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EXHIBIT 10.3
AMENDMENT NO. 2 TO RECEIVABLES SALE AGREEMENT
(U.S.) AND AMENDED
AND RESTATED PERFORMANCE UNDERTAKING
THIS AMENDMENT NO. 2 TO
RECEIVABLES SALE AGREEMENT (U.S.) AND AMENDED AND RESTATED
PERFORMANCE UNDERTAKING (this "Amendment" ),
effective as of December 15, 2006, is entered into by and
among WOLVERINE TUBE, INC., a Delaware corporation (
"Parent" ), TUBE FORMING, LP, a Delaware limited
partnership and SMALL TUBE MANUFACTURING LLC, a Delaware limited
liability company (each of the foregoing including Parent, an
"Existing Originator" and collectively, the
"Existing Originators" ), WOLVERINE JOINING
TECHNOLOGIES, LLC, a Delaware limited liability company (the
"New Originator" and, together with the Existing
Originators, the "Originators" ), and DEJ 98 FINANCE,
LLC, a Delaware limited liability company ( "Buyer"
).
PRELIMINARY STATEMENT
The Existing Originators and the
Buyer are parties to that certain Receivables Sale Agreement dated
as of April 28, 2005, as heretofore amended (the
"Existing Agreement" ). The Parent has guaranteed the
performance by the Existing Originators of their obligations under
the Existing Agreement pursuant to that certain Amended and
Restated Performance Undertaking dated as of April 4, 2006
executed by Parent in favor of Buyer (the "Existing
Performance Undertaking" ).
The New Originator wishes to
become a party to the Existing Agreement and to begin selling
Receivables thereunder.
The Buyer and its assigns are
unwilling to allow the New Originator to become an Originator until
the Existing Performance Undertaking is amended to cover the New
Originator’s obligations.
Accordingly, the parties wish to
amend the Existing Agreement and the Existing Performance
Undertaking 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 hereto agree as follows:
1. Definitions .
Capitalized terms used and not otherwise defined herein are used
with the meanings attributed thereto (or incorporated by reference)
in the Existing Agreement.
2. Amendments .
2.1. The New Originator is hereby
added to the Originators under the Existing Agreement. The New
Originator hereby absolutely and unconditionally agrees to become a
party to the Sale Agreement as an Originator thereunder and to be
bound by the provisions thereof, including, without limitation, the
provisions of Section 7.5 thereof.
2.2. Exhibits II and III to the
Existing Agreement are hereby amended and restated in their
entirety to read as set forth in Exhibits II and III, respectively,
hereto.
2.3. The Existing Performance
Undertaking is hereby amended to add the New Originator to the
definition of " U.S. Subsidiary Originators"
therein.
3. Representations .
Each of the Originators represents and warrants to the Buyer and
its assigns 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
Originator, 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). Parent represents and warrants to the Buyer and
its assigns that the Existing Performance Undertaking, as amended
hereby, constitutes, a legal, valid and binding obligation of
Parent, 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).
4. Conditions
Precedent . This Amendment shall become effective as of the
date first above written upon (i) receipt by the Agent of each
of the documents listed on Exhibit I hereto duly executed by
the relevant parties thereto and (ii) receipt by the Agent and
the Co-Agent of the Amendment Fee (as defined in that certain
amendment fee letter dated as of the date hereof duly executed by
the Buyer, the Co-Agent and the Agent) in immediately available
funds.
5. Miscellaneous
.
5.1. Except as expressly amended
hereby, each of the Existing Agreement and the Existing Performance
Undertaking shall remain unaltered and in full force and effect,
and each of the parties hereby ratifies and confirms the Existing
Agreement, the Existing Performance Undertaking and each of the
other Transaction Documents to which it is a party.
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.
[ Remainder of Page Intentionally Left
Blank ]
[ Signature Pages Follow ]
IN WITNESS WHEREOF,
the parties hereto have executed this Amendment effective as of the
date first abo
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