EXHIBIT 10.3
AMENDMENT NO. 1 TO RECEIVABLES SALE AGREEMENT (U.S.)
THIS AMENDMENT NO. 1 TO RECEIVABLES SALE AGREEMENT (U.S.)
(this "AMENDMENT"), effective as of April 4, 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
"ORIGINATOR" and collectively, the "ORIGINATORS"), and DEJ 98 FINANCE, LLC, a
Delaware limited liability company ("BUYER").
PRELIMINARY STATEMENT
The 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 parties wish to amend the Existing Agreement 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 hereby 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. All references in the Existing Agreement to "Blue Ridge
Asset Funding Corporation" or "Blue Ridge" are hereby replace with references to
"Variable Funding Capital Company, LLC" and "VFCC," respectively.
2.2. `Section 2.1(m) of the Existing Agreement is hereby
amended to delete "December 31, 2004" where it appears and to substitute in lieu
thereof "December 31, 2005."
2.2. Section 5.1 of the Existing Agreement is hereby amended
to add the following new clause (j) thereto:
(j) The "Amortization Date" (under and as defined in
the Purchase Agreement) or the "Termination Date" (under and as defined
in the Canadian Receivables Sale Agreement referred to in the Purchase
Agreement) shall occur.
2.3. Section 7.4 of the Existing Agreement is hereby amended
and restated in its entirety to read as follows:
Section 7.4. Confidentiality.
(a) Each Originator and Buyer shall maintain and shall cause
each of its directors, officers and employees to maintain the
confidentiality of the Fee Letters and the other confidential or
proprietary information with respect to the Agent or any
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Purchaser and their respective businesses obtained by such Seller
Party in connection with the structuring, negotiating and execution of
the transactions contemplated herein, except that such Seller Party
and its directors, officers and employees may disclose such
information to such Seller Party's external accountants, advisors and
attorneys and as required by any applicable law or order of any
judicial or administrative proceeding, PROVIDED THAT each such Person
is informed of the confidential nature of such information and either
agrees (or is under a professional ethical obligation) to keep such
information confidential.
(b) Anything herein to the contrary notwithstanding, each
Originator and Buyer shall hereby consents to the disclosure of any
nonpublic information with respect to it (i) to the Agent and each of
the Purchasers by each other, (ii) by the Agent or any Purchaser to any
prospective or actual assignee or participant of any of them, (iii) by
the Agent or VFCC to any rating agency, Commercial Paper dealer or
provider of a surety, guaranty or credit or liquidity enhancement to
any Purchaser or any entity organized for the purpose of purchasing, or
making loans secured by, financial assets for which Wachovia (or one of
its Affiliates) acts as the administrative agent and (iv) by the Agent
or any Purchaser to any directors, officers, employees, outside
accountants, advisors, credit enhancers and attorneys of any of the
foregoing, PROVIDED THAT each such Person in this clause (iv) is
informed of the confidential nature of such information and either
agrees (or is under a professional ethical obligation) to keep such
information confidential. In addition, each of the Purchasers and the
Agent may disclose any such nonpublic information pursuant to any law,
rule, regulation, direction, request or order of any judicial,
administrative or regulatory authority or proceedings (whether or not
having the force or effect of law).
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).
4. Condition Precedent. This Amendment shall become effective
as of the date first above written upon receipt by the Agent of a counterpart
hereof duly executed by each of the parties hereto.
5. Miscellaneous.
5.1. Except as expressly amended hereby, the Existing
Agreement shall remain unaltered and in full force and effect, and each of the
parties hereby ratifies and confirms the Existing Agreement 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.
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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]
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment effective as of the date first above written.
WOLVERINE TUBE, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: SR. VP & CFO
TUBE FORMING, LP
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: VP & Treasurer
SMALL TUBE MANUFACTURING LLC
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: VP & Treasurer
DEJ 98 FINANCE, LLC
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Board of Managers
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