Ex-10.3



 





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 above written.



	 	 	 	 	 
	 	WOLVERINE TUBE, INC.

 	 
	 	By:  	/s/ James E. Deason
 	 
	 	 	Name:  	James E. Deason 	 
	 	 	Title:  	Senior Vice President, Chief Financial Officer

and Secretary 	 
	 



	 	 	 	 	 
	 	TUBE FORMING, LP

 	 
	 	By:  	/s/ James E. Deason
 	 
	 	 	Name:  	James E. Deason 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	SMALL TUBE MANUFACTURING LLC

 	 
	 	By:  	/s/ James E. Deason
 	 
	 	 	Name:  	James E. Deason 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	WOLVERINE JOINING TECHNOLOGIES, LLC

 	 
	 	By:  	/s/ James E. Deason
 	 
	 	 	Name:  	James E. Deason 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	DEJ 98 FINANCE, LLC

 	 
	 	By:  	/s/ James E. Deason
 	 
	 	 	Name:  	James E. Deason 	 
	 	 	Title:  	Member, Board of Managers 	 



 









 






	 	 	 	 	 


By their signatures below, each of the undersigned hereby consents to the foregoing amendment:




THE CIT GROUP/BUSINESS CREDIT, INC.,

as Co-Agent




	 	 	 	 	 
	 	 	 
	By:  	                        /s/ C. Mark Smith
 	 	 
	 	Name:  	C. Mark Smith 	 	 
	 	Title:  	Vice President 	 	 
	 


WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent




	 	 	 	 	 
	 	 	 
	By:  	/s/ Elizabeth R. Wagner
 	 	 
	 	Name:  	Elizabeth R. Wagner 	 	 
	 	Title:  	Managing Director 	 	 



 









 






	 	 	 	 	 



Exhibit I




Closing Documents






     1. Amendment No. 2 to Receivables Sale Agreement (U.S.) and Amended and
Restated Performance Undertaking, dated as of December 15, 2006 (this “Amendment”)
by and among WOLVERINE TUBE, INC., a Delaware corporation, TUBE FORMING, LP, a
Delaware limited partnership and SMALL TUBE MANUFACTURING LLC, a Delaware limited
liability company, WOLVERINE JOINING TECHNOLOGIES, LLC, a Delaware limited liability
company (the “New Originator”), and DEJ 98 FINANCE, LLC, a Delaware limited
liability company (“Buyer”) and consented to by The CIT Group/Business Credit, Inc.,
a New York corporation, as co-agent (the “Co-Agent”), and Wachovia Bank, National
Association, a national banking association, as agent (the “Agent”).




     2. Copy of the Credit and Collection Policy of the New Originator.




     3. A certificate of the New Originator’s [Assistant] Secretary certifying:




     (a) A copy of the Resolutions of the Board of Managers of such Originator,
authorizing Originator’s execution, delivery and performance of the Receivables Sale
Agreement as amended by this Amendment and the other documents to be delivered by it
thereunder;




     (b) A copy of the Organizational Documents of the New Originator (also
certified, to the extent that such documents are filed with any governmental
authority, by the Secretary of State of the jurisdiction of organization of the New
Originator on or within thirty (30) days prior to closing);




     (c) Good Standing Certificates for the New Originator issued by the Secretaries
of State of its state of incorporation and each jurisdiction where it has material
operations; and




     (d) The names and signatures of the officers authorized on its behalf to
execute this Amendment and any other documents to be delivered by it thereunder.



     4. Pre-filing state and federal tax lien, judgment lien and UCC lien searches against the New
Originator from the State of Delaware.



     5. A proper UCC-1 financing statement in form suitable for filing in the State of Delaware
naming the New Originator as debtor/seller, the Agent, as total assignee of secured party (and the
Buyer, as original secured party/assignor) to perfect the ownership interests in Receivables and
Related Security to be conveyed by the New Originator under the Receivables Sale Agreement.



     6. (a) Proper UCC termination statements necessary to release all security interests and other
rights of any Person (including, without limitation, Fleet/Bank of America) in the Receivables,
Contracts or Related Security previously granted by the New Originator and (b)



 









 




a payoff letter from Fleet/Bank of America authorizing the Administrative Agent to file the
same.




     7. (a) Amended and Restated Blocked Account Agreement dated as of December 15, 2006 by and
among Mellon Bank, N.A., Buyer, Wolverine Finance, LLC, and Wachovia Bank, National Association, as
collateral agent, and (b) release from existing ABL blocked account agreement of lockbox no.
360750.



     8. A favorable opinion of legal counsel for the New Originator licensed to give opinions under
New York law reasonably acceptable to Buyer (and the Agent, as Buyer’s assignee) as to the matters
covered by the “corporate” and UCC opinions delivered on behalf of the Existing Originators.



     9. A “true sale” opinion and “substantive consolidation” opinion of counsel for the New
Originator with respect to the transactions contemplated by the Receivables Sale Agreement.



     10. Executed copies of (i) all consents from and authorizations by any Persons (including,
without limitation, Wachovia Bank, National Association, as asset-based lender) and (ii) all
waivers and amendments to existing credit facilities, that are necessary in connection with the New
Originator’s execution and delivery of this Amendment and performance of its obligations under the
Receivables Sale Agreement.



     11. Executed Subordinated Note dated as of December 15, 2006 by Buyer in favor of the New
Originator.



     12. Amendment Fee Letter dated as of December 15, 2006 duly executed by the Buyer, the
Co-Agent and the Agent.



     13. If applicable, a direction letter executed by the New Originator authorizing Buyer (and
the Agent, as its assignee) and directing warehousemen to allow Buyer (and the Agent, as its
assignee) to inspect and make copies from the New Originator’s books and records maintained at
off-site data processing or storage facilities.



     14. Amendment No. 1 to Amended and Restated Intercreditor Agreement dated as of December 15,
2006 by and among the Agent, Wachovia Bank, National Association as Bank Agent, the Originators,
the Buyer and the Servicer.



     15. Amendment No. 2 to Amended and Restated Receivables Purchase Agreement dated of December
15, 2006 by and among the Buyer, the Servicer, the Performance Guarantor, Variable Funding Capital
Company LLC, the Co-Agent and the Agent.



 









 





Exhibit II




Places of Business; Locations of Records;

Federal Employer Identification Number(s); Other Names




PLACES OF BUSINESS; LOCATIONS OF RECORDS; FEDERAL

EMPLOYER IDENTIFICATION NUMBER(S); OTHER NAMES




	 	 	 	 	 	 	 	 	 	 	 
	Legal Name	 	 	 	 	 	 	 	 	 	 
	(State of	 	Places
of	 	Chief Executive	 	Location of	 	Fed ID	 	Trade and
	Organization)	 	Business	 	Office	 	Records	 	Number(s)	 	Assumed Names
	Wolverine Tube, Inc.

	 	Alabama, Tennessee,
	 	200 Clinton Ave.,
	 	200 Clinton Ave.,
	 	63-0970812
	 	WTI; Wolverine
	(Delaware Corp.)

	 	Mississippi,
	 	Suite 1000
	 	Suite 1000	 	 	 	 
	 

	 	Delaware,
	 	Huntsville, AL 35801
	 	Huntsville, AL 35801	 	 	 	 
	 

	 	North Carolina,	 	 	 	 	 	 	 	 
	 

	 	Oklahoma, Texas	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Tube Forming, L.P.

	 	Texas,
	 	2101 West
	 	200 Clinton Ave.,
	 	75-2683323
	 	TFI; Tube Forming
	(Delaware Limited

	 	Delaware
	 	Beltline Road
	 	Suite 1000	 	 	 	 
	Partnership)

	 	 	 	Carrollton, TX 75006
	 	Huntsville, AL 35801	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Small Tube

	 	Pennsylvania,
	 	Spring Meadows
	 	200 Clinton Ave.,
	 	41-1551606
	 	STP
	Manufacturing LLC

	 	Delaware,
	 	P.O. Box 1674
	 	Suite 1000	 	 	 	 
	(Delaware LLC)

	 	Mississippi
	 	Altoona, PA 16603
	 	Huntsville, AL 35801	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Wolverine Joining

	 	California,
	 	235 Kilvert Street
	 	200 Clinton Ave.,
	 	42-1551600
	 	WJT
	Technologies, LLC

	 	Delaware,
	 	Warwick, RI 02886
	 	Suite 1000	 	 	 	 
	(Delaware LLC)

	 	New Jersey,
	 	 	 	Huntsville, AL 35801	 	 	 	 
	 

	 	Rhode Island,	 	 	 	 	 	 	 	 
	 

	 	Texas	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Wolverine Finance

	 	Tennessee
	 	30500 Railroad
	 	200 Clinton Ave.,
	 	27-0030955
	 	Wolverine Finance
	LLC

	 	 	 	Street, West
	 	Suite 1000	 	 	 	 
	(Tennessee LLC)

	 	 	 	P.O. Box 1149
	 	Huntsville, AL 35801	 	 	 	 
	 

	 	 	 	Ardmore, TN 38449	 	 	 	 	 	 






 









 






Exhibit III




Lock-boxes; Collection Accounts; Collection Banks




	 	 	 
	Lock-Box	 	Related Collection Account
	 

	 	Name of Current Account Holder:
	Wolverine Finance Co.

	 	Wolverine Finance Co.
	P.O. Box 360265

	 	Mellon Bank, a banking association
	Pittsburgh, PA 15251

	 	Account Number:
	 

	 	ABA Number:
	 

	 	Contact Person: Anna Segreti
	 

	 	Contact’s Tel: (412) 234-6964
	 

	 	Contact’s Fax: (412) 234-6919
	 
	 	 
	Wolverine Finance Co.

	 	Name of Current Account Holder:
	P.O. Box 360877

	 	Wolverine Finance Co.
	Pittsburgh, PA 15251

	 	Mellon Bank, a banking association
	 

	 	Account Number:
	 

	 	ABA Number:
	 

	 	Contact Person: Anna Segreti
	 

	 	Contact’s Tel: (412) 234-6964
	 

	 	Contact’s Fax: (412) 234-6919
	 
	 	 
	Wolverine Finance Co.

	 	Name of Current Account Holder:
	P.O. Box 371148

	 	Wolverine Finance Co.
	Pittsburgh, PA 15251

	 	Mellon Bank, a banking association
	 

	 	Account Number:
	 

	 	ABA Number:
	 

	 	Contact Person: Anna Segreti
	 

	 	Contact’s Tel: (412) 234-6964
	 

	 	Contact’s Fax: (412) 234-6919
	 
	 	 
	Wolverine Finance Co.

	 	Name of Current Account Holder:
	P.O. Box 360750

	 	Wolverine Finance Co.
	Pittsburgh, PA 15251

	 	Mellon Bank, a banking association
	 

	 	Account Number:
	 

	 	ABA Number:
	 

	 	Contact Person: Anna Segreti
	 

	 	Contact’s Tel: (412) 234-6964
	 

	 	Contact’s Fax: (412) 234-6919