EXHIBIT 10.1
EIGHTH AMENDMENT AND AGREEMENT TO
CONSIGNMENT AND FORWARD CONTRACTS AGREEMENT
This EIGHTH AMENDMENT AND AGREEMENT TO CONSIGNMENT AND FORWARD
CONTRACTS AGREEMENT is made as of September 29, 2004, 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 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 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 "Consignment Limit" set
forth in Paragraph 1.13 of the Consignment and Forward Contracts Agreements is
amended in its entirety to read as follows:
"1.13. "Consignment Limit" means:
(a) the lesser of:
(i) Seventeen Million Dollars ($17,000,000);
or
(ii) the value (as determined pursuant to
Paragraph 2.2 hereof) of Two Million Four Hundred
Thousand (2,400,000) fine xxxx ounces of silver; or
(b) such limit as FPM and the Companies may agree
upon from time to time as evidenced by an amendment in
substantially the form of Exhibit B attached hereto and made a
part hereof or in such other form as FPM shall require."
3. FPM agrees to eliminate the financial covenants requiring a Minimum
Consolidated YTD Consolidated EBIDTA (as set forth in Paragraph 7.12 of
Consignment and Forward Contracts Agreement) and a Minimum YTD Consolidated
Operating Income (as set forth in Paragraph 7.13 of Consignment and Forward
Contracts Agreement) provided that after review of the Companies' financial
statements for Fiscal Year 2004, prepared and delivered in accordance with
Paragraph 7.6(a) of the Consignment and Forward Contracts Agreement, no Event of
Default has occurred and is then continuing, including, without limitation, any
failure of the Companies to comply with the financial covenants set forth in the
Consignment and Forward Contracts Agreement at December 31, 2004. If the
conditions set forth herein are met to the satisfaction of FPM, FPM will issue a
letter terminating such financial covenants. Until receipt of such termination
letter, the Companies shall be required to comply with the provisions of
Paragraphs 7.12 and 7.13 and to provide the financial reporting in connection
therewith.
4. Effective the date hereof, the Consignment and Forward Contracts
Agreement is amended by adding Paragraph 7.15. to read in its entirety as
follows:
"7.15. Minimum Availability. At all times Excess Availability
under the Credit Agreement shall be at least Two Million Dollars
($2,000,000)."
5. All necessary conforming changes to the Consignment and Forward
Contracts Agreement necessitated by reason of this Eighth Amendment and
Agreement to Consignment and Forward Contracts Agreement shall be deemed to have
been made.
6. 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.
7. 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.
8. 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 Eighth Amendment and Agreement to Consignment and Forward
Contracts Agreement. The Companies also jointly and
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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.
9. This Eighth 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 Eighth
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 & Secretary
WOLVERINE TUBE (CANADA) INC.
/s/ Xxxx Xxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Title: V.P. & Secretary
WOLVERINE JOINING TECHNOLOGIES, LLC,
/s/ Xxxx Xxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Title: V.P. & Treasurer
FLEET PRECIOUS METALS INC.
By: /s/ X.X. Xxxxxxx
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Title: SVP
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