Exhibit 10.5
AMENDMENT NO. 1 TO SECOND AMENDED
AND RESTATED RECEIVABLES
PURCHASE AGREEMENT AND AMENDMENT
NO. 1 TO SECOND AMENDED AND
RESTATED PERFORMANCE
UNDERTAKING
THIS AMENDMENT NO. 1 TO SECOND
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT AND AMENDMENT
NO. 1 TO SECOND AMENDED AND RESTATED PERFORMANCE
UNDERTAKING, effective as of May 25, 2008 (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” ), 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 ( “Wachovia”
and, together with 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 Second Amended and
Restated Receivables Purchase Agreement dated as of
February 21, 2008, as heretofore amended (the
“RPA” ).
The Performance Guarantor and the
Seller are parties to the Second Amended and Restated Performance
Undertaking dated as of February 21, 2008 (the
“Performance Undertaking” ).
The parties wish to amend the RPA
and the Performance Undertaking to reflect the termination of the
Canadian Receivables Sale Agreement and the repurchase on the date
hereof of all Receivables previously sold thereunder.
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 RPA or the Performance
Undertaking, as applicable.
2. Amendments .
2.1. All references in the RPA to
the “Canadian Receivables Sale Agreement” and all
references in the Performance Undertaking to the “Canadian
Sale Agreement” are hereby deleted. All references in the
Performance Undertaking to “either Sale Agreement” or
“the Sale Agreements” are hereby replaced with
“the U.S. Sale Agreement”. All references in the RPA to
“the Receivables Sale Agreements”, “each of the
Receivables Sale Agreements”, “the applicable
Receivables Sale Agreement”, “a Receivables Sale
Agreement”, “such Receivables Sale Agreement” or
“either of the Receivables Sale Agreements” are hereby
replaced with “the U.S. Receivables Sale
Agreement”.
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2.2. All references in the RPA and
the Performance Undertaking to the “Canadian Subsidiary
Originator” are hereby deleted. From and after the date
hereof, all references in the RPA to any or all of the Originators
shall be deemed to apply only to the U.S. Originators, and all
references in the Performance Undertaking to any or all of the
Subsidiary Originators shall be deemed to apply only to the U.S.
Subsidiary Originators.
2.3. The text of each of Sections
1.1(a)(i), 1.4(a)(iv)(B), 8.1(c)(iii), 10.1.1(xviii), 10.1.3 and
10.1.4 of the RPA is hereby deleted in its entirety and replaced
with “[intentionally deleted]”.
2.4. The definitions of
“Canadian Dollar Equivalent”, “Canadian
Originator”, “Canadian Person”, “Canadian
Receivables Sale Agreement”, “Deemed Interest
Reserve”, “Currency Reserve”, “Insolvency
Event,” “MCE Percentage”, “Quebec
Assets”, “Quebec Receivable” and “U.S.
Dollar Equivalent” in Exhibit I to the RPA, and all
references to any of such terms in such Exhibit or in the RPA are
hereby deleted.
2.5. The last sentence of the
definition of “Receivable Interest” in Exhibit I to the
RPA is hereby deleted in its entirety.
2.6. Sections 5.1(s) and (t) of
the RPA are hereby amended and restated in their entirety to read,
respectively, as follows:
(s) Payments to Applicable
Originator . With respect to each Receivable transferred to
Seller under a Receivables Sale Agreement, Seller has given
reasonably equivalent value to the applicable Originator in
consideration therefor and such transfer was not made for or on
account of an antecedent debt. No transfer by any Originator of any
Receivable under a Receivables Sale Agreement is or may be voidable
under any section of the Bankruptcy Reform Act of 1978 (11 U.S.C.
§§ 101 et seq. ), as amended.
(t) Enforceability of
Contracts . Each Contract with respect to each Receivable is
effective to create, and has created, a legal, valid and binding
obligation of the related Obligor to pay the Outstanding Balance of
the Receivable created thereunder and any accrued interest thereon,
enforceable against the Obligor in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to or
limiting creditors’ rights generally and by general
principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
2.7. Section 7.1(i)(Q) of the
RPA is hereby amended and restated in its entirety to read as
follows:
(Q) take such other actions as are
necessary on its part to ensure that the facts and assumptions set
forth in the opinions relating to substantive consolidation issues
issued by Dewey & LeBoeuf LLP (or Dewey Ballantine LLP as
its predecessor) in connection with the U.S. Receivables Sale
Agreement, and
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in the certificates accompanying
such opinion, remain true and correct in all material respects at
all times.
2.8. The RPA is hereby amended to
delete “the PPSA” and “the PPSA (as
applicable)” where they appear.
2.9. The definitions of the
following terms in Exhibit I to the RPA are hereby amended and
restated in their entirety to read, respectively, as
follows:
“Adverse
Claim” means a
lien, security interest, charge, pledge, hypothecation or
encumbrance, or other right or claim in, of or on any
Person’s assets or properties in favor of any other
Person.
“Collections”
means, with respect to any
Receivable, all cash collections and other cash proceeds in respect
of such Receivable, including, without limitation, all Finance
Charges or other related amounts accruing in respect thereof and
all cash proceeds of Related Security with respect to such
Receivable.
“Eligible
Receivable” means, at any time, a Receivable:
(i) the Obligor of which:
(a) is not a natural person; (b) is a corporation or
other business organization organized under the laws of the United
States or any political subdivision thereof and has its chief
executive office in the United States, unless such receivable is an
Eligible Foreign Receivable; (c) is not an Affiliate of any of
the parties hereto; (d) is not a government or a governmental
subdivision or agency; and (e) is not a Designated
Obligor,
(ii) which is not a Defaulted
Receivable,
(iii) which is not owing from an
Obligor as to which more than 50% of the aggregate Outstanding
Balance of all Receivables owing from such Obligor are Defaulted
Receivables,
(iv) which by its terms is due and
payable within 120 days of the original billing date therefor and
has not been outstanding for more than 90 days past such original
billing date and has not had its payment terms extended more than
once; provided , however , in the event
that the Best Possible DSO exceeds 40 days, the outstanding balance
of Receivables payable within 120 days of the original billing date
therefor shall be deducted from the numerator set forth in clause
(i) of the definition of the term “Best Possible
DSO” in an amount necessary to cause the Best Possible DSO to
be 40 days or less,
(v) which is an
“account” or a “payment intangible” within
the meaning of Article 9 of the UCC of all applicable
jurisdictions,
(vi) which is denominated and
payable only in United States dollars in the United
States,
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(vii) which arises under a Contract
in a form which the Agent has not deemed to be unacceptable in its
reasonable discretion and which, together with such Receivable, is
in full force and effect and constitutes the legal, valid and
binding obligation of the related Obligor enforceable against such
Obligor in accordance with its terms subject to no offset,
counterclaim or other defense,
(viii) which arises under a Contract
which (A) does not contain an enforceable prohibition on
pledge or assignment by the applicable Originator or its assigns or
require the Obligor under such Contract to consent to the transfer,
sale, pledge or assignment of the rights and duties of the
applicable Originator or any of its assignees under such Contract
and (B) does not contain a confidentiality provision that
purports to restrict the ability of any Purchaser to exercise its
rights under this Agreement, including, without limitation, its
right to review the Contract,
(ix) which arises under a Contract
that contains an obligation to pay a specified sum of money,
contingent only upon the sale of goods or the provision of services
by the applicable Originator,
(x) which, together with the
Contract related thereto, does not contravene any law, rule or
regulation applicable thereto (including, without limitation, any
law, rule and regulation relating to truth in lending, fair credit
billing, fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy) and with respect to which no part
of the Contract related thereto is in violation of any such law,
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