EXHIBIT 10.5
THIRD AMENDMENT AND AGREEMENT TO
CONSIGNMENT, FORWARD CONTRACTS AND TRADING LINE AGREEMENT
This THIRD AMENDMENT AND AGREEMENT TO CONSIGNMENT, FORWARD CONTRACTS AND
TRADING LINE AGREEMENT is made as of October 1, 2002, by and between FLEET
PRECIOUS METALS INC., a Rhode Island corporation with offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("FPM"), and WOLVERINE TUBE, INC., a
Delaware corporation with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("WOLVERINE TUBE"), WOLVERINE TUBE
(CANADA) INC., an Ontario corporation with its principal place of business at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("WOLVERINE CANADA"),
and WOLVERINE JOINING TECHNOLOGIES, LLC, a Delaware limited liability company
with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ("NEW WOLVERINE JOINING") successor by merger to WOLVERINE JOINING
TECHNOLOGIES, INC., a Delaware corporation ("OLD WOLVERINE JOINING") (Wolverine
Tube, Wolverine Canada and New Wolverine Joining are hereinafter sometimes
referred to individually as a "COMPANY" and collectively as the "COMPANIES").
WITNESSETH THAT:
WHEREAS, FPM and Wolverine Tube, Wolverine Canada and Old Wolverine
Joining 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
Wolverine Tube, Wolverine Canada and Old Wolverine Joining, on the terms and
conditions contained therein; and
WHEREAS, Old Wolverine Joining has merged with and into New Wolverine
Joining; and
WHEREAS, as a result of the merger, all of the assets of Old Wolverine
Joining have by operation of law become vested in New Wolverine Joining, as the
surviving entity, and New Wolverine Joining has by operation of law assumed and
become liable for all of the obligations, liabilities and indebtedness of Old
Wolverine Joining, including, without limitation, all of the obligations,
liabilities and indebtedness of Old Wolverine Joining to FPM under the
Consignment, Forward Contracts and Trading Line agreement; 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. New Wolverine Joining, on behalf of itself and its successors and
assigns, hereby, (a) acknowledges that it has by operation of law assumed and
become liable, jointly and severally with Wolverine Canada and Wolverine Tube,
for all of the obligations and liabilities of Old Wolverine Joining set forth or
described in the Consignment, Forward Contracts and Trading Line Agreement and
in all documents, agreements and instruments executed and delivered by Old
Wolverine Joining in connection therewith (the "Obligations"), and (b) agrees to
observe and perform all of the obligations, covenants, duties and agreements of
Old Wolverine Joining set forth therein. The liability of New Wolverine Joining
hereunder is absolute and unconditional, without regard to the validity or
enforceability of the Obligations or liability of any other person, including
without limitation Wolverine Canada and Wolverine Tube, and shall not in any
manner be affected by reason of any action taken or not taken by FPM nor by the
partial or complete unenforceability or invalidity of any guaranty or surety
agreement, pledge, assignment or other security for any of the Obligations. No
delay in making demand on New Wolverine Joining for satisfaction of its
liability hereunder shall prejudice FPM's right to enforce such satisfaction.
All of FPM's rights and remedies shall be cumulative and any failure of FPM to
exercise any right hereunder shall not be construed as a waiver of the right to
exercise the same or any other right at any time, and from time to time,
thereafter. Without limiting the foregoing, FPM shall not be required to make
any demand on Wolverine Canada or Wolverine Tube or any other party or to
exhaust its remedies against Wolverine Canada or Wolverine Tube or any other
party before, concurrently with or after enforcing its rights hereunder against
New Wolverine Joining. New Wolverine Joining hereby ratifies and confirms the
security interest of FPM in the Consigned Precious Metal, whether now existing
or hereafter arising, and all proceeds and products of the foregoing, to secure
the Obligations and hereby grants to FPM a continuing security interest in the
Consigned Precious Metal, whether now existing or hereafter arising, and all
proceeds and products of the foregoing, to secure the Obligations, whether now
outstanding or hereafter incurred. New Wolverine Joining will, at its expense,
execute, deliver, file and record (in such manner and form as FPM may require),
or permit FPM to execute, authenticate, file and record, with or without any
signature and by electronic means, any financing statements, continuation
statements or amendments thereto, any carbon, photographic or other reproduction
of a financing statement, any specific assignments or other paper that may be
necessary or desirable, or that FPM may request, in order to create, preserve,
perfect or validate any security interest or to enable FPM to exercise and
enforce its rights hereunder with respect to any of the Consigned Precious
Metal, whether now existing or hereafter arising, and all proceeds and products
of the foregoing.
3. Wolverine Tube and Wolverine Canada hereby consent to the assumption
by New Wolverine Joining, together with Wolverine Tube and Wolverine Canada, of
the payment and performance of the Obligations. Nothing contained herein is
meant to, or shall, in any way relieve, diminish or impair, as between Wolverine
Tube and Wolverine Canada and FPM, the joint and several obligations of
Wolverine Tube and Wolverine Canada which are unconditional and absolute, to pay
and discharge the obligations of Wolverine Tube and Wolverine Canada to FPM
under the Consignment Forward Contracts and Trading Line Agreement and all
documents executed or delivered in connection therewith in accordance with the
terms thereof, nor shall any such provisions prevent FPM from exercising all
remedies otherwise permitted by applicable law. In addition to and not in
limitation of the foregoing, FPM shall be entitled to exercise all its rights
and remedies with respect to the assets of Wolverine Tube and Wolverine Canada
which shall
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continue to secure the Obligations notwithstanding the joint assumption of such
Obligations by New Wolverine Joining.
4. Effective the date hereof:
(a) all references to Wolverine Joining contained in the
Consignment, Forward Contracts and Trading Line Agreement shall be deemed
to mean New Wolverine Joining; and
(b) all references to the "Companies" contained in the
Consignment, Forward Contracts and Trading Line Agreement shall be deemed
to mean Wolverine Tube, Wolverine Canada, and New Wolverine Joining.
5. As a material inducement to FPM to enter into this Third Amendment
and Agreement to Consignment, Forward Contracts and Trading Line Agreement, New
Wolverine Joining represents and warrants to FPM, which representations and
warranties shall be continuing representations and warranties during the term of
the Consignment, Forward Contracts and Trading Line Agreement and so long as any
amount is due and owing FPM under the Obligations, as follows:
"5.1 Authority New Wolverine Joining (i) is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, (ii) has the requisite power and authority to own its
properties and to carry on business as now being conducted, and holds all
material permits, authorizations and licenses, without material
restrictions or limitations, which are necessary for such ownership or
business activity, and (iii) is qualified to do business in every
jurisdiction where such qualification is necessary, and has the requisite
power to execute, deliver and perform this Agreement and any security
document or documents securing the obligations of New Wolverine Joining
under this Agreement. New Wolverine Joining has no reason to believe that
any such material permits, authorizations or licenses will be revoked,
canceled, rescinded, modified or lost.
5.2. No Conflict The execution, delivery and performance by New
Wolverine Joining of the terms and provisions of this Agreement and any
other such security document(s) have been duly authorized by all requisite
action and will not violate any provision of law, any order of any court
or other agency of government, the articles of organization or the by-laws
of New Wolverine Joining or any indenture, agreement or other instrument
to which New Wolverine Joining is party, or by which New Wolverine Joining
is bound, or be in conflict with, result in a breach of, or constitute
(with due notice or lapse of time or both) a default under, or, except as
may be provided by this Agreement, result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of New Wolverine Joining pursuant to, any such
indenture, agreement or other instrument.
5.3 Binding Obligations This Agreement and all other agreements
securing this Agreement have been duly executed and delivered by New
Wolverine Joining and
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constitute legal, valid and binding obligations of New Wolverine Joining,
enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency, reorganization and other similar laws of general
application affecting the rights of creditors generally."
6. FPM hereby consents to, and incorporates by reference, the amendment
and restatement of Section 9.4 of the Credit Agreement, as amended and restated
by Amendment No. 1 to Credit Agreement dated on or about the date hereof.
7. New Wolverine Joining covenants and agrees that, from the date
hereof and until payment and performance in full of all Obligations, it shall
observe, maintain and perform all of the covenants and agreements set forth in
the Consignment, Forward Contracts and Trading Line Agreement, all of which are
fully incorporated herein, are hereby fully restated, shall be fulfilled by New
Wolverine Joining and shall remain in full force and effect.
8. All necessary conforming changes to the Consignment, Forward
Contracts and Trading Line Agreement necessitated by reason of the Third
Amendment and Agreement to Consignment, Forward Contracts and Trading Line
Agreement shall be deemed to have been made.
9. In consideration of the foregoing covenants and agreements, FPM
hereby consents to the merger of Old Wolverine Joining into New Wolverine
Joining.
10. 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.
12. 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.
13. 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 Third 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.
14. This Third 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 Third
Amendment and Agreement to be executed by their duly authorized officers as of
the date first above written.
WITNESS: WOLVERINE TUBE INC.
/s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Executive V.P., CFO and Secretary
WOLVERINE TUBE (CANADA) INC.
/s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Executive V.P. and Secretary-Treasurer
WOLVERINE JOINING TECHNOLOGIES, LLC,
/s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
FLEET PRECIOUS METALS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
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Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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