Ex-10.4



 





EXHIBIT 10.4




AMENDMENT NO. 2 TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT




     THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, effective as of
December 15, 2006 (this “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”), Variable Funding Capital Company LLC, a Delaware limited liability company
(“VFCC”), 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 (together with
VFCC and CIT/BC, the “Purchasers”), and as agent for the Purchasers (together with its successors
and assigns in such capacity, the “Agent”).



PRELIMINARY STATEMENTS





     The Seller Parties, the Purchasers and the Agent are parties to that certain
Amended and Restated Receivables Purchase Agreement dated as of April 4, 2006, 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 in the Existing Agreement.



     2. Amendment. The definition of “U.S. Originator” set forth in the Existing
Agreement is hereby amended and restated in its entirety to read as follows:




     “U.S. Originator” means each of Wolverine Tube, Inc., a Delaware corporation,
Tube Forming, LP, a Delaware limited partnership, Wolverine Joining Technologies,
LLC, a Delaware limited liability company and Small Tube Manufacturing LLC, a
Delaware limited liability company, each in its capacity as a seller under the U.S.
Receivables Sale Agreement.



 









 





     3. Representations.



     3.1. Each of the Seller Parties represents and warrants to the Purchasers and the Agent 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 Seller Party,
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).



     3.2. Each of the Seller Parties further represents and warrants to the Purchasers and the
Agent that, after giving effect to this Amendment, each of its representations and warranties set
forth in Section 5.1 of the Existing Agreement is true and correct as of the date hereof and that
no Amortization Event or Unmatured Amortization Event exists as of the date hereof and is
continuing.



     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. Without limiting the
generality of the foregoing, the Performance Guarantor hereby specifically ratifies and confirms
the Performance Undertaking and agrees that it remains unaltered and in full force and effect.



     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.



 









 





     IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective as of the date
first above written.



	 	 	 	 	 
	 	DEJ 98 FINANCE, LLC

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



	 	 	 	 	 
	 	WOLVERINE FINANCE, LLC

 	 
	 	By:  	/s/ James E. Deason
 	 
	 	 	Name:  	James E. Deason 	 
	 	 	Title:  	Vice Manager and Treasurer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	WOLVERINE TUBE, INC.

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

and Secretary 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE CIT GROUP/BUSINESS CREDIT, INC.,

individually and as Co-Agent

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



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

individually and as Agent

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



 









 






	 	 	 	 	 



VARIABLE FUNDING CAPITAL COMPANY LLC


By: Wachovia Capital Markets, LLC, its attorney-in-fact




	 	 	 	 	 
	 	 	 
	 	By:  	                                      /s/ Douglas R. Wilson, SR.
 	 
	 	 	Name:  	Douglas R. Wilson, SR. 	 
	 	 	Title:  	Vice President