Exhibit 10.6
CANADIAN RECEIVABLES SALE
TERMINATION
AND REASSIGNMENT
AGREEMENT
THIS CANADIAN RECEIVABLES SALE
TERMINATION AND REASSIGNMENT AGREEMENT (this “Agreement” ),
dated as of May 25, 2008 (the “Effective
Date” ), by and among DEJ 98 FINANCE, LLC, a Delaware
limited liability company ( “SPE” ),
WOLVERINE TUBE (CANADA) INC., an Ontario corporation (
“Originator” ), THE CIT GROUP/BUSINESS
CREDIT, INC., a New York corporation, individually (
“CIT/BC” ) and as co-agent (the
“Co-Agent” ), and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, individually (
“Wachovia” and, together with CIT/BC, the
“Purchasers” ) and as agent for the
Purchasers (in such capacity, the “Agent”
and, together with the Co-Agent, the
“Agents” ).
PRELIMINARY
STATEMENTS
A. SPE and Originator are parties to
that certain Canadian Receivables Sale Agreement ,
dated as of April 4, 2006 (as amended, supplemented or
otherwise modified from time to time, the “ Canadian
Sale Agreement ”), pursuant to which Originator has
sold, transferred and conveyed to the SPE, and the SPE has acquired
from Originator, all right, title and interest in: (i) all
Receivables conveyed under the Canadian Sale Agreement,
(ii) all Related Security with respect to each such
Receivable, (iii) all Collections with respect to each such
Receivable, (iv) the Lock-Boxes and Collection Accounts
described on Exhibit III to the Canadian Sale Agreement, and
(v) all proceeds of any of the foregoing ((i) through
(v) collectively, the “Canadian
Assets” ). Capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed
thereto in the Canadian Sale Agreement or, if not defined therein,
in the Purchase Agreement (hereinafter defined).
B. SPE has sold undivided interests
and granted a security interest in, among other things, the
Canadian Assets pursuant to that certain Second Amended and
Restated Receivables Purchase Agreement (as the same may from time
to time hereafter be amended, supplemented, restated or otherwise
modified, the “Purchase Agreement” ),
dated as of February 21, 2008, by and among SPE, as Seller,
Wolverine Finance, LLC, a Tennessee limited liability company, as
initial Servicer, Wolverine Tube, Inc., a Delaware corporation, as
Performance Guarantor, CIT/BC, Wachovia and the Agents. As of the
date hereof, there are no amounts outstanding in respect of the
Canadian Assets under the Purchase Agreement, so the undivided
ownership interest of the Agents and the Purchasers in the Canadian
Assets is now equal to 0%.
C. The parties desire to terminate
the Canadian Sale Agreement and the Collection Agreement executed
in connection therewith (collectively, the “Canadian
Transaction Agreements” ) and all of the obligations
of SPE to purchase any Receivables and Related Security pursuant to
the Canadian Sale Agreement, and to provide for the reassignment by
the Agents and the Purchasers to SPE, and by SPE to Originator, of
all right, title and interest in and to the Canadian Assets other
than the Excluded Receivables (as defined below).
NOW, THEREFORE,
the parties hereto hereby agree as
follows:
1. Reconveyances .
(a) Subject to the terms and
conditions of this Agreement (including, without limitation, the
conditions set forth in Section 4 hereof), and
effective as of the Effective Date:
(i) The Agents and the Purchasers do
hereby release all liens on, security interests in, and all other
right, title and interest in and to all of the Canadian Assets;
and
(ii) SPE does hereby sell, assign,
transfer and convey, without recourse, representation or warranty
(except as specifically set forth in Section 6 hereof),
and Originator does hereby purchase and accept the assignment and
transfer from SPE, of all of its right, title and interest in and
to all of the Canadian Assets other than the Receivables listed on
Exhibit A hereto (the “Excluded
Receivables” ). In consideration for such transfer
and assignment, Originator shall pay to SPE on the Effective Date,
US$7,540,199.24 and CDN$21,259,621.42 (collectively, the
“Reconveyance Amount” ).
SPE hereby agrees that it shall have
no recourse against any of the Agents or Purchasers with respect to
the Canadian Assets or any portion thereof sold, assigned,
transferred and reconveyed hereunder (except for recourse against
the Agents for the breach of representation and warranty by the
Agents pursuant to Section 6 hereof). Originator hereby
agrees that it shall have no recourse against SPE, any of the
Agents or Purchasers with respect to the Canadian Assets or any
portion thereof sold, assigned, transferred and reconveyed
hereunder (except for recourse against SPE or such Agent or
Purchaser, as the case may be, for the breach of representation and
warranty by such Person pursuant to Section 6
hereof).
(b) At or before 5:00 p.m. (Toronto
time) on the Effective Date, Originator shall pay to SPE the
Reconveyance Amount by way of wire transfer of immediately
available funds directed in accordance with the Purchase
Agreement.
2. Termination and Release .
Subject to the terms and conditions of this Agreement, upon payment
by Originator of the Reconveyance Amount in accordance with the
provisions of Section 1(b) and SPE’s receipt
thereof, all right, title and interest (including any and all liens
and security interests) of SPE in or to the Canadian Assets other
than the Excluded Receivables shall terminate and be released
without further action, all as of the Effective Date.
3. Termination of Canadian
Transaction Agreements . Subject to the terms and conditions of
this Agreement, upon payment by Originator of the Reconveyance
Amount in accordance with the provisions of
Section 1(b) and SPE’s receipt thereof, the
Canadian Transaction Agreements shall terminate and all obligations
of the parties thereunder (including without limitation any and all
obligations thereunder to purchase, sell, contribute or service the
Receivables and the Collections originally conveyed under the
Canadian Sale Agreement) shall terminate, except that (i) the
rights and remedies with respect to any breach of any
representation and warranty made by Originator pursuant to Article
II of the Canadian Sale Agreement, the indemnification and payment
provisions set forth in Art
