Exhibit 10.4
SPECIFIED CANADIAN RECEIVABLES
SALE AGREEMENT
THIS SPECIFIED CANADIAN
RECEIVABLES SALE AGREEMENT (this “Agreement” ),
dated as of May 25, 2008 (the “Effective
Date” ), is by and between DEJ 98 FINANCE, LLC, a
Delaware limited liability company (
“SPE” ), and WOLVERINE TUBE, INC., a
Delaware corporation ( “Wolverine”
).
PRELIMINARY
STATEMENT
SPE wishes to sell, transfer and
assign to Wolverine the trade accounts receivable listed on Exhibit
A hereto which were acquired by SPE from Wolverine Tube (Canada)
Inc. (the “Specified Receivables” ), and
Wolverine wishes to purchase the Specified Receivables from SPE on
the terms and subject to the conditions hereinafter set
forth.
NOW, THEREFORE,
the parties hereto hereby agree as
follows:
1. Sale and Assignment
.
(a) Subject to the terms and
conditions of this Agreement and effective as of the Effective
Date, SPE does hereby sell, assign, transfer and convey, without
recourse, representation or warranty (except as specifically set
forth in Section 4 hereof), and Wolverine does hereby
purchase and accept the assignment and transfer from SPE, of all of
SPE’s right, title and interest in and to the Specified
Receivables and all proceeds thereof. In consideration for such
transfer and assignment, Wolverine shall pay to SPE on the
Effective Date, CDN$2,500,000.00 (collectively, the
“Purchase Price” ).
(b) Wolverine hereby agrees that it
shall have no recourse against SPE with respect to the Specified
Receivables or any portion thereof (except for recourse against SPE
for a breach of representation and warranty by SPE pursuant to
Section 4 hereof).
(c) At or before 5:00 p.m. (Toronto
time) on the Effective Date, Wolverine shall pay to SPE the
Purchase Price in immediately available funds.
2. Effectiveness of this
Agreement . This Agreement shall be effective as of the
Effective Date upon the satisfaction of all of the following
conditions precedent:
(a) One or more counterparts of this
Agreement shall have been executed and delivered by Wolverine and
SPE;
(b) Each of the representations and
warranties of SPE in Section 4 hereof shall be true and
correct; and
(c) SPE shall have received payment
of the Purchase Price from Wolverine in accordance with
Section 1 above.
3. Further Assurances, Etc .
At Wolverine’s expense, SPE hereby agrees to duly authorize
and deliver such Uniform Commercial Code financing statements,
applicable Canadian provincial security registration statements and
such other documents and to do such
further acts and things, as Wolverine may
reasonably request from time to time in order to more fully
effectuate the transactions contemplated by this
Agreement.
4. Representations and
Warranties .
(a) SPE represents and warrants that
it has the full limited liability company power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder and that this Agreement has been duly and validly
executed and delivered by it (and assuming the due and valid
execution and delivery hereof by Wolverine) constitutes a legal,
valid and binding obligation of SPE enforceable against it in
accordance with its terms, except as the enforceability hereof may
be limited by bankruptcy, insolvency, reorganization or other
similar laws of general application relating to or affecting the
enforcement of creditors’ rights or by general principles of
equity.
(b) SPE hereby represents and
warrants that it is transferring its right, title and interest in
and to the Specified Receivables and the proceeds thereof free and
clear of any lien, security interest
