EXHIBIT 10.9
SEVENTH AMENDMENT AND AGREEMENT TO
CONSIGNMENT AND FORWARD CONTRACTS AGREEMENT
This SEVENTH AMENDMENT AND AGREEMENT TO CONSIGNMENT AND FORWARD CONTRACTS
AGREEMENT is made as of March 31, 2004, by and between FLEET PRECIOUS METALS
INC., a Rhode Island corporation with offices at 111 Westminster Street,
Providence, Rhode Island 02903 ("FPM"), and WOLVERINE TUBE, INC., a Delaware
corporation with its principal place of business at 200 Clinton Avenue, Suite
1000, Huntsville, Alabama 35801 ("WOLVERINE TUBE"), WOLVERINE TUBE (CANADA)
INC., an Ontario corporation with its principal place of business at P.O. Box,
7515, London, Ontario, Canada N5Y5S6 ("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 235 Kilvert Street, Warwick, Rhode Island 02886
("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 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, the title of the "Consignment, Forward
Contracts and Trading Line Agreement" is changed to the "Consignment and Forward
Contracts Agreement".
3. Effective the date hereof, definition of "Consignment Limit" set
forth in Paragraph 1.13 of the Consignment, Forward Contracts and Trading Line
Agreements is amended in its entirety to read as follows:
"1.13. "Consignment Limit" means:
(a) the lesser of (i) Twelve Million Dollars ($12,000,000),
or (ii) the value (as determined pursuant to Paragraph 2.2 hereof)
of Two Million (2,000,000) fine troy 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."
4. Effective the date hereof, definition of "Consolidated Net Income"
set forth in Paragraph 1.65 of the Consignment and Forward Contracts Agreement
is amended in its entirety to read as follows:
"1.65. "Consolidated Net Income" means, for any period, the net
income after taxes of the Consolidated Parties for such period, as
adjusted for:
(i) non-cash adjustments to Consolidated Net Income due to
the effect of changes in accounting methods required by GAAP;
(ii) adjustments to Consolidated Net Income on account of the
discontinuation of the operations of Wolverine Ratcliffs, Inc. with
respect to the 2002 fiscal year in an amount not to exceed
$7,500,000, as determined in accordance with GAAP; and
(iii) the tax adjusted net value of (a) the non-cash
adjustments to Consolidated Net Income on account of gains or losses
resulting from changes in the metal variance account required by the
marked to market of the Copper Hedge, as determined in accordance
with GAAP and (b) the non-cash adjustments to valuations of
inventory that consists of copper covered by the Copper Hedge
resulting from the Companies' marked to market of inventory levels
under the Copper Hedge at the time of testing (with the submission
of the certificate pursuant to Section 7.6(d), the Companies will
provide FPM with a reconciliation of these adjustments in a format
similar to that of Exhibit F)."
5. Effective the date hereof, Paragraph 1 of the Consignment and
Forward Contracts Agreement is amended by adding the following definition to
read in its entirety as follows:
"1.78. "Copper Hedge" means the Trading Agreements between PB
Financial, Inc. and the Companies related to hedging copper and any other
copper hedging contract permitted hereunder entered into by any of the
Companies."
6. Effective the date hereof, Paragraph 4 of the Consignment and
Forward Contracts Agreement is deleted in its entirety with the effect that the
Companies and their Approved Customers shall no longer have the ability to enter
into Trades to buy Precious Metal from FPM under the Trading Line. All necessary
conforming changes to the Consignment and Forward Contracts Agreement
necessitated by reason of this Paragraph shall be deemed to have been made.
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7. Effective the date hereof, Paragraph 7.8 of the Consignment and
Forward Contracts 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 the following
ratios for the indicated fiscal quarter:
Minimum Fixed Charge
Fiscal Quarter Ending Coverage Ratio
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March 31, 2004 0.65:1
June 30, 2004 0.50:1
September 30, 2004 0.70:1
December 31, 2004 1.0:1
Each fiscal quarter ending after December 31, 2004 1.05:1
8. Effective the date hereof, Paragraph 7.6(e) of the Consignment and
Forward Contracts Agreement is amended by adding the following sentence at the
end thereof to read in its entirety as follows:
"In addition to the foregoing, at the time of the delivery of the
financial statements provided in Paragraph 7.6 (a), (b), and (c), a
certificate of the Companies substantially in the form of Exhibit F
attached hereto demonstrating the adjustments made to Consolidated Net
Income pursuant to subparagraph (iii) of the definition of Consolidated
Net Income and the adjustments made to consolidated operating income
pursuant to subparagraphs (a) and (b) of the definition of consolidated
operating income set forth in Paragraph 7.13."
9. Effective the date hereof, Paragraph 7.9 of the Consignment and
Forward Contracts Agreement is amended in its entirety to read as follows:
"7.9. Capital Expenditures. The Consolidated Parties shall not make
Consolidated Capital Expenditures in excess of (a) $15,000,000 during the
Fiscal Year ending December 31, 2004, (b) $20,000,000 during the Fiscal
Year ending December 31, 2005, (c) $22,000,000 during the Fiscal Year
ending December 31, 2006, and (d) $25,000,000 during the Fiscal Year
ending December 31, 2007 (in each case computed on a non-cumulative
basis)."
10. Effective the date hereof, Paragraph 7.10 of the Consignment and
Forward Contracts 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:
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Minimum Consolidated
Fiscal Quarter Ending EBITDA
- -------------------------------------------------- --------------------
March 31, 2004 $23,000,000
June 30, 2004 $23,500,000
September 30, 2004 $29,500,000
December 31, 2004 $36,000,000
Each fiscal quarter ending after December 31, 2004 $40,000,000
11. Effective the date hereof, the Consignment and Forward Contracts
Agreement is amended by adding Paragraph 7.12. to read in its entirety as
follows:
"7.12. Minimum YTD Consolidated EBITDA. Consolidated EBITDA for the
Consolidated Parties from the beginning of the Fiscal Year to the end of
each calendar month during such Fiscal Year shall not be less than ninety
per cent (90%) of the EBITDA projections for the Consolidated Parties for
that period as set forth in Exhibit E attached hereto."
12. Effective the date hereof, the Consignment and Forward Contracts
Agreement is amended by adding Paragraph 7.13. to read in its entirety as
follows:
"7.13. Minimum YTD Consolidated Operating Income. Consolidated
operating income (as calculated in accordance with Exhibit E attached
hereto) adjusted for (a) the non-cash adjustments to consolidated
operating income on account of gains or losses resulting from changes in
the metal variance account required by the marked to market of the Copper
Hedge, as determined in accordance with GAAP and (b) the non-cash
adjustments to valuations of inventory that consists of copper covered by
the Copper Hedge resulting from the Companies' marked to market of
inventory levels under the Copper Hedge at the time of testing for the
Consolidated Parties from the beginning of the Fiscal Year to the end of
each calendar month shall not be less than ninety per cent (90%) of the
operating income projections for the Consolidated Parties for that period
as set forth in Exhibit E attached hereto. The Companies will provide FPM
with a reconciliation of these adjustments in a format similar to that of
Exhibit F with the submission of the certificate pursuant to Section
7.6(d)."
13. Effective the date hereof, the Consignment and Forward Contracts
Agreement is amended by adding Paragraph 7.14. to read in its entirety as
follows:
"7.14. Restructuring Expenses. Not incur restructuring expenses in
connection with the discontinuation of operations of the Booneville
facility of the Companies in excess of One Million Two Hundred Thousand
Dollars ($1,200,000) in Fiscal Year 2004."
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14. Effective the date hereof, Exhibit E is added to the Consignment and
Forward Contracts Agreement in the form of Schedule A attached hereto and made a
part hereof.
15. Effective the date hereof, Exhibit F is added to the Consignment and
Forward Contracts Agreement in the form of Schedule B attached hereto and made a
part hereof.
16. The Companies hereby acknowledge and agree that, due to a change in
the risk profile of the Companies, from and after the date hereof, all
examinations, audits and inventories performed by FPM pursuant to the provisions
of Paragraph 7.2 of the Consignment and Forward Contracts Agreement shall be at
the sole cost and expense of the Companies.
17. All necessary conforming changes to the Consignment and Forward
Contracts Agreement necessitated by reason of this Seventh Amendment and
Agreement to Consignment and Forward Contracts Agreement shall be deemed to have
been made.
18. 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.
19. 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.
20. 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 Seventh 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.
21. This Seventh 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 Seventh
Amendment and Agreement to be executed by their duly authorized officers as of
the date first above written.
WITNESS: WOLVERINE TUBE, INC.
/s/ Johann R. Manning, Jr. By: /s/ James E. Deason
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Title: Executive V.P., CFO and Secretary
WOLVERINE TUBE (CANADA) INC.
/s/ Johann R. Manning, Jr. By: /s/ James E. Deason
- --------------------------- -----------------------------------------
Title: Vice President and Secretary
WOLVERINE JOINING TECHNOLOGIES, LLC,
/s/ Johann R. Manning, Jr. By: /s/ James E. Deason
- --------------------------- -----------------------------------------
Title: Vice President and Assistant Treasurer
FLEET PRECIOUS METALS INC.
By: /s/ A. J. Capuano
-----------------------------------------
Title: Senior Vice President
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