EXHIBIT 10.4
SECOND AMENDMENT AND AGREEMENT TO
CONSIGNMENT, FORWARD CONTRACTS AND TRADING LINE AGREEMENT
This Second Amendment and Agreement to Consignment, Forward Contracts and
Trading Line Agreement is made as of April 16, 2002, 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
200 Clinton Avenue, Suite 1000, Huntsville, Alabama 35801 ("Wolverine Canada"),
and 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, 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, the Consignment, Forwards Contracts and
Trading Line Agreement is amended by deleting the following definitions in their
entirety: "Asset Sale" (Paragraph 1.3); "Consolidated Adjusted EBITDA"
(Paragraph 1.15); "Consolidated Capital Expenditures" (Paragraph 1.16);
"Consolidated Cash Flow" (Paragraph 1.17); "Consolidated Fixed Charges"
(Paragraph 1.18); "Consolidated Interest Expense" (Paragraph 1.19);
"Consolidated Net Income" (Paragraph 1.21); "Consolidated Total Debt" (Paragraph
1.22); and "Net Profit" (Paragraph 1.42).
3. Effective the date hereof, definition of "Credit Agreement" set
forth in Paragraph 1.23 of the Consignment, Forward Contracts and Trading Line
Agreements is amended in its entirety to read as follows:
"1.23. "Credit Agreement" means that certain Credit Agreement among
the Companies and certain other subsidiaries of Wolverine Tube, Wachovia
Bank, N.A., as Administrative Agent, and the financial institutions listed
on the signature pages thereto, dated as of March 27, 2002, as amended
from time to time."
4. Effective the date hereof, Paragraph 1 of the Consignment, Forward
Contracts and Trading Line Agreement is amended by adding the following
definitions to read in their entirety as follows:
"1.57. "Capital Expenditures" means any current expenditure by the
Consolidated Parties for fixed or capital assets as reflected on the
financial statements of the Consolidated Parties, as prepared in
accordance with GAAP.
1.58. "Consolidated Cash Interest Expense" means, for any period,
whether expensed or capitalized, all cash interest expense of the
Consolidated Parties for such period, net of interest income for such
period, all as determined in accordance with GAAP.
1.59. "Consolidated Cash Taxes" means, for any applicable period of
computation, the aggregate of all taxes of the Consolidated Parties
determined in accordance with applicable law and GAAP applied on a
consistent basis, to the extent the same are paid in cash during such
period.
1.60. "Consolidated EBITDA" means, for any applicable period of
computation, without duplication, the sum of (i) Consolidated Net Income
for such period, but excluding therefrom all extraordinary items of income
or loss, plus (ii) the aggregate amount of depreciation and amortization
charges made in calculating Consolidated Net Income for such period, plus
(iii) aggregate Consolidated Interest Expense for such period, plus (iv)
the aggregate amount of all income taxes reflected on the consolidated
statements of income of the Consolidated Parties for such period. Except
as otherwise provided herein, the applicable period of computation shall
be for the four (4) consecutive quarters ending as of the date of
determination.
1.61. "Consolidated Fixed Charges" means, for any applicable period
of computation, without duplication, the sum of (i) all Consolidated Cash
Interest Expense for the applicable period plus (ii) cash dividends paid
by Wolverine Tube for the applicable period plus (iii) all Consolidated
Scheduled Funded Debt Payments for the applicable period.
1.62. "Consolidated Funded Debt" means, as of the date of
determination, all Funded Debt of the Company and its consolidated
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
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1.63. "Consolidated Interest Expense" means, for any period, whether
expensed or capitalized, all interest expense of the Consolidated Parties
for such period, net of interest income for such period, all as determined
in accordance with GAAP.
1.64. "Consolidated Parties" means Wolverine Tube and all of its
consolidated Subsidiaries whether direct or indirect and whether now owned
or hereafter acquired.
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 and (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.
1.66. "Consolidated Scheduled Funded Debt Payments" means, as of the
end of each fiscal quarter of the Company and its consolidated
Subsidiaries on a consolidated basis, the sum of all scheduled payments of
principal on Consolidated Funded Debt (other than intercompany
indebtedness) for the four (4) consecutive quarters beginning on such date
(including the principal component of payments due on capital leases or
under any synthetic lease, tax retention operating lease, off-balance
sheet loan or similar off-balance sheet financing product during the
applicable period beginning on such date).
1.67. "Excess Availability" shall have the meaning assigned by the
Credit Agreement.
1.68. "Fixed Charge Coverage Ratio" means, as of the last day of any
fiscal quarter, the ratio of (i) Consolidated EBITDA less Unfinanced
Capital Expenditures less all Consolidated Cash Taxes paid during the
applicable period to (ii) total Consolidated Fixed Charges. The applicable
period of computation shall be for the four (4) consecutive quarters
ending as of the date of determination, except with respect to the
Consolidated Scheduled Funded Debt Payments component of Consolidated
Fixed Charges, which shall be for the four (4) consecutive quarters
beginning as of the date of determination.
1.69. "Funded Debt" means, without duplication, the sum of (a) all
indebtedness of the Consolidated Parties for borrowed money, (b) the
principal portion of all obligations of the Consolidated Parties under
capital leases, (c) all commercial letters of credit and the maximum or
face amount of all performance and standby letters of credit issued or
bankers' acceptance facilities created for the account of a member of the
Consolidated Parties, including, without duplication, all unreimbursed
draws thereunder, (d) all Guaranty Obligations of the Consolidated Parties
with respect to Funded Debt of another Person, (e) all Funded Debt of
another entity secured by a Lien on any property of the Consolidated
Parties, to the extent of the book value of the property secured thereby,
whether or not such Funded Debt has been assumed by a member of the
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Consolidated Parties, (f) all Funded Debt of any partnership or
unincorporated joint venture to the extent a member of the Consolidated
Parties is legally obligated or has a reasonable expectation of being
liable with respect thereto, net of any assets of such partnership or
joint venture and (g) the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing product of a member of the
Consolidated Parties where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease in
accordance with GAAP.
1.70. "Guaranty Obligations" of any Person means any obligations
(other than (a) endorsements in the ordinary course of business of
negotiable instruments for deposit or collection, (b) obligations arising
under the Guaranty Agreements and (c) obligations arising under guaranties
by a Credit Party of another Credit Party) guaranteeing or intended to
guarantee any indebtedness, leases, dividends or other obligations of any
other Person in any manner, whether direct or indirect, and including,
without limitation, any obligation, whether or not contingent to, (i)
purchase any such indebtedness or other obligation or any property
constituting security therefor, (ii) advance or provide funds or other
support for the payment or purchase of such indebtedness or obligation or
to maintain working capital, solvency or other balance sheet condition of
such other Person (including, without limitation, keep well agreements,
maintenance agreements, comfort letters or similar agreements or
arrangements), (iii) lease or purchase property, securities or services
primarily for the purpose of assuring the owner of such indebtedness or
obligation, or (iv) otherwise assure or hold harmless the owner of such
indebtedness or obligation against loss in respect thereof.
1.71. "Lenders" means Wachovia Bank N.A., a national banking
association with a principal place of business at 191 Peachtree Street,
30th Floor, Atlanta, Georgia 30303-8056 and the financial institutions
listed on the signature pages of the Credit Agreement.
1.72. "Lien" means any mortgage, pledge, hypothecation, collateral
assignment, deposit arrangement, security interest, encumbrance, lien
(statutory or otherwise), hypothec, preference, priority, or charge of any
kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any financing or
similar statement filed under the Uniform Commercial Code as adopted and
in effect in the State of Rhode Island , the PPSA (as defined in the
Credit Agreement), or other similar recording or notice statute, and any
lease in the nature thereof).
1.73. "Unfinanced Capital Expenditures" means, for any period, all
Capital Expenditures not financed from proceeds of Consolidated Funded
Debt (other than Loans made under this Agreement).
1.74. "2008 Senior Notes" means a reference to any one of Wolverine
Tube's $150,000,000 7 3/8% Senior Notes, due August, 2008 issued by
Wolverine Tube in favor of the 2008 Senior Noteholders pursuant to the
2008 Senior Note Indenture, as such 2008
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Senior Notes may be amended, modified, restated or supplemented and in
effect from time to time in accordance with the terms hereof.
1.75. "2009 Senior Note Indenture" means that certain Indenture
dated as of March 27, 2002 by and among Wolverine Tube, the Subsidiaries
listed therein and Wachovia Bank, N.A., as Trustee, as such 2009 Senior
Note Indenture may be amended, modified, restated, replaced or
supplemented and in effect from time to time in accordance with the terms
hereof.
1.76. "2009 Senior Noteholders" means a collective reference to the
holders from time to time of the 2009 Senior Notes and "2009 Senior
Noteholder" means any one of them.
1.77. "2009 Senior Notes" means a reference to any one of Wolverine
Tube's $120,000,000 10.5% Senior Notes, due April 1, 2009 issued by
Wolverine Tube in favor of the 2009 Senior Noteholders pursuant to the
2009 Senior Note Indenture, as such 2009 Senior Notes may be amended,
modified, restated, replaced or supplemented and in effect from time to
time in accordance with the terms hereof."
5. Effective the date hereof, Paragraph 6.3 of the Consignment, Forward
Contracts and Trading Line Agreement is amended in its entirety to read as
follows:
"6.3. Financing Statements No financing statement or agreement is on
file in any public office pertaining to or affecting the Consigned
Precious Metal, or any collateral for the Obligations, now owned or
hereafter acquired, except for financing statements in favor of Lenders to
secure the Credit Agreement and which financing statements are the subject
of an Intercreditor Agreement between the Lenders and FPM dated March 27,
2002."
6. Effective the date hereof, Paragraph 7.4 of the Consignment, Forward
Contracts and Trading Line Agreement is amended in its entirety to read as
follows:
7.4. Liens Not create, incur, assume or suffer to exist any
mortgage, pledge, lien, charge or other encumbrance of any nature
whatsoever on (a) any of the Consigned Precious Metal, or (b) any products
or property now or hereafter owned which does or will include Consigned
Precious Metal, except for liens in favor of the Lenders pursuant to the
Credit Agreement, which liens are the subject of an Intercreditor
Agreement between the Lenders and FPM dated March 27, 2002."
7. Effective the date hereof, Paragraph 7.6 of the Consignment, Forward
Contracts and Trading Line Agreement is amended in its entirety to read as
follows:
7.6. Financial Statements Furnish to FPM:
(a) Annual Financial Statements. As soon as available and in
any event within ninety (90) days after the close of each Fiscal Year, a
consolidated balance
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sheet of the Consolidated Parties as at the end of such Fiscal Year
together with related consolidated statements of income, shareholder's
equity and of cash flows for such Fiscal Year, setting forth in
comparative form consolidated figures for the preceding Fiscal Year, all
in reasonable detail and audited by independent certified public
accountants of recognized national standing and whose opinion shall be to
the effect that such consolidated financial statements have been prepared
in accordance with GAAP and shall not be limited as to the scope of the
audit or qualified as to the status of the Consolidated Parties as a going
concern. It is specifically understood and agreed that failure of the
annual financial statements to be accompanied by an opinion of such
accountants in form and substance as provided herein shall constitute an
Event of Default hereunder. The financial statements delivered pursuant to
this Paragraph will have been prepared in accordance with GAAP and will
present fairly the consolidated financial condition, results of operations
and cash flows of the Consolidated Parties as of the date thereof.
(b) Quarterly Financial Statements. As soon as available and
in any event within forty-five (45) days after the end of each fiscal
quarter (other than the fourth fiscal quarter, in which case ninety (90)
days after the end thereof) of each Fiscal Year of the Consolidated
Parties, a consolidated balance sheet and statements of income and of cash
flows of the Consolidated Parties as at the end of such quarterly period
together with related consolidated statements of retained earnings,
shareholder's equity and of cash flows for such quarterly period and for
the portion of the Fiscal Year ending with such period, in each case
setting forth in comparative form figures for the corresponding period of
the preceding Fiscal Year, all in reasonable form and detail acceptable to
FPM, and accompanied by a certificate of a senior financial officer of
Wolverine Tube as being true and correct and as having been prepared in
accordance with GAAP, subject to changes resulting from audit and normal
year-end audit adjustments. The financial statements delivered pursuant to
this Paragraph 7.6(b) will have been prepared in accordance with GAAP and
will present fairly the consolidated financial condition, results of
operations and cash flows of the Consolidated Parties as of the date
thereof.
(c) Monthly Financial Statements. As soon as available and
in any event within thirty (30) days after the end of each month of the
Consolidated Parties, (i) unaudited consolidated financial statements
similar to those required by clause (a) above as of the end of such period
and for such period then ended and for the period from the beginning of
the current Fiscal Year to the end of such period and (ii) unaudited
balance sheets, income statements and statements of cash flow by unit, in
each case prepared in accordance with GAAP (except that such monthly
statements need not include footnotes) and certified by a senior financial
officer of Wolverine Tube.
(d) Officer's Certificate. At the time of delivery of the
financial statements provided for in Paragraphs 7.6(a), (b) and (c), a
certificate of a senior financial officer of Wolverine Tube satisfactory
to FPM to the effect that no Event of Default exists, or if any Event of
Default does exist specifying the nature and extent thereof and what
action the Companies propose to take with respect thereto. In addition,
for each fiscal quarter, such certificate shall demonstrate compliance
with the financial covenants
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contained in Paragraphs 7.8, 7.7 and 7.9 by calculation thereof as of the
end of each such fiscal period, if applicable.
(e) Auditor's Reports. Promptly upon receipt thereof, a copy
of any other report or "management letter" submitted by independent
accountants to a member of the Consolidated Parties in connection with any
annual, interim or special audit of the books of the Consolidated Parties.
(f) SEC and Other Reports. Promptly upon transmission or
receipt thereof, copies of any filings and registrations with, and
material reports to or from, the Securities and Exchange Commission, or
any successor agency, and copies of all financial statements, proxy
statements, notices and reports as the Consolidated Parties shall send to
its shareholders or to the holders of any other indebtedness in their
capacity as such holders.
(g) Notices. (i) immediately of the occurrence of an event
or condition consisting of an Event of Default, specifying the nature and
existence thereof and what action the Companies propose to take with
respect thereto, and (ii) promptly, but in any event within five (5)
Business Days, following the occurrence of any of the following with
respect to a Company (A) the pendency or commencement of any litigation,
arbitral or governmental proceeding against such Company which, if
adversely determined, would have or reasonably be expected to have, a
material adverse effect, (B) any levy of an attachment, execution or other
process against the assets of a Company having a value of $1,000,000 or
more, (C) the occurrence of an event or condition which shall constitute a
default or event of default under any indebtedness of a member of the
Consolidated Parties in excess of $1,000,000, (D) any development in the
business or affairs of any of the Consolidated Parties which has resulted
in, or which the Companies reasonably believe may result in, a material
adverse effect, (E) the institution of any proceedings against a Company
with respect to, or the receipt of notice by such Person of potential
liability or responsibility for violation, or alleged violation of any
federal, foreign, state, provincial or local law, rule or regulation,
including but not limited to, environmental laws, the violation of which
would have or be reasonably expected to have a material adverse effect, or
(F) promptly, of any change in the name of any Company.
(h) Annual Budget and Projections. Within thirty (30) days
following the end of each Fiscal Year, beginning with the Fiscal Year
ending December 31, 2002, an annual budget of the Consolidated Parties
containing, among other things, pro forma financial statements and
projected loan usage and Excess Availability on a monthly basis under the
Credit Agreement for the next Fiscal Year and financial and operational
projections for such Fiscal Year.
(i) Borrowing Base Certificate, etc.. , A borrowing base
certificate in substantially the form of Exhibit J to the Credit
Agreement, duly completed and certified by a senior financial officer of
Wolverine Tube and which shall be delivered to FPM
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simultaneously with its delivery to the Lenders pursuant to Section 7.1(i)
of the Credit Agreement.
(j) Precious Metal Report. Within thirty (30) days of the
end of each fiscal quarter, a collateral Precious Metal inventory report
which shall identify all Precious Metal by location and which shall
identify all liabilities to third parties for toll, pool or other third
party Precious Metal by location and by third party and otherwise to be in
form acceptable to FPM, certified by an Authorized Representative of the
Company.
(k) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties or
financial condition of the Companies as FPM may reasonably request.
8. 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 to 1.0 as
of the last day of each fiscal quarter occurring on or prior to December
31, 2002 and (b) 1.1 to 1.0 as of the last day of each fiscal quarter
occurring 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."
9. Effective the date hereof, Paragraph 7.9 of the Consignment, Forward
Contracts and Trading Line 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) $18,000,000 during the
Fiscal Year ending December 31, 2002, (b) $21,000,000 during the Fiscal
Year ending December 31, 2003 and (c) $23,000,000 during the Fiscal Year
ending December 31, 2004 (in each case computed on a non-cumulative
basis)."
10. 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):
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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
Each fiscal quarter ending in fiscal year 2003 $50,000,000
Each fiscal quarter ending in fiscal year 2004 $55,000,000
11. Effective the date hereof, Paragraph 8 of the Consignment, Forward
Contracts and Trading Line Agreement is amended by adding an additional Event of
Default to read in its entirety as follows:
"(k) any of the Companies shall default in the payment (beyond the
applicable grace period with respect thereto, if any) or performance or
observance of any indebtedness in excess of $2,500,000 (other than
indebtedness outstanding under this Agreement or the Credit Agreement) or
the 2008 Senior Notes or the 2009 Senior Notes, or any other event or
condition shall occur or condition exist, the effect of which default or
other event or condition is to cause, or permit, the holder or holders of
such indebtedness (or trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is
required), any such indebtedness to become due prior to its stated
maturity; or (ii) any such indebtedness shall be declared due and payable,
or required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof;"
12. 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 amended hereby, and all
obligations of the Companies under the Consignment, Forward Contracts and
Trading Line Agreement, as amended hereby, shall be secured by and be entitled
to the benefits of such other documents and agreements.
13. 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.
14. 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 Second 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.
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15. This Second 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 Second
Amendment and Agreement to be executed by their duly authorized officers as of
the date first above written.
WITNESS: WOLVERINE TUBE INC.
/s/ Mary Ann Michetti By: /s/ James E. Deason
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Title: Executive V.P., CFO and Secretary
WOLVERINE TUBE (CANADA) INC.
/s/ Mary Ann Michetti By: /s/ James E. Deason
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Title: Executive V.P. and Secretary-Treasurer
WOLVERINE JOINING TECHNOLOGIES, INC.
/s/ Mary Ann Michetti By: /s/ James E. Deason
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Title: Vice President
FLEET PRECIOUS METALS INC.
By: /s/ John C. Schmitt II
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Title: Vice President
By: /s/ Paul H. Boghosian
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Title: Vice President
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