<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM 10-Q
(Mark One)
[X] Quarterly report pursuant to Section 13 or 15 (d) of the Securities
Exchange Act of 1934
For the quarterly period ended July 4, 1998
------------
OR
[ ] Transition report pursuant to Section 13 or 15 (d) of the Securities
Exchange Act of 1934
For the transition period from _________________ to ____________________
Commission file number 1-12164
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WOLVERINE TUBE INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 63-0970812
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1525 Perimeter Parkway, Suite 210
Huntsville, Alabama 35806
- ---------------------------------------- ----------
(Address of Principal executive offices) (Zip Code)
(256) 890-0460
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(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
--------- ---------
Indicate the number of shares outstanding of each class of common stock, as of
the latest practicable date:
Class Outstanding at August 4, 1998
----- -----------------------------
Common Stock, par value $0.01 per share 14,131,164 shares
<PAGE> 2
WOLVERINE TUBE, INC.
INDEX
<TABLE>
<CAPTION>
Page No.
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<S> <C>
PART I. Financial Information
Item 1. Financial Statements
Condensed Consolidated Statements of Income (unaudited) -
Three and Six-Month Periods Ended July 4, 1998 and
June 28, 1997..................................................................2
Condensed Consolidated Balance Sheets (unaudited) -
July 4, 1998 and December 31, 1997.............................................3
Condensed Consolidated Statements of Cash Flows (unaudited) -
Six-Month Periods Ended July 4, 1998 and
June 28, 1997..................................................................4
Notes to Condensed Consolidated
Financial Statements (unaudited)...............................................5
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations..................................9
PART II. Other Information
Item 1. Legal Proceedings..............................................................19
Item 4. Submission of Matters to a Vote of Security Holders ...........................19
Item 5. Other Matters - Stockholder Proposals .........................................20
Item 6. Exhibits and Reports on Form 8-K...............................................20
</TABLE>
<PAGE> 3
WOLVERINE TUBE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
(In thousands, except per share data)
<TABLE>
<CAPTION>
THREE - MONTH PERIOD ENDED: SIX - MONTH PERIOD ENDED:
-------------------------- --------------------------
JULY 4, JUNE 28, JULY 4, JUNE 28,
1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
NET SALES ............................................. $ 169,640 $ 178,082 $ 339,939 $ 351,658
COST OF GOODS SOLD .................................... 143,975 154,760 289,479 306,741
--------- --------- --------- ---------
GROSS PROFIT .......................................... 25,665 23,322 50,460 44,917
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES .......... 6,114 5,590 12,549 10,996
NON-RECURRING CHARGE .................................. -- 4,384 -- 4,384
--------- --------- --------- ---------
INCOME FROM OPERATIONS ................................ 19,551 13,348 37,911 29,537
OTHER EXPENSES:
INTEREST EXPENSE .................................... 1,202 1,958 2,788 4,382
AMORTIZATION AND OTHER, NET ......................... 190 (6) 435 248
--------- --------- --------- ---------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM .................................. 18,159 11,396 34,688 24,907
INCOME TAXES .......................................... 6,491 4,333 12,445 9,007
--------- --------- --------- ---------
INCOME BEFORE EXTRAORDINARY ITEM ...................... 11,668 7,063 22,243 15,900
EXTRAORDINANY ITEM, NET OF INCOME TAX BENEFIT OF $2,782 -- 4,738 -- 4,738
--------- --------- --------- ---------
NET INCOME ............................................ 11,668 2,325 22,243 11,162
LESS: PREFERRED STOCK DIVIDENDS ....................... (70) (70) (140) (140)
--------- --------- --------- ---------
NET INCOME APPLICABLE TO COMMON SHARES ................ $ 11,598 $ 2,255 $ 22,103 $ 11,022
========= ========= ========= =========
EARNINGS PER COMMON SHARE - BASIC:
INCOME BEFORE EXTRAORDINARY ITEM .................... $ 0.82 $ 0.50 $ 1.57 $ 1.13
EXTRAORDINARY ITEM, NET OF INCOME TAX BENEFIT ....... -- (0.34) -- (0.34)
--------- --------- --------- ---------
NET INCOME PER SHARE ................................ $ 0.82 $ 0.16 $ 1.57 $ 0.79
========= ========= ========= =========
BASIC WEIGHTED AVERAGE NUMBER OF COMMON
SHARES .......................................... 14,112 14,016 14,099 14,000
========= ========= ========= =========
EARNINGS PER COMMON SHARE - DILUTED:
INCOME BEFORE EXTRAORDINARY ITEM .................... $ 0.81 $ 0.49 $ 1.55 $ 1.11
EXTRAORDINARY ITEM, NET OF INCOME TAX BENEFIT ....... -- (0.33) -- (0.33)
--------- --------- --------- ---------
NET INCOME PER SHARE ................................ $ 0.81 $ 0.16 $ 1.55 $ 0.78
========= ========= ========= =========
DILUTED WEIGHTED AVERAGE NUMBER OF COMMON AND
COMMON EQUIVALENT SHARES ........................ 14,317 14,200 14,295 14,220
========= ========= ========= =========
</TABLE>
SEE NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.
2
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WOLVERINE TUBE, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except share data)
<TABLE>
<CAPTION>
JULY 4, DECEMBER 31,
1998 1997
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(UNAUDITED) (NOTE)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
CASH AND EQUIVALENTS .................................................. $ 12,293 $ 15,096
ACCOUNTS RECEIVABLE, NET .............................................. 91,840 71,879
INVENTORIES ........................................................... 85,717 87,829
PREPAID EXPENSES AND OTHER ............................................ 1,981 1,067
--------- ---------
TOTAL CURRENT ASSETS ............................................... 191,831 175,871
PROPERTY, PLANT AND EQUIPMENT, NET ........................................ 187,728 153,917
DEFERRED CHARGES AND INTANGIBLE ASSETS, NET ............................... 85,903 87,937
PREPAID PENSIONS .......................................................... 7,483 7,197
--------- ---------
TOTAL ASSETS ....................................................... $ 472,945 $ 424,922
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
ACCOUNTS PAYABLE ...................................................... $ 32,529 $ 39,937
ACCRUED LIABILITIES ................................................... 12,272 6,429
DEFERRED INCOME TAXES ................................................. 3,875 3,659
--------- ---------
TOTAL CURRENT LIABILITIES .......................................... 48,676 50,025
DEFERRED INCOME TAXES ..................................................... 26,675 27,057
LONG-TERM DEBT ............................................................ 127,315 98,411
POSTRETIREMENT BENEFIT OBLIGATIONS ........................................ 11,869 12,126
ACCRUED ENVIRONMENTAL REMEDIATION ......................................... 3,093 2,540
--------- ---------
TOTAL LIABILITIES .................................................. 217,628 190,159
REDEEMABLE CUMULATIVE PREFERRED STOCK, PAR VALUE $1 PER SHARE; 20,000
SHARES ISSUED AND OUTSTANDING AT JULY 4, 1998 AND
DECEMBER 31, 1997 ..................................................... 2,000 2,000
STOCKHOLDERS' EQUITY:
CUMULATIVE PREFERRED STOCK, PAR VALUE $1 PER SHARE;
500,000 SHARES AUTHORIZED ............................................ -- --
COMMON STOCK, PAR VALUE $.01 PER SHARE; 40,000,000 SHARES
AUTHORIZED, 14,122,474 AND 14,069,064 SHARES ISSUED AND OUTSTANDING AT
JULY 4, 1998 AND DECEMBER 31, 1997, RESPECTIVELY ..................... 141 141
ADDITIONAL PAID-IN CAPITAL ............................................ 100,837 100,064
RETAINED EARNINGS ..................................................... 165,176 143,073
ACCUMULATED CURRENCY TRANSLATION ADJUSTMENT ........................... (12,837) (10,515)
--------- ---------
TOTAL STOCKHOLDERS' EQUITY ......................................... 253,317 232,763
--------- ---------
TOTAL LIABILITIES, REDEEMABLE CUMULATIVE PREFERRED STOCK
AND STOCKHOLDERS' EQUITY .......................................... $ 472,945 $ 424,922
========= =========
</TABLE>
Note: The Balance Sheet at December 31, 1997 has been derived from the audited
financial statements at that date but does not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements.
See notes to condensed consolidated financial statements.
3
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WOLVERINE TUBE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(In thousands)
<TABLE>
<CAPTION>
SIX - MONTH PERIOD ENDED:
------------------------------
JULY 4, JUNE 28,
1998 1997
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<S> <C> <C>
OPERATING ACTIVITIES
NET INCOME ...................................................... $ 22,243 $ 11,162
ADJUSTMENTS TO RECONCILE NET INCOME TO NET CASH
PROVIDED BY OPERATING ACTIVITIES:
DEPRECIATION AND AMORTIZATION ................................ 8,923 8,884
DEFERRED INCOME TAXES ........................................ -- 25
NON-CASH PORTION OF NON-RECURRING CHARGE ..................... -- 3,533
EXTRAORDINARY LOSS ON RETIREMENT OF DEBT ..................... -- 4,738
CHANGES IN OPERATING ASSETS AND LIABILITIES:
ACCOUNTS RECEIVABLE ......................................... (20,537) (17,632)
INVENTORIES ................................................. 2,268 1,530
PREPAID EXPENSES AND OTHER .................................. (1,029) (581)
ACCOUNTS PAYABLE ............................................ (6,868) 6,427
ACCRUED LIABILITIES INCLUDING PENSION, POSTRETIREMENT BENEFIT
AND ENVIRONMENTAL .......................................... 4,521 (6,058)
-------- ---------
NET CASH PROVIDED BY OPERATING ACTIVITIES ....................... 9,521 12,028
INVESTING ACTIVITIES
ADDITIONS TO PROPERTY, PLANT AND EQUIPMENT ...................... (13,930) (14,445)
ACQUISITION OF BUSINESS ASSETS .................................. (27,017) --
OTHER ........................................................... (76) --
-------- ---------
NET CASH USED BY INVESTING ACTIVITIES ........................... (41,023) (14,445)
FINANCING ACTIVITIES
FINANCING FEES .................................................. -- (820)
NET BORROWINGS FROM REVOLVING CREDIT FACILITY ................... 29,281 111,440
ISSUANCE OF COMMON STOCK ........................................ 773 177
PREMIUM AND FEES PAID ON RETIREMENT OF DEBT ..................... -- (5,517)
PRINCIPAL PAYMENTS ON LONG-TERM DEBT AND CAPITALIZE
LEASE OBLIGATIONS ............................................ (351) (98,401)
DIVIDENDS PAID .................................................. (140) (140)
-------- ---------
NET CASH PROVIDED BY FINANCING ACTIVITIES ...................... 29,563 6,739
EFFECT OF EXCHANGE RATE ON CASH AND EQUIVALENTS ................. (864) (49)
-------- ---------
NET (DECREASE) INCREASE IN CASH AND EQUIVALENTS ................. (2,803) 4,273
CASH AND EQUIVALENTS BEGINNING OF PERIOD ........................ 15,096 2,967
-------- ---------
CASH AND EQUIVALENTS END OF PERIOD .............................. $ 12,293 $ 7,240
======== =========
</TABLE>
SEE NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.
4
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WOLVERINE TUBE, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JULY 4, 1998
(Unaudited)
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements
include the accounts of the Company and its wholly-owned subsidiaries after
elimination of significant intercompany accounts and transactions. The
accompanying condensed consolidated financial statements have been prepared in
accordance with instructions to Form 10-Q and do not include all the information
and footnotes required by generally accepted accounting principles for complete
financial statements. The accompanying condensed consolidated financial
statements (and all information in this report) have not been examined by
independent auditors; but, in the opinion of management all adjustments, which
consist of normal recurring accruals necessary for a fair presentation of the
results for the periods, have been made. The results of operations for the
six-month period ended July 4, 1998 are not necessarily indicative of the
results of operations that may be expected for the year ending December 31,
1998. For further information, refer to the consolidated financial statements
and footnotes included in the Company's annual report on Form 10-K for the year
ended December 31, 1997. The Company uses its internal operational reporting
cycle for quarterly financial reporting.
In May 1998, the Company acquired a facility located in Jackson,
Tennessee, and the related welded tube manufacturing equipment and technology,
from a subsidiary of Korea-based Poongsan Corporation. The equipment at this
facility is being installed and tested, and commercial production is expected to
begin in January 1999. The aggregate purchase price was approximately $30
million and was financed, in part, using borrowings under the Company's
revolving credit facility.
NOTE 2 - CONTINGENCIES
The Company is subject to extensive U.S. and Canadian federal, state,
provincial and local environmental laws and regulations. These laws, which are
constantly changing, regulate the discharge of materials into the environment.
The Company has received various communications from regulatory
authorities concerning certain environmental matters and has currently been
named as a potentially responsible party ("PRP") at various waste disposal
sites. The Company believes that its potential liability with respect to these
waste disposal sites is not material.
The Company has accrued environmental remediation costs of $3,093,000
as of July 4, 1998, consisting primarily of $38,000 for estimated remediation
costs for the London and Fergus, Canada, facilities, $1,129,500 for the Decatur,
Alabama facility, $399,500 for the Greenville, Mississippi facility, $750,000
for the Jackson, Tennessee facility and an aggregate of $776,000 for the
Ardmore, Tennessee facility and the Shawnee, Oklahoma facility (with respect to
the Double Eagle Refinery site). Based on
5
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information currently available, the Company believes that the costs of these
matters are not reasonably likely to have a material adverse effect on the
Company's consolidated financial condition, results of operations or liquidity.
NOTE 3 - INVENTORIES
Inventories are as follows:
<TABLE>
<CAPTION>
July 4, December 31,
1998 1997
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(In thousands)
<S> <C> <C>
Finished products $15,065 $21,235
Work-in-progress 23,268 23,515
Raw materials and supplies 47,384 43,079
------- -------
$85,717 $87,829
======= =======
</TABLE>
NOTE 4 - INTEREST EXPENSE, NET
Interest expense is net of interest income and capitalized interest of
$537,000 and $252,000 for the three-month periods ended July 4, 1998 and June
28, 1997, respectively, and $889,000 and $375,000 for the six-month periods
ended July 4, 1998 and June 28, 1997, respectively.
NOTE 5- LONG-TERM DEBT
In June 1998, the Company amended certain provisions of the Company's
$200 million Revolving Credit Facility (the "Facility") which included (i)
increasing the amount of unsecured indebtedness that the Company may incur while
borrowings under the Facility are outstanding, (ii) waiving the requirement that
the proceeds of an offering of senior notes must be used to repay all the
outstanding borrowings under the Facility and (iii) raising the ratio of total
debt to EBITDA permitted while borrowings are outstanding under the Facility.
The Facility, as amended, matures in full on April 30, 2002 and currently
provides for a floating base interest rate that is, at the Company's election,
either (a) the higher of the federal funds effective rate plus .50% and the
prime rate or (b) LIBOR plus a specified margin (determined with reference to
the Company's ratio of total debt to EBITDA and the Company's debt rating as
determined by the Standard & Poor's and Moody's Rating Services) of .25% to
1.00%. Commitment fees on the unused available portion of the Facility range
from .10% to .50%. As of July 4, 1998, the Company had approximately $129
million in outstanding borrowings and obligations under the Facility and
approximately $71 million in additional borrowing availability thereunder.
The Company was party to two interest rate swap agreements which
effectively fixed the interest rate on $82,000,000 in principal amount of
floating rate borrowings provided under the Facility at a rate of 6.82% and
5.86% plus the specified margin from the Facility of .25% to 1.00%. Subsequent
to July 4, 1998, the Company terminated the 5.86% interest rate swap agreement,
which related to $17,000,000 in borrowings and was scheduled to expire in
February, 1999. The remaining agreement, which relates to $65,000,000 in
borrowings, expires on May 7, 2002 and is based on 3-month LIBOR. The interest
rate swaps are accounted for as a hedge; the differential to be paid as interest
rates change is accrued and recognized as an adjustment to interest expense.
6
<PAGE> 8
In August 1998, the Company issued $150 million in principal amount of
7 3/8 % Senior Notes (the "Notes") due August 1, 2008. The Notes were issued
pursuant to an Indenture, dated as of August 4, 1998 between the Company and
First Union National Bank, as Trustee. The net proceeds from the sale of the
notes were applied to reduce borrowings by approximately $58 million under the
Facility. Of the remaining net proceeds, the Company intends to use
approximately $55 million for capital expenditures during 1998 and 1999, and to
use the balance of the net proceeds for potential future acquisitions, working
capital and other general corporate purposes. The Notes (i) have interest
payment dates on February 1 and August 1 of each year, commencing February 1,
1999, (ii) are redeemable at the option of the Company at a redemption price
equal to the greater of (x) 100% of the principal amount of the Notes to be
redeemed or (y) the sum of the present value of the remaining scheduled payments
of principal and interest thereon from the redemption date to the maturity date,
discounted to the redemption date on a semiannual basis at a rate based upon the
yield of specified treasury securities ("Treasury Rate") plus 25 basis points,
plus, in each case, accrued interest thereon to the date of redemption, (iii)
are senior unsecured obligations of the Company and are pari passu in right of
payment with any existing and future senior unsecured indebtedness of the
Company, including borrowings under the Facility, (iv) are guaranteed by certain
of the Company's subsidiaries, and (v) are subject to the terms of the
Indenture, which contains certain covenants that limit the Company's ability to
incur indebtedness secured by certain liens and to engage in sale/leaseback
transactions.
NOTE 6 - COMPREHENSIVE INCOME
As of January 1, 1998, the Company adopted Financial Accounting
Standards Board Statement No. 130, Reporting Comprehensive Income ("Statement
130"). Statement 130 establishes new rules for the reporting and display of
comprehensive income and its components; however, the adoption of Statement 130
had no impact on the Company's net income or stockholders' equity. Statement 130
requires unrealized gains or losses on the Company's foreign currency
translation adjustments, which prior to adoption of Statement 130 were reported
separately in stockholders' equity, to be included in other comprehensive
income. Prior year financial statements have been reclassified to conform to the
requirements of Statement 130. During the second quarters of 1998 and 1997,
total comprehensive income amounted to $9,783,000 and $2,174,000, respectively.
For the first six months of 1998 and 1997, total comprehensive income amounted
to $20,677,000 and $10,753,000, respectively.
NOTE 7 - NON RECURRING CHARGE
During the second quarter of 1997, the Company recognized a
non-recurring, pre-tax charge of $4,384,000 ($2,997,000 net of tax). This charge
included $1.8 million of expenses related to the implementation of the Company's
1997 Voluntary Early Retirement Program (the "Plan"); $1.3 million of severance
costs primarily associated with the departure of the Company's former Chief
Executive Officer; $0.6 million professional fees and other costs associated
with an acquisition that was not completed; and $0.7 million of the cost of
discontinuing the Poland operations of Small Tube Manufacturing Corporation (a
wholly-owned subsidiary of the Company).
7
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NOTE 8 - EARNING PER SHARE
The following table sets forth the computation of basic and diluted
earnings per share:
<TABLE>
<CAPTION>
Three-month period ended: Six-month period ended:
- -----------------------------------------------------------------------------------------------------
July 4, June 28, July 4, June 28,
1998 1997 1998 1997
- -----------------------------------------------------------------------------------------------------
(In thousands, except per share data)
<S> <C> <C> <C> <C>
Income before extraordinary item $ 11,668 $ 7,063 $ 22,243 $ 15,900
Extraordinary item, net of income tax benefit -- 4,738 -- 4,738
- -----------------------------------------------------------------------------------------------------
Net income 11,668 2,325 22,243 11,162
Preferred dividends (70) (70) (140) (140)
=====================================================================================================
Net income applicable to
Common shares $ 11,598 $ 2,255 $ 22,103 $ 11,022
=====================================================================================================
Basic weighted common
shares outstanding 14,112 14,016 14,099 14,000
Employee stock options 205 184 196 220
- -----------------------------------------------------------------------------------------------------
Diluted weighted average common
and common equivalent shares
outstanding 14,317 14,200 14,295 14,220
=====================================================================================================
Earnings per share-basic:
Income before extraordinary item $ 0.82 $ 0.50 $ 1.57 $ 1.13
Extraordinary items, net of income tax benefit -- (0.34) -- (0.34)
- -----------------------------------------------------------------------------------------------------
Net income per common share $ 0.82 $ 0.16 $ 1.57 $ 0.79
=====================================================================================================
Earnings per share-diluted:
Income before extraordinary item $ 0.81 $ 0.49 $ 1.55 $ 1.11
Extraordinary item, net income tax benefit -- (0.33) -- (0.33)
- -----------------------------------------------------------------------------------------------------
Net income per common share $ 0.81 $ 0.16 $ 1.55 $ 0.78
=====================================================================================================
</TABLE>
8
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WOLVERINE TUBE, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Three-Month Period Ended July 4, 1998 Compared to
Three-Month Period Ended June 28, 1997
For the three-month period ended July 4, 1998, consolidated net sales
were $169.6 million compared with $178.1 million in the three-month period ended
June 28, 1997. The decrease in sales for the three-month period this year versus
last year was attributable to a significant decrease in the average price of
copper which was partially offset by an increase in pounds of product shipped
and an increase in average unit fabrication charges. The cost of copper is
generally passed along to the Company's customers and is included in the costs
of goods sold. As a result, while total pounds shipped increased, the decline in
copper prices resulted in a decline in net sales. Fabrication charges represent
the amount charged by the Company for converting raw materials into finished
products. The average Comex price of copper was $0.78 per pound in the most
recent three-month period compared with $1.14 per pound in the same period a
year ago. The primary impact to Wolverine of lower copper prices is lower net
sales and costs of goods sold. The Company uses various strategies to minimize
the effect of copper prices on the Company's earnings.
Total pounds shipped for the three-month period of 1998 increased by
8.6 million pounds to 96.5 million pounds compared with 87.9 million pounds in
the three-month period a year ago. Shipments of commercial tube products
increased 10.0%, primarily as a result of increased shipments of industrial tube
used in the residential air conditioning industry and increased shipments of
technical tube as the replacement of large commercial air conditioning units
utilizing CFC refrigerants continues. The Company increased its shipments of
wholesale products by 7.9% to 21.2 million pounds in response to increased unit
fabrication charges in the United States and Canadian markets. Shipments of rod,
bar and strip products increased 11.7% as shipments of rod and bar products to
Canadian service centers increased and strip products to the Canadian mint
increased as compared to the same period in the prior year.
Consolidated gross profit increased 10.3% to $25.7 million in the
three-month period of 1998 compared to $23.3 million in the same three-month
period of 1997. This increase is primarily the result of increased shipments of
commercial products, which are generally the Company's highest margin product.
In addition, the increase in shipments of wholesale products resulted from an
increase in fabrication charges, resulting in an increase in gross profit for
these products during the three-month period in 1998 as compared to the
three-month period in 1997.
Consolidated selling, general and administrative expenses for the
three-month period of 1998 were $6.1 million as compared to $5.6 million in the
three-month period in 1997. This increase was primarily the result of additional
employee incentive expenses incurred under benefit programs as a result of the
Company's increase in profitability during the period, increased general
management salaries, as well as increased professional fees.
9
<PAGE> 11
During the three-month period of 1997, the Company recognized a
non-recurring, pre-tax charge to operations of $4.4 ($3.0 million after taxes).
This one-time charge included $1.8 million of expenses related to the
implementation of the Company's 1997 Voluntary Early Retirement Program (the
"Plan"); $1.3 million of severance costs primarily associated with the departure
of the Company's former Chief Executive Officer; $0.6 million of professional
fees and other costs associated with an acquisition that was not completed; and
$0.7 million of the costs of discontinuing the Poland operations of Small Tube
Manufacturing Corporation (a wholly-owned subsidiary of the Company) ("STMC").
Consolidated net interest expense for the three-month period in 1998
decreased to $1.2 million from $2.0 million in the three-month period in 1997.
This decrease is primarily the result of reduced interest expense achieved
through the Company's April 1997 refinancing and the related repayment of its 10
1/8% Senior Subordinated Notes due 2002 (the "10 1/8% Notes") and increased
capitalized interest associated with several capital projects in 1998. The
Company incurred an extraordinary charge in the second quarter of 1997
associated with the early extinguishment of the 10 1/8% Notes. The charge on the
extinguishment, net of tax, was approximately $4.7 million ($7.5 million
pre-tax).
The effective tax rate for the three-month period ended July 4, 1998
was 35.7%, compared with 38.0% in the three-month period a year ago. Adjusting
for the tax effect of the non-recurring charge of $3.0 million, the effective
tax rate for the three-month period ended June 28, 1997 was 36.2%.
Consolidated net income for the three-month period in 1998 was $11.7
million or $0.81 per diluted share, or $0.82 per basic share, compared to $2.3
million or $0.16 per diluted and basic share, in the three-month period a year
ago. Adjusting for the non-recurring charge of $3.0 million, or $0.21 per
diluted share and the extraordinary charge of $4.7 million or $0.33 per diluted
share, consolidated net income and earnings per share for the three-month period
in 1997 would have been $10.0 million, or $0.70 per diluted share.
Six-Month Period Ended July 4, 1998 Compared to
Six-Month Period Ended June 28, 1997
For the six-month period ended July 4, 1998 consolidated net sales were
$339.9 million compared with $351.7 million in the six-month period ended June
28, 1997. The decrease in sales for the three-month period this year versus last
year was attributable to a decrease in copper prices which was partially offset
by an increase in pounds of product shipped and an increase in fabrication
charges. The average Comex price of copper was $0.78 per pound in the most
recent six-month period compared with $1.13 per pound in the same period a year
ago. The primary impact to Wolverine of lower copper prices is lower net sales
and costs of goods sold. The Company uses various strategies to minimize the
effect of copper prices on the Company's earnings.
Total pounds shipped for the six-month period of 1998 increased by 19.5
million pounds to 192.1 million pounds compared with 172.6 million pounds in the
six-month period a year ago. Shipments of commercial tube products increased
9.0%, primarily as a result of increased shipments of industrial tube used in
the residential air conditioning industry and increased shipments of technical
tube as the replacement of large commercial air conditioning units utilizing CFC
refrigerants continues. The
10
<PAGE> 12
Company increased its shipments of wholesale products by 15.3% to 44.3 million
pounds in response to increased unit fabrication charges in the United States
and Canadian markets. Shipments of rod, bar and strip products increased 15.4%
as shipments of rod and bar products to Canadian service centers increased and
strip products to the Canadian mint increased as compared to the same period in
the prior year.
Consolidated gross profit increased 12.5% to $50.5 million in the
six-month period of 1998 compared to $44.9 million in the six-month period of
1997. This increase is primarily the result of increased shipments of commercial
products, which are generally the Company's highest margin product. In addition,
the increase in shipments of wholesale products resulted from an increase in
unit fabrication charges resulting in increased gross profit for these products
during the six-month period in 1998 as compared to the six-month period in 1997.
Consolidated selling, general and administrative expenses for the
six-month period of 1998 were $12.5 million as compared to $11.0 million in the
six-month period in 1997. This increase was primarily the result of additional
employee incentive expenses as a result of the Company's increase in
profitability during the period, increased general management salaries, as well
as increased professional fees associated with among other things the Company's
conversion of its computer system.
During the six-month period of 1997, the Company recognized a
non-recurring, pre-tax charge to operations of $4.4 ($3.0 million after taxes),
as discussed above.
Consolidated net interest expense for the six-month period in 1998
decreased to $2.8 million from $4.4 million in the six-month period in 1997.
This decrease is primarily the result of reduced interest expense achieved
through the Company's April 1997 refinancing and the related repayment of the 10
1/8% Notes and increased capitalized interest associated with several capital
projects in 1998. The Company incurred an extraordinary charge associated with
the early extinguishment of the 10 1/8% Notes. The charge on the extinguishment,
net of tax was approximately $4.7 million ($7.5 million pre-tax).
The effective tax rate for the six-month period ended July 4, 1998 was
35.9%, compared with 36.2% in the six-month period a year ago.
Consolidated net income for the six-month period in 1998 was $22.2
million or $1.55 per diluted share, or $1.57 per basic share, compared to $11.2
million or $0.78 per diluted share , or $0.79 per basic share, in the six-month
period a year ago. Adjusting for the non-recurring charge of $3.0 million or
$0.21 per diluted share and the extraordinary charge of $4.7 million or $0.33
per diluted share, consolidated net income and earnings per share for the
six-month period in 1997 would have been $18.9 million or $1.32 per diluted
share.
11
<PAGE> 13
LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by operating activities totaled $9.5 million in the
first six-months of 1998 compared $12.0 million in the first six-months of 1997.
The decrease in cash provided by operations in the first six-months of 1998 was
primarily due to increased accounts receivables and decreased accounts payable
which was partially effected by increased liabilities. The $20.5 million
increase in net accounts receivable from December 31, 1997 is primarily due to
increased sales which was partially offset by decreases in Comex copper prices
over the prevailing prices at year end 1997.
In June 1998, the Company amended certain provisions of the Company's
$200 million Revolving Credit Facility (the "Facility"), which included (i)
increasing the amount of unsecured indebtedness that the Company may incur while
borrowing under the Facility are outstanding, (ii) waiving the requirement that
the proceeds of the Notes must be used to repay all the outstanding borrowings
under the Facility and (iii) raising the ratio of total debt to EBITDA permitted
while borrowings are outstanding under the Facility. The Facility, as amended,
matures in full on April 30, 2002 and currently provides for a floating base
interest rate that is, at the Company's election, either (a) the higher of the
federal funds effective rate plus .50% and the prime rate or (b) LIBOR plus a
specified margin (determined with reference to the Company's ratio of total debt
to EBITDA and the Company's debt rating as determined by the Standard & Poor's
and Moody's Rating Services) of .25% to 1.00%. Commitment fees on the unused
available portion of the Facility range from .10% to .50%. As of July 4, 1998,
the Company had approximately $129 million in outstanding borrowings and
obligations under the Facility and approximately $71 million in additional
borrowing availability thereunder.
In May 1998, the Company acquired a facility located in Jackson,
Tennessee, and the related welded tube manufacturing equipment and technology,
from a subsidiary of Korea-based Poongsan Corporation. The equipment at this
facility is being installed and tested and commercial production is expected to
begin in January 1999. The aggregate purchase price was approximately $30
million and was financed, in part, using borrowings under the revolving credit
facility.
During the first half of 1997, the Company adopted the 1997 Voluntary
Early Retirement Program (the "Plan"). This Plan rewards certain eligible
employees who elected on a voluntary basis to take early retirement from the
Company between March 26, 1997 and May 12, 1997. After the execution of a
binding Voluntary Early Retirement Agreement and General Release by each
eligible employee, the Company paid each such employee an early retirement
payment and provided certain other considerations. The payment was an amount
equal to four weeks' base pay plus one additional week's pay for each year of
service, up to a maximum of twenty-six weeks' total, less applicable taxes and
withholdings required by law. Twenty-six employees from various locations and
departments throughout the Company elected to participate in the Plan. At the
end of the second quarter in 1997, the implementation of the Plan was completed.
The Company expects to realize approximately $2.0 million in reduced salary and
related expenses per year as a result of the Plan. Implementation of the Plan
resulted in an approximate $1.8 million charge that was included in the
Company's non-recurring charge and recognized in the second quarter of 1997. The
primary components of the charge relating to the Plan include approximately $1.0
million relating to severance and vacation pay and $0.6 million in increased
pension expense and $0.2 million for professional fees and miscellaneous
expenses resulting from these early retirements.
12
<PAGE> 14
In the ordinary course of business the Company enters into various
types of transactions that involve contracts and financial instruments with
off-balance sheet risk. The Company enters into these financial instruments to
manage financial market risk, including foreign exchange risk, commodity price
risk for certain customers and interest rate risk. The Company is exposed to
loss on the forward contracts in the event of non-performance by the customer
whose orders are covered by such contracts. However, the Company does not
anticipate non-performance by such customers. The Company accounts for its
interest rate swap as a hedge, accordingly, gains and losses are recognized as
interest expense. The Company enters into these financial instruments utilizing
over-the-counter as opposed to exchange traded instruments. The Company
mitigates the risk that counter parties to these over-the-counter agreements
will fail to perform by only entering into agreements with major international
financial institutions.
Capital expenditures were $13.9 million for the first six-months of
1998 compared to $14.5 million for the first six-months of 1997. The Company
currently expects to spend approximately $40 million in the aggregate in 1998
under its existing capital program. The Company believes that it will be able to
satisfy its existing working capital needs, interest obligations and capital
expenditure requirements with cash flow from operations and funds available from
the Credit Agreement and the Notes.
SENIOR NOTES DUE 2008
In August 1998, the Company issued $150 million in principal amount of
7 3/8 % Senior Notes (the "Notes") due August 1, 2008. The Notes were issued
pursuant to an Indenture, dated as of August 4, 1998 between the Company and
First Union National Bank, as Trustee. The net proceeds from the sale of the
notes were applied to reduce borrowings by approximately $58 million under the
Facility. Of the remaining net proceeds, the Company intends to use
approximately $55 million for capital expenditures during 1998 and 1999, and to
use the balance of the net proceeds for potential future acquisitions, working
capital and other general corporate purposes. Pending such uses, the Company
will invest such proceeds in short-term interest-bearing securities. The Notes
(i) have interest payment dates on February 1 and August 1 of each year,
commencing February 1, 1999, (ii) are redeemable at the option of the Company at
a redemption price equal to the greater of (x) 100% of the principal amount of
the Notes to be redeemed or (y) the sum of the present value of the remaining
scheduled payments of principal and interest thereon from the redemption date to
the maturity date, discounted to the redemption date on a semiannual basis at
the Treasury Rate plus 25 basis points, plus, in each case, accrued interest
thereon to the date of redemption, (iii) are senior unsecured obligations of the
Company and are pari passu in right of payment with any existing and future
senior unsecured indebtedness of the Company, including borrowings under the
Facility, (iv) are guaranteed by certain of the Company's subsidiaries, and (v)
are subject to the terms of the Indenture, which contains certain covenants that
limit the Company's ability to incur indebtedness secured by certain liens and
to engage in sale/leaseback transactions.
IMPACT OF YEAR 2000
The Company utilizes a number of computer software programs and operating
systems throughout its organization, including applications used in order
processing, shipping and receiving, accounts payable and receivable processing,
financial reporting and in various other administrative functions. The
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<PAGE> 15
Company recognizes the need to ensure that its operations will not be adversely
impacted by applications and processing issues related to the upcoming calendar
year 2000 (the "Year 2000 Issue"). The Year 2000 Issue is the result of computer
programs that have been written to recognize two digit, rather than four digit,
date codes to define the applicable year. To the extent that the Company's
software applications contain source codes that are unable to appropriately
interpret a code using "00" as the upcoming year 2000 rather than 1900, the
Company could experience system failures or miscalculations that could disrupt
operations and cause a temporary inability to process transactions, send and
process invoices or engage in similar normal business activities.
Based on a recent assessment of its systems, the Company has determined that it
will be required to modify or replace significant portions of its software so
that its computer systems will function properly with respect to dates in the
year 2000 and thereafter. The Company presently believes that with modifications
to its existing software and certain conversions to new software, the Year 2000
Issue will not pose significant operational problems for its computer systems.
In addition, the Company's systems and operations are dependent, in part, on
interaction with systems operated or provided by vendors or other third-parties,
and the Company is surveying those parties about their progress in identifying
and addressing problems that their computer systems may face in connection with
the Year 2000 Issue. The Company estimates that it has no exposure for
contingencies related to the Year 2000 Issue for the products it has sold.
The Company will utilize both internal and external resources to reprogram, or
replace, and test its software for Year 2000 modifications. The Company
anticipates completing the modifications necessary to make its systems Year 2000
compliant by March 31, 1999, which is prior to any anticipated impact on its
operating systems. The total cost of the Year 2000 project is estimated at $5.5
million and is being funded through operating cash flow. Of the total project
cost, approximately $5.3 million is attributable to the purchase of new
software, which will be capitalized. The remaining $0.2 million, which will be
expensed as incurred, is not expected to have a material effect on the results
of operations. To date, the Company has incurred approximately $2.2 million in
expenses related to the assessment of, and preliminary efforts on, its Year 2000
modification project, the development of the plan for the purchase of new
systems and system modifications.
The costs of the project and the timeframe in which the Company believes it will
complete the Year 2000 modifications are based on management's best estimates,
which were derived utilizing numerous assumptions of future events, including
the continued availability of certain resources, third-party modification plans
and other factors. Specific factors that might result in additional costs or
time delays include, but are not limited to, the availability and cost of
personnel trained in this area, the ability to locate and correct all relevant
computer codes, and similar uncertainties. Based upon the Company's current
estimates, the Company does not anticipate that the cost of compliance with the
Year 2000 Issue will be material to its business, financial condition or results
of operations; however, there can be no assurance that the Company's systems, or
those of its vendors, customers or other third parties, will be made Year 2000
compliant in a timely manner or that the impact of the failure to achieve such
compliance will not have a material adverse effect on the Company's business,
financial condition or results of operations.
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<PAGE> 16
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
Certain of the statements and subject areas contained herein that are
not based upon historical or current facts deal with or may be impacted by
potential future circumstances and developments. Such statements and the
discussion of such subject areas involve, and are therefore qualified by, the
inherent risks and uncertainties surrounding future expectations generally, and
also may materially differ from the Company's actual future experience involving
any one or more of such subject areas. The Company has attempted to identify, in
context, certain of the factors that it currently believes may cause actual
future experience and results to differ from current expectations regarding the
relevant statement or subject area. The Company's operations and results also
may be subject to the effect of other risks and uncertainties in addition to the
relevant qualifying factors identified elsewhere herein, including, but not
limited to, cyclicality and seasonality in the industries to which the Company
sells its products, the impact of competitive products and pricing,
extraordinary fluctuations in the pricing and supply of the Company's raw
materials, volatility of commodities markets, unanticipated developments in the
areas of environmental compliance, and other risks and uncertainties identified
from time to time in the Company's reports filed with the Securities and
Exchange Commission.
ENVIRONMENTAL
The Company's facilities and operations are subject to extensive
environmental laws and regulations. During the six-month period ended July
4,1998, the Company spent approximately $0.2 million on environmental matters
which include remediation costs, monitoring costs and legal and other costs. The
Company has a reserve of $3.1 million for environmental remediation costs which
is reflected in the Company's Condensed Consolidated Balance Sheet. The Company
has approved $0.4 million for capital expenditures relating to environmental
matters during 1998, of which $0.3 million has been spent through July 4, 1998.
Based upon information currently available, the Company believes that the costs
of the environmental matters described below are not reasonably likely to have a
material adverse effect on the Company's consolidated financial condition,
results of operations or liquidity.
Oklahoma City, Oklahoma
The Company is one of a number of Potentially Responsible Parties
("PRP's") named by the Environmental Protection Agency ("EPA") with respect to
the soil and groundwater contamination at the Double Eagle Refinery Superfund
site in Oklahoma City, Oklahoma. The costs associated with the cleanup of this
site will be entirely borne by the PRP group (the "Group"), as the site owner
has filed for bankruptcy protection. In March 1993, twenty-three PRP's named
with respect to the soil contamination of the site, including the Company,
submitted a settlement offer to the EPA. Settlement negotiations between the
Group and the EPA are continuing, but currently contemplate a settlement and
consent order among the PRP's, the EPA and the State of Oklahoma, which would
provide for each PRP's liability to be limited to a prorata share of an
aggregate amount based upon the EPA's worst-cast cost scenario to remediate the
site. Under the current proposal, the Company's settlement amount is estimated
to be $390,000.
15
<PAGE> 17
Decatur, Alabama
The Company is subject to an order under Section 3008(h) of the
Resource Conservation and Recovery Act ("RCRA") to perform a facilities
investigation of its site in Decatur, Alabama, including a portion of the site
where wastes were buried (the "Burial Site"). Should the EPA decide to order
remediation, the remaining monitoring, legal and other costs are estimated to be
$1.1 million. Under an agreement between the Company and an affiliate of the
Henley Group, Inc. (collectively, "Henley"), the prior owner of the property,
Henley took control of investigation and any required cleanup of the Burial
Site. In February 1997, the Company exercised its option to release Henley from
liability for further remediation, monitoring and related costs with respect to
the Burial Site in exchange for a settlement payment, all pursuant to the terms
of the existing agreements with Henley. In June 1997, the Company released
Henley from liability of the Burial Site following the receipt of the settlement
payment. The Company is currently awaiting comments and approval from the EPA on
a Corrective Measures Study ("CMS") that Henley had submitted to the EPA
regarding the Burial Site. The cost to the Company to comply with the CMS, as
currently presented, will not have an adverse effect on the Company's financial
position, results of operations or liquidity.
Ardmore, Tennessee
On December 28, 1995, the Company entered into a Consent Order and
Agreement with the Tennessee Division of Superfund (the "Tennessee Division"),
relating to the Ardmore facility, under which the Company agreed to conduct a
preliminary investigation regarding whether volatile organics detected in and
near the municipal drinking water supply are related to the Ardmore facility
and, if necessary, to undertake an appropriate response. That investigation has
disclosed contamination, including elevated concentrations of certain volatile
organic compounds, in soils of certain areas of the Ardmore facility and also
has disclosed elevated levels of certain volatile organic compounds in the
shallow residuum groundwater zone at the Ardmore facility. Under the terms of
the Consent Order and Agreement, the Company submitted a Remedial Investigation
and Feasibility Study ("RI/FS") work plan, which was accepted by the Tennessee
Division, and the Company has initiated the RI/FS. Based on the available
information, and recognizing that the nature and scope of remediation will be
affected by the results of the RI/FS, the Company preliminarily estimates a
range of between $386,000 and $1,186,000 to complete the investigation and
remediation of this site.
A recent report of a 1995 EPA site inspection of the Ardmore facility
recommended further action for the site. The Company believes, however, that
because the Tennessee Division is actively supervising an ongoing investigation
of the Ardmore facility, it is unlikely that EPA will intervene and take
additional action. If the EPA should intervene, however, the Company could incur
additional costs for any further investigation or remedial action required.
16
<PAGE> 18
Greenville, Mississippi
Following the Company's acquisition of its Greenville, Mississippi
facility, (the "Greenville facility"), a preliminary investigation disclosed
volatile organic contaminants in soil and groundwater at the site. Based on
further investigation, it appears that the contamination has not spread
off-site. The Company entered into a Consent Order with the Mississippi
Department of Environmental Quality ("MDEQ") for a pilot study program which
will help determine the effectiveness of certain technology tentatively
identified for remediation and which will also help define the scope of
remediation for the site. The pilot study program concluded on June 1, 1997. The
Company entered into a final consent agreement with the MDEQ on July 15, 1997.
Remediation efforts began in the third quarter of 1997 and are expected to
continue for approximately three years. However, there can be no assurance that
remediation efforts will be allowed to be discontinued after three years, and
operations, maintenance and other expenses of the remediation system may
continue for a longer period of time. To date, applicable costs of testing and
remediation required at the Greenville facility have been shared with the former
owners of the facility pursuant to the terms of an Escrow Agreement established
at the time the facility was acquired. Any remediation costs not paid by the
former owners pursuant to the terms of the Escrow Agreement are the sole
responsibility of the Company. The Company estimates the remaining investigative
and remedial costs could total $799,000 under the remediation plan the Company
adopted, but these costs could increase if remediation is required.
Jackson, Tennessee
In connection with the Company's acquisition of its Jackson, Tennessee
facility (the "Jackson Facility"), a preliminary investigation disclosed soil
and or groundwater contamination at this site. The Company has performed a Phase
I Environmental Audit and identified the existence of volatile organic
contaminants; however, the extent of any such contamination has not been fully
determined. The Company is currently preparing for further investigation to
determine if remediation of this site will be required. Based on the available
information, and recognizing the nature and scope of contamination, the company
preliminary estimates that remediation costs could amount up to $750,000.
However, certain of the remediation costs may be reimbursed pursuant to the
terms of an indemnification agreement between the Company and the previous
owners of the Jackson Facility.
Other
The Company has been identified by the EPA as one of a number of PRP's
at Superfund sites in Athens, Alabama and in Criner, Oklahoma. The Company
believes that its potential liability with respect to these Superfund sites is
not material. However, there can be no assurance that the Company will not be
named a PRP at additional Superfund sites in the future or that the costs
associated with those sites would not be substantial.
The Company believes that it faces no significant liability for the
Athens, Alabama site because it has removed all of the material that it
contributed to the site. The Company believes that it faces no significant
liability for the Criner, Oklahoma site because Henley, the prior owner of the
site, has retained liability for all cleanup costs resulting from past disposal
of used oil at the Criner, Oklahoma site
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<PAGE> 19
pursuant to an indemnification agreement between the Company and Henley.
Henley, which is not affiliated with the Company, has discharged these
obligations to date.
IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS
In June 1998, the Financial Accounting Standards Board issued Statement
No. 133 "Accounting for Derivative Instruments and Hedging Activities." This
statement provides a comprehensive and consistent standard for the recognition
and measurement of derivatives and hedging activities. Statement No.133 requires
all derivatives to be recorded on the balance sheet at fair value and
establishes special accounting for the following three different types of hedges
of changes in the fair value of assets and liabilities of firm commitments;
hedges of the variable cash flows of forecasted transactions; and hedges of
foreign currency exposures of net investments in foreign operations. Though the
accounting treatment and criteria for each of the three types of hedges is
unique, they all result in recognizing offsetting changes in value or cash flows
of both the hedge and hedged item in earnings in the same period. Changes in the
fair value of derivatives that do not meet the criteria of one of these three
categories of hedges are included in earnings in the period of the change.
Statement No. 133 is effective for fiscal years beginning after June 15, 1999,
but early adoption is allowed. Adoption of this statement is not expected to
have a material effect on the Company's consolidated financial statements.
18
<PAGE> 20
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
There were no material legal proceeding developments during the
three-month period ended July 4, 1998.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On May 21, 1998, the Company held its Annual Meeting of Stockholders.
The matters voted upon at the meeting and the results of these votes are as
follows:
1. Election of Directors
Votes For Votes Withheld
-------- --------------
12,032,511 100,097
2. Amend the restated certificate of incorporation and increase
the number of authorized shares of common stock from
20,000,000 shares to 40,000,000 shares.
Votes For Votes Against Votes Abstained
--------- ------------- ---------------
11,242,413 867,859 22,336
3. Amend the Company's 1993 Stock Option Plan for Outside
Directors to increase the aggregate number of shares of Common
Stock available for issuance thereunder from 50,000 to
105,000.
Votes For Votes Against Votes Abstained
--------- ------------- ---------------
11,748,697 348,932 34,979
4. Appointment of Ernst & Young, LLP as Independent Auditors
Votes For Votes Against Votes Abstained
--------- ------------- ---------------
12,100,770 17,299 14,539
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<PAGE> 21
ITEM 5. OTHER INFORMATION--STOCKHOLDER PROPOSAL
Proposals by stockholders intended to be present at the 1999
Annual Meeting must be forwarded in writing and received at the
principal executive office of the Company no later than December 18,
1998, directed to the attention of the Secretary, for consideration for
inclusion in the Company's proxy statement for the Annual Meeting of
Stockholders to be held in 1999. Moreover, with regard to any proposal
by a stockholder not seeking to have such proposal included in the
proxy statement but seeking to have such proposal considered at the
1999 Annual Meeting, if such stockholder fails to notify the Company in
the manner set forth above of such proposal no later than March 3,
1999, then the persons appointed as proxies may exercise their
discretionary voting authority if the proposal is considered at the
1999 Annual Meeting notwithstanding that stockholders have not been
advised of the proposal in the proxy statement for the 1999 Annual
Meeting. Any proposals submitted by the stockholders must comply in all
respects with the rules and regulations of the Securities and Exchange
Commission and the provisions of the Company's Certificate of
Incorporation and Bylaws and Delaware law.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
3.1 Restated Certificate of Incorporation (as amended
through May 1, 1998)
4.1 Indenture, dated as of August 4, 1998, between the
Company and First Union National Bank, as Trustee
10.1 First Amendment and Limited Waiver to Credit
Agreement, dated as of June 26, 1998, by and among
the Company, Wolverine Tube (Canada) Inc., and the
lenders named therein.
27.1 Financial Data Schedule (for SEC use only)
27.2 Financial Data Schedule (for SEC use only)
(b) Reports
The Company filed no reports on Form 8-K during the
three-month period ended July 4, 1998.
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<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereto duly authorized.
Wolverine Tube, Inc.
(registrant)
Dated: August 17, 1998 By: /s/ James E. Deason
------------------------------------
James E. Deason
Executive Vice President
Chief Financial Officer
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<PAGE> 1
EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
WOLVERINE TUBE, INC.
FIRST. The name of the corporation is Wolverine Tube, Inc. (the
"Corporation").
SECOND. The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware 19801. The name of the Corporation's registered agent at such address
is The Corporation Trust Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH. Section 1. Authorized Capital Stock. The Corporation is authorized
to issue two classes of capital stock, designated Common Stock and Preferred
Stock. The total number of shares of capital stock that the Corporation is
authorized to issue is 40,500,000 shares, consisting of 40,000,000 shares of
Common Stock, par value $0.01 per share, and 500,000 shares of Preferred Stock,
par value $1.00 per share.
Section 2. Preferred Stock. The Preferred Stock may be issued in one or
more series. The Board of Directors of the Corporation (the "Board") is hereby
authorized to issue the shares of Preferred Stock in such series and to fix from
time to time before issuance the number of shares to be included in any such
series and the designation, relative powers, preferences, and rights and
qualifications, limitations, or restrictions of all shares of such series. The
authority of the Board with respect to each such series will include, without
limiting the generality of the foregoing, the determination of any or all of the
following:
(i) the number of shares of any series and the designation to
distinguish the shares of such series from the shares of all other series;
(ii) the voting powers, if any, and whether such voting powers are
full or limited in such series;
(iii) the redemption provisions, if any, applicable to such series,
including the redemption price or prices to be paid;
(iv) whether dividends, if any, will be cumulative or noncumulative,
the dividend rate of such series, and the dates and preferences of
dividends on such series;
(v) the rights of such series upon the voluntary or involuntary
dissolution of, or upon any distribution of the assets of, the Corporation;
<PAGE> 2
(vi) the provisions, if any, pursuant to which the shares of such
series are convertible into, or exchangeable for, shares of any other class
or classes or of any other series of the same or any other class or classes
of stock, or any other security, of the Corporation or any other
corporation or other entity, and the price or prices or the rates of
exchange applicable thereto;
(vii) the right, if any, to subscribe for or to purchase any
securities of the Corporation or any other corporation or other entity;
(viii) the provisions, if any, of a sinking fund applicable to such
series; and
(ix) any other relative, participating, optional, or other special
powers, preferences, rights, qualifications, limitations, or restrictions
thereof;
all as may be determined from time to time by the Board and stated in the
resolution or resolutions providing for the issuance of such Preferred Stock
(collectively, a "Preferred Stock Designation").
Section 3. Common Stock. Except as may otherwise be provided in a Preferred
Stock Designation or in Section 4 of Article Fourth of this Restated Certificate
of Incorporation, the holders of Common Stock will be entitled to one vote on
each matter submitted to a vote at a meeting of stockholders for each share of
Common Stock held of record by such holder as of the record date for such
meeting.
Section 4. Cumulative Compounding Redeemable Preferred Stock. There is
hereby established a series of Cumulative Compounding Redeemable Preferred
Stock, par value $1.00 per share (hereinafter referred to as the "Cumulative
Preferred Stock"), consisting of 20,000 shares of Cumulative Preferred Stock.
The Cumulative Preferred Stock shall have the following rights, powers,
preferences and privileges:
(a) Dividends. Shares of Cumulative Preferred Stock shall be prior and
in preference to any declaration or payment of any dividend (including
accrued dividends) on any other stock of the Corporation expressly ranking
junior (including Common Stock) in respect of payment of dividends to the
Cumulative Preferred Stock. The holders of shares of Cumulative Preferred
Stock shall be entitled to receive, as and when declared by the Board of
the Corporation and out of the assets of the Corporation legally available
therefor, cumulative preferential dividends at the rate of $14.00 per share
per annum, payable quarterly on March 15, June 15, September 15, and
December 15 in each year, commencing on that dividend payment date which
next follows the issuance of such shares. Dividends shall commence to
accrue (whether or not declared) and shall be cumulative on the Cumulative
Preferred Stock from and after the date of issuance of the respective
shares of Cumulative Preferred Stock, and shall compound quarterly, to the
extent they are unpaid, at the rate of 14% per annum, computed on the basis
of a 360-day year of twelve 30-day months. So long as any share of
Cumulative Preferred Stock shall
2
<PAGE> 3
remain outstanding, no dividend whatsoever shall be declared or paid upon
or set apart for any class of stock or series thereof ranking junior to the
Cumulative Preferred Stock in payment of dividends nor shall any shares of
any class of stock or series thereof ranking junior to or on a parity with
the Cumulative Preferred Stock in payment of dividends be redeemed or
purchased by the Corporation or any subsidiary thereof nor shall any moneys
be paid to or made available for a sinking fund for redemption or purchase
of any shares of any class of stock or series thereof ranking junior to or
on a parity with the Cumulative Preferred Stock in payment of dividends,
unless, in each such instance, full dividends on all outstanding shares of
Cumulative Preferred Stock for all past dividend periods shall have been
paid at the rate fixed therefor, the dividends on all outstanding shares of
Cumulative Preferred Stock for the then current quarterly dividend period
shall have been paid or declared and sufficient funds (or shares of
Cumulative Preferred Stock) set aside for payment thereof and all
redemption payments with respect to the Cumulative Preferred Stock which
the Corporation shall have become obligated to make shall have been made.
Notwithstanding the immediately preceding sentence, the Corporation shall
be permitted to purchase or acquire shares of capital stock of the
Corporation held by officers or other employees of the Corporation or any
subsidiary of which the Corporation owns 50% or more of the outstanding
voting securities, upon termination of employment of such officer or
employee.
No dividend shall be paid upon or declared or set apart for any share
of Cumulative Preferred Stock for any dividend period unless at the same
time (i) like proportionate dividend for the same dividend period shall be
paid upon or declared or set apart for all shares of Cumulative Preferred
Stock then outstanding and entitled to receive such dividend and (ii) there
shall have been paid upon or declared or set aside for all shares of any
other class of stock or series thereof, if any, then outstanding and
ranking on a parity with the Cumulative Preferred Stock in payment of
dividends, for the same dividend period of the Cumulative Preferred Stock,
dividends ratably in proportion to the respective dividend rates fixed for
the Cumulative Preferred Stock and said parity stock. No dividend shall be
paid upon or declared or set apart for any shares of any other class of
stock or series hereof, if any, then outstanding and ranking on a parity
with Cumulative Preferred Stock in payment of dividends for any dividend
period, unless there shall have been paid upon or declared or set apart for
all shares then outstanding of Cumulative Preferred Stock, for the same
dividend period, dividends ratably in proportion to the respective dividend
rates fixed for the Cumulative Preferred Stock and said parity stock.
(b) Liquidation Preference. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary:
(i) before any other distribution or payment is made to the
holder of any other shares of stock of the Corporation expressly
ranking junior (including Common Stock) in respect of payment of
dividends to holders of the Cumulative Preferred Stock, the holder of
a share of Cumulative Preferred Stock shall be entitled to receive,
out of the assets of the Corporation legally available therefor, an
amount in cash equal to all dividends accrued and unpaid on such share
of
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<PAGE> 4
Cumulative Preferred Stock to the date of payment. No accrued and
unpaid dividends shall be paid upon or declared or set apart for any
share of Cumulative Preferred Stock unless at the same time (A) a like
proportionate amount shall be paid upon or declared or set apart for
all shares of Cumulative Preferred Stock then outstanding and entitled
to receive such accrued and unpaid dividends and (B) there shall have
been paid upon or declared or set aside for all shares of any other
class of stock or series thereof, if any, then outstanding and ranking
on a parity with the Cumulative Preferred Stock in payment of
dividends, all accrued and unpaid dividends on such shares to the date
of payment, ratably in proportion to the respective dividend rates
fixed for the Cumulative Preferred Stock and said parity stock. No
accrued and unpaid dividends shall be paid upon or declared or set
apart for any shares of any other class of stock or series thereof, if
any, then outstanding and ranking on a parity with Cumulative
Preferred Stock in payment of dividends, unless there shall have been
paid upon or declared or set apart for all shares then outstanding of
Cumulative Preferred Stock, all accrued and unpaid dividends on such
shares to the date of payment, ratably in proportion to the respective
dividend rates fixed for the Cumulative Preferred Stock and said
parity stock; and
(ii) after the payments provided for in clause (i) above, the
holders of shares of Cumulative Preferred Stock shall be entitled to
receive, out of the assets of the Corporation legally available
therefor, a liquidation payment in cash of One Hundred Dollars ($100)
per share, before any distribution or payment shall be made to the
holders of shares of any other class of stock or series thereof
ranking junior (including Common Stock) to the Cumulative Preferred
Stock in distribution of assets (other than such classes as may be
junior in respect of dividends only). No distribution pursuant to this
Section 4 shall be made to the holders of Cumulative Preferred Stock
unless at the same time a like proportionate distribution shall be
made, ratably in proportion to the respective amounts (other than
accrued and unpaid dividends) payable upon liquidation, dissolution or
winding up of the affairs of the Corporation, to the holders of shares
of any other class of stock or series thereof, if any, then
outstanding and ranking on a parity with the Cumulative Preferred
Stock in right of payment upon liquidation, dissolution or winding up.
No payment on account of such liquidation, dissolution or winding up
of the affairs of the Corporation shall be made to the holders of
shares of any other class of stock or series thereof, if any, then
outstanding and ranking on a parity with the Cumulative Preferred
Stock in right of payment upon liquidation, dissolution or winding up,
unless a payment on account of such liquidation, dissolution or
winding up shall be made at the same time to holders of Cumulative
Preferred Stock ratably in proportion to the full distributive amount
(other than accrued and unpaid dividends) to which such holders and
the holders of such parity stock are respectively entitled.
(c) Notice. Written notice of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation,
stating the payment date and
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<PAGE> 5
the place where the distributable amounts shall be payable, shall be given
by first class mail, postage prepaid, not less than 30 days prior to the
payment date stated therein, to the holders of record of Cumulative
Preferred Stock at their respective addresses as the same shall appear on
the books of the Corporation.
(d) No Redemption Limitation. Nothing herein contained shall be deemed
to prevent redemption of the Cumulative Preferred Stock by the Corporation
in the manner provided in Section 4(f) hereof.
(e) Merger, Consolidation, Etc. Neither the merger or consolidation of
the Corporation into or with any other corporation, nor the merger or
consolidation of any other corporation into or with the Corporation, nor a
sale, transfer or lease of all or any part of the assets of the
Corporation, shall, without further corporate action, be deemed to be a
liquidation, dissolution or winding up of the affairs of the Corporation
within the meaning of this Section 4.
(f) Redemption.
(i) Optional Redemption. From and after March 1, 1993, all or
any portion of the outstanding shares of Cumulative Preferred Stock
are subject to redemption at the Corporation's option for a price in
cash equal to the Applicable Percentage multiplied by $100, together
in any case with accrued and unpaid dividends to the date of
redemption. For purposes of the foregoing sentence, the "Applicable
Percentage" shall be 105% for redemptions made in 1993, 102.5% for
redemptions made in 1994, and 100% for redemptions made in 1995 and
thereafter.
(ii) Mandatory Redemption. The Corporation shall redeem any and
all outstanding shares of Cumulative Preferred Stock on March 1, 2002
for a price in cash equal to $100 per share, plus accrued and unpaid
dividends thereon, if any. If the Corporation shall fail to redeem
shares of Cumulative Preferred Stock on the date set forth above, no
dividend whatsoever shall be declared or paid upon or set apart and no
asset shall be distributed for any class of stock or series thereof
ranking junior to or on a parity with the Cumulative Preferred Stock
in the payment of dividends nor shall any shares of any class of stock
or series thereof ranking junior to or on a parity with the Cumulative
Preferred Stock in payment of dividends be redeemed or purchased by
the Corporation or any subsidiary thereof until such time as the
Corporation shall have redeemed the outstanding shares of Cumulative
Preferred Stock.
(iii) Redemption Procedure. If the Corporation shall determine to
redeem less than all shares of Cumulative Preferred Stock then
outstanding pursuant to subsection (i) of this Section 4(f), the
shares to be redeemed shall be selected pro rata (as nearly as may be)
so that the number of shares redeemed from each holder shall be the
same proportion of all the shares to be redeemed that the total number
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<PAGE> 6
of shares then held by such holder bears to the total number of shares
then outstanding.
Notice of every redemption shall be mailed, first class postage
prepaid, not less than 30 nor more than 60 days prior to the date
fixed for redemption (the "Redemption Date"). Each such notice shall
state the Redemption Date, the number of shares of Cumulative
Preferred Stock to be redeemed (and, if less than all shares of
Cumulative Preferred Stock held by such holder are to be redeemed, the
number of such shares to be redeemed from such holder), the redemption
price applicable to the shares to be redeemed, the place or places
where such shares are to be surrendered, and that dividends on shares
to be redeemed will cease to accrue on the Redemption Date.
Notice having been mailed as aforesaid, from and after the time of
redemption (unless the Corporation defaults in providing money for the
payment of the redemption price) dividends on shares of Cumulative
Preferred Stock called for redemption shall cease to accrue, said
shares shall no longer be deemed to be outstanding, all rights of
holders thereof as shareholders of the Corporation (except the right
to receive the redemption price thereof, but without interest) shall
terminate, and, upon surrender, in accordance with said notice, of the
certificates for any such shares (properly endorsed or assigned for
transfer, if the Board of the Corporation shall so require), such
shares shall be redeemed by the Corporation at the applicable
redemption price; provided, however, that the Corporation may include
in such notice a statement that the money required for the payment of
the redemption price will be deposited on a specified date, prior to
the Redemption Date, with a specified bank or trust company (which
shall have an office in the City of New York and which shall have a
combined capital and surplus of not less than $250,000,000.00) in
trust for the benefit of holders of shares called for redemption, and,
notice having been given, from and after such deposit, shares called
for redemption shall no longer be deemed to be outstanding and all
rights with respect to shares of Cumulative Preferred Stock shall
forthwith upon such deposit cease and terminate. Holders of shares of
Cumulative Preferred Stock called for redemption shall not be entitled
to any interest paid by such depositary on money deposited to effect
the redemption but any such interest shall be paid to the Corporation.
Any money deposited as aforesaid for redemption of any shares of
Cumulative Preferred Stock and remaining unclaimed for five years
after the date of such deposit shall then be repaid to the Corporation
upon its request, and the holders of such shares shall thereafter look
only to the Corporation for payment of the redemption price thereof,
but without interest.
Any provision of this Section 4 to the contrary notwithstanding,
in the event that any quarterly dividend due on the Cumulative
Preferred Stock shall be in default, and until all such defaults shall
have been cured, the Corporation shall not redeem any shares of
Cumulative Preferred Stock pursuant to subsection (i) of this Section
4(f) unless all outstanding shares of Cumulative Preferred Stock are
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<PAGE> 7
simultaneously redeemed and shall not otherwise redeem, purchase or
otherwise acquire any shares of Cumulative Preferred Stock except in
accordance with a purchase offer made by the Corporation on the same
terms to all holders of record of Cumulative Preferred Stock.
(g) Voting Rights. (i) If any six consecutive quarterly dividends
payable on the Cumulative Preferred Stock shall not have been paid
when payable, the number of directors constituting the entire Board of
the Corporation shall be increased by the minimum amount necessary,
rounded up to the next whole number (the "Director Increase Number"),
such that following such increase, the Director Increase Number shall
be not less than 20% of the number of directors constituting the
entire Board, and the holders of the Cumulative Preferred Stock,
voting as a separate class, shall be entitled to elect that number of
directors equal to the Director Increase Number to fill such newly
created directorships; provided, however, that when all arrears in
dividends on the Cumulative Preferred Stock then outstanding shall
have been paid and dividends thereon for the current quarterly period
shall have been paid or declared and a sum sufficient for the payment
thereof set aside, then (1) the right of holders of Cumulative
Preferred Stock to participate in the election of directors pursuant
to this subsection (i) shall cease, but subject always to the same
provisions for vesting of such voting rights in the case of any
similar future arrearages in dividends; (2) the term of any director
then in office elected by holders of Cumulative Preferred Stock as a
class pursuant to this subsection (i) shall terminate; and (3) the
number of directors constituting the entire Board of the Corporation
shall be reduced by the Director Increase Number.
Whenever such voting rights set forth in this subsection (i) shall
have vested, such rights may be exercised at any annual or special
stockholders' meeting, or at a special meeting of holders of
Cumulative Preferred Stock called as herein provided, or by written
consent of the holders of a majority of the then outstanding shares of
Cumulative Preferred Stock. A special meeting for the exercise of such
rights shall be called by the Secretary of the Corporation within ten
days after receipt of a written request therefor, signed by the
holders of record of at least ten percent of the votes of the then
outstanding shares of Cumulative Preferred Stock. Such meeting shall
be held at the earliest practicable date thereafter.
Any director who shall have been elected by holders of Cumulative
Preferred Stock as a class pursuant to this subsection (i) shall hold
office for a term expiring (subject to the earlier termination of the
default in dividends) at the next annual meeting of stockholders, and
during such term may be removed at any time, either for or without
cause, only by the affirmative votes of holders of record of a
majority of the votes of the then outstanding shares of Cumulative
Preferred Stock given at a special meeting of such stockholders called
for the purpose or by written consent of the holders of a majority of
the then outstanding shares of
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<PAGE> 8
Cumulative Preferred Stock. Any vacancy created by such removal may
also be filled at such meeting or by such written consent. A meeting
for the removal of a director elected by holders of the Cumulative
Preferred Stock as a class pursuant to this subsection (i) and the
filling of the vacancy created thereby shall be called by the
Secretary of the Corporation within ten days after receipt of a
written request therefor, signed by the holders of not less than ten
percent of the votes of the then outstanding shares of Cumulative
Preferred Stock. Such meeting shall be held at the earliest
Practicable date thereafter.
If any meeting of the holders of Cumulative Preferred Stock
required by this subsection (i) to be called shall not have been
called within ten days after personal service of a written request
therefor upon the Secretary of the Corporation or within 15 days after
mailing the same within the United States of America by registered
mail addressed to the Secretary of the Corporation at its principal
office, then holders of record of at least ten percent of the votes of
the then outstanding shares of Cumulative Preferred Stock may
designate in writing one of their number to call such a meeting at the
expense of the Corporation and such meeting may be called by such
person so designated upon the notice required for annual meetings of
stockholders. Any holder of Cumulative Preferred Stock so designated
shall have access to the stock books of the Corporation for the
purpose of causing such meetings of stockholders to be called pursuant
to these provisions.
Any meeting of holders of Cumulative Preferred Stock to vote as a
class for the election or removal of directors pursuant to this
subsection (i) shall be held at the place for the holding of the
annual meeting of stockholders of the Corporation. At such meeting,
the presence in person or by proxy of holders of a majority of the
votes of the then outstanding shares of Cumulative Preferred Stock
shall be required to constitute a quorum; in the absence of a quorum,
a majority of the holders present in person or by proxy shall have
power to adjourn the meeting from time to time without notice, other
than announcement at the meeting, until a quorum shall be present.
(ii) So long as any shares of Cumulative Preferred Stock are
outstanding, the Corporation shall not, in any manner, whether by
amendment to this Restated Certificate of Incorporation or the By-laws
of the Corporation, by merger (whether or not the Corporation is a
surviving corporation in such merger), by consolidation, or otherwise:
(A) without the affirmative votes of the holders of record
of at least two-thirds of the votes of the then outstanding shares
of Cumulative Preferred Stock given at a special meeting of such
stockholders called for the purpose or by the written consent of
the holders of two-thirds of the then outstanding shares of
Cumulative Preferred Stock, with the Cumulative Preferred Stock in
either case voting (or consenting)
8
<PAGE> 9
separately as a class, (1) amend, alter or repeal any of the
provisions of the Corporation's Certificate of Incorporation, so
as to affect adversely the powers, preferences or special rights
of the Cumulative Preferred Stock; or (2) authorize or increase
the authorized amount of, or authorize any obligation or security
convertible into or evidencing the right to purchase shares of,
any additional class or series of stock ranking prior to the
Cumulative Preferred Stock in the payment of dividends or the
preferential distribution of assets;
(B) without the affirmative votes of holders of record of at
least a majority of the votes of the then outstanding shares of
Cumulative Preferred Stock given at a special meeting of such
stockholders called for the purpose or by the written consent of
the holders of a majority of the then outstanding shares of
Cumulative Preferred Stock, with the Cumulative Preferred Stock in
either case voting (or consenting) separately as a class, (1)
increase the number of shares of Cumulative Preferred Stock
authorized by the provisions of Article Fourth of this Restated
Certificate of Incorporation; or (2) authorize or increase the
authorized amount of, or authorize any obligation or security
convertible into or evidencing the right to purchase shares of, an
additional class of stock ranking on a parity with the Cumulative
Preferred Stock in the payment of dividends or the preferential
distribution of assets.
(iii) Except as otherwise provided in this Section 4 and except as
otherwise required by law, the Cumulative Preferred Stock shall have
no voting rights.
FIFTH. The Board may make, amend, and repeal the By-laws of the
Corporation. Any By-law made by the Board under the powers conferred hereby may
be amended or repealed by the Board (except as specified in any such By-law so
made or amended) or by the stockholders in the manner provided in the By-laws of
the Corporation. Notwithstanding the foregoing and anything contained in this
Restated Certificate of Incorporation to the contrary, By-laws 1, 3, 8, 10, 11,
12, 13, 33, and 39 as in effect in the By-laws of the Corporation on August 2,
1993 may not be amended or repealed by the stockholders, and no provision
inconsistent therewith may be adopted by the stockholders, without the
affirmative vote of the holders of at least 66 2/3% of the Voting Stock, voting
together as a single class. For the purposes of this Restated Certificate of
Incorporation, "Voting Stock" means stock of the Corporation of any class or
series entitled to vote generally in the election of Directors. Notwithstanding
anything contained in this Restated Certificate of Incorporation to the
contrary, the affirmative vote of the holders of at least 66 2/3% of the Voting
Stock, voting together as a single class, is required to amend or repeal, or to
adopt any provision inconsistent with, this Article Fifth.
SIXTH. Subject to the rights of the holders of any series of Preferred
Stock:
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(a) any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation and may
not be effected by any consent in writing of such stockholders; and
(b) special meetings of stockholders of the Corporation may be
called only by (i) the Chairman of the Board (the "Chairman"), (ii)
the secretary of the Corporation (the "Secretary") within 10 calendar
days after receipt of the written request of a majority of the total
number of Directors then in office (the "Whole Board"), and (iii) as
provided in By-law 3.
At any annual meeting or special meeting of stockholders of the
Corporation, only such business will be conducted or considered as has been
brought before such meeting in the manner provided in the By-laws of the
Corporation. Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of at least 66 2/3% of the
Voting Stock, voting together as a single class, is required to amend or repeal,
or to adopt any provision inconsistent with, this Article Sixth.
SEVENTH. Section 1. Number, Election, and Terms of Directors. Subject to
the rights, if any, of the holders of any series of Preferred Stock to elect
additional Directors, the number of the Directors of the Corporation will not be
less than 6 nor more than 15 and will be fixed from time to time in the manner
described in the By-laws of the Corporation. The Directors, other than those who
may be elected by the holders of any series of Preferred Stock, will be
classified with respect to the time for which they severally hold office into
three classes, as nearly equal in number as possible, designated Class I, Class
II, and Class III. At any meeting of stockholders at which Directors are to be
elected, the number of Directors elected may not exceed the greatest number of
Directors then in office in either class of Directors not standing for election
at such meeting. The Directors first appointed to Class I will hold office for a
term expiring at the annual meeting of stockholders to be held in 1994; the
Directors first appointed to Class II will hold office for a term expiring at
the annual meeting of stockholders to be held in 1995; and the Directors first
appointed to Class III will hold office for a term expiring at the annual
meeting of stockholders to be held in 1996, with the members of each class to
hold office until their successors are elected and qualified. At each succeeding
annual meeting of the stockholders of the Corporation, the successors of the
class of Directors whose terms expire at that meeting will be elected by
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election. Subject to the rights, if any, of the holders of any
series of Preferred Stock to elect additional Directors, Directors may be
elected by the stockholders only at an annual meeting of stockholders. Election
of Directors of the Corporation need not be by written ballot unless requested
by the Chairman or by the holders of a majority of the Voting Stock present in
person or represented by proxy at a meeting of the stockholders at which
Directors are to be elected.
Section 2. Nomination of Director Candidates. Advance notice of stockholder
nominations for the election of Directors must be given in the manner provided
in the By-laws of the Corporation.
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Section 3. Newly Created Directorships and Vacancies. Subject to the
rights, if any, of the holders of any series of Preferred Stock to elect
additional Directors, newly created directorships resulting from any increase in
the number of Directors and any vacancies on the Board resulting from death,
resignation, disqualification, removal, or other cause will be filled solely by
the affirmative vote of a majority of the remaining Directors then in office,
even though less than a quorum of the Board, or by a sole remaining Director.
Any Director elected in accordance with the preceding sentence will hold office
for the remainder of the full term of the class of Directors in which the new
directorship was created or the vacancy occurred and until such Director's
successor has been elected and qualified. No decrease in the number of Directors
constituting the Board may shorten the term of any incumbent Director.
Section 4. Removal. Subject to the rights, if any, of the holders of any
series of Preferred Stock to elect additional Directors, any Director may be
removed from office by the stockholders only for cause and only in the manner
provided in this Section 4. At any annual meeting or special meeting of the
stockholders, the notice of which states that the removal of a Director or
Directors is among the purposes of the meeting, the affirmative vote of the
holders of at least 75% of the Voting Stock, voting together as a single class,
may remove such Director or Directors for cause.
Section 5. Amendment, Repeal, Etc. Notwithstanding anything contained in
this Restated Certificate of Incorporation to the contrary, the affirmative vote
of at least 75% of the Voting Stock, voting together as a single class, is
required to amend or repeal, or to adopt any provision inconsistent with, this
Article Seventh.
EIGHT. To the full extent permitted by the Delaware General Corporation Law
or any other applicable law currently or hereafter in effect, no Director of the
Corporation will be personally liable to the Corporation or its stockholders for
or with respect to any acts or omissions in the performance of his or her duties
as a Director of the Corporation. Any repeal or modification of this Article
Eighth will not adversely affect any right or protection of a Director of the
Corporation existing prior to such repeal or modification.
NINTH. Each person who is or was or had agreed to become a Director or
officer of the Corporation, and each such person who is or was serving or who
had agreed to serve at the request of the Board or an officer of the Corporation
as an employee or agent of the Corporation or as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust, or other
entity, whether for profit or not for profit (including the heirs, executors,
administrators, or estate of such person), will be indemnified by the
Corporation to the fullest extent permitted by the Delaware General Corporation
Law or any other applicable law as currently or hereafter in effect and will be
entitled to advancement of expenses in connection therewith. The right of
indemnification and of advancement of expenses provided in this Article Ninth
(i) will not be exclusive of any other rights to which any person seeking
indemnification or advancement of expenses may otherwise be entitled, including
without limitation pursuant to any contract approved by a majority of the whole
Board (whether or not the Directors approving such contract are or are to be
parties to such contract or similar contracts), and (ii) will be applicable to
matters otherwise within its scope whether or not such matters arose or arise
before or after the
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adoption of this Article Ninth. Without limiting the generality or the effect of
the foregoing, the Corporation may adopt By-laws, or enter into one or more
agreements with any person, which provide for indemnification and/or advancement
of expenses greater or different than that provided in this Article Ninth or the
Delaware General Corporation Law. Any amendment or repeal of, or adoption of any
provision inconsistent with, this Article Ninth will not adversely affect any
right or protection existing hereunder, or arising out of facts occurring, prior
to such amendment, repeal, or adoption and no such amendment, repeal, or
adoption, will affect the legality, validity, or enforceability of any contract
entered into or right granted prior to the effective date of such amendment,
repeal, or adoption.
TENTH. Each share of the Corporation's Class A Common Stock Class B Common
Stock, Class C Common Stock and Class D Common Stock outstanding immediately
prior to the filing of this Restated Certificate of Incorporation with the
Secretary of State of Delaware is hereby reclassified and designated as a
validly issued, fully paid and nonassessable share of Common Stock of the
Corporation.
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Exhibit 4.1
==============================================================================
WOLVERINE TUBE, INC.
THE GUARANTORS NAMED HEREIN
and
FIRST UNION NATIONAL BANK,
as Trustee
--------------------------------------------
INDENTURE
Dated as of August 4, 1998
--------------------------------------------
Up to $150,000,000
7-3/8% Senior Notes Due 2008
==============================================================================
<PAGE> 2
TABLE OF CONTENTS(1)
<TABLE>
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<S> <C>
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE............................................................... 1
SECTION 1.1 Definitions................................................................................... 1
SECTION 1.2 Other Definitions............................................................................. 6
SECTION 1.3 Incorporation by Reference of Trust Indenture Act............................................. 6
SECTION 1.4 Rules of Construction......................................................................... 7
ARTICLE 2 THE NOTES................................................................................................ 7
SECTION 2.1 Designation, Form and Dating.................................................................. 7
SECTION 2.2 Execution and Authentication.................................................................. 7
SECTION 2.3 Registrar and Paying Agent.................................................................... 8
SECTION 2.4 Paying Agent to Hold Money in Trust........................................................... 8
SECTION 2.5 Noteholder Lists.............................................................................. 8
SECTION 2.6 Replacement Notes............................................................................. 9
SECTION 2.7 Outstanding Notes............................................................................. 9
SECTION 2.8 Treasury Notes................................................................................ 9
SECTION 2.9 Temporary Notes.............................................................................. 10
SECTION 2.10 Cancellation................................................................................. 10
SECTION 2.11 Defaulted Interest........................................................................... 10
SECTION 2.12 CUSIP Numbers................................................................................ 10
ARTICLE 3 REDEMPTION.............................................................................................. 11
SECTION 3.1 Right to Redeem; Notice to Trustee........................................................... 11
SECTION 3.2 Selection of Notes To Be Redeemed............................................................ 11
SECTION 3.3 Notice of Redemption......................................................................... 11
SECTION 3.4 Effect of Notice of Redemption............................................................... 12
SECTION 3.5 Deposit of Redemption Price.................................................................. 12
SECTION 3.6 Notes Redeemed in Part....................................................................... 12
ARTICLE 4 COVENANTS............................................................................................... 13
SECTION 4.1 Payment of Notes............................................................................. 13
SECTION 4.2 SEC Reports; 144A Information................................................................ 13
SECTION 4.3 Limitation on Liens.......................................................................... 13
SECTION 4.4 Limitation on Sale/Leaseback Transactions.................................................... 14
SECTION 4.5 Compliance Certificates...................................................................... 15
SECTION 4.6 Notice of Defaults........................................................................... 15
SECTION 4.7 Payment of Taxes and Other Claims............................................................ 15
SECTION 4.8 Corporate Existence.......................................................................... 16
SECTION 4.9 Maintenance of Properties.................................................................... 16
SECTION 4.10 Further Instruments and Acts................................................................. 16
SECTION 4.11 Maintenance of Office or Agency.............................................................. 16
ARTICLE 5 SUCCESSOR CORPORATION................................................................................... 17
SECTION 5.1 Limitation on Consolidation, Merger and Sale of Assets....................................... 17
SECTION 5.2 Successor Corporation Substituted............................................................ 17
</TABLE>
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(1) This Table of Contents shall not, for any purpose, be deemed to be a part
of this Indenture.
i
<PAGE> 3
<TABLE>
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ARTICLE 6 DEFAULT AND REMEDIES.................................................................................... 18
SECTION 6.1 Events of Default............................................................................ 18
SECTION 6.2 Acceleration................................................................................. 19
SECTION 6.3 Other Remedies............................................................................... 20
SECTION 6.4 Waiver of Defaults and Events of Default..................................................... 20
SECTION 6.5 Control by Majority.......................................................................... 20
SECTION 6.6 Limitation on Suits.......................................................................... 20
SECTION 6.7 Rights of Holders to Receive Payment......................................................... 21
SECTION 6.8 Collection Suit by Trustee................................................................... 21
SECTION 6.9 Trustee May File Proofs of Claim............................................................. 21
SECTION 6.10 Priorities................................................................................... 21
SECTION 6.11 Undertaking for Costs........................................................................ 22
SECTION 6.12 Restoration of Rights and Remedies........................................................... 22
SECTION 6.13 Rights and Remedies Cumulative............................................................... 22
SECTION 6.14 Delay or Omission Not Waiver................................................................. 22
ARTICLE 7 TRUSTEE................................................................................................. 22
SECTION 7.1 Duties of Trustee............................................................................ 22
SECTION 7.2 Rights of Trustee............................................................................ 23
SECTION 7.3 Individual Rights of Trustee................................................................. 24
SECTION 7.4 Trustee's Disclaimer......................................................................... 24
SECTION 7.5 Notice of Default or Events of Default....................................................... 24
SECTION 7.6 Reports by Trustee to Holders................................................................ 24
SECTION 7.7 Compensation and Indemnity................................................................... 24
SECTION 7.8 Replacement of Trustee....................................................................... 25
SECTION 7.9 Successor Trustee by Merger, Etc............................................................. 25
SECTION 7.10 Eligibility; Disqualification................................................................ 26
SECTION 7.11 Preferential Collection of Claims Against Company............................................ 26
ARTICLE 8 DISCHARGE OF INDENTURE; DEFEASANCE...................................................................... 26
SECTION 8.1 Discharge of Indenture; Defeasance........................................................... 26
SECTION 8.2 Conditions to Defeasance..................................................................... 27
SECTION 8.3 Application of Trust Money................................................................... 28
SECTION 8.4 Repayment to Company......................................................................... 28
SECTION 8.5 Reinstatement................................................................................ 29
ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS..................................................................... 29
SECTION 9.1 Without Consent of Holders................................................................... 29
SECTION 9.2 With Consent of Holders...................................................................... 30
SECTION 9.3 Revocation and Effect of Consents............................................................ 30
SECTION 9.4 Notation on or Exchange of Notes............................................................. 31
SECTION 9.5 Trustee to Sign Amendments, Etc.............................................................. 31
ARTICLE 10 GUARANTEE OF NOTES...................................................................................... 31
SECTION 10.1 Unconditional Guarantee...................................................................... 31
SECTION 10.2 Severability................................................................................. 32
SECTION 10.3 Limitation of Guarantor's Liability.......................................................... 32
SECTION 10.4 Contribution................................................................................. 32
SECTION 10.5 Execution of Guarantee....................................................................... 32
SECTION 10.6 Obligations of Each Guarantor Unconditional.................................................. 32
SECTION 10.7 Notice to Trustee............................................................................ 33
SECTION 10.8 Reliance on Judicial Order or Certificate of Liquidating Agent............................... 33
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 10.9 Successors and Assigns....................................................................... 33
SECTION 10.10 No Waiver.................................................................................... 33
SECTION 10.11 No Subrogation............................................................................... 33
SECTION 10.12 Additional Subsidiary Guarantors............................................................. 34
SECTION 10.13 Modification................................................................................. 34
SECTION 10.14 Release of Guarantor......................................................................... 34
SECTION 10.15 This Article 10 Not to Prevent Events of Default............................................. 34
SECTION 10.16 Trustee's Compensation Not Prejudiced........................................................ 35
ARTICLE 11 MISCELLANEOUS........................................................................................... 35
SECTION 11.1 Notices...................................................................................... 35
SECTION 11.2 Communications by Holders with Other Holders................................................. 35
SECTION 11.3 Certificate and Opinion as to Conditions Precedent........................................... 35
SECTION 11.4 Record Date for Vote or Consent of Noteholders............................................... 36
SECTION 11.5 Rules by Trustee, Paying Agent, Registrar.................................................... 36
SECTION 11.6 Legal Holidays............................................................................... 36
SECTION 11.7 Governing Law................................................................................ 37
SECTION 11.8 No Adverse Interpretation of Other Agreements................................................ 37
SECTION 11.9 No Recourse Against Others................................................................... 37
SECTION 11.10 Successors................................................................................... 37
SECTION 11.11 Multiple Counterparts........................................................................ 37
SECTION 11.12 Separability................................................................................. 37
SECTION 11.13 Table of Contents, Headings, Etc............................................................. 37
RULE 144A/REGULATION S APPENDIX..................................................................................... 41
EXHIBIT A FORM OF NOTE .............................................................................. A1-1
EXHIBIT B-1 FORM OF PURCHASER LETTER................................................................... B1-1
EXHIBIT B-2 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER FROM
RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE.......................................... B2-1
EXHIBIT B-3 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER FROM
REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE.......................................... B3-1
EXHIBIT B-4 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER OF
CERTIFICATED NOTES......................................................................... B4-1
EXHIBIT B-5 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER FROM
RULE 144A GLOBAL NOTE OR REGULATION S PERMANENT GLOBAL NOTE TO
CERTIFICATED NOTE.......................................................................... B5-1
EXHIBIT C-1 FORM OF GUARANTEE.......................................................................... C1-1
EXHIBIT D-1 FORM OF GUARANTOR SUPPLEMENT............................................................... D1-1
</TABLE>
iii
<PAGE> 5
INDENTURE dated as of August 4, 1998 among WOLVERINE TUBE, INC., a Delaware
corporation (the "Company"), the GUARANTORS (as hereinafter defined) and FIRST
UNION NATIONAL BANK, a national banking association, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the Holders of the Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. The terms defined in this Section 1.1 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.1.
"Adjusted Net Assets" of a Guarantor at any date means the lesser of (x)
the amount by which the fair value of the property of such Guarantor at such
date exceeds the total amount of liabilities, including, without limitation, the
probable amount of contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date) of such
Guarantor at such date, but excluding liabilities under the Guarantee of such
Guarantor, and (y) the amount by which the present fair saleable value of the
assets of such Guarantor at such date exceeds the amount that will be required
to pay the probable liability of such Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date and after giving effect to any collection from any Subsidiary of such
Guarantor in respect of any obligations of such Subsidiary under the Guarantee
of such Guarantor), excluding debt in respect of the Guarantee of such
Guarantor, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any Person, means the power to direct the
management or policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or agent for service of notices
and demands.
"Applicable Procedures" means any procedures required to be followed by the
Depositary, Euroclear or Cedel, including, but not limited to, the "Operating
Procedures of the Euroclear System" and "Terms and Conditions Governing Use of
Euroclear" and the "Management Regulations" and "Instructions to Participants"
of Cedel Bank.
"Attributable Indebtedness", when used with respect to any Sale/Leaseback
Transaction, means, as at the time of determination, the present value
(discounted at the rate set forth or implicit in the terms of the lease included
in such transaction) of the total obligations of the lessee for rental payments
(other than amounts required to be paid on account of property taxes,
maintenance, repairs, insurance, assessments, utilities, operating and labor
costs and other items which do not constitute payments for property rights)
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended).
"Bank Credit Facility" means the Credit Agreement dated as of April 30,
1997 among the Company and Wolverine Tube (Canada) Inc., as the Borrowers, the
Lenders listed therein, Credit Suisse First Boston, as Administrative Agent, and
Mellon Bank, N.A., as Documentation Agent, as amended by that First Amendment
and Limited Waiver to Credit Agreement dated as of June 26, 1998 by and among
the Company and Wolverine Tube (Canada) Inc., Credit Suisse First Boston, as
Administrative Agent, and Mellon Bank, N.A., as Documentation Agent, and the
Lenders listed therein.
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<PAGE> 6
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors authorized
to act therefor.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligation" of any Person means any obligation of such
Person to pay rent or other amounts under a lease of property, real or personal,
that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of such obligation shall be the capitalized
amount thereof determined in accordance with GAAP.
"Cash" or "cash" means such coin or currency of the United States as at any
time of payment is legal tender for the payment of public and private debts.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to this Indenture and thereafter means the successor.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
"Comparable Treasury Price" means with respect to any redemption date for
the Notes (i) the average of four Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (ii) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
"Consolidated Net Tangible Assets" means as of any particular time the
aggregate amount of assets (less depreciation and valuation reserves and other
reserves and items deductible from gross book value of specific asset accounts
under GAAP) after deducting therefrom:
(a) all current liabilities except for (i) notes and loans payable,
(ii) current maturities of long-term debt, and (iii) current maturities of
obligations under capital leases; and
(b) all deferred debt issuance costs, goodwill, patents, and other
like intangibles,
all as set forth on the most recent consolidated balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with GAAP.
"Corporate Trust Office" of the Trustee means the office of the Trustee at
which its corporate trust business is administered, which office initially is
located at 1441 Main Street, 4th Floor, Columbia, South Carolina, 29202,
Attention: Corporate Trust Department.
"Default" or "default" means any event which is, or after the giving of
notice or the passage of time, or both, would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors and assigns.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Funded Indebtedness" means all Indebtedness (including Indebtedness
incurred under any revolving credit, letter of credit or working capital
facility) that matures by its terms, or that is renewable at the option of
2
<PAGE> 7
any obligor thereon to a date, more than one year after the date on which such
Indebtedness is originally incurred.
"GAAP" means generally accepted accounting principles consistently applied
as in effect in the United States from time to time.
"Guarantee" means, as the context may require, individually, a guarantee,
or collectively, any and all guarantees, of the Obligations of the Company with
respect to the Notes made by each Guarantor pursuant to the terms of Article 10
hereof, substantially in the form set forth in Exhibit C-1.
"Guarantor" shall initially mean each of Tube Forming L.P., Small Tube
Manufacturing Corp., and Wolverine Finance Company, and "Guarantors" shall
initially mean such entities, collectively.
"Hedging Obligations" of any Person means the net obligation (not the
notional amount) of such Person pursuant to any interest rate swap agreement,
foreign currency exchange agreement, interest rate collar agreement, option or
future contract or other similar agreement or arrangement relating to interest
rates or foreign exchange rates.
"Holder" or "Noteholder" means the person in which name a Note is
registered on the Registrar's books.
"Indebtedness" of any Person at any date means, without duplication, (i)
all indebtedness of such Person for borrowed money (whether or not the recourse
of the lender is to the whole of the assets of such Person or only to a portion
thereof), (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person in
respect of letters of credit or other similar instruments (or reimbursement
obligations with respect thereto), other than standby letters of credit and
performance bonds issued by such Person in the ordinary course of business, to
the extent not drawn or, to the extent drawn, if such drawing is reimbursed not
later than the third Business Day following demand for reimbursement, (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except trade payables and accrued expenses incurred in the
ordinary course of business, (v) all Capitalized Lease Obligations of such
Person, (vi) all Indebtedness of others secured by a Lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person, (vii) all
Indebtedness of others guaranteed by such Person to the extent of such guarantee
and (viii) all Hedging Obligations of such Person.
"Indenture" means this Indenture as amended, restated or supplemented from
time to time.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Initial Purchasers" means Credit Suisse First Boston Corporation and
Morgan Stanley & Co. Incorporated, as Initial Purchasers under the Purchase
Agreement.
"Institutional Accredited Investor" means an institutional "accredited
investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Instrument" means any agreement, indenture, instrument or other document
under which any obligation is evidenced, assumed, guaranteed or secured.
"Investment" means, with respect to any Person, directly or indirectly, any
advance, loan or other extension of credit or capital contribution to, or any
purchase, acquisition or ownership by such Person of any capital stock, bonds,
notes, debentures, partnership or joint venture interests or other securities
of, the acquisition, by purchase or otherwise, of all or substantially all of
the business or assets or stock or other evidence of beneficial ownership of,
any Person or the making of any investment in, any Person or transfers of
property or
3
<PAGE> 8
assets to any Affiliate other than sales of assets or payment for services
rendered in the ordinary course of business consistent with past practice.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law. For
the purposes of this Indenture, the Company or any Subsidiary of the Company
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, Capitalized Lease Obligation or other title retention agreement
relating to such asset.
"Maturity Date" means August 1, 2008.
"Notes" means the 7-3/8% Senior Notes Due 2008 or any of them (each, a
"Note"), as amended or supplemented from time to time, that are issued pursuant
to this Indenture.
"Obligations" means, with respect to any Indebtedness, any principal,
premium, interest, penalties, fees, indemnifications, reimbursements, damages
and other expenses payable under the documentation governing such Indebtedness.
"Officer" means the Chairman of the Board, Chief Executive Officer, the
President, any Vice President, the Chief Financial Officer, the Treasurer or the
Secretary of the Company or a Guarantor, as appropriate.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Officers of such Person that shall comply with applicable
provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel acceptable
to the Trustee. The counsel may be an employee of or counsel to the Company or
the Trustee.
"Pari Passu Indebtedness" means any Indebtedness of the Company, whether
outstanding on the date on which the Notes are originally issued or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall be
subordinated in right of payment to the Notes.
"Payment in full" or "paid in full" means payment in full in cash.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government (including any agency or
political subdivision thereof).
"PORTAL Market" means the Private Offerings, Resales and Trading through
Automated Linkages Market operated by the National Association of Securities
Dealers, Inc. or any successor thereto.
"Principal" or "principal" of a debt security, including the Notes, means
the principal of the security plus, when appropriate, the premium, if any, on
the security.
"Purchase Agreement" means the Purchase Agreement dated July 30, 1998 among
the Company, the Guarantors and the Initial Purchasers.
"QIB" means a "Qualified Institutional Buyer" as that term is defined in
Rule 144A.
"Redemption Date" or "redemption date," when used with respect to any Note
to be redeemed, means the date fixed for such redemption pursuant to this
Indenture, as set forth in the form of Note annexed as Exhibit A hereto.
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<PAGE> 9
"Redemption Price" or "redemption price," when used with respect to any
Note to be redeemed, means the price fixed for such redemption pursuant to this
Indenture, as set forth in the form of Note annexed as Exhibit A hereto.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Morgan Stanley & Co. Incorporated and two other primary United
States Government securities dealers in New York City (each, a "Primary Treasury
Dealer") appointed by the Trustee in consultation with the Company; provided,
however, that if any of the foregoing shall cease to be a Primary Treasury
Dealer, the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. (New York
City time) on the third Business Day preceding such redemption date.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Restricted Security" has the same meaning as "Restricted Security" set
forth in Rule 144(a)(3) promulgated under the Securities Act; provided that the
Trustee shall be entitled to request and conclusively rely upon an Opinion of
Counsel with respect to whether any Note is a Restricted Security. Each
Restricted Security shall bear the appropriate legend set forth in Section
2.3(e) of the Appendix.
"Rule 144" means Rule 144 as promulgated under the Securities Act.
"Rule 144A" means Rule 144A as promulgated under the Securities Act.
"Sale/Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Subsidiary of the Company, for a
period of more than three years, of any real or tangible personal property,
which property has been or is to be sold or transferred by the Company or such
Subsidiary to such Person in contemplation of such leasing.
"SEC" or "Commission" means the United States Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Significant Subsidiary" means any Subsidiary of the Company which is a
"significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the
Securities Act and the Exchange Act (as such Regulation is in effect on the date
hereof).
"Subsidiary" means any corporation of which at least a majority of the
outstanding capital stock having voting power under ordinary circumstances to
elect directors of such corporation shall at the time be held, directly or
indirectly, by the Company, by the Company and one or more Subsidiaries or by
one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 and as in effect on the date of this Indenture,
except to the extent any amendment to the Trust Indenture Act expressly provides
for application of the Trust Indenture Act as in effect on another date.
"Treasury Rate" means, with respect to any redemption date for the Notes,
(i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United
5
<PAGE> 10
States Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to the Comparable
Treasury Issue (if no maturity is within three months before or after the
Maturity Date, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date. The Treasury Rate shall be calculated on the third
Business Day preceding the redemption date.
"Trustee" means First Union National Bank until a successor replaces it in
accordance with the provisions of this Indenture and thereafter means the
successor.
"Trust Officer" means any officer in the Corporate Trust Office of the
Trustee or any other officer customarily performing functions similar to those
performed by any of the above-designated officers who shall, in any case, be
responsible for the administration of this Indenture or have familiarity with
it, and also means, with respect to a particular corporate matter, any other
officer of the Trustee to whom corporate trust matters are referred because of
his knowledge of and familiarity with the particular subject.
SECTION 1.2 OTHER DEFINITIONS.
The definitions of the following terms may be found in the sections
indicated as follows:
<TABLE>
<CAPTION>
Defined
Term in Section
---- ----------
<S> <C>
"Agent Members"....................................................................Appendix
"Appendix"......................................................................... 2.1
"Bankruptcy Law"................................................................... 6.1
"Custodian"........................................................................ 6.1
"Event of Default"................................................................. 6.1
"Funding Guarantor"................................................................ 10.4
"Global Note"......................................................................Appendix
"Legal Holiday".................................................................... 11.6
"Paying Agent"..................................................................... 2.3
"Registrar"........................................................................ 2.3
"Funding Guarantor"................................................................ 10.4
"Regulation S Global Note".........................................................Appendix
"U.S. Government Obligations"...................................................... 8.1
</TABLE>
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
This Indenture is hereby made subject to, and shall be governed by, the
provisions of the TIA required to be part of and to govern indentures qualified
under the TIA. The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture securityholder" means a Holder or Noteholder.
"indenture to be qualified" means this Indenture.
6
<PAGE> 11
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined in the TIA, defined
by a TIA reference to another statute or defined by SEC rule and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 1.4 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE 2
THE NOTES
SECTION 2.1 DESIGNATION, FORM AND DATING.
Certain provisions relating to the Notes are set forth in the Rule
144A/Regulation S Appendix attached hereto (the "Appendix"), which is hereby
incorporated in and expressly made a part of this Indenture. The Notes and the
trustee's certificate of authentication shall be substantially in the form of
Exhibit A to the Appendix, which is hereby incorporated in and expressly made a
part of this Indenture. The Notes may have notations, legends or endorsements
required by law, rule of any securities exchange or over-the-counter market on
which such Notes are then listed or quoted, or usage, in addition to those set
forth in the Appendix and Exhibit A thereto. The Company and the Trustee shall
approve the forms of Notes and any notation, endorsement or legend on them. Each
Note shall be dated the date of its authentication. The terms of the Notes set
forth in the Appendix and Exhibit A thereto are part of the terms of this
Indenture and, to the extent applicable, the Company, the Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
be bound by such terms.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
Two Officers of the Company shall sign the Notes for the Company by manual
or facsimile signature. If an Officer whose signature is on a Note no longer
holds that office at the time the Trustee authenticates the Note, the Note shall
be valid nevertheless. A Note shall not be valid until an authorized signatory
of the Trustee manually signs the certificate of authentication on the Note. The
signature of the Trustee on a Note shall be conclusive evidence that the Note
has been duly and validly authenticated and issued under this Indenture.
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<PAGE> 12
The Trustee shall act as the initial authenticating agent. Thereafter, the
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate the Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the Company.
The Trustee shall authenticate Notes for original issue up to the aggregate
principal amount stated in Section 2.2 of the Appendix to this Indenture upon a
written order of the Company signed by two Officers. The aggregate principal
amount of Notes outstanding at any time may not exceed that amount except as
provided in Section 2.6. The Notes shall be issuable only in registered form
without coupons only in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.3 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be presented
for registration of transfer or for exchange (the "Registrar"), an office or
agency where Notes may be presented for payment (the "Paying Agent") and an
office or agency where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Company may have one or
more co-Registrars and one or more additional Paying Agents. The term
"Registrar" includes any co-Registrar and the term "Paying Agent" includes any
additional Paying Agent.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall notify the Trustee
of the name and address of any Agent not a party to this Indenture. If the
Company fails to maintain a Registrar, Paying Agent or agent for service of
notices and demands, or fails to give the foregoing notice, the Trustee shall
act as such and shall be entitled to appropriate compensation therefor pursuant
to Section 7.7. The Company or any Affiliate of the Company may act as Paying
Agent (except for the purposes of Article 8) and Registrar.
The Company initially appoints the Trustee as Registrar, Paying Agent and
agent for service of notices and demands in connection with the Notes.
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST.
On or prior to each due date of the principal of or interest on any Notes,
the Company shall deposit with the Paying Agent a sum sufficient to pay such
principal or interest so becoming due. The Paying Agent shall hold in trust for
the benefit of Noteholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Notes, and shall promptly notify
the Trustee in writing of any default by the Company (or any other obligor on
the Notes) in making any such payment. If the Company or an Affiliate of the
Company acts as Paying Agent, it shall on or before each due date of the
principal of or interest on any Notes segregate the money held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee and the Trustee may at
any time during the continuance of any default, upon written request to a Paying
Agent, require such Paying Agent to forthwith pay to the Trustee all sums so
held in trust by such Paying Agent. Upon doing so, the Paying Agent (if other
than the Company or an Affiliate of the Company) shall have no further liability
for the money delivered to the Trustee. Upon any bankruptcy, reorganization or
similar proceeding with respect to the Company, the Trustee shall serve as
Paying Agent for the Notes.
SECTION 2.5 NOTEHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Noteholders. If the Trustee is not the Registrar, the Company shall cause the
Registrar to furnish to the Trustee on or before each semi-annual interest
payment date and at such other times
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as the Trustee may request in writing a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of Noteholders.
SECTION 2.6 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Company or the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and there is delivered to the Company
and the Trustee such Note or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Company or the Trustee
that such Note has been acquired by a bona fide purchaser, the Company shall
execute, and upon its written request the Trustee shall authenticate and
deliver, in exchange for any such mutilated Note or in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and principal amount,
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is
about to become due and payable, or is about to be redeemed by the Company
pursuant to Article 3, the Company in its discretion may, instead of issuing a
new Note, pay or redeem such Note, as the case may be.
Upon the issuance of any new Notes under this Section 2.6, the Company may
require the payment by the Noteholder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Note issued pursuant to this Section 2.6 in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section 2.6 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.7 OUTSTANDING NOTES.
The Notes outstanding at any time are all Notes authenticated by the
Trustee, except for those canceled by it, those delivered to it for cancellation
and those described in this Section 2.7 as not outstanding.
If a Note is replaced pursuant to Section 2.6, it ceases to be outstanding
unless the Trustee and the Company receive proof satisfactory to them that the
replaced Note is held by a bona fide purchaser.
If the Paying Agent (other than the Company or an Affiliate of the Company)
holds in trust on a redemption date or maturity date money sufficient to pay the
principal of, premium, if any, and accrued interest on Notes payable on that
date, then on and after that date such Notes cease to be outstanding and
interest on them ceases to accrue.
Subject to the restrictions contained in Section 2.8, a Note does not cease
to be outstanding because the Company or an Affiliate of the Company holds the
Note.
SECTION 2.8 TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any notice, direction, waiver or consent, Notes owned by
the Company or any other obligor on the Notes or by any Affiliate of the Company
or of such other obligor shall be disregarded, except that for purposes of
determining whether the Trustee shall be protected in relying on any such
notice, direction, waiver or consent, only Notes which the Trustee knows are so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to the Notes and that the
pledgee is not the Company or any Affiliate of the Company.
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SECTION 2.9 TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may prepare and
execute, and, upon the order of the Company, the Trustee shall authenticate and
deliver temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company with the consent of
the Trustee considers appropriate for temporary Notes. Every such temporary Note
shall be executed by the Company and authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Notes. Without unreasonable delay, the Company will execute and
deliver to the Trustee definitive Notes and thereupon any or all temporary Notes
may be surrendered in exchange therefor, at each office or agency maintained by
the Company pursuant to Section 4.11 and the Trustee shall authenticate and
deliver in exchange for such temporary Notes an equal aggregate principal amount
at maturity of definitive Notes. Such exchange shall be made by the Company at
its own expense and without any charge therefor. Until so exchanged, the Holder
of temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as a Holder of definitive Notes authenticated and delivered
hereunder.
SECTION 2.10 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee for cancellation
any Notes surrendered to them for transfer, exchange or payment. The Trustee and
no one else shall cancel all Notes surrendered for transfer, exchange, payment
(including redemption), or cancellation and shall destroy canceled Notes and
thereupon deliver a certificate of cancellation to the Company. The Company may
not issue new Notes to replace Notes it has redeemed, paid or delivered to the
Trustee for cancellation.
SECTION 2.11 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, the Company
shall pay defaulted interest (plus interest on such defaulted interest to the
extent lawful) at the rate specified therefor in the Notes in any lawful manner.
The Company may pay the defaulted interest to the Persons who are Noteholders on
a subsequent special record date. The Company shall fix or cause to be fixed (or
upon the Company's failure to do so the Trustee shall fix) any such special
record date and payment date to the reasonable satisfaction of the Trustee which
specified record date shall not be less than 10 days prior to the payment date
for such defaulted interest and shall promptly mail or cause to be mailed to
each Noteholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Note and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such defaulted interest as provided in this
Section 2.11.
SECTION 2.12 CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if then generally
in use) and, if so, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders, provided, however, that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers.
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ARTICLE 3
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICE TO TRUSTEE.
The Company may, at its option, from time to time redeem all or any part of
the Notes on any date prior to maturity, upon notice as set forth below, and at
the redemption prices set forth in paragraph 5 of the form of Note attached
hereto as Exhibit A, together with accrued and unpaid interest thereon to the
date of redemption.
If the Company elects to redeem Notes pursuant to paragraph 5 of the Notes,
it shall notify the Trustee at least 45 days prior to the redemption date as
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee) of the redemption date, the principal amount of Notes to be redeemed
and the redemption price (including, if applicable, the method by which it is to
be calculated). Such notice shall be accompanied by an Officers' Certificate of
the Company to the effect that such redemption will comply with the conditions
herein. If fewer than all of the Notes are to be redeemed, the record date
relating to such redemption shall be selected by the Company and given to the
Trustee, which record date shall not be less than 10 days after the date of
notice to the Trustee.
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed, the Trustee shall, not
more than 30 days prior to the redemption date, select the Notes to be redeemed
by lot, pro rata or by another method the Trustee considers fair and
appropriate; provided that such method is not prohibited by any stock exchange
or market on which the Notes are then listed. The Trustee shall make the
selection from the Notes outstanding and not previously called for redemption.
Notes in denominations of $1,000 may only be redeemed in whole. The Trustee may
select for redemption portions (equal to $1,000 or any multiple thereof) of the
principal of Notes that have denominations larger than $1,000. Provisions of
this Indenture that apply to Notes called for redemption also apply to portions
of Notes called for redemption. Upon request of the Company, the Trustee shall
notify the Company of the Notes or portions of Notes to be redeemed.
SECTION 3.3 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date, the
Trustee shall mail or cause to be mailed a notice of redemption by first-class
mail to each Holder of Notes to be redeemed at such Holder's address as it
appears on the Registrar's books.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price, or method by which it is to be
calculated;
(3) the CUSIP number, if any, printed on the Notes being redeemed;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be presented and
surrendered to the Paying Agent to collect the redemption price plus
accrued and unpaid interest, if any;
(6) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date and the only remaining
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right of the Holder is to receive payment of the redemption price upon
presentation and surrender to the Paying Agent of the Notes; and
(7) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date, upon presentation and surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof will be issued.
The Trustee shall give the notice of redemption in the Company's name and
at the Company's sole expense.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION.
Once the notice of redemption described in Section 3.3 is mailed, Notes
called for redemption become due and payable on the redemption date and at the
redemption price stated in the notice. Upon presentation and surrender to the
Paying Agent, such Notes shall be paid at the redemption price, plus accrued and
unpaid interest, if any, to the redemption date; provided that the Company shall
have deposited the redemption price and accrued interest, if any, with the
Paying Agent or the Trustee on or before 11:00 a.m. (New York City time) on the
date of redemption; provided, further, that if the redemption date is on an
interest payment date, any accrued and unpaid interest shall be payable to the
Noteholder of the redeemed Notes registered on the relevant record date;
provided, further, that if the redemption date is a Legal Holiday, payment shall
be made on the next succeeding Business Day and no interest shall accrue for the
period from such redemption date to such succeeding Business Day. The notice, if
mailed in the manner herein provided, shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice. In any case,
failure to give such notice by mail or any defect in the notice to the Holder of
any Note designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Note.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE.
By at least 11:00 a.m. (New York City time) on the date on which any
principal of or interest on a Note is due and payable, the Company shall deposit
with the Paying Agent (or if the Company or an Affiliate of the Company acts as
Paying Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued and unpaid interest on all Notes to be redeemed
on that date, other than Notes or portions thereof called for redemption on that
date which have been delivered by the Company to the Trustee for cancellation.
The Paying Agent shall return to the Company any money not required for that
purpose. If such money is then held by the Company or an Affiliate of the
Company in trust and is not required for such purpose, it shall be discharged
from the trust.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such redemption price, interest on the Notes
to be redeemed will cease to accrue on and after the applicable redemption date,
whether or not such Notes are presented for payment.
SECTION 3.6 NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for the Holder (at the Company's
expense) a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
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ARTICLE 4
COVENANTS
SECTION 4.1 PAYMENT OF NOTES.
The Company covenants and agrees that it will duly and punctually pay or
cause to be paid the principal amount at maturity, redemption price and
interest, in respect of each of the Notes at the places, at the respective times
and in the manner provided herein and in the Notes. Each installment of interest
on the Notes may be paid by mailing checks for the interest payable to or upon
the written order of the Holders of Notes entitled thereto as they shall appear
on the registry books of the Company.
The Company shall pay interest on overdue principal at the rate specified
therefor in the Notes, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful as provided in Section 2.11.
SECTION 4.2 SEC REPORTS; 144A INFORMATION.
The Company shall file all reports and other information and documents
which it is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, and within 15 days after it files them with the SEC, the Company
shall file copies of all such reports, information and other documents with the
Trustee. The Company will cause any quarterly and annual reports which it mails
to its stockholders to be mailed to the Holders of the Notes.
In the event the Company is at any time no longer subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company will
prepare, for the first three quarters of each fiscal year, quarterly financial
statements substantially equivalent to the financial statements required to be
included in a report on Form 10-Q under the Exchange Act. In such event, the
Company will also prepare, on an annual basis, complete audited consolidated
financial statements including, but not limited to, a balance sheet, a statement
of income and retained earnings, a statement of cash flows and all appropriate
notes. All such financial statements will be prepared in accordance with GAAP,
except for changes with which the Company's independent accountants concur, and
except that quarterly statements may be subject to year-end adjustments. The
Company will cause a copy of such financial statements to be filed with the
Trustee and mailed to the Holders of the Notes within 50 days after the close
for each of the first three quarters of each fiscal year and within 95 days
after the close of each fiscal year. The Company will also comply with the other
provisions of TIA ss. 314(a).
At any time when the Company is not subject to Section 13 or 15(d) of the
Exchange Act, upon the request of a Holder or beneficial owner of a Note, the
Company will promptly furnish or cause to be furnished Rule 144A Information (as
defined below) to such holder, to such beneficial owner or to a prospective
purchaser designated by such Noteholder or beneficial owner, as the case may be,
in order to permit compliance by such Noteholder or beneficial owner with Rule
144A under the Securities Act in connection with the resale of such Note by such
Noteholder or beneficial owner; provided, however, the Company shall not be
required to furnish such information in connection with any request made on or
after the date which is two years from the later of (i) the date such Note (or
any predecessor Note) was acquired from the Company or (ii) the date such Note
(or any predecessor Note) was last acquired from an "affiliate" of the Company
within the meaning of Rule 144 under the Securities Act. "Rule 144A Information"
shall be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto).
SECTION 4.3 LIMITATION ON LIENS.
The Company shall not, and shall not permit any Subsidiary of the Company
to, issue, assume or guarantee any Indebtedness for borrowed money secured by
any Lien on any property or asset now owned or hereafter acquired by the Company
or such Subsidiary without making effective provision whereby any and all Notes
then or thereafter outstanding will be secured by a Lien equally and ratably
with any and all other
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obligations thereby secured for so long as any such obligations shall be so
secured. Notwithstanding the foregoing, the Company or any Subsidiary of the
Company may, without so securing the Notes, issue, assume or guarantee
Indebtedness for borrowed money secured by the following Liens:
(a) Liens existing on the date on which the Notes are originally issued or
provided for under the terms of agreements existing on such date;
(b) Liens on property securing (i) all or any portion of the cost of
acquiring, constructing, altering, improving or repairing any property or
assets, real or personal, or improvements used or to be used in connection with
such property or (ii) Indebtedness incurred by the Company or any Subsidiary of
the Company prior to or within one year after the later of the acquisition, the
completion of construction, alteration, improvement or repair or the
commencement of commercial operation of such property, which Indebtedness is
incurred for the purpose of financing all or any part of the purchase price
thereof or construction or improvements thereon;
(c) Liens securing Indebtedness owed by a Subsidiary of the Company to the
Company or to any other Subsidiary of the Company;
(d) Liens on the property of any Person existing at the time such Person
becomes a Subsidiary of the Company and not incurred as result of (or in
connection with or in anticipation of) such Person becoming a Subsidiary of the
Company, provided that such Liens do not extend to or cover any property or
assets of the Company or any of its Subsidiaries other than the property
encumbered at the time such Person becomes a Subsidiary of the Company and do
not secure Indebtedness with a principal amount in excess of the principal
amount outstanding at such time;
(e) Liens on any property securing (i) Indebtedness incurred in connection
with the construction, installation or financing of pollution control or
abatement facilities or other forms of industrial revenue bond financing or (ii)
Indebtedness issued or guaranteed by the United States or any State thereof or
any department, agency or instrumentality of either;
(f) Liens on any property of the Company or any Subsidiary in favor of
governmental bodies;
(g) Liens to secure taxes not yet due or which are being contested in good
faith by the Company or a Subsidiary;
(h) Liens extending, renewing, refinancing or replacing (or successive
extensions, renewals, refinancings or replacements of) any Lien, in whole or in
part, of any type permitted under the foregoing clauses (a) through (g) above,
provided that such Lien extends to or covers only the property that is subject
to the Lien being extended, renewed, refinanced or replaced and that the
principal amount of the Indebtedness secured thereby shall not exceed the
principal amount of Indebtedness so secured at the time of such extension,
renewal, refinancing or replacement; or
(i) Liens (exclusive of any Lien of any type otherwise permitted under
clauses (a) through (h) above) securing Indebtedness for borrowed money of the
Company or any Subsidiary of the Company in an aggregate principal amount which,
together with the aggregate amount of Attributable Indebtedness deemed to be
outstanding in respect of all Sale/Leaseback Transactions entered into pursuant
to clause (a) Section 4.4 hereof (exclusive of any such Sale/Leaseback
Transactions otherwise permitted under clauses (a) through (h) above), does not
at the time such Indebtedness is incurred exceed 10% of Consolidated Net
Tangible Assets.
SECTION 4.4 LIMITATION ON SALE/LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any Subsidiary of the Company
to, enter into any Sale/Leaseback Transaction with any Person (other than the
Company or a Subsidiary of the Company) unless:
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(a) the Company or such Subsidiary would be entitled to incur Indebtedness,
in a principal amount equal to the Attributable Indebtedness with respect to
such Sale/Leaseback Transaction, secured by a Lien on the property subject to
such Sale/Leaseback Transaction pursuant to Section 4.3 without equally and
ratably securing the Notes pursuant hereto;
(b) after the date on which the Notes are originally issued and within a
period commencing six months prior to the consummation of such Sale/Leaseback
Transaction and ending six months after the consummation thereof, the Company or
such Subsidiary shall have expended for property used or to be used in the
ordinary course of business of the Company and its Subsidiaries an amount equal
to all or a portion of the net proceeds of such Sale/Leaseback Transaction and
the Company shall have elected to designate such amount as a credit against such
Sale/Leaseback Transaction (with any such amount not being so designated to be
applied as set forth in clause (c) below); or
(c) the Company, during the 12-month period after the effective date of
such Sale/Leaseback Transaction, shall have applied to the voluntary defeasance
or retirement of Notes or any Pari Passu Indebtedness an amount equal to the
greater of the net proceeds of the sale or transfer of the property leased in
such Sale/Leaseback Transaction and the fair value, as determined by the Board
of Directors of the Company, of such property at the time of entering into such
Sale/Leaseback Transaction (in either case adjusted to reflect the remaining
term of the lease and any amount expended by the Company as set forth in clause
(b) above), less an amount equal to the principal amount of Notes and Pari Passu
Indebtedness voluntarily defeased or retired by the Company within such 12-month
period and not designated as a credit against any other Sale/Leaseback
Transaction entered into by the Company or any Subsidiary during such period.
SECTION 4.5 COMPLIANCE CERTIFICATES.
The Company and the Guarantors shall deliver to the Trustee within 120 days
after the end of each fiscal year of the Company, an Officers' Certificate as to
the signer's knowledge of the Company's and the Guarantors' compliance with all
conditions and covenants on their part contained in this Indenture and stating
whether or not the signer knows of any default or Event of Default. If such
signer knows of such a default or Event of Default, the Officers' Certificate
shall describe the default or Event of Default and the efforts to remedy the
same. For the purposes of this Section 4.5, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
SECTION 4.6 NOTICE OF DEFAULTS.
The Company and the Guarantors will give notice to the Trustee, promptly
upon becoming aware thereof, of the existence of any Event of Default hereunder.
SECTION 4.7 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company and the Guarantors will, and will cause each of their
Subsidiaries to, pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company, directly or by reason
of its ownership of any Subsidiary, the Guarantors or their Subsidiaries or upon
the income, profits or property of the Company, the Guarantors or their
Subsidiaries; and (2) all material lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a lien upon the property of the
Company, the Guarantors or their Subsidiaries; provided, however, that none of
the Company, the Guarantors or their Subsidiaries shall be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which adequate provision has been made.
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SECTION 4.8 CORPORATE EXISTENCE.
Subject to Article 5, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and rights (charter and statutory) and the corporate, partnership or other
existence of each Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Subsidiary and
the rights (charter and statutory), licenses and franchises of the Company and
its Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries if the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries and that the loss thereof is not, and will
not be, adverse in any material respect to the Holders.
SECTION 4.9 MAINTENANCE OF PROPERTIES.
The Company will, and will cause each of its Subsidiaries to, cause all
material properties owned, leased or licensed in the conduct of their business
to be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof and
thereto, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times while any Notes are outstanding; provided, however, that
nothing in this Section 4.9 shall prevent the Company from doing otherwise if,
in the judgment of the Company, the same is desirable in the conduct of the
Company's business and is not, and will not be, adverse in any material respect
to the Holders.
SECTION 4.10 FURTHER INSTRUMENTS AND ACTS.
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
SECTION 4.11 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in The City of New York an office or agency where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The office of the agent of the Trustee in The City of New York shall be
such office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes. The
Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designation; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in The City of New York for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such office
or agency.
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ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 LIMITATION ON CONSOLIDATION, MERGER AND SALE OF ASSETS.
The Company shall not, and shall not permit any Guarantor (unless such
Guarantor shall have been released from its Guarantee pursuant to Section 10.14
hereof) to, consolidate with or merge into any Person, or sell, lease, convey,
transfer or otherwise dispose of all or substantially all of its assets to any
Person, unless:
(a) the Person formed by or surviving such consolidation (if other than the
Company or such Guarantor, as the case may be), or to which such sale, lease,
conveyance, transfer or other disposition shall be made, shall be a Subsidiary
of the Company or a corporation organized and validly existing under the laws of
the United States of America, any State thereof or the District of Columbia (or,
alternatively, in the case of a Guarantor organized under the laws of a
jurisdiction outside the United States, a corporation organized and existing
under the laws of such foreign jurisdiction), and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Notes and the performance or
observance of every covenant of this Indenture or the Guarantees on the part of
the Company or such Guarantor, as the case may be, to be performed or observed;
(b) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing;
(c) if, as a result of the transaction, property of the Company or any
Subsidiary would become subject to a Lien that would not be permitted under
Section 4.3 hereof, the Company or such Subsidiary takes such steps as shall be
necessary to secure the Notes equally and ratably with (or prior to) the
Indebtedness secured by such Lien; and
(d) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, sale,
lease, conveyance, transfer or disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation of the Company or any Guarantor with, or merger of
the Company or any Guarantor into, any other Person or any sale, lease,
conveyance, transfer or disposition of the properties and assets of the Company
or any Guarantor substantially as an entirety in accordance with Section 5.1,
the successor corporation formed by such consolidation or into which the Company
or such Guarantor is merged or to which such sale, lease, conveyance, transfer
or disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or such Guarantor under this
Indenture with the same effect as if such successor corporation had been named
as the Company or such Guarantor herein, and thereafter, except in the case of a
lease, the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Notes.
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ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(1) the Company or any Guarantor defaults in the payment of any
interest on the Notes when the same becomes due and payable and the default
continues for a period of 30 days;
(2) the Company or any Guarantor defaults in the payment of the
principal of or premium, if any, on any Note when the same becomes due and
payable at maturity, upon redemption or otherwise;
(3) the Company or any Guarantor fails to comply with any of its
other covenants or agreements contained in, or provisions of, the Notes,
the Guarantees or this Indenture and such failure continues for the period
and after the notice specified below;
(4) any default shall occur which results in the acceleration of
the maturity of any Indebtedness of the Company or any Subsidiary of the
Company having an outstanding principal amount of $10 million or more
individually or, taken together with all other such Indebtedness that has
been so accelerated, in the aggregate; or any default shall occur in the
payment of any principal or interest in respect of any Indebtedness of the
Company or any Subsidiary of the Company having an outstanding principal
amount of $10 million or more individually or, taken together with all
other such indebtedness with respect to which any such payment has not been
made, in the aggregate and such default shall be continuing for a period of
30 days without the Company or such Subsidiary, as the case may be,
effecting a cure of such default;
(5) a judgment or order is rendered against the Company, a
Guarantor or any Significant Subsidiary which requires the payment in money
by the Company, a Guarantor or any Significant Subsidiary, either
individually or in the aggregate, of an amount (to the extent not covered
by insurance) in excess of $10,000,000, and such judgment or order remains
unsatisfied, undischarged, unvacated, unbonded and unstayed for 30 days;
(6) the Company, a Guarantor or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in
an involuntary case or proceeding;
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property; or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company, a Guarantor or any
Significant Subsidiary in an involuntary case or proceeding;
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(B) appoints a Custodian of the Company, a Guarantor or any
Significant Subsidiary or for all or substantially all of the
property of any of them; or
(C) orders the liquidation of the Company, a Guarantor or any
Significant Subsidiary;
and in each case the order or decree remains unstayed and in
effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.
A default under clause (3) is not an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in principal amount of the
Notes then outstanding notify the Company and the Trustee, of the default, and
the Company does not cure the default within 60 days after receipt of such
notice. The notice given pursuant to this Section 6.1 must specify the default,
demand that it be remedied and state that the notice is a "Notice of Default."
When a default is cured, it ceases.
Subject to the provisions of Sections 7.1 and 7.2, the Trustee shall not be
charged with knowledge of any Event of Default unless written notice thereof
shall have been given to a Trust Officer at the Corporate Trust Office of the
Trustee by the Company, the Paying Agent, any Holder or an agent of any Holder.
SECTION 6.2 ACCELERATION.
If an Event of Default (other than an Event of Default specified in Section
6.1(6) or (7)) occurs and is continuing, the Trustee may, by notice to the
Company, or the Holders of not less than 25% in principal amount of the Notes
then outstanding may, by notice to the Company and the Trustee, and the Trustee
shall, upon the request of such Holders, declare all unpaid principal of and
premium, if any, and accrued interest to the date of acceleration on the Notes
then outstanding (if not then due and payable) to be due and payable upon any
such declaration, and the same shall become and be immediately due and payable.
If an Event of Default specified in Section 6.1(6) or (7) occurs, all unpaid
principal of and premium, if any, and accrued interest on the Notes then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Noteholder.
The Holders of a majority in principal amount of the Notes then outstanding
by notice to the Trustee may rescind an acceleration and its consequences if (i)
all existing Events of Default, other than the nonpayment of the principal of
and accrued interest on the Notes which has become due solely by such
declaration of acceleration, have been cured or waived; (ii) the Company has
paid or deposited with the Trustee a sum sufficient to pay (a) all overdue
interest on the Notes, (b) the principal of any Note which has become due
otherwise then by such declaration of acceleration, and (c) to the extent the
payment of such interest is lawful, interest on overdue installments of interest
and overdue principal, which has become due otherwise than by such declaration
of acceleration; (iii) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction; and (iv) all payments due to the
Trustee and any predecessor Trustee under Section 7.7 have been made. No such
rescission shall affect any subsequent default or impair any right consequent
thereon. Anything herein contained to the contrary notwithstanding, in the event
of any acceleration pursuant to this Section 6.2, the Company shall not be
obligated to pay any premium which it would have had to pay if it had then
elected to redeem the Notes pursuant to paragraph 5 of the Notes, except in the
case of any Event of Default occurring by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company or a Guarantor
with the intention of avoiding payment of the premium which it would have had to
pay if it had then elected to redeem the Notes pursuant to paragraph 5 of the
Notes, in which case an equivalent premium shall also become and be immediately
due and payable to the extent permitted by law.
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SECTION 6.3 OTHER REMEDIES.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Noteholder in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
SECTION 6.4 WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.
Subject to Section 6.7, the Holders of a majority in principal amount of
the Notes then outstanding by notice to the Trustee may waive any past default
or Event of Default and its consequences, except a default in the payment of the
principal of (or premium, if any) or interest on any Note as specified in
clauses (1) and (2) of Section 6.1, or a default in respect of a covenant or
provision hereof which cannot be modified or amended pursuant to Section 9.2
without the consent of the Holder of each Note affected thereby. When a default
or Event of Default is waived, it is cured and ceases, but no such waiver shall
extend to any subsequent or other default or impair any consequent right.
SECTION 6.5 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Notes then outstanding
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or, subject to Section 7.1, that the
Trustee determines is unduly prejudicial to the rights of other Noteholders or
would involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 6.6 LIMITATION ON SUITS.
A Noteholder may not pursue any remedy with respect to this Indenture or
the Notes (except actions for payment of overdue principal or interest) unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Notes then
outstanding.
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A Noteholder may not use any provision of this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over such
other Noteholder, or to enforce any rights under this Indenture other than in
the manner herein provided and for the equal and ratable benefit of all the
Noteholders.
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of (and premium, if any) and
interest on the Note, on or after the respective dates on which such payments
are due as expressed in the Note, or to bring suit for the enforcement of any
such payment on or after such respective dates, is absolute and unconditional
and shall not be impaired or affected without the consent of the Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE.
If an Event of Default in the payment of principal or interest specified in
Section 6.1(1) or (2) occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company or the
Guarantors (or any other obligor on the Notes) for the whole amount of principal
and accrued interest remaining unpaid, together with interest on overdue
principal and, to the extent that payment of such interest is lawful, interest
on overdue installments of interest, in each case at the rate per annum borne by
the Notes and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Noteholders allowed
in any judicial proceedings relative to the Company or the Guarantors (or any
other obligor on the Notes), its creditors or its property and shall be entitled
and empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in
any such judicial proceeding is hereby authorized by each Noteholder to make
such payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Noteholders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7, and to the extent that such payment of the
reasonable compensation, expenses, disbursements and advances in any such
proceedings shall be denied for any reason, payment of the same shall be secured
by a lien on, and shall be paid out of, any and all distributions, dividends,
monies, securities and other property which the Noteholders may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or the Trustee to
authorize or accept or adopt on behalf of any Noteholder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
First, to the Trustee for amounts due under Section 7.7;
Second, to Noteholders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, as to each, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes; and
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Third, to the Company or, to the extent the Trustee collects any amount
from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit made by the Trustee, a suit by a Holder pursuant to
Section 6.7, or a suit by any Holder, or group of Holders, of more than 10% in
principal amount of the Notes then outstanding.
SECTION 6.12 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Noteholder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Noteholder, then and in every such case, subject to any
determination in such proceeding, the Company, the Guarantors, the Trustee and
the Noteholders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Noteholders shall continue as though no such proceeding had been instituted.
SECTION 6.13 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes in the last paragraph of Section 2.6,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.14 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Noteholder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article 6 or by law to the Trustee
or to the Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Noteholders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his own affairs.
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(b) Except if an Event of Default has occurred and is occurring:
(1) the Trustee need perform only those duties as are specifically
set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. The Trustee,
however, shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved, and no provision of this Indenture
shall be construed to relieve the Trustee, from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to the terms hereof.
(d) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity reasonably satisfactory to it against any
loss, liability, expense or fee.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.1.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company or any Guarantor.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE.
Subject to Section 7.1:
(a) The Trustee may rely on any document reasonably believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, it may require an Officers' Certificate or an
Opinion of Counsel, which shall conform to Section 11.3. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its Agents and shall not be responsible for
the misconduct or negligence of any Agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes in good faith to be authorized or within
its rights or powers.
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(e) The Trustee may consult with counsel and the advice or opinion of such
counsel as to matters of law that shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or any Guarantor or an
Affiliate thereof with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to
Sections 7.10 and 7.11 hereof.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes or any Guarantee, it
shall not be accountable for the Company's or any Guarantor's use of the
proceeds from the Notes, and it shall not be responsible for any statement in
the Notes, Guarantees or this Indenture other than its certificate of
authentication.
SECTION 7.5 NOTICE OF DEFAULT OR EVENTS OF DEFAULT.
If a default or an Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each Noteholder notice of the
default or Event of Default within 90 days after the later of the date such
default or Event of Default occurs or the date the Trustee becomes aware of such
default or Event of Default. Except in the case of a default or an Event of
Default in payment of the principal of or premium, if any, or interest on any
Note, the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interests of Noteholders.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
If such report is required by TIA ss. 313, within 60 days after each May
15, beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Noteholder a brief report dated as of such May 15 that
complies with TIA ss. 313(a). The Trustee also shall comply with TIA ss.
313(b)(2) and (c).
A copy of each report at the time of its mailing to Noteholders shall be
mailed to the Company and filed with the SEC and each stock exchange, if any, on
which the Notes are listed. The Company shall notify the Trustee whenever the
Notes become listed on any stock exchange and any changes in the stock exchanges
on which the Notes are listed.
SECTION 7.7 COMPENSATION AND INDEMNITY.
The Company and the Guarantors shall pay to the Trustee from time to time
reasonable compensation for its services (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust). The Company and the Guarantors shall reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or made
by it. Such expenses may include the reasonable compensation, disbursements and
expenses of Trustee's agents and counsel.
The Company and the Guarantors shall indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense incurred by it in connection
with its duties under this Indenture or any action or failure to act as
authorized or within the discretion or rights or powers conferred upon the
Trustee hereunder. The Trustee shall notify the Company and the Guarantors
promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Trustee shall have the option of undertaking the defense of such
claims; provided, however, that if the Trustee opts not to defend itself, the
Trustee may have separate counsel and the Company and the Guarantors shall pay
the reasonable fees and expenses of such counsel. The Company and the Guarantors
need not pay for any settlement without their written consent.
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The Company and the Guarantors need not reimburse the Trustee for any
expense or indemnify it against any loss or liability incurred by it through its
own negligent action, failure to act or willful misconduct.
To secure the Company's and the Guarantors' payment obligations in this
Section 7.7, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee other than money or property held in
trust to pay principal of and interest on particular Notes.
The Company's and the Guarantors' payment obligations pursuant to this
Section 7.7 shall survive the resignation or removal of the Trustee and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8 REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company and the Guarantors;
provided, however, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 7.8. The Holders
of a majority in principal amount of the Notes then outstanding may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee with the
Company's written consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting as trustee.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of 10% in principal amount of the Notes then outstanding may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to the successor
Trustee and be released from its obligations (exclusive of any liabilities
Trustee may have incurred while acting as Trustee) hereunder, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Noteholder.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Company's obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust assets to, another corporation, the
resulting, surviving or transferee corporation without any further
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act shall be the successor Trustee, provided such transferee corporation shall
qualify and be eligible under Section 7.10.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA ss. 310(a).
The Trustee shall be a corporation organized and doing business under the laws
of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having (together
with any Person directly or indirectly controlling the Trustee) a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 7.10,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. The Trustee shall comply with TIA ss. 310(b); provided, however,
that there shall be excluded from the operation of TIA ss. 310(b)(1) any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA ss. 310(b)(1) are met. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 7.10, it shall resign immediately in the manner and
with the effect specified above in this Article 7.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1 DISCHARGE OF INDENTURE; DEFEASANCE.
(a) Discharge. This Indenture shall cease to be of further effect (except
that the Company's obligations under Section 7.7 hereof and the Trustee's and
Paying Agent's obligations under Section 8.4 hereof shall survive), and the
Trustee, on demand of the Company, shall execute proper instruments
acknowledging the satisfaction and discharge of this Indenture, when:
(1) either
(A) all outstanding Notes theretofore authenticated and issued
(other than destroyed, lost or stolen Notes that have been
replaced or paid) have been delivered to the Trustee for
cancellation; or
(B) all outstanding Notes not theretofore delivered to the Trustee
for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their stated maturity
within one year,
and the Company, in the case of clause (i) or (ii) above, has deposited or
caused to be deposited with the Trustee as funds (immediately available to
the Holders in the case of clause (i)) in trust for such purpose an amount
which, together with earnings thereon, will be sufficient to pay and
discharge the entire indebtedness on such Notes for principal and interest
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to the date of such deposit (in the case of Notes which have become due and
payable) or to the stated maturity, as the case may be;
(2) the Company has paid all other sums payable by it hereunder;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture have been complied with, together with an
Opinion of Counsel to the same effect.
The Company's obligations in Sections 2.3, 2.4, 2.5, 2.6, 4.1, 4.11, 7.7,
7.8, 8.4 and 8.5 shall survive until the Notes are no longer outstanding.
Thereafter, the Company's obligations in Sections 7.7 and 8.4 shall survive.
After such irrevocable deposit, the Trustee upon request shall acknowledge
in writing the discharge of the Company's and the Guarantors' obligations under
the Notes, the Guarantees and this Indenture, except for those surviving
obligations specified above.
"U.S. Government Obligations" means direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the
payment of which guarantee or obligation the full faith and credit of the United
States is pledged.
(b) Defeasance. Subject to Sections 8.1(c) and 8.2, the Company and the
Guarantors at any time may terminate (i) all of their respective obligations
under the Notes and this Indenture and, upon such termination, all the
Guarantees shall be discharged and released ("legal defeasance option") or (ii)
the Company's obligations and the obligations of all Guarantors under Sections
4.3, 4.4 and 5.1 and the operation of Sections 6.1(3), 6.1(4), 6.1(6) and 6.1(7)
(but only with respect to a Significant Subsidiary), and 6.1(5) and, upon such
termination, all the Guarantees shall be discharged and released ("covenant
defeasance option"). The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the Notes
may not be accelerated because of an Event of Default. If the Company exercises
its covenant defeasance option, payment of the Notes may not be accelerated
because of an Event of Default specified in Section 6.1(3), 6.1(4), 6.1(6) and
6.1(7) (but only with respect to a Significant Subsidiary) or 6.1(5).
Upon satisfaction of the conditions set forth herein and upon request of
the Company, the Trustee shall acknowledge in writing the discharge of those
obligations of the Company and the Guarantors that are terminated.
(c) Notwithstanding clauses (a) and (b) above, the Company's obligations in
Sections 2.3, 2.4, 2.5, 2.6, 4.1, 4.11, 7.7, 7.8, 8.4 and 8.5 shall survive
until the Notes have been paid in full. Thereafter, the Company's obligations in
Sections 7.7 and 8.4 shall survive.
SECTION 8.2 CONDITIONS TO DEFEASANCE.
The Company may exercise its legal defeasance option or its covenant
defeasance option only if:
(i) the Company irrevocably deposits or causes to be deposited in
trust with the Trustee money or non-callable U.S. Government Obligations or
a combination thereof which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide
cash at such times and in such amounts as will be sufficient to pay
principal and interest when due on all outstanding Notes (except Notes
replaced pursuant to Section 2.6 or delivered to the Trustee for
cancellation) to maturity or redemption, as the case may be;
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(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their view
that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all outstanding Notes (except Notes replaced pursuant to Section 2.6 or
delivered to the Trustee for cancellation) to maturity or redemption, as
the case may be;
(iii) no default or Event of Default with respect to the Notes
shall have occurred and be continuing at the time of the deposit described
in clause (i) of this Section 8.2;
(iv) such legal defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest for purposes of the TIA with
respect to any securities of the Company;
(v) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute default under any other
agreement or instrument to which the Company or any Guarantor is a party or
by which they are bound;
(vi) in the case of the Company's election of legal defeasance,
the Company shall have delivered to the Trustee an Opinion of Counsel from
a nationally recognized counsel acceptable to the Trustee or a tax ruling
to the effect that the Holders of the outstanding Notes or Persons in their
positions will not recognize income, gain or loss for Federal income tax
purposes solely as a result of such legal defeasance and will be subject to
Federal income tax on the same amount, in the same manner, including as a
result of prepayment, and at the same times as would have been the case if
such legal defeasance had not occurred;
(vii) in the case of the Company's election of covenant
defeasance, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the outstanding Notes will not
recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred; and
(viii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions precedent
to the defeasance and discharge of the Notes as contemplated by this
Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements satisfactory
to the Trustee for the redemption of Notes at a future date in accordance with
Article 3.
SECTION 8.3 APPLICATION OF TRUST MONEY.
The Trustee or the Paying Agent shall hold in trust, for the benefit of the
Holders, money or U.S. Government Obligations deposited with it pursuant to this
Article 8, and shall apply the deposited money and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of the
principal of and interest on the Notes.
SECTION 8.4 REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the Company or the
Guarantors, as the case may be, upon request any excess money or U.S. Government
Obligations held by them at any time.
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The Trustee and the Paying Agent shall pay to the Company or the
Guarantors, as the case may be, upon request any money held by them for the
payment of principal or interest that remains unclaimed for two years after a
right to such money has matured; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment, may at the expense
of the Company cause to be published once in a newspaper of general circulation
in The City of New York or mail to each Holder entitled to such money notice
that such money remains unclaimed and that after a date specified therein, which
shall be at least 30 days from the date of such publication or mailing, any
unclaimed balance of such money then remaining will be repaid to the Company or
the Guarantors, as the case may be. After that, Holders entitled to money must
look to the Company or the Guarantors, as the case may be, as general creditors
for payment unless an abandoned property law designates another person.
SECTION 8.5 REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article 8 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and each Guarantor's obligations under this Indenture, the Notes and
the Guarantees shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 8 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with this Article 8; provided, however, that if the Company or the Guarantors
have made any payment of the principal of or interest on any Notes because of
the reinstatement of its obligations, the Company or the Guarantors, as the case
may be, shall be subrogated to the rights of the Holders of such Notes to
receive any such payment from the money or U.S. Government Obligations held by
the Trustee or the Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 WITHOUT CONSENT OF HOLDERS.
The Company, the Guarantors and the Trustee may amend, waive or supplement
this Indenture or the Notes without notice to or consent of any Noteholder:
(a) to comply with Section 5.1 hereof;
(b) to cure any ambiguity, omission, defect or inconsistency, or to make
any other change that does not adversely affect the rights of any Noteholder in
any material respect;
(c) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Notes;
(d) to comply with the provisions of the TIA or with any requirement of the
SEC arising solely as a result of the qualification of this Indenture under the
TIA;
(e) to provide for the assumption of the obligations of the Company or any
Guarantor under the Indenture upon the merger, consolidation or sale or other
disposition of all or substantially all of the assets of the Company or any such
Guarantor;
(f) to provide for uncertificated Notes in addition to or in place of
certificated Notes; or
(g) to reflect the release of any Guarantor from its Guarantee, or the
addition of any Subsidiary of the Company as a Guarantor, in the manner provided
herein.
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SECTION 9.2 WITH CONSENT OF HOLDERS.
The Company, the Guarantors and the Trustee may amend, supplement or waive
this Indenture or the Notes without notice to any Noteholder but with the
written consent of the Holders of a majority in aggregate principal amount of
the Notes then outstanding. The Holders of a majority in aggregate principal
amount of the Notes then outstanding may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes
without notice to any Noteholder. Subject to Section 9.3, without the written
consent of each Noteholder affected, however, an amendment, supplement or
waiver, including a waiver pursuant to Section 6.4, may not:
(1) reduce the amount of Notes whose holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(3) reduce the principal amount of or change the fixed maturity of any
Note or alter the premium or other provisions with respect to redemption
under Article 3 or specified in the Notes;
(4) make any Note payable in money other than that stated in the Note;
(5) impair the right to institute suit for the enforcement of any
payment of principal of or premium, if any, or interest on any Note
pursuant to Section 6.7 and 6.8 hereof, except as limited by Section 6.6
hereof;
(6) make any change in the percentage of principal amount of Notes
necessary to waive compliance with certain provisions of this Indenture
pursuant to Section 6.4 or 6.7 hereof or this clause of this Section 9.2;
or
(7) waive a continuing default or Event of Default in the payment of
principal of, or premium, if any, or interest on the Notes.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment, supplement or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment, supplement or waiver.
SECTION 9.3 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder of
a Note or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. However,
any such Holder or subsequent Holder may revoke the consent as to his Note or
portion of a Note if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective.
After an amendment, supplement or waiver becomes effective, it shall bind
every Noteholder, unless it makes a change described in any of clauses (a)
through (g) of Section 9.2. In that case the amendment, supplement or waiver
shall bind each Holder of a Note who has consented to it and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note.
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SECTION 9.4 NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms.
SECTION 9.5 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplement authorized pursuant to
this Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may but need not sign it. In signing or refusing to sign such amendment
or supplement, the Trustee shall be entitled to receive and, subject to Section
7.1 shall be fully protected in relying upon, an Opinion of Counsel stating that
such amendment or supplement is authorized or permitted by this Indenture.
Neither the Company nor the Guarantors may sign an amendment or supplement until
the Board of Directors of the Company or the Guarantors, as the case may be,
approves it.
ARTICLE 10
GUARANTEE OF NOTES
SECTION 10.1 UNCONDITIONAL GUARANTEE.
Each Guarantor hereby unconditionally, jointly and severally, guarantees to
each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, the Note or the obligations of the
Company hereunder or thereunder, that: (i) the principal of and interest on the
Notes will be promptly paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration or otherwise and interest on the
overdue principal, if any, and interest on any interest, to the extent lawful,
of the Notes and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and (ii) in case of any
extension of time of payment or renewal of any Notes or of any such other
obligations, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, subject to any applicable
grace period, whether at stated maturity, by acceleration or otherwise, subject,
however, in the case of clauses (i) and (ii) above, to the limitations set forth
in Section 10.3. Each Guarantor hereby agrees that its Obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstances which might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenants that this Guarantee will not be discharged
except by complete performance of the obligations contained in the Notes, this
Indenture and in this Guarantee. If any Noteholder or the Trustee is required by
any court or otherwise to return to the Company, any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or any Guarantor, any amount paid by the Company or any Guarantor to
the Trustee or such Noteholder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect as to such amount only.
Each Guarantor further agrees that, as between each Guarantor, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in Article 6 for
the purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article 6, such Obligations (whether or not due and payable)
shall forthwith become due and payable by each Guarantor for the purpose of this
Guarantee.
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SECTION 10.2 SEVERABILITY.
In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.3 LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor, and by its acceptance hereof each Holder, hereby confirms
that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the Obligations of such Guarantor under its Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to Section 10.5, result in the obligations of such Guarantor under its
Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 10.4 CONTRIBUTION.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under this
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Notes or any other Guarantor's Obligations with
respect to this Guarantee.
SECTION 10.5 EXECUTION OF GUARANTEE.
To evidence their guarantee to the Noteholders specified in Section 10.1,
the Guarantors hereby agree to execute the Guarantee in substantially the form
of Exhibit C-1 recited to be endorsed on each Note ordered to be authenticated
and delivered by the Trustee. Each Guarantor hereby agrees that its Guarantee
set forth in Section 10.1 shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Guarantee. Each such
Guarantee shall be signed on behalf of each Guarantor by two Officers, or an
Officer and an Assistant Secretary or one Officer shall sign and one Officer or
an Assistant Secretary (each of whom shall, in each case, have been duly
authorized by all requisite corporate actions) shall attest to such Guarantee
prior to the authentication of the Note on which it is endorsed, and the
delivery of such Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of such Guarantee on behalf of such
Guarantor. Such signatures upon the Guarantee may be by manual or facsimile
signature of such officers and may be imprinted or otherwise reproduced on the
Guarantee, and in case any such officer who shall have signed the Guarantee
shall cease to be such officer before the Note on which such Guarantee is
endorsed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Note nevertheless may be authenticated and delivered or
disposed of as though the person who signed the Guarantee had not ceased to be
such officer of the Guarantor.
SECTION 10.6 OBLIGATIONS OF EACH GUARANTOR UNCONDITIONAL.
Nothing contained in this Article 10 or elsewhere in this Indenture or in
the Notes or the Guarantees is intended to or shall impair, as among any
Guarantor, its creditors, and the Holders of the Notes, the obligation of such
Guarantor, which is absolute and unconditional, to pay to the Holders of the
Notes the principal of and any interest on the Notes as and when the same shall
become due and payable in accordance with the terms of the Guarantees, or is
intended to or shall affect the relative rights of the Holders of the Notes and
creditors of any Guarantor, nor shall anything herein or therein prevent the
Holder of any Note or the Trustee on its behalf from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the
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rights, if any, in respect of cash, property or securities of any Guarantor
received upon the exercise of any such remedy.
SECTION 10.7 NOTICE TO TRUSTEE.
The Company or any Guarantor shall give prompt written notice to the
Trustee of any fact known to the Company or any such Guarantor which would
prohibit the making of any payment to or by the Trustee in respect of the
Guarantees pursuant to the provisions of this Article 10. Regardless of anything
to the contrary contained in this Article 10 or elsewhere in this Indenture, the
Trustee shall not be charged with knowledge of any facts which would prohibit
the making of any payment to or by the Trustee unless and until the Trustee
shall have received notice in writing from the Company or a Guarantor and, prior
to the receipt of any such written notice, the Trustee shall be entitled to
assume (in the absence of actual knowledge to the contrary) that no such facts
exist.
SECTION 10.8 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of any Guarantor referred to in
this Article 10, the Trustee and the Holders of the Notes shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which bankruptcy, dissolution, winding-up, liquidation or reorganization
proceedings are pending, or upon certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or the Holders of the Notes, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
10.
SECTION 10.9 SUCCESSORS AND ASSIGNS.
This Article 10 shall inure to the benefit of the successors and assigns of
the Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges conferred upon
that party in this Indenture and in the Notes shall automatically extend to and
be vested in such transferee or assignee, all subject to the terms and
conditions of this Indenture.
SECTION 10.10 NO WAIVER.
Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article 10 shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise of any right, power or privilege. The
rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any rights, remedies or benefits
which either may have under this Article 10 at law, in equity, by statute or
otherwise.
SECTION 10.11 NO SUBROGATION.
Notwithstanding any payment or payments made by any of the Guarantors
hereunder, no Guarantor shall be entitled to be subrogated to any of the rights
of the Trustee or any Noteholder against the Company or any other Guarantor or
any collateral security or guarantee or right of offset held by the Trustee or
any Noteholder for the payment of the Obligations, nor shall any Guarantor seek
or be entitled to seek any contribution or reimbursement from the Company or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Trustee and the Noteholders by the Company on account
of the Obligations are paid in full. If any amount shall be paid to any
Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Trustee and the Noteholders, segregated from other
funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be
turned over to the Trustee in the exact from received by such Guarantor (duly
indorsed by such Guarantor to the Trustee, if required), to be applied against
the Obligations.
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SECTION 10.12 ADDITIONAL SUBSIDIARY GUARANTORS.
Until such time as all Guarantees by the Guarantors under this Indenture
shall have been released in accordance with Section 10.14, the Company shall
cause each Subsidiary that Guarantees the Company's obligations under the Bank
Credit Facility to execute and deliver a supplement to this Indenture providing
that such Subsidiary will be a Guarantor hereunder. In addition, if any
Subsidiary of the Company guarantees or becomes a co-obligor on any Funded
Indebtedness of the Company other than the Notes at any time subsequent to the
date on which the Notes are originally issued (including, without limitation,
following any release of such Subsidiary from its Guarantee pursuant to Section
10.14), the Company shall cause the Notes to be equally and ratably guaranteed
by such Subsidiary, which Subsidiary shall execute and deliver a supplement to
this Indenture providing that such Subsidiary will be a Guarantor hereunder.
Each such supplement shall be substantially in the form of Exhibit D-1 attached
hereto. Subsidiaries that are Guarantors on the date any such supplement is
executed by an additional Subsidiary shall not be required to become parties to
such supplement and hereby agree to the execution and delivery by any additional
Subsidiary of any such supplement.
SECTION 10.13 MODIFICATION.
No modification, amendment or waiver of any provisions of this Article 10,
nor the consent to any departure by the Guarantors therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Trustee, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given; it being understood that the release of the
Guarantees of Guarantors pursuant to Section 10.14 shall not be an amendment or
waiver of any provision of this Article 10 and shall not require any action on
the part of the Trustee. No notice to or demand on the Guarantors in any case
shall entitle the Guarantors to any other or further notice or demand in the
same, similar or other circumstances.
SECTION 10.14 RELEASE OF GUARANTOR.
(a) Except as set forth in subsection (c) below, upon the sale or other
disposition of all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the capital
stock of such Guarantor, in each case in accordance with the terms of Section
5.1, such Guarantor (in the event of a sale or other disposition, by way of such
a merger, consolidation or otherwise of all the capital stock of such Guarantor)
shall be automatically released from all its obligations under the Indenture and
the Guarantee without any action on the part of the Trustee or the Holders. The
Trustee shall receive written notice of the release of any Guarantor if such
release is effected other than under Section 5.1.
(b) Except as set forth in subsection (c) below, upon the release of a
Guarantee by a Subsidiary of the Company's obligations under the Bank Credit
Facility, the Guarantee of such Subsidiary under this Indenture will be released
and discharged at such time and will not be reinstated or renewed in the event
any such Subsidiary thereafter Guarantees obligations of the Company under the
Bank Credit Facility, so long as the Guarantee by such Subsidiary under the Bank
Credit Facility remains released (i) until the next succeeding refinancing,
restatement, renewal, extension or replacement of the Bank Credit Facility or
amendment to increase the available principal amount thereunder, or (ii) for a
period of 90 consecutive days, whichever is later.
(c) Notwithstanding the foregoing, a Guarantor may be released from its
Guarantee only if such Guarantor is not a guarantor of (or co-obligor on) any
Funded Indebtedness of the Company other than the Notes and other than Funded
Indebtedness of the Company (i) that is subject to a release provision similar
to the release provision described herein, and (ii) the related guarantee (or
obligation) of which shall be released concurrently with the release of the
Guarantee of such Guarantor pursuant to such release provision; provided that no
default or Event of Default hereunder has occurred and is continuing.
SECTION 10.15 THIS ARTICLE 10 NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or interest on the
Notes by reason of any provision of this Article 10 will not be construed as
preventing the occurrence of an Event of Default.
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SECTION 10.16 TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article 10 will apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 NOTICES.
Any notice or communication shall be given in writing and delivered in
person or mailed by first class mail, postage prepaid, addressed as follows:
If to the Company or the Guarantors:
Wolverine Tube, Inc.
1525 Perimeter Parkway, Suite 210
Huntsville, AL 35806
Attention: James E. Deason
If to the Trustee:
First Union National Bank
1441 Main Street, 4th Floor
Columbia, South Carolina 29202
Attention: Corporate Trust Department
Such notices or communications shall be effective when received.
The Company, the Guarantors or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be mailed by first
class mail to such Noteholder at his or her address shown on the register kept
by the Registrar.
Failure to mail a notice or communication to a Noteholder or any defect in
it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication to a Noteholder is mailed in the manner provided above,
it is duly given, whether or not the addressee receives it.
SECTION 11.2 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Noteholders may communicate pursuant to TIA ss. 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and any other person shall have the
protection of TIA ss. 312(c).
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SECTION 11.3 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
(a) Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, the Company or such Guarantor
shall furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent (including any covenants
compliance with which constitutes a condition precedent), if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent (including any covenants
compliance with which constitutes a condition precedent) have
been complied with.
(b) Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, it or he has
made such examination or investigation as is necessary to enable
it or him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of
Counsel may rely on Officers' Certificates or certificates of
public officials.
SECTION 11.4 RECORD DATE FOR VOTE OR CONSENT OF NOTEHOLDERS.
The Company (or, in the event deposits have been made pursuant to Section
8.1, the Trustee) may set a record date for purposes of determining the identity
of Noteholders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture, which record date shall be the
later of 10 days prior to the first solicitation of such vote or consent or the
date of the most recent list of Noteholders furnished to the Trustee pursuant to
Section 2.5 hereof prior to such solicitation. If a record date is fixed, those
persons who were Holders of Notes at such record date (or their duly designated
proxies), and only those persons, shall be entitled to take such action by vote
or consent or to revoke any vote or consent previously given, whether or not
such persons continue to be Holders after such record date.
SECTION 11.5 RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or the Paying Agent may make reasonable rules for its
functions.
SECTION 11.6 LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, or a Sunday or a day on which state or
Federally chartered banking institutions in New York or the city and state where
the Trustee's corporate trust operations are located (which initially is
Charlotte, North Carolina) are not required to be open. If a payment date is a
Legal Holiday at a
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<PAGE> 41
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
SECTION 11.7 GOVERNING LAW.
This Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 11.8 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any Subsidiary thereof. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.9 NO RECOURSE AGAINST OTHERS.
All liability described in paragraph 17 of the Notes of any director,
officer, employee or stockholder, as such, of the Company or any Guarantor is
waived and released.
SECTION 11.10 SUCCESSORS.
All agreements of the Company or the Guarantors in this Indenture and the
Notes shall bind their respective successors in accordance with the terms hereof
and thereof. All agreements of the Trustee any additional trustee and any Paying
Agents in this Indenture shall bind their respective successors.
SECTION 11.11 MULTIPLE COUNTERPARTS.
The parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent the
same agreement.
SECTION 11.12 SEPARABILITY.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.13 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference sheet and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
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<PAGE> 42
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of
the 4th day of August, 1998.
WOLVERINE TUBE, INC.
By: /s/ Dennis Horowitz
-----------------------------------------
Name: Dennis Horowitz
Title: Chief Executive Officer
[SEAL]
Attest:
/s/ Richard Hare
- -------------------------------
Name: Richard Hare
Title: Treasurer
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ Leslie K. Whiddon
-----------------------------------------
Name: Leslie K. Whiddon
Title: AVP
[SEAL]
Attest:
/s/ Toni B. Shumpert
- -------------------------------
Name: Toni B. Shumpert
Title: AVP
38
<PAGE> 43
TUBE FORMING L.P.,
as Guarantor
By: /s/ James E. Deason
-----------------------------------------
Name:
Title:
[SEAL]
Attest:
/s/ Richard Hare
- -------------------------------
Name:
Title:
SMALL TUBE MANUFACTURING CORPORATION,
as Guarantor
By: /s/ Dennis Horowitz
-----------------------------------------
Name: Dennis Horowitz
Title: President
[SEAL]
Attest:
/s/ James E. Deason
- ------------------------------
Name: James Deason
Title: Vice President-Finance
and Secretary
39
<PAGE> 44
WOLVERINE FINANCE COMPANY,
as Guarantor
By: /s/ Dennis Horowitz
-----------------------------------------
Name: Dennis Horowitz
Title: President
[SEAL]
Attest:
/s/ James E. Deason
- ------------------------------
Name: James E. Deason
Title: Vice President-Finance
and Secretary
40
<PAGE> 45
RULE 144A/REGULATION S APPENDIX
FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT TO
RULE 144A AND TO CERTAIN OTHER PERSONS IN OFFSHORE TRANSACTIONS
IN RELIANCE ON REGULATION S
SECTION 1. DEFINITIONS.
SECTION 1.1 Certain Definitions.
The definitions of the following terms may be found in the indicated
sections of this Appendix as follows:
<TABLE>
<CAPTION>
Defined
Term in Section
---- ----------
<S> <C>
"Affiliate Legend".......................................................... 2.3(e)(ii)
"Agent Members"............................................................. 2.1(b)
"Global Notes".............................................................. 2.1(a)
"Regulation S Global Note".................................................. 2.1(a)
"Restricted Securities Legend".............................................. 2.3(e)(i)
"Rule 144A Global Note"..................................................... 2.1(a)
</TABLE>
SECTION 2. THE NOTES.
SECTION 2.1 Form and Dating.
The Notes are being offered and sold by the Company pursuant to
the Purchase Agreement.
(a) Global Notes. Notes offered and sold to QIBs in reliance on
Rule 144A, as provided in the Purchase Agreement, shall be initially issued in
the form of one or more permanent global Notes in definitive, fully-registered
form without interest coupons (the "Rule 144A Global Note"), which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee as custodian for the Depositary (or with such other custodian as the
Depositary may direct), registered in the name of the Depositary or a nominee of
the Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided and bear legends as set forth herein. Notes offered and
sold in reliance on Regulation S, as provided in the Purchase Agreement, shall
be issued initially in the form of one or more permanent global Notes in
definitive, fully-registered form without interest coupons (the "Regulation S
Global Note" and, together with the Rule 144A Global Note, the "Global Notes"),
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee as custodian for the Depositary (or with such other custodian as the
Depositary may direct) for credit to the respective accounts of the purchasers
(or to other accounts as they may direct) at the Euroclear System or Cedel Bank,
societe anonyme, registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided and bear legends as set forth herein. The aggregate
principal amount of the Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only
to a Global Note deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver one or more Global Notes that
(i) shall be registered in the name of the Depositary for such Global Note or
Global Notes or the nominee of the Depositary and (ii) shall be delivered by the
Trustee to
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<PAGE> 46
the Depositary or pursuant to such Depositary's instructions or held by the
Trustee as custodian for the Depositary.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depositary or by the Trustee as custodian for the
Depositary or under such Global Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Agent Members, the operation of customary practices of
such Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Note.
(c) Certificated Notes. Except as provided in this Section 2.1 or
Section 2.3 or 2.4 hereof, owners of beneficial interests in Global Notes will
not be entitled to receive physical delivery of certificated Notes.
SECTION 2.2 Authentication.
The Trustee shall authenticate and deliver Notes for original
issue in an aggregate principal amount of U.S. $150.0 million upon a written
order of the Company signed by two Officers or by an Officer and either an
Assistant Treasurer or an Assistant Secretary of the Company. Such order shall
specify the amount of the Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated and shall also specify delivery
instructions for such Notes. The aggregate principal amount of Notes outstanding
at any time may not exceed U.S. $150.0 million, except as provided in Section
2.6 of the Indenture.
SECTION 2.3 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes.
(i) The transfer and exchange of Global Notes or beneficial
interests therein shall be effected through the Depositary, in accordance with
the Indenture and the Applicable Procedures, which shall include applicable
restrictions on transfer set forth herein to the extent required by the
Securities Act. A transferor of a beneficial interest in a Global Note shall
deliver to the Registrar a written order given in accordance with the
Depositary's procedures containing information regarding the participant account
of the Depositary to be credited with the beneficial interest in the Global
Note. The Registrar shall, in accordance with such instructions, instruct the
Depositary to credit to the account of the Person specified in such instructions
a beneficial interest in the Global Note and to debit the account of the Person
making the transfer the beneficial interest in the Global Note being
transferred.
(ii) In the event that a Global Note is exchanged for Notes in
definitive registered form pursuant to Section 2.4 of this Appendix or Section
2.9 of the Indenture, such securities may be exchanged only in accordance with
such procedures as are substantially consistent with the provisions of this
Section 2.3 (including the certification requirements set forth on the reverse
of the Notes intended to ensure that such transfers comply with Rule 144A or
Regulation S, as the case may be) and such other procedures as may from time to
time be adopted by the Company.
(iii) Transfers of beneficial interests in the Global Notes shall
be permitted as follows:
(A) Rule 144A Global Note to Regulation S Global Note. If, at any
time, an owner of a beneficial interest in a Rule 144A Global
Note deposited with the Depositary (or the Trustee as custodian
for the Depositary) wishes to transfer its interest in such Rule
144A Global Note to a Person who is required or permitted to take
delivery thereof in the form of an interest in a Regulation S
Global Note, such owner shall, subject to the Applicable
Procedures, exchange or
42
<PAGE> 47
cause the exchange of such interest for an equivalent beneficial
interest in a Regulation S Global Note as provided in this
Section 2.3(a)(iii)(A). Upon receipt by the Trustee of (1)
instructions given in accordance with the Applicable Procedures
from an Agent Member directing the Trustee to credit or cause to
be credited a beneficial interest in the Regulation S Global Note
in an amount equal to the beneficial interest in the Rule 144A
Global Note to be exchanged, (2) a written order given in
accordance with the Applicable Procedures containing information
regarding the participant account of the Depositary and the
Euroclear or Cedel Bank account to be credited with such
increase, and (3) a certificate in the form of Exhibit B-2 hereto
given by the owner of such beneficial interest stating that the
transfer of such interest has been made in compliance with the
transfer restrictions applicable to the Global Notes and pursuant
to and in accordance with Rule 903 or Rule 904 of Regulation S,
then the Trustee, as Registrar, shall instruct the Depositary to
reduce or cause to be reduced the aggregate principal amount at
maturity of the applicable Rule 144A Global Note and to increase
or cause to be increased the aggregate principal amount at
maturity of the applicable Regulation S Global Note by the
principal amount at maturity of the beneficial interest in the
Rule 144A Global Note to be exchanged, to credit or cause to be
credited to the account of the Person specified in such
instructions a beneficial interest in the Regulation S Global
Note equal to the reduction in the aggregate principal amount at
maturity of the Rule 144A Global Note, and to debit, or cause to
be debited, from the account of the Person making such exchange
or transfer the beneficial interest in the Rule 144A Global Note
that is being exchanged or transferred.
(B) Regulation S Global Note to Rule 144A Global Note. If, at any
time, an owner of a beneficial interest in a Regulation S Global
Note deposited with the Depositary or with the Trustee as
custodian for the Depositary wishes to transfer its interest in
such Regulation S Global Note to a Person who is required or
permitted to take delivery thereof in the form of an interest in
a Rule 144A Global Note, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a Rule 144A
Global Note as provided in this Section 2.3(a)(iii)(B). Upon
receipt by the Trustee of (1) instructions from Euroclear or
Cedel Bank, if applicable, and the Depositary, directing the
Trustee, as Registrar, to credit or cause to be credited a
beneficial interest in the Rule 144A Global Note equal to the
beneficial interest in the Regulation S Global Note to be
exchanged, such instructions to contain information regarding the
participant account with the Depositary to be credited with such
increase, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the
participant account of the Depositary and (3) a certificate in
the form of Exhibit B-3 attached hereto given by the owner of
such beneficial interest stating (A) if the transfer is pursuant
to Rule 144A, that the Person transferring such interest in a
Regulation S Global Note reasonably believes that the Person
acquiring such interest in a Rule 144A Global Note is a QIB and
is obtaining such beneficial interest in a transaction meeting
the requirements of Rule 144A and any applicable blue sky or
securities laws of any state of the United States, (B) that the
transfer complies with the requirements of Rule 144 under the
Securities Act and any applicable blue sky or securities laws of
any state of the United States or (C) if the transfer is pursuant
to any other exemption from the registration requirements of the
Securities Act, that the transfer of such interest has been made
in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the
requirements of the exemption claimed, such statement to be
supported by an Opinion of Counsel from the transferee or the
transferor in form reasonably acceptable to the Company and to
the Registrar, then the Trustee, as Registrar, shall instruct the
Depositary to reduce or cause to be reduced the aggregate
principal amount at maturity of such Regulation S Global Note and
to increase or cause to be increased the aggregate principal
amount at maturity of the applicable Rule 144A Global Note by the
principal amount at maturity of the beneficial interest in the
Regulation S Global Note to be exchanged, and the Trustee, as
Registrar, shall instruct the Depositary, concurrently with such
reduction, to credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest
in the applicable Rule 144A Global Note equal to the reduction in
the aggregate
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<PAGE> 48
principal amount at maturity of such Regulation S Global Note and
to debit or cause to be debited from the account of the Person
making such transfer the beneficial interest in the Regulation S
Global Note that is being transferred.
(b) Transfer and Exchange of Certificated Notes. When
Certificated Notes are presented by a Holder to the Registrar with a request: to
register the transfer of the Certificated Notes; or to exchange such
Certificated Notes for an equal principal amount of Certificated Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested; provided, however, that the Certificated Notes presented
or surrendered for register of transfer or exchange: (i) shall be duly endorsed
or accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing; and (ii) in the case of a Certificated Note that is a Restricted
Security, such request shall be accompanied by a Purchaser Letter, in
substantially the form of Exhibit B-1 hereto, together with the following
additional information and documents, as applicable: (A) if such Restricted
Security is being delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, or such Restricted Security is being
transferred to the Company, a certification to that effect from such Holder (in
substantially the form of Exhibit B-4 hereto); (B) if such Restricted Security
is being transferred to a QIB in accordance with Rule 144A under the Securities
Act or pursuant to an exemption from registration in accordance with Rule 144
under the Securities Act or pursuant to an effective registration statement
under the Securities Act, a certification to that effect from such Holder (in
substantially the form of Exhibit B-4 hereto); or (C) if such Restricted
Security is being transferred in reliance on any other exemption from the
registration requirements of the Securities Act, a certification to that effect
from such Holder (in substantially the form of Exhibit B-4 hereto) and an
Opinion of Counsel from such Holder or the transferee reasonably acceptable to
the Company and to the Registrar to the effect that such transfer is in
compliance with the Securities Act.
(c) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in Section 2.4), a Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
(d) Transfer and Exchange of a Certificated Note for a Beneficial
Interest in a Global Note. A Certificated Note may not be transferred or
exchanged for a beneficial interest in a Global Note.
(e) Legends.
(i) Every Note issued by the Company either upon original
issuance or upon registration of transfer or exchange prior to
the earlier of (i) the sale of such Note pursuant to an effective
registration statement under the Securities Act and (ii) the
expiration of two years after the date of original issuance of
such Note shall be deemed a Restricted Security. Every Restricted
Security shall be subject to the restrictions on transfer
provided in the legend required to be borne by each Restricted
Security pursuant to this Section 2.3, unless such restrictions
on transfer shall be waived by the written consent of the
Company, and the holder of each Restricted Security, by such
Noteholder's acceptance thereof, agrees to be bound by such
restrictions on transfer. Whenever any Restricted Security is
presented or surrendered for registration of transfer or for
exchange for a Note registered in a name other than that of the
Holder, (i) the notice of assignment set forth in Exhibit A must
be properly completed, dated the date of such surrender and
signed by the Holder of such Restricted Security, and (ii) the
Holder of such Restricted Security shall deliver, prior to such
transfer, any other documents required by the Trustee or the
Company pursuant to such notice of assignment, including in the
case of any proposed transfer by a Holder to an Institutional
Accredited Investor, a letter signed by such Institutional
Accredited Investor substantially in the form of Exhibit B-1
relating to certain representations and agreements regarding
restrictions on transfer of such Restricted Security. The Trustee
shall not be required to accept for such registration of transfer
or exchange any Restricted Security if such conditions in the two
preceding sentences have not
44
<PAGE> 49
been satisfied. Notwithstanding the preceding three sentences,
any transfer of an interest in any Note in global form by a QIB
to a QIB through the facilities of The Depository Trust Company
or any other United States securities clearance and settlement
organization may be effected without delivery of any additional
notices or documents to the Trustee or the Company, provided that
such transfer does not require a change in the name (other than
to another nominee of The Depository Trust Company or such other
securities clearance and settlement organization) in which such
Note is then registered. The restrictions imposed by this Section
2.3 upon the transferability of any particular Restricted
Security shall cease and terminate upon the earlier of (i) the
sale of such Restricted Security pursuant to an effective
registration statement under the Securities Act and (ii) the
expiration of two years after the date of original issuance of
such Note. The Company shall promptly inform the Trustee in
writing of the effective date of any registration statement
registering the Notes under the Securities Act. Any Note as to
which such restrictions on transfer have expired in accordance
with their terms or have been otherwise terminated may, upon
surrender of such Note for exchange to the Trustee in accordance
with the provisions of this Section 2.3, be exchanged for a new
Note, of like tenor and aggregate principal amount, which shall
not bear the restrictive legend required by this Section 2.3. The
Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with this paragraph.
As used in this Section 2.3(e), the term "transfer" encompasses
any sale, pledge, transfer or other disposition of any Restricted Security.
Until the earlier of (i) the sale of such Restricted Security
pursuant to an effective registration statement under the Securities Act and
(ii) the expiration of two years after the date of original issuance of such
Restricted Security, any certificate evidencing such Note shall bear a legend in
substantially the following form (the "Restricted Securities Legend"), unless
otherwise agreed by the Company (with written notice thereof to the Trustee):
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS NOTE MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS
NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) INSIDE THE UNITED STATES TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
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<PAGE> 50
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust Company to act
as Depositary with respect to the Notes in global form. Initially, the Global
Note shall be issued to the Depositary, registered in the name of Cede & Co., as
the nominee of the Depositary, and deposited with the custodian for Cede & Co.
If a definitive Note is issued in exchange for any portion of a
Note in global form after the close of business at the office or agency where
such exchange occurs on any record date and before the opening of business at
such office or agency on the next succeeding interest payment date, interest
will not be payable on such interest payment date in respect of such Note, but
will be payable on such interest payment date only to the person to whom
interest in respect of such portion of such Note in global form is payable in
accordance with the provisions of this Indenture.
(ii) Any certificate evidencing a Note that has been transferred
to an Affiliate of the Company within two years after the
original issuance date of the Note, as evidenced by a notation on
the Assignment Form for such transfer or in the representation
letter delivered in respect thereof, shall, until two years after
the last date on which the Company or any Affiliate of the
Company was an owner of such Note, bear a legend in substantially
the following form (the "Affiliate Legend"), unless otherwise
agreed by the Company (with written notice thereof to the
Trustee);
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER AGREES (1) THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THE NOTE EVIDENCED HEREBY EXCEPT (A) TO WOLVERINE TUBE,
INC. OR ANY SUBSIDIARY THEREOF, (B) IN A TRANSACTION REGISTERED
UNDER THE SECURITIES ACT OR (C) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) AND (2) THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFER IS
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO FIRST UNION NATIONAL BANK, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, IF APPLICABLE), SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN,
THE TERMS "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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<PAGE> 51
(iii) Upon any sale or transfer of a Restricted Security
(including any Restricted Security represented by a Global Note)
pursuant to Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act:
(A) in the case of any Restricted Security that is a certificated
Note, the Registrar shall permit the Holder thereof to exchange
such Restricted Security for a certificated Note that does not
bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Restricted Security upon
receipt of a certification from the transferring Holder
substantially in the form of Exhibit B-5 hereto; and
(B) in the case of any Restricted Security represented by a
Global Note, such Restricted Security shall not be required to
bear the legend set forth in (i) above, but shall continue to be
subject to the provisions of Section 2.3(a) and (c) hereof.
(iv) Upon any sale or transfer of a Restricted Security
(including any Restricted Security represented by a Global Note)
in reliance on any exemption from the registration requirements
of the Securities Act (other than exemptions pursuant to Rule
144A or Rule 144 under the Securities Act) in which the Holder or
the transferee provides an Opinion of Counsel to the Company and
the Registrar in form and substance reasonably acceptable to the
Company and the Registrar (which Opinion of Counsel shall also
state that the transfer restrictions contained in the legend are
no longer applicable):
(A) in the case of any Restricted Security that is a certificated
Note, the Registrar shall permit the Holder thereof to exchange
such Restricted Security for a certificated Note that does not
bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Restricted Security; and
(B) in the case of any Restricted Security represented by a
Global Note, such Restricted Security shall not be required to
bear the legend set forth in (i) above, but shall continue to be
subject to the provisions of Section 2.3(a) and (c) hereof.
(f) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in Global Notes have been exchanged for certificated
Notes, redeemed or canceled, all Global Notes shall be returned to or retained
and canceled by the Trustee in accordance with Section 2.10 of the Indenture. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for certificated Notes, redeemed or canceled, the principal amount
of Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note, by the Trustee or the Custodian,
at the direction of the Trustee, to reflect such reduction.
(g) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate
certificated Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable
upon exchange or transfer pursuant to Section 4.7 of the
Indenture).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole
or in part, except the unredeemed portion of any Note being
redeemed in part.
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<PAGE> 52
(iv) All certificated Notes and Global Notes issued upon any
registration of transfer or exchange of certificated Notes or
Global Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the certificated Notes or Global Notes
surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required:
(A) to issue, to register the transfer of or to exchange Notes
during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under
Section 3.2 of the Indenture and ending at the close of business
on the day of selection; or
(B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note between a
record date and the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Company may deem and
treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment
of principal of and interest on such Notes, and neither the
Trustee, any Agent nor the Company shall be affected by notice to
the contrary.
(vii) The Trustee shall authenticate certificated Notes and
Global Notes in accordance with the provisions of Section 2.2
hereof.
SECTION 2.4 Certificated Notes.
(a) A Global Note deposited with the Depositary or with the
Trustee as custodian for the Depositary pursuant to Section 2.1 shall be
transferred to the beneficial owners thereof in the form of certificated Notes
in an aggregate principal amount equal to the principal amount of such Global
Notes, in exchange for such Global Note, only if such transfer complies with
Section 2.3 and (i) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Note or if at any time such
Depositary ceases to be a "clearing agency" registered under the Exchange Act
and a successor depositary is not appointed by the Company within 90 days of
such notice, or (ii) an Event of Default has occurred and is continuing or (iii)
the Company, in its sole discretion, notifies the Trustee in writing that it
elects to cause the issuance of certificated Notes under the Indenture.
(b) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this Section shall be surrendered by the Depositary to the
Trustee, to be so transferred, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon such transfer of
each portion of such Global Note, an equal aggregate principal amount of
certificated Notes of authorized denominations. Any portion of a Global Note
transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple thereof and
registered in such names as the Depositary shall direct. Any certificated Note
delivered in exchange for an interest in the Global Note shall, except as
otherwise provided by Section 2.3, bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the registered
Holder of a Global Note may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under the
Indenture or the Notes.
(d) In the event of the occurrence of any of the events specified
in Section 2.4(a), the Company will promptly make available to the Trustee a
reasonable supply of certificated Notes in definitive, fully-registered form
without interest coupons.
48
<PAGE> 53
EXHIBIT A
FORM OF NOTE
Number ______ CUSIP ____________
CUSIP ____________
CINS ____________
[GLOBAL NOTE LEGEND:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO WOLVERINE TUBE,
INC., OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[RESTRICTED SECURITIES LEGEND:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE
MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) INSIDE THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.]
A1-1
<PAGE> 54
[FORM OF FACE OF NOTE]
WOLVERINE TUBE, INC.
7-3/8% Senior Notes Due 2008
Wolverine Tube, Inc., a Delaware corporation, promises to pay to
______________________ or registered assigns, the principal sum of
__________________________ Dollars ($__________) on August 1, 2008 and to pay
interest on the principal amount of this Note beginning August 4, 1998 at the
rate of 7-3/8% per annum.
Interest Payment Dates: February 1 and August 1
Record January 15 and July 15
Additional provisions of this Note are set forth on the other
side of this Note.
Dated: ____________, 1998 WOLVERINE TUBE, INC.
By:
--------------------------------
Name:
Title:
[SEAL]
Attest:
By:
Name:
Title:
Trustee's Certificate of
Authentication:
This is one of the Notes
referred to in the within mentioned
Indenture.
FIRST UNION NATIONAL BANK, as Trustee
By:
--------------------
Authorized Signatory
A1-2
<PAGE> 55
[FORM OF REVERSE SIDE OF NOTE]
WOLVERINE TUBE, INC.
7-3/8% Senior Notes Due 2008
1. Interest.
Wolverine Tube, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at the rate per
annum shown above. The Company shall pay interest semi-annually on February 1
and August 1 of each year, commencing February 1, 1999. Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from August 4, 1998. Interest will be computed on the
basis of a 360-day year consisting of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on this Note (except defaulted
interest) to the person who is the registered Holder of this Note at the close
of business on the January 15 and July 15 next preceding the interest payment
date. Interest not punctually paid will be paid to the persons who are
registered Holders as of the close of business on a record date so designated by
the Company. The Holder must surrender this Note to the Paying Agent to collect
payment of principal. The Company will pay principal and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts. The Company, however, may pay principal and interest
by its check payable in such money and mailed to the Holder's registered
address.
3. Paying Agent and Registrar.
Initially, First Union National Bank (the "Trustee") will act as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to the Holder. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
4. Indenture.
This Note is one of a duly authorized issue of Notes of the
Company designated as its 7-3/8% Senior Notes Due 2008 (the "Notes"), issued
under an Indenture dated as of August 4, 1998 (the "Indenture"), among the
Company, the Guarantors named therein and the Trustee. This Note is subject to
all such terms, and the Holder of this Note is referred to the Indenture and
said Act for a statement of them. Capitalized terms and certain other terms used
herein and not otherwise defined have the meanings set forth in the Indenture.
The Notes are senior unsecured obligations of the Company limited
to $150,000,000 aggregate principal amount. The Indenture imposes certain
restrictions on the ability of the Company to create liens, enter into sale and
leaseback transactions and enter into mergers and consolidations.
To guarantee the due and punctual payment of the principal and
interest, if any, on the Notes and all other amounts payable by the Company
under the Indenture and the Notes when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Notes and the Indenture, the Guarantors, as primary obligors and not merely as
surety, have unconditionally and irrevocably guaranteed, on a joint and several
basis, such obligations on a senior basis pursuant to the terms of Article 10 of
the Indenture.
5. Redemption.
The Notes may be redeemed at the Company's option, in whole or in
part, at any time and from time to time upon any date. The redemption prices for
Notes shall be equal to the greater of (i) 100% of
A1-3
<PAGE> 56
the principal amount of the Notes to be redeemed or (ii) the sum of the present
value of the remaining scheduled payments of principal and interest thereon from
the redemption date to the Maturity Date, discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 25 basis points, plus accrued interest thereon to the
date of redemption. Any interest payment that is due and payable on or prior to
such date of redemption will be payable to the Holders of such Notes, or one or
more predecessor Notes, of record at the close of business on the relevant
record dates referred to on the face hereof, all as provided in the Indenture.
6. Notice of Redemption.
Notice of redemption will be mailed by first class mail at least
30 days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at such Holder's registered address. Notes in denominations
larger than $1,000 may be redeemed in part, but only in whole multiples of
$1,000. On and after the redemption date, subject to the deposit with the Paying
Agent of funds sufficient to pay the redemption price, interest ceases to accrue
on Notes or portions of the Notes called for redemption.
7. Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in denominations
of $1,000 and integral multiples thereof. A Holder may register the transfer of
or exchange Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes or other governmental charges that may be imposed
by law or permitted by the Indenture.
[Global Note Insert:
The aggregate principal amount of the Note in global form
represented hereby may from time to time be reduced or increased
to reflect exchanges of a part of this Note in global form for
definitive Notes or exchanges of definitive Notes for a part of
this Note in global form or redemptions of a part of this Note in
global form or cancelations of a part of this Note in global form
or transfers of definitive Notes in return for a part of this
Note in global form or transfers of a part of this Note in global
form effected by delivery of definitive Notes, in each case, and
in any such case, by means of notations on the Schedule of
Exchanges, Redemptions, Cancelations and Transfers on the last
page hereof. Notwithstanding any provision of this Note to the
contrary, (i) exchanges of a part of this Note in global form for
definitive Notes, (ii) exchanges of definitive Notes for a part
of this Note in global form, (iii) redemptions of a part of this
Note in global form, (iv) cancelations of a part of this Note in
global form, (v) transfers of definitive Notes in return for a
part of this Note in global form and (vi) transfers of a part of
this Note in global form effected by delivery of definitive Notes
may be effected without the surrendering of this Note in global
form, provided that appropriate notations on the Schedule of
Exchanges, Redemptions, Cancelations and Transfers are made by
the Trustee, or the Custodian at the direction of the Trustee, to
reflect the appropriate reduction or increase, as the case may
be, in the aggregate principal amount of this Note in a global
form resulting therefrom or as a consequence thereof.]
8. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of
such Note for all purposes.
A1-4
<PAGE> 57
9. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the money back to
the Company at its request. After that, Holders entitled to money must look to
the Company for payment as general creditors unless an abandoned property law
designates another person.
10. Defeasance.
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations and the
obligations of the Guarantors under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal of and interest on the Notes to redemption or maturity, as the case
may be.
11. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of a majority in
principal amount of the Notes then outstanding and any past default or
compliance with any provision may be waived in a particular instance with the
consent of the Holders of a majority in principal amount of the Notes then
outstanding. Without the consent of or notice to any Holder, the Company and the
Trustee may amend or supplement the Indenture or the Notes to, among other
things, provide for uncertificated Notes in addition to or in place of
certificated Notes, or to cure any ambiguity, omission, defect or inconsistency
or make any other change that does not adversely affect the rights of any Holder
in any material respect.
12. Successor Corporation.
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture and the transaction complies with
the terms of Article 5 of the Indenture, the predecessor corporation will,
except as provided in Article 5 of the Indenture, be released from those
obligations.
13. Defaults and Remedies.
Events of Default are set forth in the Indenture. Subject to
certain limitations in the Indenture, if an Event of Default (other than an
Event of Default specified in Section 6.1(6) or (7) of the Indenture) occurs and
is continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the outstanding Notes may, by written notice to the Trustee
and the Company, and the Trustee upon the request of the Holders of not less
that 25% in aggregate principal amount of the outstanding Notes shall, declare
all principal of and accrued interest on all Notes to be immediately due and
payable and such amounts shall become immediately due and payable. If an Event
of Default specified in Section 6.1(6) or (7) of the Indenture occurs, the
principal amount of and interest on, all Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the trustee or any Holder. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise and any trust or power.
The Trustee may withhold from Holders notice of any continuing default (except a
default in payment or principal or interest) if it determines that withholding
notice is in their best interests.
14. Trustee Dealings with the Company.
First Union National Bank, the Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or an Affiliate of the Company, and may
otherwise deal with the Company or an Affiliate of the Company, as if it were
not the Trustee.
A1-5
<PAGE> 58
15. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company or the Guarantors shall not have any liability for any obligations of
the Company or the Guarantors under the Notes or the Indenture or for any claim
based on, in respect or by reason of, such obligations or their creation. The
Holder of this Note, by accepting this Note, waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
this Note.
16. Discharge Prior to Maturity.
The Company's obligations pursuant to the Indenture will be
discharged, except for obligations pursuant to certain sections thereof, subject
to the terms of the Indenture, upon the payment of all the Notes or upon the
irrevocable deposit with the trustee of U.S. dollars or U.S. Government
Obligations sufficient to pay when due principal of and interest on the Notes to
maturity or redemption, as the case may be.
17. Authentication.
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) signs the certificate
of authentication on the other side of this Note.
18. Abbreviations and Definitions.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
All capitalized terms used in this Note and not specifically
defined herein are defined in the Indenture and are used herein as so defined.
19. Indenture to Control.
In the case of any conflict between the provisions of this Note
and the Indenture, the provisions of the Indenture shall control.
The Company will furnish to any Holder, upon written request and
without charge, a copy of the Indenture. Requests may be made to: Wolverine
Tube, Inc., 1525 Perimeter Parkway, Suite 210, Huntsville, Alabama 35806,
Attention: Chief Financial Officer.
20. Governing Law.
The Notes shall be governed by and construed in accordance with
the laws of the State of New York.
A1-6
<PAGE> 59
TRANSFER NOTICE
This Transfer Notice relates to $__________ principal amount of the 7-3/8%
Senior Notes Due 2008 of Wolverine Tube, Inc., a Delaware corporation, held by
______________________________ (the "Transferor").
(I) or (we) assign and transfer this Note to
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
and irrevocably appoint _______________________________ agent to transfer this
Note on the books of the Company. The agent may substitute another to act for
him.
Your Signature:
---------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Date:
-------------------------------------------------------------
Signature Guarantee:(1)
-------------------------------------------
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years after the later of the
date of original issuance of such Notes and the last date, if any, on which such
Notes were owned by the Company or any Affiliate of the Company, the undersigned
confirms that such Notes are being transferred:
CHECK ONE BOX BELOW
(1) [ ] to Wolverine Tube, Inc.; or
(2) [ ] pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
(3) [ ] pursuant to and in compliance with Regulation S under the
Securities Act of 1933, as amended; or
(4) [ ] to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933, as amended, that has furnished to the Trustee a signed
letter containing certain representations and agreements (the
form of which letter can be obtained from the Trustee)); or
- --------
(1) Signature must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
A1-7
<PAGE> 60
(5) [ ] pursuant to another available exemption from the
registration requirements of the Securities Act of 1933; or
(6) [ ] pursuant to an effective registration statement under the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the
name of any person other than the registered holder thereof;
provided, however, that if box (2), (3), (4) or (5) is
checked, the Trustee may require, prior to registering any
such transfer of the Notes such legal opinions, certifications
and other information as the Company has reasonably requested
to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such
as the exemption provided by Rule 144 under such Act.
Unless the box below is checked, the undersigned confirms that
such Note is not being transferred to an "affiliate" of the
Company as defined in Rule 144 under the Securities Act of
1933, as amended (an "Affiliate"):
(7) [ ] The transferee is an Affiliate of the Company.
-----------------------------------
Signature
------------------------------
Date
------------------------------
Signature Guarantee(1)
- --------
(1) Signature must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
A1-8
<PAGE> 61
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated:
-------------------- ---------------------------------------------
[Signature of executive officer of purchaser]
Name:
----------------------------------------
Title:
---------------------------------------
A1-9
<PAGE> 62
[Schedule A to Exhibit A
GLOBAL NOTE TRANSFER SCHEDULE
Changes to Principal Amount of Global Note
<TABLE>
<CAPTION>
Principal Amount of Notes by which
this Global Note Is to Be Reduced Remaining Principal Amount of this Authorized Signature
or Increased, and Reason for Global Note of officer of Trustee
Date Reduction or Increase (following increase or decrease) or Custodian
===================================================================================================================================
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
</TABLE>
Schedule to be maintained by Depositary in cooperation with Trustee.]
A1-10
<PAGE> 63
EXHIBIT B-1
FORM OF PURCHASER LETTER FOR INSTITUTIONAL ACCREDITED INVESTORS
Wolverine Tube, Inc.
1525 Perimeter Parkway, Suite 210
Huntsville, AL 35806
First Union National Bank
1441 Main Street, 4th Floor
Columbia, South Carolina 29202
Attn: Corporate Trust Department
(Wolverine Tube, Inc. 7-3/8% Senior Notes Due 2008)
Re: Wolverine Tube, Inc. 7-3/8% Senior Notes Due 2008
Dear Ladies and Gentlemen:
The undersigned is delivering this letter in connection with the
acquisition of one or more of the 7-3/8% Senior Notes Due 2008 (the "Notes").
The undersigned hereby confirms that:
(i) the undersigned is an "accredited investor" within
the meaning of Rule 501(a)(1), (2) or (3) under the Securities Act of
1933 (the "Securities Act") or an entity in which all of the equity
owners are "accredited investors" within the meaning of Rule 501(a)(1),
(2) or (3) under the Securities Act (an "Institutional Accredited
Investor");
(ii) (A) any purchase of Notes by the undersigned will
be for the undersigned's own account or for the account of one or more
other Institutional Accredited Investors or as fiduciary for the account
of one or more trusts, each of which is an "accredited investor" within
the meaning of Rule 501(a)(7) under the Securities Act and for each of
which the undersigned exercises sole investment discretion or (B) the
undersigned is a "bank," within the meaning of Section 3(a)(2) of the
Securities Act, or a savings and loan "association" or other institution
described in Section 3(a)(5)(A) of the Securities Act that is acquiring
Notes as fiduciary for the account of one or more institutions for which
the undersigned exercises sole investment discretion;
(iii) in the event that the undersigned purchases any
Notes, the undersigned will acquire Notes having a minimum principal
amount of not less than $250,000 for its own account or for any separate
account for which the undersigned is acting;
(iv) the undersigned has such knowledge and experience
in financial and business matters that the undersigned is capable of
evaluating the merits and risks of purchasing Notes;
(v) the undersigned is not acquiring Notes with a view
to distribution thereof or with any present intention of offering or
selling Notes, except as permitted below; provided, that the disposition
of the undersigned's property and property of any accounts for which the
undersigned is acting as fiduciary shall remain at all times within its
control; and
B1-1
<PAGE> 64
(vi) the undersigned is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
The undersigned understands that the Notes have not been
registered under the Securities Act or any applicable state securities laws, and
the undersigned agrees, on its own behalf and on behalf of each account for
which the undersigned acquires any Notes, that if in the future the undersigned
decides to resell or otherwise transfer such Notes, such Notes may be resold or
otherwise transferred only (a) to the Company or any subsidiary thereof, (b)
inside the United States to a person who is a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, (c) inside the United States to an Institutional
Accredited Investor that, prior to such transfer, furnishes to the trustee (or
transfer agent, as the case may be) for such Notes a signed letter containing
certain representations and agreements relating to the restrictions on transfer
of such Notes (the form of which letter can be obtained from such trustee, or
transfer agent, as the case may be), (d) outside the United States in a
transaction meeting the requirements of Rule 904 under the Securities Act, (e)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if applicable) or (f) pursuant to a registration statement which
has been declared effective under the Securities Act. The undersigned agrees
that any such transfer of Notes referred to in this paragraph shall be in
accordance with applicable securities laws of any State of the United States or
any other applicable jurisdiction and in accordance with the legends set forth
on the Notes. The undersigned further agrees to provide any person purchasing
any of the Notes from the undersigned a notice advising such purchaser that
resales of such securities are restricted as stated herein. The undersigned
understands that the registrar and transfer agent for the Notes will not be
required to accept for registration of transfer any Notes, except upon
presentation of evidence satisfactory to the Company that the foregoing
restrictions on transfer have been complied with. The undersigned further
understands that any Notes will be in the form of definitive physical
certificates and that such certificates will bear a legend or legends (unless
the sale of the Notes has been registered under the Securities Act) reflecting
the substance of this paragraph.
The undersigned acknowledges that the Company, the Trustee and
others will rely upon the undersigned's confirmations, acknowledgements and
agreements set forth herein, and the undersigned agrees to notify you promptly
in writing if any of its representations or warranties herein ceases to be
accurate and complete.
-----------------------------------
(Name of Purchaser)
Dated: , By:
--------- ---- --------------------------------------
Name:
------------------------------
Title:
-----------------------------
Address:
---------------------------
---------------------------
B1-2
<PAGE> 65
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.3(a)(iii)(A) of the Appendix)
Wolverine Tube, Inc.
1525 Perimeter Parkway, Suite 210
Huntsville, AL 35806
First Union National Bank
1441 Main Street, 4th Floor
Columbia, South Carolina 29202
Attention: Corporate Trust Department
(Wolverine Tube, Inc. 7-3/8% Senior Notes Due 2008)
Re: Wolverine Tube, Inc. 7-3/8% Senior Notes Due 2008
Dear Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of August 4,
1998 (the "Indenture"), among Wolverine Tube, Inc., as issuer (the "Company"),
the Guarantors named therein and First Union National Bank, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to U.S. $_______ principal amount of Notes
which are evidenced by one or more Rule 144A Global Notes (CUSIP No. 978093 AC
6) and held with the Depositary in the name of ____________________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Notes to a Person who will take delivery thereof in the form of
an equal principal amount of Notes evidenced by one or more Regulation S Global
Notes (CUSIP No. U97190 AA 7), which amount, immediately after such transfer, is
to be held with the Depositary through Euroclear or Cedel Bank or both (Common
Code 676 1127).
In connection with such request and in respect of such Notes,
the Transferor hereby certifies that such transfer has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(1) The offer of the Notes was not made to a person in the United
States;
(2) either:
(a) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any
person acting on its behalf reasonably believed and
believes that the transferee was outside the United
States; or
(b) the transaction was executed in, on or through the
facilities of a designated offshore securities market
and neither the Transferor nor any person acting on its
behalf knows that the transaction was prearranged with a
buyer in the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
B2-1
<PAGE> 66
(5) upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the
Depositary through Euroclear or Cedel Bank or both (Common Code
676 1127).
(6) With respect to transfers made in reliance on Rule 144, the
Notes are being transferred in a transaction permitted by Rule
144 under the Securities Act; and with respect to transfer made
in reliance on Rule 144A, that such Notes are being transferred
in accordance with Rule 144A under the Securities Act to a
transferee that the Transferor reasonably believes is purchasing
the Notes for its own account or an account with respect to
which the transferee exercises sole investment discretion and
the transferee and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A, in a
transaction meeting the requirements of Rule 144A and in
accordance with applicable securities laws of any state of the
United States or any other jurisdiction.
In addition, if the sale is made during a restricted period and
the provisions of Rule 903(c)(2) or (3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(c)(2) or (3) or Rule 904(c)(1), as the
case may be.
Upon giving effect to this request to exchange a beneficial
interest in a Rule 144A Global Note for a beneficial interest in a Regulation S
Global Note, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Regulation S Global Notes pursuant to the
Indenture and the Securities Act and, if such transfer occurs prior to the end
of the 40-day restricted period associated with the initial offering of Notes,
the additional restrictions applicable to transfers of interest in the
Regulation S Global Note.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and Credit Suisse First Boston
Corporation and Morgan Stanley & Co. Incorporated, the initial purchasers of
such Notes being transferred, and you and each of them is entitled to rely on
the contents of this certificate. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
-----------------------------------
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated: ,
---------- ----
cc: Wolverine Tube, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
B2-2
<PAGE> 67
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Pursuant to Section 2.3(a)(iii)(B) of the Appendix)
Wolverine Tube, Inc.
1525 Perimeter Parkway, Suite 210
Huntsville, AL 35806
First Union National Bank
1441 Main Street, 4th Floor
Columbia, South Carolina 29202
Attention: Corporate Trust Department
(Wolverine Tube, Inc. 7-3/8% Senior Notes Due 2008)
Re: Wolverine Tube, Inc. 7-3/8% Senior Notes Due 2008
Dear Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of August 4,
1998 (the "Indenture"), among Wolverine Tube, Inc., as issuer (the "Company"),
the Guarantors named therein and First Union National Bank, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to U.S. $_______ principal amount of Notes
which are evidenced by one or more Regulation S Global Notes (CUSIP No. U97190
AA 7) and held with the Depositary through [Euroclear] [Cedel Bank] (Common Code
676 1127) in the name of ____________________________ (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the Notes to
a Person who will take delivery thereof in the form of an equal principal amount
of Notes evidenced by one or more Rule 144A Global Notes (CUSIP No. 978093 AC
6), to be held with the Depositary.
In connection with such request and in respect of such Notes,
the Transferor hereby certifies that:
[CHECK ONE]
[ ] such transfer is being effected pursuant to and in accordance
with Rule 144A under the United States Securities Act of 1933,
as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Notes are being
transferred to a Person that the Transferor reasonably believes
is purchasing the Notes for its own account, or for one or more
accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is
a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A;
or
[ ] such transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
[ ] such transfer is being effected pursuant to an effective
registration statement under the Securities Act;
B3-1
<PAGE> 68
or
[ ] such transfer is being effected pursuant to an exemption from
the registration requirements of the Securities Act other than
Rule 144A or Rule 144, and the Transferor hereby further
certifies that the Notes are being transferred in compliance
with the transfer restrictions applicable to the Global Notes
and in accordance with the requirements of the exemption
claimed, which certification is supported by an Opinion of
Counsel, provided by the transferor or the transferee (a copy of
which the Transferor has attached to this certification) in form
reasonably acceptable to the Company and to the Registrar, to
the effect that such transfer is in compliance with the
Securities Act;
and such Notes are being transferred in compliance with any applicable blue sky
securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial
interest in Regulation S Global Notes for a beneficial interest in Rule 144A
Global Notes, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Rule 144A Global Notes pursuant to the
Indenture and the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and Credit Suisse First Boston
Corporation and Morgan Stanley & Co. Incorporated, the initial purchasers of
such Notes being transferred, and you and each of them is entitled to rely on
the contents of this certificate. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
-----------------------------------
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated: ,
---------- ----
cc: Wolverine Tube, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
B3-2
<PAGE> 69
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF CERTIFICATED NOTES
(Pursuant to Section 2.3(b) of the Appendix)
Wolverine Tube, Inc.
1525 Perimeter Parkway, Suite 210
Huntsville, AL 35806
First Union National Bank
1441 Main Street, 4th Floor
Columbia, South Carolina 29202
Attention: Corporate Trust Department
(Wolverine Tube, Inc. 7-3/8% Senior Notes Due 2008)
Re: Wolverine Tube, Inc. 7-3/8% Senior Notes Due 2008
Dear Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of August 4,
1998 (the "Indenture"), among Wolverine Tube, Inc., as issuer (the "Company"),
the Guarantors named therein and First Union National Bank, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This certificate relates to U.S. $__________ aggregate principal
amount of Notes which are held in certificated form (CUSIP No. _________) in the
name of _________________________ (the "Transferor") and is executed in
connection with the exchange or transfer of such securities.
In connection with such request and in respect of the Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Notes"), the
Holder of such Surrendered Notes hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Notes are being acquired for the Transferor's
own account, without transfer;
or
[ ] the Surrendered Notes are being transferred to the Company;
or
[ ] the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly,
the Transferor hereby further certifies that the Surrendered
Notes are being transferred to a Person that the Transferor
reasonably believes is purchasing the Surrendered Notes for its
own account, or for one or more accounts with respect to which
such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in each case in a
transaction meeting the requirements of Rule 144A;
or
[ ] the Surrendered Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
B4-1
<PAGE> 70
or
[ ] the Surrendered Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from
the registration requirements of the Securities Act other than
Rule 144A or Rule 144, and the Transferor hereby further
certifies that the Notes are being transferred in compliance
with the transfer restrictions applicable to the Global Notes
and in accordance with the requirements of the exemption
claimed, which certification is supported by an Opinion of
Counsel, provided by the transferor or the transferee (a copy of
which the Transferor has attached to this certification) in form
reasonably acceptable to the Company and to the Registrar, to
the effect that such transfer is in compliance with the
Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and Credit Suisse First Boston
Corporation and Morgan Stanley & Co. Incorporated, the initial purchasers of
such Notes being transferred and you and each of them is entitled to rely on the
contents of this certificate. Terms used in this certificate and not otherwise
defined in the Indenture have the meanings set forth in Regulation S under the
Securities Act.
-----------------------------------
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated: ,
---------- ----
cc: Wolverine Tube, Inc.
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
B4-2
<PAGE> 71
EXHIBIT B-5
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR REGULATION S PERMANENT GLOBAL NOTE
TO CERTIFICATED NOTE
(Pursuant to Section 2.3(e)(iii) of the Appendix)
Wolverine Tube, Inc.
1525 Perimeter Parkway, Suite 210
Huntsville, AL 35806
First Union National Bank
1441 Main Street, 4th Floor
Columbia, South Carolina 29202
Attention: Corporate Trust Department
(Wolverine Tube, Inc. 7-3/8% Senior Notes Due 2008)
Re: Wolverine Tube, Inc. 7-3/8% Senior Notes Due 2008
Dear Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of August 4,
1998 (the "Indenture"), among Wolverine Tube, Inc., as issuer (the "Company"),
the Guarantors named therein and First Union National Bank, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to U.S. $__________ aggregate principal
amount of Notes which are held [in the form of the [Rule 144A Global]
[Regulation S] Note (CUSIP No. 978093 AC 6/ CUSIP No. U97190 AA 7) with the
Depositary](1) in the name of [__________] (the "Transferor") to effect the
transfer of the Notes.
In connection with such request and in respect of the Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Notes"), the
Holder of such Surrendered Notes hereby certifies that the Notes are being
exchanged or transferred in accordance with the transfer restrictions set forth
in the Notes and that:
[CHECK ONE]
[ ] the Surrendered Notes are being transferred to the beneficial
owner of such Notes;
or
[ ] the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly,
the Transferor hereby further certifies that the Surrendered
Notes are being transferred to a Person that the Transferor
reasonably believes is purchasing the Surrendered Notes for its
own account, or for one or more accounts with respect to which
such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in each case in a
transaction meeting the requirements of Rule 144A;
or
[ ] the Surrendered Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
- --------
(1) Insert, if appropriate.
B5-1
<PAGE> 72
[ ] the Surrendered Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from
the registration requirements of the Securities Act other than
Rule 144A or Rule 144, and the Transferor hereby further
certifies that the Notes are being transferred in compliance
with the transfer restrictions applicable to the Global Notes
and in accordance with the requirements of the exemption
claimed, which certification is supported by an Opinion of
Counsel, provided by the transferor or the transferee (a copy of
which the Transferor has attached to this certification) in form
reasonably acceptable to the Company and to the Registrar, to
the effect that such transfer is in compliance with the
Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
[IF TRANSFER OR EXCHANGE FROM REGULATION S PERMANENT GLOBAL
NOTE, ALSO INCLUDE:
1. We are either not a U.S. person (as defined below) or we have
purchased our beneficial interest in the above referenced Regulation S
Permanent Global Note in a transaction that is exempt from the
registration requirements under the Securities Act.
2. We are delivering this certificate in connection with
obtaining a beneficial interest in certificated Notes in exchange for
our beneficial interest in the Regulation S Permanent Global Note.
For purposes of this certificate, "U.S. person" means (i) any
individual resident in the United States, (ii) any partnership or corporation
organized or incorporated under the laws of the United States, (iii) any estate
of which an executor or administrator is a U.S. person (other than an estate
governed by foreign law and of which at least one executor or administrator is a
non-U.S. person who has sole or shared investment discretion with respect to its
assets), (iv) any trust of which any trustee is a U.S. person (other than a
trust of which at least one trustee is a non-U.S. person who has sole or shared
investment discretion with respect to its assets and no beneficiary of the trust
(and no settlor if the trust is revocable) is a U.S. person), (v) any agency or
branch of a foreign entity located in the United States, (vi) any
non-discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary for the benefit or account of a U.S. person, (vii) any
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the United States (other than such an account held for the benefit or account
of a non-U.S. person), (viii) any partnership or corporation organized or
incorporated under the laws of a foreign jurisdiction and formed by a U.S.
person principally for the purpose of investing in securities not registered
under the Securities Act (unless it is organized or incorporated, and owned, by
accredited investors within the meaning of Rule 501(a) under the Securities Act
who are not natural persons, estates or trusts); provided, however, that the
term "U.S. person" shall not include (A) a branch or agency of a U.S. person
that is located and operating outside the United States for valid business
purposes as a locally regulated branch or agency engaged in the banking or
insurance business, (B) any employee benefit plan established and administered
in accordance with the law, customary practices and documentation of a foreign
country and (C) the international organizations set forth in Section 902(o)(7)
of Regulation S under the Securities Act and any other similar international
organizations, and their agencies, affiliates and pension plans.]
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and Credit Suisse First Boston
Corporation and Morgan Stanley & Co. Incorporated, the initial purchasers of
such Notes being transferred and you and each of them is entitled to rely on the
contents of this
B5-2
<PAGE> 73
certificate. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
-----------------------------------
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated: ,
---------- ----
B5-3
<PAGE> 74
EXHIBIT C-1
FORM OF GUARANTEE
Each of the undersigned (the "Guarantors") hereby jointly and severally
unconditionally guarantees, to the extent set forth in the Indenture dated as of
August 4, 1998 by and among WOLVERINE TUBE, INC., as issuer, the GUARANTORS, as
guarantors, and FIRST UNION NATIONAL BANK, as Trustee (as amended, restated or
supplemented from time to time, the "Indenture"), and subject to the provisions
of the Indenture, (a) the due and punctual payment of the principal of, and
premium, if any, and interest on the Notes, when and as the same shall become
due and payable, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on overdue principal of, and premium and, to the
extent permitted by law, interest, and the due and punctual performance of all
other obligations of the Company to the Noteholders or the Trustee, all in
accordance with the terms set forth in Article 10 of the Indenture, and (b) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Noteholders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
10 of the Indenture and reference is hereby made to the Indenture for the
precise terms and limitations of this Guarantee.
[SIGNED ON THE FOLLOWING PAGE]
C1-1
<PAGE> 75
IN WITNESS WHEREOF, each of the Guarantors has caused this Guarantee to
be signed by a duly authorized officer.
TUBE FORMING L.P.
By
------------------------------------------
Name:
Title: President
SMALL TUBE MANUFACTURING CORPORATION
By
------------------------------------------
Name:
Title: President
WOLVERINE FINANCE COMPANY
By
------------------------------------------
Name:
Title: President
C1-2
<PAGE> 76
EXHIBIT D-1
FORM OF GUARANTOR SUPPLEMENT
GUARANTOR SUPPLEMENT, dated as of ___________, _____, among Wolverine Tube,
Inc., a Delaware corporation (the "Company"), [NEW GUARANTOR], a _______________
corporation (the "New Guarantor") and First Union National Bank, a national
banking association, as trustee (the "Trustee") to the Indenture dated as of
August 4, 1998 (as amended to the date hereof, the "Indenture") among the
Company, the Guarantors named therein and the Trustee.
W I T N E S S E T H:
WHEREAS, Section 9.1 of the Indenture provides that the Company and the
Trustee may, among other things, amend the Indenture or the Notes without notice
to or consent of any Noteholder to add Guarantees with respect to the Notes or
to secure the Notes;
WHEREAS, Section 10.12 of the Indenture provides that until such time
as all Guarantees by the Guarantors under the Indenture shall have been released
in accordance with Section 10.14 of the Indenture, the Company shall cause each
Subsidiary that Guarantees the Company's obligations under the Bank Credit
Facility to execute and deliver this Guarantor Supplement pursuant to which such
Subsidiary shall agree to be bound by the provisions of Article 10 of the
Indenture; and
WHEREAS, the New Guarantor shall execute and deliver to the Trustee this
Guarantor Supplement.
NOW, THEREFORE, the New Guarantor shall execute and deliver to the Trustee
this Guarantor Supplement.
1. Defined Terms. Capitalized terms used and not defined herein shall have
the meaning specified in or pursuant to the Indenture.
2. Guarantee. The New Guarantor hereby agrees to unconditionally assume all
the obligations of a Guarantor under the Indenture as described therein.
3. Trustee. The Trustee accepts the modification of the Indenture effected
by this Guarantor Supplement, but only upon the terms and conditions set forth
in the Indenture. Without limiting the generality of the foregoing, the Trustee
assumes no responsibility for the correctness of the recitals herein contained.
The Trustee makes no representation and shall have no responsibility as to the
validity and sufficiency of this Guarantor Supplement.
4. Effect on Indenture. As supplemented by this Guarantor Supplement, the
Indenture is hereby ratified and confirmed in all aspects.
5. Counterparts. This Guarantor Supplement may be executed in counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
D1-1
<PAGE> 77
6. Governing Law. This Guarantor Supplement shall be governed by, and
construed in accordance with, the laws of the State of New York but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be required thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Guarantor
Supplement to be duly executed as of the date and year first above written.
[NEW GUARANTOR]
By:
-----------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK, as Trustee
By:
-----------------------------------------
Name:
Title:
WOLVERINE TUBE, INC.
By:
-----------------------------------------
Name:
Title:
D1-2
<PAGE> 1
EXHIBIT 10.1
WOLVERINE TUBE, INC.
WOLVERINE TUBE (CANADA) INC.
FIRST AMENDMENT AND LIMITED WAIVER
TO CREDIT AGREEMENT
This FIRST AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT (this
"AMENDMENT") is dated as of June 26, 1998 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, MELLON BANK, N.A., as Documentation Agent
and the Lenders listed on the signature pages hereto, and is made with reference
to that certain Credit Agreement dated as of April 30, 1997 (such agreement, as
amended from time to time, the "CREDIT AGREEMENT"), by and among Borrowers,
Lenders, Administrative Agent and Documentation Agent. 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
Section 10.6 of the Credit Agreement, agree to modify and or waive certain
provisions of the Credit Agreement relating to (i) the Applicable Margin, (ii)
mandatory prepayments with the proceeds of certain debt, (iii) aggregate amount
of permitted unsecured Indebtedness and (iv) the Maximum Leverage Ratio.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1.
AMENDMENTS
The terms of the Credit Agreement are hereby amended as follows:
A. DEFINITION OF APPLICABLE LEVEL. The definition of Applicable Level
set forth in subsection 1.1 is hereby amended by deleting the definition in its
entirety and substituting therefor the following:
"APPLICABLE LEVEL" means, as of any date, the applicable level
determined with reference to the Company's Debt Rating by S&P and
Moody's and the Leverage Ratio Amount pursuant to the table set forth
below:
<PAGE> 2
<TABLE>
<CAPTION>
====================================================================================================================
APPLICABLE DEBT RATING DEBT RATING LEVERAGE
LEVEL BY S&P BY MOODY'S RATIO AMOUNT
====================================================================================================================
<S> <C> <C> <C>
I greater than or equal to A- greater than or equal to A3 less than 1.0
- --------------------------------------------------------------------------------------------------------------------
II greater than or equal to BBB greater than or equal to Baa2 greater than or equal to
but less than A- but less than A3 1.0 but less than 1.5
- --------------------------------------------------------------------------------------------------------------------
III greater than or equal to BBB- greater than or equal to Baa3 greater than or equal to
but less than BBB but less than Baa2 1.5 but less than 2.0
- -------------------------------------------------------------------------------------------------------------------
IV greater than or equal to BB greater than or equal to Ba2 greater than or equal to
but less than BBB- but less than Baa3 2.0 but less than 2.5
- --------------------------------------------------------------------------------------------------------------------
V less than or equal to BB- less than or equal to Ba3 greater than or equal to
2.5 but less than 3.25
- --------------------------------------------------------------------------------------------------------------------
VI N/A N/A greater than or equal to 3.25
====================================================================================================================
</TABLE>
; provided that (i) if a Debt Rating by either S&P or Moody's is in
effect, the Debt Rating shall determine the Applicable Level and the
Leverage Ratio Amount shall not apply and (ii) if neither a Debt Rating
from S&P nor a Debt Rating from Moody's is in effect, (a) the
Applicable Level shall be Level III at all times during the first six
months after the Closing Date and (b) at all times thereafter, the
Leverage Ratio Amount shall determine the Applicable Level (provided
that if the Borrowers fail to deliver the financial statements required
pursuant to subsection 6.1(i) by the applicable date set forth in such
subsection, the Applicable Level shall be Level V until such financial
statements are delivered, provided further, that if the Applicable
Level at the time immediately prior to such failure was Level VI, the
Applicable Level shall remain at Level VI); provided further, that if
the Debt Ratings assigned by S&P and Moody's result in different
levels, the higher level (it being understood and agreed that Level I
shall be the highest Applicable Level and Level V the lowest for
purposes of this proviso) shall be the Applicable Level unless one of
the levels is two or more levels lower than the other level, in which
case the level immediately above the lower level shall be the
Applicable Level.
B. DEFINITION OF APPLICABLE MARGIN. The definition of Applicable Margin
set forth in subsection 1.1 is hereby amended by deleting the table contained
therein and substituting therefor the following:
2
<PAGE> 3
====================================================
APPLICABLE APPLICABLE
LEVEL MARGIN
====================================================
- ----------------------------------------------------
I .250%
- ----------------------------------------------------
II .375%
- ----------------------------------------------------
III .500%
- ----------------------------------------------------
IV .650%
- ----------------------------------------------------
V .875%
- ----------------------------------------------------
VI 1.000%
====================================================
C. COMMITMENT FEES. Section 2.3A of the Credit Agreement is hereby
amended by deleting the table contained therein and substituting therefor the
following:
=================================================
APPLICABLE PERCENT
LEVEL PER ANNUM
=================================================
- -------------------------------------------------
I .10%
- -------------------------------------------------
II .125%
- -------------------------------------------------
III .1875%
- -------------------------------------------------
IV .225%
- -------------------------------------------------
V .35%
- -------------------------------------------------
VI .50%
=================================================
D. AMOUNT OF PERMITTED UNSECURED INDEBTEDNESS. Section 7.1(vi) of the
Credit Agreement is hereby amended by deleting the reference to $75,000,000 and
substituting $175,000,000 therefor.
E. MAXIMUM LEVERAGE. Section 7.6(C) of the Credit Agreement is hereby
amended by deleting the ratio of 3.00:1.00 contained therein and substituting
3.75:1.0 therefor.
SECTION 2.
LIMITED WAIVER
The provisions of subsection 2.4A(iii)(c) are hereby waived to the
extent but only to the extent that they would require a mandatory prepayment of
the Loans or reduction of the Commitments from the Net Securities Proceeds of
unsecured indebtedness issued by the Company on or before August 30, 1998;
provided, that no payment of principal of such unsecured indebtedness is
required by its terms prior to the Maturity Date; provided further, that such
Net
3
<PAGE> 4
Securities Proceeds shall not be included in any calculation of Aggregate Net
Proceeds made pursuant to the proviso contained in subsection 2.4A(iii)(c) at
any time.
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.
[Remainder of page intentionally left blank]
4
<PAGE> 5
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/ James E. Deason
---------------------------------------
Name: James E. Deason
Title:
Notice Address:
Wolverine Tube, Inc.
1525 Perimeter Parkway, Suite 210
Huntsville, Alabama 35808
Attention: James E. Deason
WOLVERINE TUBE (CANADA) INC.
By: /s/ James E. Deason
---------------------------------------
Name: James E. Deason
Title:
Notice Address:
Wolverine Tube, Inc.
1525 Perimeter Parkway, Suite 210
Huntsville, Alabama 35808
Attention: James E. Deason
S-1
<PAGE> 6
CREDIT SUISSE FIRST BOSTON,
as the Administrative Agent
By: /s/ Thomas G. Muoio
---------------------------------------
Name: Thomas G. Muoio
Title: Vice President
By: /s/ Jodi A. Fatto
---------------------------------------
Name: Jodi A. Fatto
Title: Assistant Vice President
Notice Address:
Credit Suisse First Boston
11 Madison Avenue
New York, NY 10010-3629
Attention: Robert Finney
CREDIT SUISSE FIRST BOSTON,
as a Lender
By: /s/ Thomas G. Muoio
---------------------------------------
Name: Thomas G. Muoio
Title: VP
By: /s/ Robert B. Potter
---------------------------------------
Name: Robert B. Potter
Title: VP
Notice Address:
Credit Suisse First Boston
11 Madison Avenue
New York, NY 10010-3629
Attention: Robert Finney
S-2
<PAGE> 7
MELLON BANK, N.A., individually and as
Documentation Agent
By: /s/ Roger N. Stanier
---------------------------------------
Name: Roger N. Stanier
Title: VP
Notice Address:
Mellon Bank, N.A.
Three Mellon Bank Center
23rd Floor
Pittsburgh, PA 15259-0003
Attention: Loan Administration
Copy to:
Mellon Bank, N.A.
One Mellon Bank Center
Pittsburgh, PA 15258-0001
Attention: Steven Prather
BANK OF AMERICA ILLINOIS
as a Lender
By: /s/ Michael J. McKenney
---------------------------------------
Name: Michael J. McKenney
Title: VP
Notice Address:
Bank of America Illinois
231 South LaSalle Street
Chicago, IL 60697
Attention: Frank English
S-3
<PAGE> 8
CREDIT LYONNAIS ATLANTA AGENCY
as a Lender
By:
---------------------------------------
Name:
Title:
Notice Address:
Credit Lyonnais, Atlanta Agency
One Peachtree Center
303 Peachtree Street NE
Suite 4400
Atlanta, GA 30308
Attention: Ronald Blissett
NATIONSBANK, N.A., (successor by merger to
NationsBank, N.A. (South))
as a Lender
By: /s/ Nancy S. Goldman
---------------------------------------
Name: Nancy S. Goldman
Title: VP
Notice Address:
NationsBank, N.A.
600 Peachtree Street NE
9th Floor
Atlanta, GA 30308
Attention: Nancy Goldman
S-4
<PAGE> 9
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ W. J. Brown
---------------------------------------
Name: W. J. Brown
Title:
Notice Address:
The Bank of Nova Scotia
Suite 2700
600 Peachtree Street NE
Atlanta, GA 30308
Attention: Pat Brown
CORESTATES BANK, NA
as a Lender
By: /s/ Karen Leaf
---------------------------------------
Karen Leaf
Vice President
Notice Address:
Corestates Bank, NA
FC1-8-3-12
P.O. Box 7618
Philadelphia, PA 19101
Attention: Karen Leaf
S-5
<PAGE> 10
SUNTRUST BANK, NASHVILLE, N.A.
as a Lender
By: /s/ W. W. Wooding
---------------------------------------
Name: W. W. Wooding
Title: Senior VP
Notice Address:
Suntrust Bank, Nashville, N.A.
P.O. Box 305110
Nashville, TN 37230-5110
Attention: Woody Woodring
S-6
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED STATEMENTS OF INCOME OF WOLVERINE TUBE, INC. FOR THE SIX
MONTH PERIOD ENDED JULY 4, 1998 AND THE CONDENSED CONSOLIDATED BALANCE SHEET OF
WOLVERINE TUBE, INC. AT JULY 4, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUL-04-1998
<CASH> 12,293
<SECURITIES> 0
<RECEIVABLES> 91,840<F1>
<ALLOWANCES> 0
<INVENTORY> 85,717
<CURRENT-ASSETS> 191,831
<PP&E> 187,728<F1>
<DEPRECIATION> 0
<TOTAL-ASSETS> 472,945
<CURRENT-LIABILITIES> 48,676
<BONDS> 127,315
2,000
0
<COMMON> 141
<OTHER-SE> 253,176
<TOTAL-LIABILITY-AND-EQUITY> 472,945
<SALES> 339,939
<TOTAL-REVENUES> 339,939
<CGS> 289,479
<TOTAL-COSTS> 289,479
<OTHER-EXPENSES> 12,984
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,788
<INCOME-PRETAX> 34,688
<INCOME-TAX> 12,445
<INCOME-CONTINUING> 22,243
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 22,243
<EPS-PRIMARY> 1.57
<EPS-DILUTED> 1.55
<FN>
<F1>THE VALUES FOR THE TAGS RECEIVABLES AND PP&E ARE SHOWN NET OF THEIR
RESPECTIVE ALLOWANCE ACCOUNTS.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED STATEMENTS OF INCOME OF WOLVERINE TUBE, INC. FOR THE SIX
MONTHS ENDED JUNE 28, 1997, AND THE CONDENSED CONSOLIDATED BALANCE SHEET OF
WOLVERINE TUBE, INC. AT JUNE 28, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-28-1997
<CASH> 7,240
<SECURITIES> 0
<RECEIVABLES> 96,659<F1>
<ALLOWANCES> 0
<INVENTORY> 71,834
<CURRENT-ASSETS> 176,507
<PP&E> 151,797<F1>
<DEPRECIATION> 0
<TOTAL-ASSETS> 420,237
<CURRENT-LIABILITIES> 43,936
<BONDS> 113,675
2,000
0
<COMMON> 140
<OTHER-SE> 219,667
<TOTAL-LIABILITY-AND-EQUITY> 420,237
<SALES> 351,658
<TOTAL-REVENUES> 351,658
<CGS> 306,741
<TOTAL-COSTS> 306,741
<OTHER-EXPENSES> 15,628
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 4,382
<INCOME-PRETAX> 24,907
<INCOME-TAX> 9,007
<INCOME-CONTINUING> 15,900
<DISCONTINUED> 0
<EXTRAORDINARY> 4,738
<CHANGES> 0
<NET-INCOME> 11,162
<EPS-PRIMARY> .79
<EPS-DILUTED> .78
<FN>
<F1>THE VALUES FOR THE TAGS RECEIVABLES AND PP&E ARE SHOWN NET OF THEIR RESPECTIVE
ALLOWANCE ACCOUNTS.
</FN>
</TABLE>
