Exhibit 10.3
FIRST AMENDMENT TO AMENDED AND RESTATED CONSIGNMENT AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED CONSIGNMENT AGREEMENT (this
"AMENDMENT"), dated as of August 1, 2005, by and among FLEET PRECIOUS METALS
INC., a Rhode Island corporation operating as Bank of America Precious Metals
with offices at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 ("BAPM"),
and WOLVERINE TUBE, INC., a Delaware corporation with its principal place of
business at 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxx 00000
("WOLVERINE TUBE"), and WOLVERINE JOINING TECHNOLOGIES, LLC, a Delaware limited
liability company with its principal place of business at 000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxx Xxxxxx 00000 ("WOLVERINE JOINING") (Wolverine Tube and Wolverine
Joining are hereinafter sometimes referred to individually as a "COMPANY" and
collectively, jointly and severally as the "COMPANIES").
W I T N E S S E T H:
WHEREAS, reference is hereby made to that certain Amended and Restated
Consignment Agreement dated as of April 28, 2005 (as amended from time to time
and in effect, the "CONSIGNMENT AGREEMENT") among the Companies and BAPM,
pursuant to which BAPM extended a silver consignment facility and a silver
forward contract facility to the Companies; and
WHEREAS, the Companies and BAPM desire to amend certain terms and
conditions of the Consignment Agreement, on the terms and conditions and in
reliance upon the representations and warranties of the Companies hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises hereinafter contained, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the meanings as set forth in the Consignment Agreement.
2. ACKNOWLEDGMENT OF OBLIGATIONS. The Companies hereby acknowledge and
agree that they are unconditionally liable to BAPM for all Obligations
under the Consignment Agreement without offset, defense, counterclaim
or deduction.
3. AMENDMENTS TO CONSIGNMENT AGREEMENT. From and after the effectiveness
of this Amendment, the Consignment Agreement shall be amended as
follows:
(a) By inserting a new Exhibit "F" to the Consignment Agreement in
the form of Exhibit "F" annexed to this Amendment.
(b) Section 1 of the Consignment Agreement is hereby amended as
follows:
(i) By inserting the following text as a new Section
1.60A, immediately below the text of Section 1.60:
1.60A "WACHOVIA L/C" MEANS THAT CERTAIN STANDBY LETTER OF
CREDIT DATED AUGUST 1, 2005 ISSUED BY WACHOVIA BANK, NATIONAL
ASSOCIATION FOR THE BENEFIT OF BAPM, IN THE ORIGINAL FACE
AMOUNT OF $3,500,000.00, A COPY OF WHICH IS ANNEXED HERETO AS
EXHIBIT "F", AS SAME MAY BE AMENDED FROM TIME TO TIME, OR SUCH
REPLACEMENT LETTER OF CREDIT AS MAY BE REASONABLY ACCEPTABLE
TO BAPM IN IT SOLE DISCRETION.
(c) Section 2 of the Consignment Agreement is hereby amended as
follows:
(i) By deleting the text "with respect to the Consigned
Precious Metal" where it appears in the second
sentence of Section 2.1(d), and inserting the text
"WITH
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RESPECT TO ALL PRECIOUS METAL (INCLUDING, BUT NOT
LIMITED TO, ALL CONSIGNED PRECIOUS METAL)" in its
stead.
(ii) By inserting the following text at the end of
Section 2.3(f):
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE
COMPANIES COVENANT AND AGREE THAT, UPON THE EARLIER OF (I) THE
OCCURRENCE OF AN EVENT OF DEFAULT AND ACCELERATION OF THE
OBLIGATIONS BY BAPM, OR (II) UPON RECEIPT OF WRITTEN NOTICE
FROM BAPM TERMINATING THE CONSIGNMENT FACILITY PURSUANT TO
SECTION 2.13 HEREOF, THE COMPANIES SHALL BE REQUIRED TO
PURCHASE CONSIGNED PRECIOUS METAL HAVING A VALUE EQUAL TO THE
FACE AMOUNT OF THE WACHOVIA L/C, LESS ANY FEES AND COSTS
ASSOCIATED THEREWITH, AND WITHDRAW SAME FROM CONSIGNMENT, AND
BAPM SHALL BE PERMITTED TO DRAW UPON THE WACHOVIA L/C FOR THE
PURPOSE OF FUNDING SUCH PURCHASE AND WITHDRAWAL OF CONSIGNED
PRECIOUS METAL FROM CONSIGNMENT.
(iii) By deleting Section 2.11(b) in its entirety, and
inserting the following text in its stead:
(B) TO SECURE THE PROMPT AND PUNCTUAL PAYMENT AND PERFORMANCE
OF THE OBLIGATIONS, THE COMPANIES HEREBY GRANT TO BAPM A
CONTINUING SECURITY INTEREST IN AND TO (I) ALL PRECIOUS METAL
(INCLUDING, BUT NOT LIMITED TO, ALL CONSIGNED PRECIOUS METAL),
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND (II) ALL
PROCEEDS AND PRODUCTS OF THE FOREGOING EXCLUDING, HOWEVER, THE
EXCLUDED COLLATERAL. NOTHING CONTAINED IN THE FOREGOING GRANT
IS INTENDED TO CONFLICT WITH THE TRUE CONSIGNMENT NATURE OF
THIS AGREEMENT.
(iv) By deleting Section 2.13(a) in its entirety, and
inserting the following text in its stead:
(A) BAPM MAY TERMINATE THIS CONSIGNMENT FACILITY AT ANY TIME
BY GIVING WRITTEN NOTICE OF SUCH TERMINATION TO THE COMPANIES.
UPON GIVING OF SUCH NOTICE, BAPM'S OBLIGATION TO CONSIGN OR
DELIVER PRECIOUS METAL HEREUNDER SHALL IMMEDIATELY TERMINATE.
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 BAPM,
OR (II) THREE (3) BUSINESS DAYS AFTER WRITTEN NOTICE OF
TERMINATION FROM BAPM HEREUNDER. TERMINATION OF THIS
CONSIGNMENT FACILITY SHALL NOT AFFECT THE COMPANIES' DUTY TO
PAY AND PERFORM THEIR OBLIGATIONS TO BAPM HEREUNDER IN FULL.
(d) Section 3 of the Consignment Agreement is hereby amended as
follows:
(i) By deleting Section 3.2 thereof in its entirety and
inserting the following text in its stead:
3.2. GRANT OF SECURITY INTEREST
TO SECURE THE PROMPT AND PUNCTUAL PAYMENT AND
PERFORMANCE OF THE OBLIGATIONS, THE COMPANIES HEREBY GRANT TO
BAPM A CONTINUING SECURITY INTEREST IN AND TO (I) ALL PRECIOUS
METAL (INCLUDING, BUT NOT LIMITED TO, ALL CONSIGNED PRECIOUS
METAL), WHETHER NOW EXISTING OR HEREAFTER ARISING, AND (II)
ALL PROCEEDS AND PRODUCTS OF THE FOREGOING EXCLUDING, HOWEVER,
THE EXCLUDED COLLATERAL.
(ii) By deleting Section 3.4 in its entirety, and
inserting the following text in its stead:
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3.4. TERMINATION OF FORWARD CONTRACT FACILITY
BAPM MAY TERMINATE THE FORWARD CONTRACT FACILITY AT
ANY TIME BY GIVING WRITTEN NOTICE OF SUCH TERMINATION TO THE
COMPANIES. UPON GIVING OF SUCH NOTICE, BAPM'S OBLIGATION TO
ENTER INTO FORWARD CONTRACTS HEREUNDER SHALL IMMEDIATELY
TERMINATE. ALL SUMS OUTSTANDING UNDER THE FORWARD CONTRACT
FACILITY WILL BE DUE AND PAYABLE UPON THE EARLIER OF (I) THE
OCCURRENCE OF AN EVENT OF DEFAULT AND ACCELERATION OF THE
OBLIGATIONS BY BAPM, OR (II) THREE (3) BUSINESS DAYS AFTER
WRITTEN NOTICE OF TERMINATION FROM BAPM HEREUNDER. UPON
TERMINATION OF THE FORWARD CONTRACT FACILITY, BAPM 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 BAPM HEREUNDER HAS BEEN FULLY
SATISFIED, BAPM 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.
(e) Section 5 of the Consignment Agreement is hereby amended as
follows:
(i) By deleting Section 5.1(a) in its entirety and
inserting the following text in its stead:
(A) ALL PRECIOUS METAL (INCLUDING, BUT NOT LIMITED TO, ALL
CONSIGNED PRECIOUS METAL), WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND ALL PROCEEDS AND PRODUCTS OF THE FOREGOING,
EXCLUDING, HOWEVER, THE EXCLUDED COLLATERAL; AND
(f) Section 8 of the Consignment Agreement is hereby amended as
follows:
(i) By deleting the text "thirty (30) days" where it
appears in Section 8.6(j) and inserting the text
"FIFTEEN (15) DAYS" in its stead.
(ii) By deleting, effective as of July 3, 2005, Sections
8.8, 8.9, 8.10, and 8.12 in their entirety, and
inserting the text "[INTENTIONALLY DELETED]" in their
stead.
4. Costs and Expenses.
(a) Upon execution of this Amendment, the Companies shall pay to
BAPM an amount equal to any and all reasonable costs, fees, or
expenses (including internal and external attorneys' fees and
expenses) incurred by BAPM in connection with the Consignment
Agreement, whether directly or indirectly, including all
reasonable legal fees and expenses incurred in connection with
the negotiation and the preparation of this Amendment.
(b) The Bank shall be entitled (but not required) to debit any
operating account of either Company to collect any fees, costs
or expenses to which BAPM may be entitled pursuant to this
Amendment or the Consignment Agreement.
5. Representations, Warranties and Covenants. The Companies hereby
represent, warrant and covenant to BAPM as follows:
(a) The execution and delivery of this Amendment by the Companies,
and the performance by the Companies of their obligations and
agreements under this Amendment are within the corporate
authority of each Company, have been duly authorized by all
necessary corporate proceedings on behalf of the Companies and
do not and will not contravene
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any provision of law, statute, rule or regulation to which
either Company is subject or their respective charters, other
organization papers, by-laws or any stock provision or any
amendment thereof or of any agreement or other instrument
binding upon either Company.
(b) This Amendment, the Consignment Agreement, and all other
documents, instruments and agreements relating thereto, as
same may be amended hereby, constitute legal, valid and
binding obligations of each Company, enforceable in accordance
with their respective terms.
(c) The representations and warranties made by the Companies in
the Consignment Agreement are, after giving effect to the
terms and condition of this Amendment, true and correct in all
material respects on and as of the date of this Amendment as
though made at and as of such date (except to the extent that
such representations and warranties expressly relate to an
earlier date or except to the extent variations therefrom have
been expressly permitted under the terms of the Consignment
Agreement or otherwise in writing by BAPM). Except as
previously disclosed to BAPM in writing, no material adverse
change has occurred in the assets, liabilities, financial
condition, business or prospects of either Company.
(d) The Companies have performed and complied in all material
respects with all terms and conditions herein required to be
performed or complied with by the Companies prior to or at the
time hereof, and, after giving effect to the terms and
condition of this Amendment, no Event of Default has occurred
and is continuing under the Consignment Agreement as of the
date of this Amendment.
(e) The Companies have read and understand each of the terms and
conditions of this Amendment and are entering into this
Amendment freely and voluntarily, without duress, after having
had an opportunity for consultation with independent counsel
of their own selection, and not in reliance upon any
representations, warranties, or agreements made by BAPM and
not set forth in this Amendment.
6. Conditions to Effectiveness. This Amendment shall not become effective
unless and until each of the following conditions precedent have been
fulfilled, all as determined by BAPM in its sole discretion (unless
waived by BAPM in writing):
(a) This Amendment, and all documents, instruments and agreements
required hereunder or related hereto shall have been executed
by the appropriate parties and original counterpart signatures
shall have been delivered to BAPM.
(b) All actions on the part of the Companies necessary for the
valid execution, delivery and performance of the terms of this
Amendment shall have been duly and effectively taken and
evidence thereof satisfactory to BAPM shall have been provided
to BAPM.
(c) The Companies shall have paid to BAPM in immediately available
funds all amounts required to be paid by the Companies upon
the execution of this Amendment.
(d) BAPM shall have received a copy of an original fully executed
amendment to the Credit Agreement, upon terms reasonably
satisfactory to BAPM, which amendment shall be in full force
and effect and not subject to any unsatisfied conditions
precedent.
(e) BAPM shall have received a copy of an original fully executed
amendment to the Receivables Purchase Agreement dated as of
April 28, 2005 which evidences the Permitted Securitization,
upon terms reasonably satisfactory to BAPM, which amendment
shall be in full force and effect and not subject to any
unsatisfied conditions precedent.
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(f) BAPM shall have received an original fully executed amendment
to the Intercreditor Agreement, in form and substance
satisfactory to BAPM.
(g) BAPM shall have received satisfactory evidence, in a form and
of a nature acceptable to BAPM in its discretion, of the
consent of Wachovia Bank, National Association to the terms
and conditions of this Amendment.
(h) BAPM shall have received a favorable written opinion of
counsel to the Companies in scope and substance satisfactory
to BAPM and its counsel.
(i) BAPM shall have received the original Wachovia L/C in form and
substance satisfactory to BAPM in its sole discretion.
7. Waiver of Claims. The Companies hereby acknowledge and agree that they
do not have any offsets, defenses, claims, or counterclaims against
BAPM, the Bank or any of their affiliates, or their respective
officers, directors, employees, affiliates, attorneys, representatives,
predecessors, successors, or assigns with respect to the Consignment
Agreement, the Obligations, or otherwise, and that if the Companies now
have, or ever did have, any such offsets, defenses, claims, or
counterclaims against BAPM or the Bank or any of their affiliates, or
their respective officers, directors, employees, affiliates, attorneys,
representatives, predecessors, successors, or assigns, whether known or
unknown, at law or in equity, from the beginning of the world through
this date and through the time of execution of this Amendment, all of
them are hereby expressly WAIVED, and the Companies each hereby RELEASE
BAPM and the Bank and their affiliates, and their respective officers,
directors, employees, affiliates, attorneys, representatives,
predecessors, successors, and assigns from any liability therefor.
8. Miscellaneous.
(a) This Amendment shall be binding upon the Companies and their
successors and assigns and shall enure to the benefit of BAPM
and its successors and assigns.
(b) The Companies and BAPM hereby acknowledge and agree that the
Obligations are and shall continue to be secured by all
collateral granted pursuant to the terms of the Consignment
Agreement or otherwise.
(c) Except as amended hereby, the Consignment Agreement shall
remain in full force and effect and is in all respects hereby
ratified and affirmed by the Companies. Without in any way
limiting the foregoing, the Companies hereby confirm that the
provisions of the Consignment Agreement regarding BAPM's right
to terminate the Consignment Facility and/or the Forward
Contract Facility as set forth in Sections 2.13 and 3.4,
respectively, shall be unaffected by the terms of this
Amendment.
(d) The execution of this Amendment and acceptance of any
documents related hereto shall not be deemed to be a waiver of
any Event of Default under the Consignment Agreement, whether
or not known to BAPM and whether or not existing on the date
of this Amendment, nor a modification of the demand nature of
the obligations due thereunder.
(e) Any determination that any provision of this Amendment or any
application thereof is invalid, illegal, or unenforceable in
any respect in any instance shall not affect the validity,
legality, or enforceability of such provision in any other
instance, or the validity, legality, or enforceability of any
other provision of this Amendment.
(f) This Amendment, together with the agreements, instruments and
other documents executed in connection herewith, incorporates
all discussions and negotiations among
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the Companies and BAPM, either express or implied, concerning
the matters included herein and in such other instruments, any
custom, usage, or course of dealings to the contrary
notwithstanding. No such discussions, negotiations, custom,
usage, or course of dealings shall limit, modify, or otherwise
affect the provisions hereof. No modification, amendment, or
waiver of any provision of this Amendment or of any provision
of any other agreement among the Companies and BAPM shall be
effective unless executed in writing by the party to be
charged with such modification, amendment and waiver, and if
such party shall be BAPM, then by a duly authorized officer
thereof.
(g) Except as otherwise expressly provided for in this Amendment,
all of the terms, conditions and provisions of the Consignment
Agreement shall remain the same. The Companies hereby, after
giving effect to the terms and conditions of this Amendment,
ratify, confirm, and reaffirm all representations, warranties,
and covenants made by each of them in the Consignment
Agreement. The Companies shall continue to comply with all of
the terms and conditions of the Consignment Agreement, as
amended hereby.
(h) The captions of this Amendment are for convenience purposes
only, and shall not be used in construing the intent of the
parties to this Amendment.
(i) In the event of any inconsistency between the provisions of
this Amendment and the Consignment Agreement, the provisions
of this Amendment shall govern and control.
(j) This Amendment may be executed in several counterparts and by
each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF, the undersigned parties have caused this First
Amendment to Amended and Restated Consignment 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/ Xxxxxx X. Xxxxx
Title: Sr. VP, CFO & Secretary
WOLVERINE JOINING TECHNOLOGIES, LLC
/s/ Xxxx Xxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
Title: VP & Treasurer
FLEET PRECIOUS METALS INC.
/s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxx
Title: Senior Vice President
Signature Page to First Amendment to Amended and Restated Consignment Agreement
EXHIBIT "F"
FORM OF WACHOVIA L/C
