EXHIBIT 10.8
SIXTH AMENDMENT AND AGREEMENT TO
CONSIGNMENT, FORWARD CONTRACTS AND TRADING LINE AGREEMENT
This SIXTH AMENDMENT AND AGREEMENT TO CONSIGNMENT, FORWARD CONTRACTS AND
TRADING LINE AGREEMENT is made as of December 31, 2003, 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
000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxx 00000 ("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 are 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,
Forward Contracts and Trading Line Agreement dated as of March 28, 2001, as
previously amended (as amended, the "Consignment, Forward Contracts and Trading
Line 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, Forward
Contracts and Trading Line 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, Forward Contracts and Trading Line
Agreement.
2. Effective the date hereof, Paragraph 7.8 of the Consignment, Forward
Contracts and Trading Line Agreement is amended in its entirety to read as
follows:
"7.8. Fixed Charge Coverage Ratio. The Consolidated Parties shall
maintain a Fixed Charge Coverage Ratio of not less than (a) 1.0:1 as of
the last day of each fiscal quarter occurring on or prior to December 31,
2002; (b) 1.1:1 as of the last day of the fiscal quarters ending March 31,
2003 and June 30, 2003; and (c) 1.05:1 as of the last day of the fiscal
quarters ending September 30, 2003 and December 31, 2003; and (d) 1.1:1 at
the end of the fiscal quarter ending March 31, 2004 and each fiscal
quarter thereafter provided, however, to the extent that Excess
Availability as of each of the last 30 days of
such fiscal quarter is greater than $20,000,000, the Fixed Charge Coverage
Ratio for such fiscal quarter shall not be tested."
3. Effective the date hereof, Paragraph 7.10 of the Consignment,
Forward Contracts and Trading Line Agreement is amended in its entirety to read
as follows:
"7.10. Minimum Consolidated EBITDA. Consolidated EBITDA for the
Consolidated Parties shall at all times be greater than or equal to the
following amounts for the indicated fiscal quarter, calculated on a
rolling four quarter basis (except for the fiscal quarter ending March 31,
2002, Consolidated EBITDA shall be calculated only for such quarter, for
the fiscal quarter ending June 30, 2002, Consolidated EBITDA shall be
calculated for the two fiscal quarters then ending and for the fiscal
quarter ending September 30, 2002, Consolidated EBITDA shall be calculated
for the three fiscal quarters then ending):
Minimum Consolidated
Fiscal Quarter Ending EBITDA
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March 31, 2002 $ 7,800,000
June 30, 2002 $21,500,000
September 30, 2002 $34,500,000
December 31, 2002 $45,000,000
March 31, 2003 $40,000,000
June 30, 2003 $40,000,000
September 30, 2003 $27,000,000
December 31, 2003 $27,000,000
Each fiscal quarter ending in fiscal year 2004 $55,000,000
4. All necessary conforming changes to the Consignment, Forward
Contracts and Trading Line Agreement necessitated by reason of this Sixth
Amendment and Agreement to Consignment, Forward Contracts and Trading Line
Agreement shall be deemed to have been made.
5. All references to the "Consignment, Forward Contracts and Trading
Line Agreement" in all documents or agreements by and between the parties
hereto, shall from and after the effective date hereof refer to the Consignment,
Forward Contracts and Trading Line Agreement, as previously amended and as
amended hereby, and all obligations of the Companies under the Consignment,
Forward Contracts and Trading Line Agreement, as previously amended and as
amended hereby, shall be secured by and be entitled to the benefits of such
other documents and agreements.
6. Except as amended hereby, the Consignment, Forward Contracts and
Trading Line Agreement shall remain in full force and effect and is in all
respects hereby ratified and affirmed.
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7. 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 Sixth Amendment and Agreement to Consignment, Forward
Contracts and Trading Line 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.
8. This Sixth Amendment and Agreement to Consignment, Forward Contracts
and Trading Line 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 Sixth
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
--------------------- -----------------------------------------
Title: Executive V.P., CFO and Secretary
WOLVERINE TUBE (CANADA) INC.
/s/ Xxxx Xxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------- -----------------------------------------
Title: Vice President and Secretary
WOLVERINE JOINING TECHNOLOGIES, LLC,
/s/ Xxxx Xxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------- -----------------------------------------
Title: Vice President and Assistant Treasurer
FLEET PRECIOUS METALS INC.
By: /s/ Xxxx X. Xxxxxxx XX
-----------------------------------------
Title: Vice President
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