event of Default 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. 14 Effective Date (as hereinafter defined), the Credit Agreement shall be amended as follows:

1. The definition of Applicable Percentage, as set forth in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:


Applicable Percentage ” shall mean, for any day, for (i) Base Rate Loans, 1.50%, (ii) Eurodollar Loans, LMIR Loans and Letter of Credit Fees, 3.00% and (iii) Unused Fees, 0.50%.

2. The definition of Borrowing Base, as set forth in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety as follows:

Borrowing Base ” means a dollar amount equal to the sum of (a) up to 85% of Eligible Accounts Receivable of the Credit Parties, plus (b) the sum of (i) up to 60% of Eligible Inventory of all Credit Parties other than Wolverine Joining Technologies, LLC consisting of raw materials, finished goods, and billet inventory and (ii) the lesser of (A) $3,000,000 or (B) up to 60% of Eligible Inventory of Wolverine Joining Technologies, LLC consisting of raw materials, finished goods, and billet inventory, plus (c) the lesser of (A) up to 25% of the net book value of Eligible Equipment of the Credit Parties, determined in accordance with GAAP, and (B) $11,000,000 minus (d) reserves established from time to time by the Administrative Agent in its sole discretion, in addition to the existing reserve in the amount of $3,000,000. It is understood and agreed that the Agent shall reserve against the Borrowing Base an amount equal to 105% of the maximum amount that was available to be drawn under any expired or terminated Consignment Letter of Credit until the 120th day following the expiration date or termination thereof or, if earlier, the date on which such Consignment Letter of Credit has been cash collateralized in accordance with Section 2.8 hereof.

3. The definition of Consolidated EBITDA, as set forth in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

Consolidated EBITDA ” means, for any applicable period of computation, without duplication, the sum of (i) Consolidated Net Income for such period, but excluding therefrom all extraordinary items of income (determined in accordance with GAAP), plus (ii) the aggregate amount of depreciation and amortization charges made in calculating Consolidated Net Income for such period, plus (iii) aggregate Consolidated Interest Expense for such period, plus (iv) the aggregate amount of all income taxes reflected on the consolidated statements of income of the Consolidated Parties for such period, minus (v) for each fiscal month ending after December 31, 2007, with respect to accrued charges in the original amount of $8,796,323 in connection with the plant located in Decatur, Alabama (the “ Decatur Accrued Amount ”), the portion of the unpaid Decatur Accrued Amount paid in cash during such period until the Decatur Accrued Amount has been reduced to $0.00.

4. The definition of Consolidated Net Income, as set forth in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

Consolidated Net Income ” means, for any applicable period of computation, the net income after taxes of the Consolidated Parties for such

 

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period, as adjusted for (a) non-cash adjustments to Consolidated Net Income due to the effect of changes in accounting methods required by GAAP, (b) the tax adjusted net value of (i) the non-cash adjustments to Consolidated Net Income on account of gains or losses resulting from changes in the metal variance account required by the mark to market of the Copper Hedge, as determined in accordance with GAAP and (ii) the non cash adjustments to valuations of inventory that consists of copper covered by the Copper Hedge resulting from the Company’s mark to market of inventory levels under the Copper Hedge at the time of testing (with the submission of the certificate pursuant to Section 7.1(d), the Company will provide the Administrative Agent with a reconciliation of these adjustments in a format similar to that of Exhibit L) and (c) non-cash adjustments to Consolidated Net Income related to impairment of assets, as determined in accordance with GAAP.

5. The definition of Consolidated Scheduled Debt Payments, as set forth in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

Consolidated Scheduled Funded Debt Payments ” means, for any applicable period of computation, the sum of all payments of principal on Consolidated Funded Debt (other than intercompany Indebtedness) actually paid by the Company and its Consolidated Subsidiaries during the applicable measurement period (including the principal component of payments actually paid on Capital Leases or under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product during the applicable measurement period).

6. The definition of Fixed Charge Coverage Ratio, as set forth in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

Fixed Charge Coverage Ratio ” means, for any applicable period of computation, the ratio of (i) the sum of (A) Consolidated EBITDA of the Domestic Consolidated Parties, plus (B) the amount of net cash received in the United States by Wolverine China Investments, LLC from a permitted disposition of an interest in Wolverine Tube (Shanghai) Limited , plus (C) the aggregate amount of cash which has been distributed by any Foreign Consolidated Party to any Domestic Consolidated Party and which has been received by such Domestic Consolidated Party within the applicable period of computation, less Unfinanced Capital Expenditures of the Domestic Consolidated Parties, less all Consolidated Cash Taxes of the Domestic Consolidated Parties paid during the applicable period, less cash dividends paid by the Company for the applicable period to (ii) total Consolidated Fixed Charges plus all payments and contributions by the Company to The Wolverine Tube, Inc. Retirement Plan in excess of the Pension Payment. The applicable period of computation shall, for the purpose of determining compliance with Section 8.1 hereof, be the cumulative consecutive monthly period commencing as of August 1, 2008 and ending as of the date of determination.

 

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For avoidance of doubt, for purposes of calculation of the Fixed Charge Coverage Ratio only, (a) the calculation of Consolidated Net Income, as used in the calculation of Consolidated EBITDA, shall include only the income after taxes and accompanying adjustments of the Domestic Consolidated Parties, (b) the definition of Consolidated EBITDA shall include only those adjustments for depreciation and amortization, Consolidated Interest Expense and income taxes attributable to the Domestic Consolidated Parties, and (c) the calculation of Consolidated Fixed Charges, including, without limitation, the Consolidated Cash Interest Expense and Consolidated Scheduled Funded Debt components thereof, shall include all of the Consolidated Parties.

7. The definition of Interest Determination Date, as set forth in Section 1.1 of the Credit Agreement is hereby deleted.

8. The definition of Maturity Date, as set forth in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

Maturity Date ” means February 19, 2009.

9. The definition of Permitted Investments, as set forth in Section 1.1 of the Credit Agreement is amended by (A) amending and restating Section (k) in its entirety as follows:

(k) Investment of cash by a Domestic Consolidated Party in Wolverine Tubagem (Portugal) LDA (“ Wolverine Portugal ”) in an aggregate amount not to exceed $8,000,000 during the fourth calendar quarter of 2008, which investment shall be returned by Wolverine Portugal to such Domestic Consolidated Party in cash within ten (10) business days after such initial investment;

and (B) deleting sections “(m)” and “(q)” in their entirety and by substituting “[intentionally omitted]” in their place and stead, respectively.

10. The definition of Revolving Loan Commitment as set forth in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety as follows:

Revolving Loan Commitment ” means $25,000,000 (U.S.), as such amount may be reduced in accordance with Section 2.10.

11. Section 1.1 of the Credit Agreement is hereby amended by adding the following new definitions in the appropriate alphabetical order:

Domestic Consolidated Parties ” means such of the Consolidated Parties which are organized and existing under the laws of the United States or any state or commonwealth thereof or under the laws of the District of Columbia.

Excess Liquidity ” means the sum of (x) Excess Availability, plus (y) the amount by which (1) the amount of calculated funding availability under the

 

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Second Amended and Restated Receivables Purchase Agreement, dated as February 21, 2008 (the “ Receivables Agreement ”) among the SPC, Wolverine Finance, LLC, the Company, the liquidity banks from time to time party thereto, The CIT Group/Business Credit, Inc., individually and as co-agent, and Wachovia Bank, National Association, as agent, demonstrated in the most recent Weekly Report or Settlement Report (as each such term is defined therein), as the case may be, delivered by the Company thereunder, as calculated in accordance with the Receivables Agreement in effect on the date hereof, exceeds (2) the least of (I) the Purchase Limit, (II) the Net Pool Balance minus Required Reserves and (III) the product of 85% times the aggregate Outstanding Balance of Eligible Receivables, minus the Aggregate Invested Amount (as each such term is defined in the Receivables Agreement.

Foreign Consolidated Parties ” means such of the Consolidated Parties which are not Domestic Consolidated Parties.

Amendment No. 14 Effective Date ” means August 28, 2008.

Pension Payment ” means the contribution by the Company to The Wolverine Tube, Inc. Retirement Plan in the amount of $6,558,803.00.

12. Section 4.4(b)(i) of the Credit Agreement is hereby amended and restated in its entirety as follows:

(i) Revolving Loan Overadvance . If, at any time the Revolving Loans outstanding plus the LOC Obligations outstanding plus IRPA Obligations exceed the lesser of the Borrowing Base and the Revolving Loan Commitment, then the Borrowers (or the applicable Borrower) shall immediately make a payment hereunder in an amount equal to such excess. Payments made under (A) and (B) shall be applied first pro rata to Base Rate Loans, second to LMIR Loans, third to Eurodollar Loans in direct order of Interest Period maturities, and fourth , with respect to any Letters of Credit then outstanding, a payment of cash collateral into a cash collateral account opened by the Administrative Agent, for the benefit of the lenders with respect to the undrawn and unexpired amount of such Letters of Credit, up to the amount of such excess.

13. Section 7.1(i) of the Credit Agreement is hereby amended and restated in its entirety as follows:

(i) Borrowing Base Certificate, etc. Not later than 12:00 Noon on Tuesday of each week (or if such day is not a Business Day, then on the next succeeding Business Day) and within three (3) Business Days following the date of any Asset Disposition or Casualty Loss in excess of $1,000,000, the Borrowers shall deliver (i) a borrowing base certificate (the “ Borrowing Base Certificate ”) in substantially the form of Exhibit G hereto, duly completed and certified by a Senior Financial Officer of the Company detailing the Eligible Accounts Receivable, Eligible Inventory and Eligible Equipment of the Credit Parties as of the last day of the immediately preceding Production Month; provided that for

 

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purposes of the valuation of copper Inventory, copper will be valued weekly based upon pounds on hand as of the last Business Day of the immediately preceding Production Month at the COMEX Copper High Grade price published by the New York Mercantile Exchange and Commodities Exchange, Inc. as of 3:00PM on Friday of the immediately preceding week and the Eligible Inventory amount set forth in each weekly Borrowing Base Certificate shall be adjusted accordingly and (ii) a report, in form acceptable to the Administrative Agent, of Excess Liquidity as of the last day of the immediately preceding week. In addition, on the 25 th day of each Production Month (or if such day is not a Business Day, then on the next succeeding Business Day), the Company shall furnish a written report to the Lenders setting forth (i) the accounts receivable aged trial balance at the immediately preceding


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