EXHIBIT 10.2
AMENDMENT NO. 2 TO RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO RECEIVABLES PURCHASE AGREEMENT, effective as of
September 30, 2005 (this "AMENDMENT"), is entered into by and among DEJ 98
Finance, LLC, a Delaware limited liability company (the "SELLER"), Wolverine
Finance, LLC, a Tennessee limited liability company, as initial servicer (the
"SERVICER"), Wolverine Tube, Inc., a Delaware corporation, as performance
guarantor (the "PERFORMANCE GUARANTOR" and, together with the Seller and the
Servicer, the "SELLER PARTIES"), Blue Ridge Asset Funding Corporation, a
Delaware corporation ("BLUE RIDGE"), and Wachovia Bank, National Association,
individually (together with Blue Ridge, the "PURCHASERS"), and as agent for the
Purchasers (together with its successors and assigns in such capacity, the
"AGENT").
PRELIMINARY STATEMENT
The Seller Parties, the Purchasers and the Agent are parties to that
certain Receivables Purchase Agreement dated as of April 28, 2005, as
heretofore amended (the "EXISTING AGREEMENT"). The parties wish to amend
the Existing Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein are
used with the meanings attributed thereto in the Existing Agreement.
2. Amendments.
2.1. Section 7.1(a)(i) of the Existing Agreement is hereby amended and
restated in its entirety to read as follows:
(i) Annual Reporting. (x) Within 90 days after the close of each of
its respective fiscal years, audited, unqualified consolidated financial
statements (which shall include balance sheets, statements of income and
retained earnings and a statement of cash flows) of Performance Guarantor
and its Subsidiaries for such fiscal year certified in a manner acceptable
to the Agent by independent public accountants reasonably acceptable to the
Agent, and (y) within 120 days after the close of each of its respective
fiscal years, audited, financial statements (which shall include balance
sheets, statements of income and retained earnings and a statement of cash
flows) of Seller for such fiscal year, all certified by its chief financial
officer.
2.2. Section 9.1(u) of the Existing Agreement is hereby amended and
restated in its entirety to read as follows:
(u)(i) For the second fiscal quarter of 2005, Consolidated EBITDA for
the Consolidated Parties shall be greater than or equal to $19,250,000,
calculated on a rolling four quarter basis.
1
(ii) [Intentionally deleted].
(iii) Commencing with the fiscal quarter of the Consolidated Parties
ending closest to June 30, 2007, and for each fiscal quarter thereafter,
Consolidated EBITDA for the Consolidated Parties shall be greater than or
equal to $32,000,000, calculated on a rolling four quarter basis.
Without limiting the foregoing, the parties hereto confirm that the requirements
previously contained in Section 9.1(u)(ii) of the Existing Agreement shall not
be applicable for the Production Month of the Consolidated Parties ending
closest to September 30, 2005.
3. Representations.
3.1. Each of the Seller Parties represents and warrants to the Purchasers
and the Agent that it has duly authorized, executed and delivered this Amendment
and that the Existing Agreement, as amended hereby, constitutes, a legal, valid
and binding obligation of such Seller Party, enforceable in accordance with its
terms (except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability).
3.2. Each of the Seller Parties further represents and warrants to the
Purchasers and the Agent that, after giving effect to this Amendment, each of
its representations and warranties set forth in Section 5.1 of the Existing
Agreement is true and correct as of the date hereof and that no Amortization
Event or Unmatured Amortization Event exists as of the date hereof and is
continuing.
4. Conditions Precedent. This Amendment shall become effective as of the
date first above written upon receipt by the Agent of:
(a) a counterpart hereof duly executed by each of the parties hereto,
(b) a fully-earned and non-refundable amendment fee of $15,000 in
immediately available funds; and
(c) a copy of an amendment to the minimum Consolidated EBITDA covenant
in the ABL Credit Agreement to make it consistent with the amendment set
forth in Section 2.2 above, duly executed by the agent and lender(s)
thereunder.
5. Miscellaneous.
5.1. Except as expressly amended hereby, the Existing Agreement shall
remain unaltered and in full force and effect, and each of the parties hereby
ratifies and confirms the Existing Agreement and each of the other Transaction
Documents to which it is a party. Without limiting the generality of the
foregoing, the Performance Guarantor hereby specifically ratifies and confirms
the Performance Undertaking and agrees that it remains unaltered and in full
force and effect.
2
5.2. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OF LAW.
5.3. This Amendment may be executed in any number of counterparts and by
the different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same Amendment. Delivery of any executed
counterpart by facsimile or electronic mail with an attached image of such
executed counterpart shall have the same force and effect as delivery of an
originally executed counterpart.
{Signature pages follow}
3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first above written.
DEJ 98 FINANCE, LLC
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Board Manager
WOLVERINE FINANCE, LLC
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice Manager & Treasurer
4
WOLVERINE TUBE, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: SR. V.P., CFO & Secretary
5
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Director
6
BLUE RIDGE ASSET FUNDING CORPORATION
BY: WACHOVIA CAPITAL MARKETS, LLC,
ITS ATTORNEY-IN-FACT
By: : /s/ Xxxxxxx X. Xxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
7
