Exhibit 10.9
WAIVER AND AMENDMENT NO. 2 TO
SECOND AMENDED AND RESTATED
RECEIVABLES PURCHASE
AGREEMENT
THIS WAIVER AND AMENDMENT NO.
2 TO SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT, effective
as of August 28, 2008 (this “Waiver and
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” and, together with
the Co-Agent, the “Agents” ).
PRELIMINARY
STATEMENTS
The Seller Parties, the Purchasers
and the Agents are parties to that certain Second Amended and
Restated Receivables Purchase Agreement dated as of
February 21, 2008, as heretofore amended (the
“RPA” ; capitalized terms used and not
otherwise defined herein are used with the meanings attributed
thereto in the RPA).
Certain events of default have
occurred under the ABL Credit Agreement, as a result of which, an
Amortization Event exists under Section 9.1(f) of the RPA and
a Termination Event exists under Section 5.1(d) of the U.S.
Receivables Sale Agreement. In addition, an Amortization Event has
occurred under Section 9.1(u) of the RPA. The Seller Parties
have requested that the Agents and the Purchasers waive such
Amortization Events and Termination Event and that they agree to
amend the RPA as set forth herein. The Agents and the Purchasers
are willing to agree to such waiver and amendments only on the
terms and subject to the conditions 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. Waivers .
1.1. Solely with respect to the four
quarters ended June 29, 2008, each of the Agents and the
Purchasers hereby waives the Amortization Events existing under
Section 9.1(f) by virtue of the events of default under the
ABL Credit Agreement that are waived pursuant to Amendment
No. 14 to Amended and Restated Credit Agreement and Waiver,
dated as of even date herewith (and each of the parties hereby
waives or consents to the waiver of the Termination Event existing
under Section 5.1(d) of the U.S. Receivables Sale Agreement)
and Section 9.1(u) of the RPA by virtue of Consolidated EBITDA
for the Consolidated Parties being less than
US$32,000,000.
1
1.2. Solely to the extent that any
violation of Section 7.1(a)(i) of the RPA occurred prior to
the date of this Waiver and Amendment by virtue of the
Seller’s failure to deliver its audited financials for its
fiscal year ended December 31, 2007 within 120 days
thereafter, any resulting Amortization Event arising under
Section 9.1(d) of the RPA prior to the date hereof is hereby
waived (it being understood that nothing in this Waiver and
Amendment shall be deemed to waive the requirement that the Seller
deliver such audited financials by the date specified in
Section 2.1 below).
2. Amendments .
2.1. Section 7.1(a)(i) of the
RPA is hereby amended to insert the following immediately prior to
the period at the end thereof:
; provided,
however, that the
Seller’s audited financials for its fiscal year ended
December 31, 2007 shall not be required to be delivered until
October 15, 2008
2.2. Section 13.1(b) of the RPA
is hereby amended to insert a period immediately prior to the
proviso therein and to strike the balance of the text in such
Section.
2.3. The definition of
eac
