EXHIBIT 10.7
FIFTH AMENDMENT AND AGREEMENT TO
CONSIGNMENT, FORWARD CONTRACTS AND TRADING LINE AGREEMENT
This FIFTH AMENDMENT AND AGREEMENT TO CONSIGNMENT, FORWARD CONTRACTS AND
TRADING LINE AGREEMENT is made as of September 28, 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, subparagraph (a) of Paragraph 2.13 of the
Consignment, Forward Contracts and Trading Line Agreement is amended in its
entirety as follows:
"(a) FPM may terminate this Consignment Facility by giving thirty
(30) days' prior written notice of such termination to the Companies. Upon
giving of such notice or at any time thereafter, FPM may, at its option,
suspend or terminate its obligation to consign or deliver Precious Metal
hereunder. ALL SUMS OUTSTANDING UNDER THIS CONSIGNMENT FACILITY WILL BE
DUE AND PAYABLE UPON THE EARLIER OF (I) THE OCCURRENCE OF AN EVENT OF
DEFAULT AND ACCELERATION OF THE OBLIGATIONS BY FPM, OR (II) THIRTY (30)
DAYS AFTER RECEIPT OF
WRITTEN NOTICE FROM FPM HEREUNDER. Upon giving of such notice or at any
time thereafter, FPM may, at its option, suspend or terminate its
obligation to consign or deliver Precious Metal hereunder. Termination of
this Consignment Facility shall not affect the Companies' duty to pay and
perform their obligations to FPM hereunder in full."
3. Effective the date hereof, Paragraph 3.4 of the Consignment, Forward
Contracts and Trading Line Agreement is amended in its entirety as follows:
"3.4. FPM may terminate the Forward Contract Facility at any time by
sending thirty (30) days prior written notice thereof to the Companies.
Upon giving of such notice or at any time thereafter, FPM may, at its
option, suspend or terminate its obligation to enter into Forward
Contracts hereunder. ALL SUMS OUTSTANDING UNDER SAID FORWARD CONTRACT
FACILITY WILL BE DUE AND PAYABLE UPON THE EARLIER OF (A) THE OCCURRENCE OF
AN EVENT OF DEFAULT AND ACCELERATION OF THE OBLIGATIONS BY FPM, OR (B)
THIRTY (30) DAYS AFTER DEMAND BY FPM HEREUNDER. Upon termination of the
Forward Contract Facility, FPM may credit any amounts then held by it or
the Bank to reduce the amount of such indebtedness. Notwithstanding
termination, until all indebtedness of the Companies to FPM hereunder has
been fully satisfied, FPM shall retain its security interest granted
hereunder and, except for those specific covenants and conditions dealing
with the entering into of Forward Contracts, all terms and conditions of
this Agreement shall remain in full force and effect."
4. Effective the date hereof, Paragraph 4.4 of the Consignment, Forward
Contracts and Trading Line Agreement is amended in its entirety as follows:
"4.4. FPM may terminate the Trading Line Facility at any time by
sending thirty (30) days prior written notice thereof to the Companies.
Upon giving of such notice or at any time thereafter, FPM may, at its
option, suspend or terminate its obligation to enter into Trading Line
hereunder. ALL SUMS OUTSTANDING UNDER SAID TRADING LINE WILL BE DUE AND
PAYABLE UPON THE EARLIER OF (A) THE OCCURRENCE OF AN EVENT OF DEFAULT AND
ACCELERATION OF THE OBLIGATIONS BY FPM, OR (B) THIRTY (30) DAYS AFTER
DEMAND BY FPM HEREUNDER. Upon termination of the Trading Line, FPM may
credit any amounts then held by it or the Bank to reduce the amount of
such indebtedness. Notwithstanding termination, until all indebtedness of
the Companies to FPM hereunder has been fully satisfied, FPM shall retain
its security interest granted hereunder and, except for those specific
covenants and conditions dealing with the entering into of Trades, all
terms and conditions of this Agreement shall remain in full force and
effect."
5. 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
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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;
(c) 1.05:1 as of the last day of the fiscal quarter ending September 30,
2003; and (d) 1.1:1 at the end of the fiscal quarter ending December 31,
2003 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."
6. 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 $42,000,000
Each fiscal quarter ending in fiscal year 2004 $55,000,000
7. All necessary conforming changes to the Consignment, Forward
Contracts and Trading Line Agreement necessitated by reason of this Fifth
Amendment and Agreement to Consignment, Forward Contracts and Trading Line
Agreement shall be deemed to have been made.
8. 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.
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9. 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.
10. 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 Fifth Amendment and Agreement to Consignment, Forward
Contracts and Trading Line Agreement 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.
11. This Fifth 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 Fifth
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 V.P., CFO and Secretary
WOLVERINE TUBE (CANADA) INC.
/s/ Xxxx Xxx Xxxxxxxx By /s/ Xxxxx X. Xxxxxx
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Title: Vice President and Secretary
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Title: Vice President and Assistant Secretary
WOLVERINE JOINING TECHNOLOGIES, LLC,
/s/ Xxxx Xxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President and Assistant Treasurer
FLEET PRECIOUS METALS INC.
By: /s/ Xxxx X. Xxxxxxx XX
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Title: Vice President
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