EXHIBIT 10.47
NINTH AMENDMENT AND AGREEMENT TO
CONSIGNMENT AND FORWARD CONTRACTS AGREEMENT
This NINTH AMENDMENT AND AGREEMENT TO CONSIGNMENT AND FORWARD CONTRACTS
AGREEMENT is made as of January 13, 2005, by and between FLEET PRECIOUS METALS
INC., a Rhode Island corporation with offices at 000 Xxxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, XXXXX Xxxxxx 00000 ("FPM"), and WOLVERINE TUBE, INC., a Delaware
corporation with its principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxxx, Xxxxxxx 00000 ("WOLVERINE TUBE"), WOLVERINE TUBE (CANADA)
INC., an Ontario corporation with its principal place of business at X.X. Xxx,
0000, Xxxxxx, Xxxxxxx, Xxxxxx X0X0X0 ("WOLVERINE CANADA"), and WOLVERINE JOINING
TECHNOLOGIES, LLC, a Delaware limited liability company and successor by merger
to WOLVERINE JOINING TECHNOLOGIES, INC., a Delaware corporation with its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxx 00000
("WOLVERINE JOINING") (Wolverine Tube, Wolverine Canada and Wolverine Joining
arc hereinafter sometimes referred to individually as a "COMPANY" and
collectively as the "COMPANIES")
WITNESSETH THAT
WHEREAS, FPM and the Companies are parties to a certain Consignment and
Forward Contracts Agreement dated as of March 28, 2001, as previously amended
(as amended, the "Consignment and Forward Contracts Agreement") pursuant to
which FPM agreed to extend certain consignment and other credit facilities to
the Companies, on the terms and conditions contained therein; and
WHEREAS, the parties hereto desire to amend the Consignment and Forward
Contracts Agreement as hereinafter provided;
NOW, THEREFORE, for value received, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. All capitalized terms used herein without definition shall have the
meanings assigned by the Consignment and Forward Contracts Agreement.
2. Effective the date hereof, definition of "Forward Contract Limit" set
forth in Paragraph 1.36 of the Consignment and Forward Contracts Agreements is
amended in its entirety to read as follows:
"1.36. Forward Contract Limit" means Seven Hundred Thousand Dollars
($700,000)"
3. All necessary conforming changes to the Consignment and Forward
Contracts Agreement necessitated by reason of this Ninth Amendment and Agreement
to Consignment and Forward Contracts Agreement shall be deemed to have been
made.
4. All references to the "Consignment and Forward Contracts Agreement" in
all documents or agreements by and between the parties hereto, shall from and
after the effective date hereof refer to the Consignment and Forward Contracts
Agreement, as previously amended and as amended hereby, and all obligations of
the Companies under the Consignment and Forward Contracts Agreement, as
previously amended and as amended hereby, shall be secured by and be entitled to
the benefits of such other documents and agreements.
5. Except as amended hereby, the Consignment and Forward Contracts
Agreement shall remain in full force and effect and is in all respects hereby
ratified and affirmed.
6. The Companies jointly and severally covenant and agree to pay all
out-of-pocket expenses, costs and charges incurred by FPM (including reasonable
fees and disbursements of counsel) in connection with the preparation and
implementation of this Ninth Amendment and Agreement to Consignment and Forward
Contracts Agreement. The Companies also jointly and severally covenant and agree
to pay promptly all taxes and recording and filing fees payable under applicable
law with respect to the amendment effected hereby.
7. This Ninth Amendment and Agreement to Consignment and Forward Contracts
Agreement may be executed in separate counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
*THE NEXT PAGE IS A SIGNATURE PAGE*
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IN WITNESS WHEREOF, the undersigned parties have caused this Ninth
Amendment and Agreement to be executed by their duly authorized officers as of
the date first above written.
WITNESS: WOLVERINE TUBE INC
/s/ Xxxx Xxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Title: Executive VP, CEO & Secretary
WOLVERINE TUBE (CANADA) INC.
/s/ Xxxx Xxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Title: VP & Secretary
WOLVERINE JOINING TECHNOLOGIES, LLC,
/s/ Xxxx Xxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Title: VP & Treasurer
FLEET PRECIOUS METALS INC.
By: /s/ X.X. Xxxxxxx
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Title: SVP
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