Exhibit 10.4
AMENDMENT NO. 3 TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT, effective as of February 16, 2007 (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"), Variable Funding Capital Company
LLC, a Delaware limited liability company ("VFCC"), The CIT Group/Business
Credit, Inc., a New York corporation ("CIT/BC"), individually and as co-agent
(the "Co-Agent"), and Wachovia Bank, National Association, individually
(together with VFCC and CIT/BC, the "Purchasers"), and as agent for the
Purchasers (together with its successors and assigns in such capacity, the
"Agent").
PRELIMINARY STATEMENTS
The Seller Parties, the Purchasers and the Agent are parties to that
certain Amended and Restated Receivables Purchase Agreement dated as of
April 4, 2006, 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. Amendment. Clause (i) of Section 9.1(s) of the Existing Agreement
is hereby amended and restated in its entirety to read as follows:
"(i) beginning on the date on which the Obligations outstanding under
and as defined in the ABL Credit Agreement shall equal or exceed
US$25,000,000 and continuing until the termination of ABL Credit
Agreement and the repayment in full of all such Obligations and"
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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. Condition Precedent. This Amendment shall become effective as of
the date first above written upon receipt by the Agent of a counterpart hereof
duly executed by each of the parties hereto.
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.
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.
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Exhibit 10.4
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first above written.
DEJ 98 FINANCE, LLC
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Member, Board of Managers
WOLVERINE FINANCE, LLC
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice Manager and Treasurer
WOLVERINE TUBE, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President,
Chief Financial Officer and
Secretary
THE CIT GROUP/BUSINESS CREDIT, INC.,
individually and as Co-Agent
By: /s/ C. Xxxx Xxxxx
-------------------------------------
Name: C. Xxxx Xxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Managing Director
VARIABLE FUNDING CAPITAL COMPANY LLC
BY: WACHOVIA CAPITAL MARKETS, LLC,
ITS ATTORNEY-IN-FACT
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
