EXECUTION COPY
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RECEIVABLES TRANSFER AGREEMENT
by and among
TSPC, INC.,
as Transferor,
TRIMAS CORPORATION,
individually,
as Collection Agent,
TRIMAS COMPANY, LLC
individually,
as Guarantor,
The Persons Parties hereto as
CP Conduit Purchasers,
Committed Purchasers
and Funding Agents
and
JPMORGAN CHASE BANK,
as Administrative Agent
Dated as of June 6, 2002
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TABLE OF CONTENTS
Page
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PRELIMINARY STATEMENTS
ARTICLE I
Definitions
SECTION 1.01. Certain Defined Terms.....................................................................2
SECTION 1.02. Other Terms...............................................................................2
SECTION 1.03. Computation of Time Periods...............................................................2
ARTICLE II
Purchases and Settlements
SECTION 2.01. Facility..................................................................................2
SECTION 2.02. Transfers; Certificates; Eligible Receivables.............................................3
SECTION 2.03. Selection of Tranche Periods and Tranche Rates............................................6
SECTION 2.04. Discount, Fees and Other Costs and Expenses...............................................7
SECTION 2.05. Non-Liquidation Settlement and Reinvestment Procedures....................................8
SECTION 2.06. Liquidation Settlement Procedures.........................................................9
SECTION 2.07. Reduction of Commitments.................................................................10
SECTION 2.08. Fees.....................................................................................10
SECTION 2.09. Protection of Ownership Interest of the CP Conduit Purchasers and the
Committed Purchasers....................................................................................10
SECTION 2.10. Deemed Collections; Application of Payments..............................................12
SECTION 2.11. Payments and Computations, etc...........................................................12
SECTION 2.12. Reports..................................................................................13
SECTION 2.13. Collection Account.......................................................................13
SECTION 2.14. Right of Setoff..........................................................................14
SECTION 2.15. Sharing of Payments, etc.................................................................14
SECTION 2.16. Broken Funding...........................................................................15
SECTION 2.17. Conversion and Continuation of Outstanding Tranches Funded by the
Committed Purchasers....................................................................................15
SECTION 2.18. Illegality...............................................................................16
SECTION 2.19. Inability to Determine Eurodollar Rate...................................................17
SECTION 2.20. Indemnities by the Transferor............................................................17
SECTION 2.21. Indemnity for Reserves and Expenses......................................................20
SECTION 2.22. Indemnity for Taxes......................................................................22
SECTION 2.23. Other Costs, Expenses and Related Matters................................................23
Table of Contents of page iii
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SECTION 2.24. Funding Agents...........................................................................24
SECTION 2.25. Use of Historical Data...................................................................25
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of the Transferor.........................................25
SECTION 3.02. Reaffirmation of Representations and Warranties by the Transferor........................28
ARTICLE IV
Conditions Precedent
SECTION 4.01. Conditions to Effectiveness..............................................................29
SECTION 4.02. Conditions to Initial Incremental Transfer...............................................30
ARTICLE V
Covenants
SECTION 5.01. Affirmative Covenants of the Transferor..................................................32
SECTION 5.02. Negative Covenants of the Transferor.....................................................38
ARTICLE VI
Administration and Collections
SECTION 6.01. Appointment of Collection Agent..........................................................41
SECTION 6.02. Duties of Collection Agent...............................................................41
SECTION 6.03. Rights After Designation of New Collection Agent.........................................44
SECTION 6.04. Representations and Warranties of the Collection Agent...................................45
SECTION 6.05. Covenants of the Collection Agent........................................................46
SECTION 6.06. Negative Covenants of the Collection Agent...............................................46
SECTION 6.07. Collection Agent Default.................................................................47
SECTION 6.08. Responsibilities of the Transferor and the Sellers.......................................48
Table of Contents of page iv
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ARTICLE VII
Termination Events
SECTION 7.01. Termination Events.......................................................................49
SECTION 7.02. Remedies Upon the Occurrence of a Termination Event......................................51
SECTION 7.03. Reconveyance Under Certain Circumstances.................................................51
ARTICLE VIII
The Administrative Agent
SECTION 8.01. Appointment..............................................................................52
SECTION 8.02. Delegation of Duties.....................................................................52
SECTION 8.03. Exculpatory Provisions...................................................................52
SECTION 8.04. Reliance by Administrative Agent.........................................................53
SECTION 8.05. Notice of Collection Agent Default.......................................................53
SECTION 8.06. Non-Reliance on the Administrative Agent and Other Purchasers............................54
SECTION 8.07. Indemnification..........................................................................54
SECTION 8.08. The Administrative Agent in Its Individual Capacity......................................55
SECTION 8.09. Resignation of Administrative Agent; Successor Administrative Agent......................55
SECTION 8.10. Authorization and Action of Funding Agents...............................................55
ARTICLE IX
Limited Guaranty
SECTION 9.01. Guaranty of Obligations..................................................................56
SECTION 9.02. Validity of Obligations; Irrevocability..................................................56
SECTION 9.03. Several Obligations......................................................................57
SECTION 9.04. Subrogation Rights.......................................................................57
SECTION 9.05. Rights of Set-Off........................................................................57
SECTION 9.06. Representations and Warranties...........................................................58
Table of Contents of page v
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ARTICLE X
Miscellaneous
SECTION 10.01. Term of Agreement.......................................................................59
SECTION 10.02. Waivers; Amendments.....................................................................59
SECTION 10.03. Notices.................................................................................60
SECTION 10.04. Governing Law; Submission to Jurisdiction; Integration..................................61
SECTION 10.05. Severability; Counterparts..............................................................62
SECTION 10.06. Successors and Assigns..................................................................62
SECTION 10.07. Confidentiality.........................................................................65
SECTION 10.08. No Bankruptcy Petition Against the CP Conduit Purchasers................................66
SECTION 10.09. Limited Recourse........................................................................66
SECTION 10.10. Characterization of the Transactions Contemplated by the Agreement......................67
SECTION 10.11. Waiver of Setoff........................................................................67
SECTION 10.12. Conflict Waiver.........................................................................67
SECTION 10.13. Limitation on the Termination of Sellers................................................68
SCHEDULE A Definitions
SCHEDULE B Schedule of CP Conduit Purchasers, Committed Purchasers and Funding
Agents
SCHEDULE C Schedule of Match Funding CP Conduit Purchasers
EXHIBIT A Credit and Collection Policies and Practices
EXHIBIT B List of Lock-Box Banks and Accounts
EXHIBIT C Form of Lock-Box Agreement
EXHIBIT D-1 Form of Deposit Report
EXHIBIT D-2 Form of Settlement Statement
EXHIBIT E Form of Transfer Certificate
EXHIBIT F List of Actions and Suits
EXHIBIT G Location of Records
EXHIBIT H List of Subsidiaries, Divisions and Trade Names
EXHIBIT I Form of Secretary's Certificate
EXHIBIT J Trade Names of the Seller
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EXHIBIT K Form of Transfer Supplement
RECEIVABLES TRANSFER AGREEMENT (as amended,
supplemented or otherwise modified and in effect from
time to time, this "Agreement"), dated as of June 6,
2002, by and among TSPC, INC., a Nevada corporation,
as transferor (in such capacity, the "Transferor"),
TRIMAS CORPORATION ("TriMas Corp."), a Delaware
corporation, individually, as collection agent (in
such capacity, the "Collection Agent"), TRIMAS
COMPANY LLC ("TriMas LLC"), a Delaware limited
liability company, individually, as guarantor under
the Limited Guaranty set forth in Article IX (in such
capacity, the "Guarantor"), the several commercial
paper conduits identified on Schedule B and their
respective permitted successors and assigns (the "CP
Conduit Purchasers"; each, individually, a "CP
Conduit Purchaser"), the several financial
institutions identified on Schedule B as "Committed
Purchasers" and their respective permitted successors
and assigns (the "Committed Purchasers"; each,
individually, a "Committed Purchaser"), the agent
bank set forth opposite the name of each CP Conduit
Purchaser and Committed Purchaser on Schedule B and
its permitted successor and assign (the "Funding
Agent" with respect to such CP Conduit Purchaser and
Committed Purchaser), and JPMORGAN CHASE BANK, a New
York state banking corporation ("JPMCB"), as
administrative agent for the benefit of the CP
Conduit Purchasers, the Committed Purchasers and the
Funding Agents (in such capacity, the "Administrative
Agent").
PRELIMINARY STATEMENTS
WHEREAS the Transferor may desire to convey, transfer and assign, from
time to time, undivided percentage interests in certain accounts receivable, and
the CP Conduit Purchasers may desire to, and the Committed Purchasers in each
Related Group, if requested by the CP Conduit Purchaser in its Related Group or
(if such CP Conduit Purchaser does not make a purchase requested by the
Transferor), shall, accept such conveyance, transfer and assignment of such
undivided percentage interests, subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
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RECEIVABLES TRANSFER AGREEMENT
ARTICLE I
Definitions
SECTION 1.01. Certain Defined Terms. Capitalized terms used herein
shall have the meanings assigned to such terms in, or incorporated by reference
into, Schedule A attached hereto, which Schedule A is incorporated by reference
herein.
SECTION 1.02. Other Terms. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if TriMas
Corp. or the Transferor notifies the Administrative Agent that TriMas Corp. or
the Transferor requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the Administrative
Agent notifies TriMas Corp. or the Transferor that the Required Committed
Purchasers request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
SECTION 1.03. Computation of Time Periods. Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word "from" means "from and including," the words
"to" and "until" each means "to but excluding," and the word "within" means
"from and excluding a specified date and to and including a later specified
date."
ARTICLE II
Purchases and Settlements
SECTION 2.01. Facility. Upon the terms and subject to the conditions
set forth in this Agreement, the parties hereto establish a receivables
financing facility.
The Committed Purchasers' several obligations to make
purchases from the Transferor hereunder shall terminate on the Termination Date.
Notwithstanding anything to the contrary contained herein or in the other
Transaction Documents, no Committed Purchaser shall be obligated to provide the
Transferor with funds in an amount that would exceed such Committed Purchaser's
unused Commitment then in effect, and the failure of any Committed Purchaser to
make its Pro Rata Share of such purchase available to the Transferor (subject to
the terms and conditions set forth herein) shall not relieve any other Committed
Purchaser of its obligations hereunder.
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RECEIVABLES TRANSFER AGREEMENT
SECTION 2.02. Transfers; Certificates; Eligible Receivables. (a)
Incremental Transfers. Prior to the Termination Date, upon the terms and subject
to the conditions set forth herein and in the other Transaction Documents,
(x) the Transferor may, at its option from time to time, request a
conveyance, transfer and assignment to each CP Conduit Purchaser (prior to
the occurrence of a CP Conduit Purchaser's Termination Event with respect to
such CP Conduit Purchaser) or if any CP Conduit Purchaser does not make such
purchase, then the Transferor may convey, transfer and assign to the
Committed Purchaser(s) in such CP Conduit Purchaser's Related Group; and
(y) each CP Conduit Purchaser may, at its option from time to time
(prior to the occurrence of a CP Conduit Purchaser's Termination Event with
respect to such CP Conduit Purchaser), and if any CP Conduit Purchaser does
not make such purchase, the Committed Purchaser(s) in such CP Conduit
Purchaser's Related Group shall, accept such conveyance, transfer and
assignment from the Transferor, without recourse except as provided herein,
of an undivided percentage ownership interests in the Receivables, together with
Related Security, Collections and Proceeds with respect thereto (each, an
"Incremental Transfer") at the Transfer Price from time to time prior to the
Termination Date; provided that after giving effect to the issuance of
Commercial Paper by the CP Conduit Purchasers or the obtaining of funds by the
Committed Purchasers to fund the Transfer Price of any Incremental Transfer and
the payment to the Transferor of such Transfer Price, the Net Investment shall
not exceed the Facility Limit; and provided further, that the representations
and warranties set forth in Section 3.01 shall be true and correct as of the
date of such Incremental Transfer and the payment to the Transferor of the
Transfer Price related thereto.
The Transferor shall, by notice to the Administrative Agent given by
telecopy, offer to convey, transfer and assign to each CP Conduit Purchaser
(prior to the occurrence of a CP Conduit Purchaser's Termination Event with
respect to such CP Conduit Purchaser) or if any CP Conduit Purchaser does not
make such purchase, to the Committed Purchaser(s) in such CP Conduit Purchaser's
Related Group, undivided percentage ownership interests in the Receivables and
Related Security, Collections and Proceeds with respect thereto at least two (2)
Business Days prior to the proposed date of any Incremental Transfer. Each such
notice shall specify (x) the desired Transfer Price (which shall be at least
$1,000,000 per CP Conduit Purchaser or integral multiples of $100,000 in excess
thereof) or, to the extent that the then available unused portion of the
Facility Limit is less than such amount, such lesser amount equal to such
available portion of the Facility Limit; (y) the desired date of such
Incremental Transfer which shall be a Business Day; and (z) the desired Tranche
Period(s) and allocations of the Net Investment of such Incremental Transfer
thereto as required by Section 2.03. Each Incremental Transfer shall be subject
to the condition precedent that the Collection Agent shall have delivered to the
Administrative Agent, in form and substance satisfactory to the Administrative
Agent, a completed Deposit Report dated within five (5) Business Days prior to
the desired date of such Incremental Transfer, together with such other
additional information as the Administrative
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RECEIVABLES TRANSFER AGREEMENT
Agent may reasonably request. The Administrative Agent will promptly notify the
Funding Agent for each CP Conduit Purchaser and the Committed Purchasers, as
applicable, of the Administrative Agent's receipt of any request for an
Incremental Transfer to be made to such Person. At their option, each CP Conduit
Purchaser shall accept or reject any such offer by prompt written notice given
to the Transferor, the Administrative Agent and the Funding Agent with respect
to such CP Conduit Purchaser by telephone or telecopy.
Each notice of proposed Incremental Transfer shall be irrevocable and
binding on the Transferor, and the Transferor shall indemnify the CP Conduit
Purchasers and the Committed Purchasers against any loss or expense incurred by
the CP Conduit Purchasers and the Committed Purchasers, either directly or
indirectly, as a result of any failure by the Transferor to complete such
Incremental Transfer, including, without limitation, any loss or expense
incurred by the CP Conduit Purchasers and the Committed Purchasers by reason of
the liquidation or reemployment of funds acquired by the CP Conduit Purchasers
or the Committed Purchasers (including, without limitation, funds obtained by
issuing Commercial Paper or promissory notes, obtaining deposits as loans from
third parties and reemployment of funds) to fund such Incremental Transfer.
On the Initial Incremental Transfer Date, the Administrative Agent, on
behalf of the CP Conduit Purchasers, the Funding Agent and the Committed
Purchasers in its Related Group, shall deliver written confirmation to the
Transferor of the Transfer Price, the Tranche Period(s) and the Tranche Rate(s)
relating to such Transfer as required by Section 2.03, and the Transferor shall
deliver to the Administrative Agent the Transfer Certificate in the form of
Exhibit E hereto (the "Transfer Certificate"). The Transfer Price for the
initial Incremental Transfer shall be an amount equal to the amount of Net
Investment such that the Percentage Factor equals the Maximum Percentage Factor
or such lesser amount of Net Investment as may be agreed. The Administrative
Agent shall indicate the amount of the initial Incremental Transfer together
with the date thereof on the grid attached to the Transfer Certificate;
provided, however, that the failure by the Administrative Agent to make the
foregoing notations shall not in any way affect the Transferor's obligations
hereunder. On the date of each Incremental Transfer, the Administrative Agent
shall send written confirmation to the Transferor of the Transfer Price, the
Tranche Period(s), the Transfer Date and the Tranche Rate(s) applicable to such
Incremental Transfer. The Transfer Certificate shall evidence the Incremental
Transfers. The Administrative Agent shall indicate the amount of each
Incremental Transfer together with the date thereof as well as any decrease in
the Net Investment on the grid attached to the Transfer Certificate; provided,
however, that the failure by the Administrative Agent to make the foregoing
notations shall not in any way affect the Transferor's obligations thereunder.
On the day of each Incremental Transfer, each CP Conduit Purchaser and Committed
Purchaser participating in such purchase shall deposit to the Transferor's
account, in immediately available funds, an amount equal to its share of the
Transfer Price for such Incremental Transfer made to the CP Conduit Purchasers
or the Committed Purchasers, as applicable. No Committed Purchaser shall have
any responsibility for the failure of any other Committed Purchaser to make any
such deposit.
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RECEIVABLES TRANSFER AGREEMENT
(b) Reinvestment Transfers. On each Business Day occurring after the
initial Incremental Transfer hereunder and prior to a CP Conduit Purchaser's
Termination Event (in the case of the CP Conduit Purchasers) and the Termination
Date (in the case of the Committed Purchasers), the Transferor may convey,
transfer and assign to each CP Conduit Purchaser (prior to the occurrence of a
CP Conduit Purchaser's Termination Event with respect to such CP Conduit
Purchaser) or the Committed Purchasers, and each CP Conduit Purchaser may agree
to purchase and, if such CP Conduit Purchaser does not so purchase, each
Committed Purchaser in its Related Group shall purchase from the Transferor,
undivided percentage ownership interests in each and every Receivable, together
with Related Security, Collections and Proceeds with respect thereto, to the
extent that Collections are available for such Transfer in accordance with
Section 2.05 hereof. The Transferor agrees to maintain, at all times prior to
the Termination Date, a Net Receivables Balance in an amount at least sufficient
to maintain (pursuant to Section 2.06) the Percentage Factor at an amount not
greater than the Maximum Percentage Factor . Accordingly, the maximum amount of
funding that the Transferor may obtain on the Initial Incremental Transfer Date
or at any time thereafter shall be equal to the maximum Net Investment that
would not exceed the Facility Limit and would not cause the Percentage Factor to
exceed the Maximum Percentage Factor.
(c) All Transfers. Each Transfer shall constitute a purchase of
undivided percentage ownership interests in each and every Receivable, together
with Related Security, Collections and Proceeds with respect thereto, then
existing, as well as in each and every Receivable, together with Related
Security, Collections and Proceeds with respect thereto, which arises at any
time after the date of such Transfer. The CP Conduit Purchasers' (and, following
the occurrence of a CP Conduit Purchaser's Termination Event with respect to any
CP Conduit Purchasers, the Committed Purchaser(s) in its Related Group)
aggregate undivided percentage ownership interest in the Receivables, together
with the Related Security, Collections and Proceeds with respect thereto, shall
equal the Percentage Factor in effect from time to time. By accepting any
conveyance, transfer and assignment of ownership interests in the Receivables
hereunder, none of the CP Conduit Purchasers, the Committed Purchasers, the
Funding Agents or the Administrative Agent assumes or shall have any obligations
or liability under any of the applicable Contracts, all of which shall remain
the obligations and liabilities of the Sellers. Such purchases from the
Transferor by the CP Conduit Purchasers and the Committed Purchasers shall be
made in accordance with their respective Pro Rata Shares.
(d) Percentage Factor. The Percentage Factor shall be initially
computed as of the opening of business of the Collection Agent on the Initial
Incremental Transfer Date. Thereafter, until the Termination Date, the
Percentage Factor shall be automatically recomputed as of the close of business
of the Collection Agent on each day (other than a day after the Termination
Date). The Percentage Factor shall remain constant from the time as of which any
such computation or recomputation is made until the time as of which the next
such recomputation, if any, shall be made. At all times on and after the
Termination Date until the date on which the Net Investment has been reduced to
zero and all accrued Discount, Servicing Fees and all other Aggregate Unpaids
have been paid in full, the Percentage Factor shall equal 100%. Following any
assignment of any portion of the Transferred Interest to the Committed
Purchasers in any Related Group pursuant to the relevant Asset Purchase
Agreement, the Funding Agent for such
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RECEIVABLES TRANSFER AGREEMENT
Related Group shall, at all times and from time to time, calculate such CP
Conduit Purchaser's and such Committed Purchaser's pro rata interest in the
Percentage Factor and regularly report thereon to the Administrative Agent (with
copies thereof to the Transferor).
SECTION 2.03. Selection of Tranche Periods and Tranche Rates. (a)
Transferred Interest Held by CP Conduit Purchasers Prior to CP Conduit
Purchaser's Termination Event. At all times hereafter, but prior to the
Termination Date and not with respect to any portion of the Transferred Interest
held by any of the Committed Purchasers, the Transferor may, subject to each
Match Funding CP Conduit Purchaser's approval and the limitations described
below, request Tranche Periods and allocate a portion of the Net Investment to
each selected Tranche Period, so that the aggregate amounts allocated to
outstanding Tranche Periods at all times shall equal the portion of the Net
Investment held by the Match Funding CP Conduit Purchasers. The Transferor shall
give the Administrative Agent and the Funding Agent with respect to each Match
Funding CP Conduit Purchaser irrevocable notice by telephone of the new
requested Tranche Period(s) at least two (2) Business Days prior to the
expiration of any then existing Tranche Period; provided, however, that each
Match Funding CP Conduit Purchaser may select, in its sole discretion, any such
new Tranche Period if (i) the Transferor fails to provide such notice on a
timely basis or (ii) the Funding Agent with respect to such Match Funding CP
Conduit Purchaser, on behalf of such Match Funding CP Conduit Purchaser,
determines, in its sole discretion, that the Tranche Period requested by the
Transferor is unavailable or for any reason commercially undesirable. Each Match
Funding CP Conduit Purchaser confirms that it is its intention to allocate all
or substantially all of the portion of the Net Investment held by it to one or
more CP Tranche Periods; provided that each Match Funding CP Conduit Purchaser
may determine, from time to time, in its sole discretion, that funding such
portion of the Net Investment by means of one or more CP Tranche Periods is not
possible or is not desirable for any reason.
On any Business Day, a Match Funding CP Conduit Purchaser may elect
that the Transferor no longer be permitted to select CP Tranches in accordance
with the preceding paragraph in respect of the CP Conduit Funded Amount with
respect to such Match Funding CP Conduit Purchaser by giving the Transferor and
the Administrative Agent irrevocable written notice thereof, which notice must
be received by the Transferor and the Administrative Agent at least one (1)
Business Day prior to such election becoming effective. On any Business Day, a
Pooled Funding CP Conduit Purchaser may elect thereafter to allow the Transferor
to select CP Tranches in accordance with the preceding paragraph in respect of
the CP Conduit Funded Amount with respect to such Pooled Funding CP Conduit
Purchaser by giving the Transferor and the Administrative Agent irrevocable
written notice thereof, which notice must be received by the Transferor and the
Administrative Agent at least two (2) Business Days prior to such Business Day.
Any CP Conduit Purchaser making an election to change the manner in which its
funding costs are allocated will be both a Match Funding CP Conduit Purchaser
and a Pooled Funding CP Conduit Purchaser during the period that its CP Conduit
Funded Amount is funded on both a "pooled" and "match funded" basis and its
accrued and unpaid Discount will be calculated accordingly. For all purposes of
this Agreement, the "CP Tranche" with respect to any Pooled Funding CP Conduit
Purchaser shall be equal to the aggregate amount of its CP Conduit Funded Amount
funded on a pooled basis during the related CP Tranche Period.
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RECEIVABLES TRANSFER AGREEMENT
(b) Transferred Interest Held by CP Conduit Purchasers Following the
Termination Date. At all times on and after the Termination Date, with respect
to any portion of the Transferred Interest which shall not have been transferred
to the Committed Purchasers (or any of them), each CP Conduit Purchaser or the
Funding Agent with respect to such CP Conduit Purchaser, as applicable, shall
select all Tranche Periods and Tranche Rates applicable thereto upon the
expiration of Tranche Periods in effect on the Termination Date.
(c) Transferred Interest Held by the Committed Purchasers Prior to the
Termination Date. With respect to any portion of the Transferred Interest which
is owned by or transferred to a Committed Purchaser pursuant to this Agreement
or an Asset Purchase Agreement prior to the Termination Date, the initial
Tranche Period applicable to such portion of the Net Investment allocable
thereto shall be a period of at least three (3) days, and such Tranche shall be
a BR Tranche. Thereafter (but prior to the Termination Date or the occurrence
and continuation of a Potential Termination Event), with respect to such
portion, and with respect to any other portion of the Transferred Interest held
by any Committed Purchaser, the Tranche Period applicable thereto shall be, at
the Transferor's sole option, either a BR Tranche or a Eurodollar Tranche. The
Transferor shall give the Administrative Agent and the Funding Agents with
respect to the applicable Committed Purchasers irrevocable notice by telephone
of the new Tranche Period at least three (3) Business Days prior to the
expiration of any then existing Tranche Period. Any Tranche Period maintained by
the Committed Purchasers which is outstanding on the Termination Date shall end
on the Termination Date.
(d) After the Termination Date; Transferred Interest Held by Committed
Purchasers. At all times on and after the Termination Date, with respect to any
portion of the Transferred Interest which shall have been owned by, or
transferred to, the Committed Purchaser, the Funding Agents with respect to the
applicable Committed Purchasers shall select all Tranche Periods and Tranche
Rates applicable thereto upon the expiration of Tranche Periods in effect on the
Termination Date.
SECTION 2.04. Discount, Fees and Other Costs and Expenses.
Notwithstanding the limitation on recourse under Section 2.01 hereof, the
Transferor shall pay, as and when due in accordance with this Agreement and the
other Transaction Documents, all Discount, Servicing Fees, Fees and other
Aggregate Unpaids to the extent not otherwise provided for by the provisions of
this Agreement. As provided in Section 2.05 and 2.06, the Transferor shall pay
to the Administrative Agent, on behalf of the CP Conduit Purchasers and/or the
Committed Purchasers, as applicable, an amount equal to the accrued and unpaid
Discount for such Tranche Period together with, in the event any portion of the
Transferred Interest is held by the CP Conduit Purchasers, an amount equal to
the Discount (without duplication) accrued on the CP Conduit Purchasers'
Commercial Paper to the extent such Commercial Paper was issued in order to fund
the Transferred Interest in a face amount in excess of the Transfer Price of an
Incremental Transfer; provided that (i) in the event of any repayment or
prepayment of a BR Tranche or a Eurodollar Tranche, accrued Discount on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (ii) in the event of any conversion of a BR Tranche
or a Eurodollar Tranche, accrued interest on such BR Tranche or Eurodollar
Tranche
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RECEIVABLES TRANSFER AGREEMENT
shall be payable on the effective date of such conversion. Discount shall accrue
with respect to each Tranche on each day occurring during the Tranche Period
related thereto.
Nothing in this Agreement or the other Transaction Documents shall
limit in any way the obligations of the Transferor to pay the amounts set forth
in this Section 2.04.
SECTION 2.05. Non-Liquidation Settlement and Reinvestment Procedures.
(a) On each day after the date of any Incremental Transfer but prior to the
Termination Date, and provided that Section 2.06 shall not be applicable, the
Collection Agent shall, out of the Percentage Factor of Collections received on
or prior to such day and not previously set aside or paid:
(i) set aside and hold in trust for the CP Conduit Purchasers or the
Committed Purchasers, as applicable an amount equal to all Discount, Fees
and the Servicing Fee accrued through such day and not so previously set
aside or paid;
(ii) apply the balance of such Percentage Factor of Collections
remaining after application of Collections as provided in clause (i) of this
Section 2.05 to the Transferor, for the benefit of the CP Conduit Purchasers
and/or the Committed Purchasers, as applicable, to the purchase of
additional undivided percentage interests in each Receivable pursuant to
Section 2.02(b) hereof; and
(iii) remit the balance, if any, of such Percentage Factor of
Collections remaining after the applications provided in clauses (i) and
(ii) to the Transferor or its designee.
(b) On each Settlement Date, from the amounts set aside as described in
clause (a) (i) this Section 2.05, the Collection Agent shall deposit to the
Collection Account, for the benefit of the CP Conduit Purchasers and/or the
Committed Purchasers, as applicable, an amount equal to the accrued and unpaid
Discount and Fees for the related Settlement Period and shall deposit to its own
account an amount equal to the accrued and unpaid Servicing Fee for such
Settlement Period; provided that accrued and unpaid Discount with respect to any
CP Tranche funded by a Match Funding CP Conduit Purchaser or any Eurodollar
Tranche shall be deposited at the end of the related Tranche Period. The
Administrative Agent, upon its receipt of such amounts in the Collection
Account, shall distribute such amounts to the Funding Agents for the CP Conduit
Purchasers and/or the Committed Purchasers entitled thereto in accordance with
the records maintained by the Funding Agents pursuant to Section 2.24; provided
further that if the Administrative Agent shall have insufficient funds to pay
all of the above amounts in full on any such date, the Administrative Agent
shall notify the Transferor and the Transferor shall immediately pay to the
Administrative Agent, from funds previously paid to the Transferor, an amount
equal to such insufficiency. In addition, the Collection Agent shall remit to
the Transferor for its account or apply on behalf of the Transferor as
instructed by the Transferor to other accounts specified herein, on each
Settlement Date, such portion of Collections not allocated to the CP Conduit
Purchasers and the Committed Purchasers or applied towards payment of its
Servicing Fee so long as all of the above amounts are paid in full when due.
Such
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RECEIVABLES TRANSFER AGREEMENT
Collections remitted to the Transferor shall be available for the ordinary
business purposes of the Transferor or otherwise, subject to the provisions of
the Transaction Documents.
SECTION 2.06. Liquidation Settlement Procedures. (a) If at any time on
or prior to the Termination Date, the Percentage Factor is greater than the
Maximum Percentage Factor, then the Transferor shall immediately pay to each
Funding Agent, for the benefit of the relevant CP Conduit Purchasers and/or the
Committed Purchasers, as applicable, from previously received Collections, an
amount that, when applied to reduce the Net Investment, will result in a
Percentage Factor less than or equal to the Maximum Percentage Factor, to be
allocated to each Related Group based on its Pro Rata Share. Such amount shall
be applied to reduce the Net Investment of Tranche Periods selected by the
Funding Agents. On the Termination Date or the day on which a Potential
Termination Event occurs, the Collection Agent shall deposit to the Collection
Account, for the benefit of the CP Conduit Purchasers or the Committed
Purchasers, as applicable, any amounts set aside pursuant to Section 2.05 above.
(b) On the Termination Date and on each day thereafter or on each day a
Potential Termination Date has occurred and is continuing, the Collection Agent
shall deposit to the Collection Account, for the benefit of the CP Conduit
Purchasers and the Committed Purchasers, as applicable, the Percentage Factor of
all Collections received on such day, and the Administrative Agent shall
distribute such funds in the following order of priority:
(i) first, in payment in full of the accrued Discount and all Fees
payable by the Transferor;
(ii) second, if TriMas Corp., or any Affiliate of TriMas Corp. is not
then the Collection Agent, to the Collection Agent's account, in payment in
full of the Servicing Fee payable to the Collection Agent;
(iii) third, in reduction of the Net Investment to zero;
(iv) fourth, in payment in full of all other Aggregate Unpaids not
covered in clauses (i) through (iii) above; and
(v) fifth, if TriMas Corp., or any Affiliate or stockholder of TriMas
Corp., is the Collection Agent, to its account as Collection Agent, in
payment of the Servicing Fee payable to such Person as Collection Agent.
The Administrative Agent, upon its receipt of such amounts in the Collection
Account, shall distribute such amounts to the Funding Agents for the CP Conduit
Purchasers and/or the Committed Purchasers entitled thereto in accordance with
the records maintained by the Funding Agents pursuant to Section 2.24; provided
that if the Administrative Agent shall have insufficient funds to pay all of the
above amounts in full on any such date, the Administrative Agent shall pay such
amounts in the order of priority set forth above and, with respect to any such
category above for which the Administrative Agent shall have insufficient funds
to pay all amounts owing on
9
RECEIVABLES TRANSFER AGREEMENT
such date, ratably (based on the amounts in such categories owing to such
Persons) among all such Persons entitled to payment thereof.
(d) Following the date on which the Net Investment has been reduced to
zero and all accrued Discount, Fees, Servicing Fees and all other Aggregate
Unpaids have been paid in full, (i) the Percentage Factor shall equal zero, (ii)
the Administrative Agent, on behalf of the CP Conduit Purchasers and the
Committed Purchasers, shall be considered to have reconveyed to the Transferor
all of the CP Conduit Purchasers' and the Committed Purchasers' right, title and
interest in, to and under the Receivables and Related Security, Collections and
Proceeds with respect thereto, and (iii) the Administrative Agent, on behalf of
the CP Conduit Purchasers and the Committed Purchasers, shall execute and
deliver to the Transferor, at the Transferor's expense, such documents or
instruments as are necessary to terminate the CP Conduit Purchasers' and the
Committed Purchasers' respective interests in the Receivables and Related
Security, Collections and Proceeds with respect thereto. Any such documents
shall be prepared by or on behalf of the Transferor.
(e) Subject to Section 2.16, the Transferor may, by delivery of a
Reduction Notice to the Administrative Agent and each Funding Agent by telecopy,
at any time and from time to time reduce the Net Investment, in whole or in
part, upon at least three Business Days' prior notice to the Administrative
Agent before 11:00 a.m., New York City time; provided, however, that each
partial reduction of the Net Investment shall be in an amount that is an
integral multiple of $1,000,000 and not less than $2,000,000 in the aggregate.
Upon the date specified in such Reduction Notice for such reduction, the
Transferor shall immediately pay to the relevant Funding Agent, for the benefit
of the applicable CP Conduit Purchasers and/or the Committed Purchasers, as
applicable, from previously received Collections, an amount equal to the Pro
Rata Share of the applicable Related Group of such targeted reduction. Such
amount shall be applied to reduce the Net Investment of Tranche Periods selected
by the Funding Agents. .
SECTION 2.07. Reduction of Commitments. Upon ten (10) Business Days
written notice to the Administrative Agent, the Transferor may reduce the
Commitments of the Committed Purchasers in an amount equal to $5,000,000 or a
whole multiple of $500,000 in excess thereof; provided that no such termination
or reduction shall be permitted if, after giving effect thereto, the Net
Investment would exceed 98.04% of the Aggregate Commitment. Upon any such
reduction, the Commitment of each Committed Purchaser shall be reduced in an
amount equal to such Committed Purchaser's Pro Rata Share of the amount of such
reduction, and the Facility Limit shall be recalculated to equal 98.04% of the
Aggregate Commitment. Once reduced, the Commitments shall not be subsequently
reinstated. The Commitment of each Committed Purchaser shall be automatically
reduced to zero on the Commitment Expiry Date.
SECTION 2.08. Fees. To the extent not otherwise provided for by the
provisions of this Agreement, the Transferor shall pay to the Administrative
Agent, for its own account and the account of each CP Conduit Purchaser, Funding
Agent and Committed Purchaser, the Fees specified in the Fee Letter.
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RECEIVABLES TRANSFER AGREEMENT
SECTION 2.09. Protection of Ownership Interest of the CP Conduit
Purchasers and the Committed Purchasers. (a) The Transferor will, and will cause
each Seller to, from time to time, at its expense, promptly execute and deliver
all instruments and documents and take all actions as may be necessary or as the
Administrative Agent may reasonably request in order to perfect or protect the
Transferred Interest or to enable the Administrative Agent, the Funding Agents,
the CP Conduit Purchasers or the Committed Purchasers to exercise or enforce any
of their respective rights hereunder. Without limiting the foregoing, the
Transferor will, and will cause each Seller to, upon the request of the
Administrative Agent, the CP Conduit Purchasers or any of the Committed
Purchasers, in order to accurately reflect this purchase and sale transaction,
(x) execute and file such financing or continuation statements or amendments
thereto or assignments thereof (as permitted pursuant to Section 10.06 hereof)
as may be requested by the Administrative Agent for the benefit of the CP
Conduit Purchasers and the Committed Purchasers and (y) xxxx its respective
master data processing records and other documents with a legend describing the
conveyance to the Transferor (in the case of the Sellers) and the Administrative
Agent for the benefit of the CP Conduit Purchasers and the Committed Purchasers,
of the Transferred Interest. The Transferor shall, and will cause the Sellers
to, upon request of the Administrative Agent, obtain such additional search
reports as the Administrative Agent, for the benefit of the CP Conduit
Purchasers and the Committed Purchasers, shall reasonably request. To the
fullest extent permitted by applicable law, the Administrative Agent shall be
permitted to sign and file continuation statements and amendments thereto and
assignments thereof without the Transferor's or any Seller's signature. Carbon,
photostatic or other reproduction of this Agreement or any financing statement
shall be sufficient as a financing statement. The Transferor shall not, and
shall not permit any Seller to, change its respective name (within the meaning
of Section 9-507(c) of the Relevant UCC), or jurisdiction of organization, form
of organization, taxpayer identification number or state organizational number,
unless it shall have: (i) given the Administrative Agent at least thirty (30)
days' prior notice thereof and (ii) prepared at the Transferor's expense and
delivered to the Administrative Agent all financing statements, instruments and
other documents necessary to preserve and protect the Transferred Interest or
requested by the Administrative Agent in connection with such change. Any
filings under the Relevant UCC or otherwise that are occasioned by such change
shall be made at the expense of Transferor.
(b) The Collection Agent shall instruct, and shall cause the other
Sellers to instruct, all Obligors to cause all Collections to be deposited
directly with a Lock-Box Bank. Any Lock-Box Account maintained by a Lock-Box
Bank pursuant to the related Lock-Box Agreement shall be under the exclusive
dominion and control of the Administrative Agent which is hereby granted to the
Administrative Agent by the Transferor. The Collection Agent shall be permitted
to give instructions to the Lock-Box Banks except during the occurrence of a
Collection Agent Default or any other Termination Event. The Collection Agent
shall not add any bank as a Lock-Box Bank to those listed on Exhibit B attached
hereto unless such bank has entered into a Lock-Box Agreement. The Collection
Agent shall not terminate any bank as a Lock-Box Bank unless the Administrative
Agent shall have received sixty (60) days' prior notice of such termination. If
the Transferor, any Seller or the Collection Agent receives any Collections, the
Transferor or the Collection Agent, as applicable, shall, or shall cause such
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RECEIVABLES TRANSFER AGREEMENT
Seller to, remit such Collections to a Lock-Box Account within one (1) Business
Day of receipt thereof.
(c) The Transferor hereby pledges, assigns and transfers to the
Administrative Agent, for the benefit of the CP Conduit Purchasers and the
Committed Purchasers, and hereby creates and grants to the Administrative Agent,
for the benefit of the CP Conduit Purchasers and the Committed Purchasers, a
security interest in the Lock-Box Accounts and all cash, checks and other
negotiable instruments, funds and other evidences of payment held therein.
SECTION 2.10. Deemed Collections; Application of Payments. (a) If on
any day a Receivable becomes a Diluted Receivable, the Transferor shall be
deemed to have received on such day a Collection of such Receivable in the
amount of such reduction or cancellation, and the Transferor shall pay to the
Collection Agent an amount equal to such reduction or cancellation (to the
extent not netted against the Purchase Price on such day pursuant to Section
3.01 of the Receivables Purchase Agreement). Any such amount shall be applied by
the Collection Agent as a Collection in accordance with Section 2.05 or 2.06
hereof, as applicable. The Net Investment shall be reduced by the amount of such
payment actually received by the Administrative Agent.
(b) If on any day any of the representations or warranties in Article
III was or becomes untrue with respect to a Receivable or the nature of the
Administrative Agent's interest therein (whether on or after the date of any
transfer of an interest therein to the CP Conduit Purchasers and the Committed
Purchasers, or an assignment therein by the CP Conduit Purchasers to the
Committed Purchasers under the Asset Purchase Agreements), the Transferor shall
be deemed to have received on such day a Collection of such Receivable in full
and the Transferor shall, on such day, pay to the Collection Agent an amount
equal to the Outstanding Balance of such Receivable and such amount shall be
allocated and applied by the Collection Agent as a Collection allocable to the
Transferred Interest in accordance with Section 2.05 or 2.06 hereof, as
applicable. The Net Investment shall be reduced by the amount of such payment
actually received by the Administrative Agent. Simultaneously with any such
payment by the Transferor, each of the CP Conduit Purchasers and the Committed
Purchasers, as the case may be, shall convey all of its right, title and
interest in such Receivable and Related Security to the Transferor, and the
Administrative Agent, on behalf of the CP Conduit Purchasers and the Committed
Purchasers, shall take all action reasonably requested by the Transferor to
effectuate such conveyance.
(c) Any payment by an Obligor in respect of any indebtedness owed by it
to the Transferor or the Seller shall, except as provided in paragraphs (a) and
(b) of this Section 2.10 or as otherwise specified by such Obligor or otherwise
required by contract or law and unless otherwise instructed by the CP Conduit
Purchasers, be applied as a Collection of any Receivable of such Obligor
included in the Transferred Interest (in order of the age of such Receivable,
starting with the oldest such Receivable) to the extent of any amounts then due
and payable thereunder before being applied to any other receivable or other
indebtedness of such Obligor.
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RECEIVABLES TRANSFER AGREEMENT
SECTION 2.11. Payments and Computations, etc. All amounts to be paid or
deposited by the Transferor or the Collection Agent hereunder shall be paid or
deposited in accordance with the terms hereof no later than 12:00 p.m. (New York
City time) on the day when due in immediately available funds; if such amounts
are payable to any CP Conduit Purchaser (or any Committed Purchaser), they shall
be paid or deposited to the Collection Account, until otherwise notified by the
Administrative Agent. No later than 3:00 p.m. (New York City time) on the date
of any Incremental Transfer hereunder, the CP Conduit Purchasers or the
Committed Purchasers, as applicable, will make available to the Transferor, in
immediately available funds, the Transfer Price for such Incremental Transfer on
such day by remitting such amount to an account of the Transferor specified in
the related notice of Transfer. The Transferor shall, to the extent permitted by
law, pay to the Administrative Agent, for the benefit of the CP Conduit
Purchasers and/or the Committed Purchasers upon demand, interest on all amounts
not paid or deposited by it when due hereunder at a rate equal to 1.5% per annum
plus the Base Rate. All computations of interest hereunder shall be made on the
basis of a year of 365 or 366 days, as applicable for the actual number of days
(including the first but excluding the last day) elapsed. Whenever any payment
or deposit to be made hereunder shall be due on a day other than a Business Day,
such payment or deposit shall be made on the next succeeding Business Day and
such extension of time shall be included in the computation of such payment or
deposit. Any computations by the Administrative Agent of amounts payable by the
Transferor hereunder shall be binding upon the Transferor absent manifest error.
SECTION 2.12. Reports. (a) Deposit Report. The Collection Agent shall
deliver to the Administrative Agent and the Transferor, no later than 1:00 p.m.,
New York City time, on each Weekly Settlement Date (or, after the occurrence of
a Termination Event or after the occurrence and during the continuance of a
Potential Termination Event, on each Business Day), a written report
substantially in the form attached hereto as Exhibit D-1 (the "Deposit Report")
setting forth total Collections received and Receivables originated during the
immediately preceding calendar week, Eligible Receivables balances at the end of
the immediately preceding calendar week, and such other information as the
Administrative Agent may reasonably request. If any Sellers or Seller Divisions
are shut down during any week, the Deposit Report for such week may be prepared
on the basis of the information with respect to the Collections and Receivables
of such Sellers and Seller Divisions for their last week of operations preceding
the shut down. The Deposit Report may be delivered in an electronic format
mutually agreed upon by the Collection Agent and the Administrative Agent, or
pending such agreement, by facsimile.
(b) Settlement Statement. On each Settlement Date, the Collection Agent
shall deliver to the Administrative Agent and the Transferor a monthly report,
substantially in the form of Exhibit D-2 (the "Settlement Statement"), showing
(i) the aggregate Purchase Price of Receivables acquired or generated by the
Sellers in the preceding month, (ii) the aggregate Outstanding Balance of such
Receivables that are Eligible Receivables and (iii) such other information as
the Administrative Agent may reasonably request.
SECTION 2.13. Collection Account. (a) There shall be established on or
before the Initial Incremental Transfer Date and maintained, for the benefit of
the Administrative Agent
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RECEIVABLES TRANSFER AGREEMENT
on behalf of the CP Conduit Purchasers and the Committed Purchasers, a
segregated account (the "Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the CP
Conduit Purchasers and the Committed Purchasers. On and after the occurrence of
a Termination Event or a Potential Termination Event, the Collection Agent, at
the direction of the Administrative Agent acting at the direction of the
Required Committed Purchasers, shall remit daily to the Collection Account all
Collections received with respect to any Receivables as provided in Section
2.06(c). Funds on deposit in the Collection Account (other than investment
earnings) shall be invested by the Administrative Agent in Permitted Investments
that will mature so that such funds will be available prior to the last day of
each successive Tranche Period or prior to each Settlement Date, as applicable,
following such investment. On the last day of each Tranche Period or on each
Settlement Date, as applicable, all interest and earnings (net of losses and
investment expenses) on funds on deposit in the Collection Account shall be
retained in the Collection Account and be available to make any payments
required to be made hereunder (including Discount) by the Transferor. On the
date on which the Net Investment is zero, all accrued Discount, Servicing Fees,
Fees and all other Aggregate Unpaids have been paid in full, any funds remaining
on deposit in the Collection Account shall be paid to the Transferor.
(b) For so long as any amounts remain due and owing to the CP Conduit
Purchasers or the Committed Purchasers hereunder or under the Transaction
Documents, the Administrative Agent shall distribute all payments received by it
in respect of the Transaction Documents immediately after receipt thereof by (i)
transferring to the CP Conduit Purchasers and the Committed Purchasers, on a pro
rata basis, based on the amounts thereof owing to each CP Conduit Purchaser and
each Committed Purchaser, respectively, all payments of Discount, (ii)
transferring to the CP Conduit Purchasers and the Committed Purchasers, on a pro
rata basis, based on the CP Conduit Purchaser's Interest and the Committed
Purchaser Funded Amount, respectively, on the date of payment, all payments in
reduction of the Net Investment and (iii) transferring to the CP Conduit
Purchasers and/or the Committed Purchasers in accordance with their Pro Rata
Shares, any other amounts owing to the CP Conduit Purchasers and/or the
Committed Purchasers under this Agreement. Such transfers shall be made by the
Administrative Agent by withdrawing funds on deposit in the Collection Account
and remitting such funds to the accounts of the CP Conduit Purchasers and the
Committed Purchasers specified by each of them from time to time.
SECTION 2.14. Right of Setoff. Each of the CP Conduit Purchasers and
the Committed Purchasers is hereby authorized (in addition to any other rights
it may have) at any time after the occurrence of the Termination Date, or during
the continuation of a Termination Event, to set off, appropriate and apply
(without presentment, demand, protest or other notice which are hereby expressly
waived) any deposits and any other indebtedness held or owing by such CP Conduit
Purchaser or such Committed Purchaser to, or for the account of, the Transferor
against the amount of the Aggregate Unpaids owing by the Transferor to such
Person (even if contingent or unmatured).
SECTION 2.15. Sharing of Payments, etc. If any CP Conduit Purchaser or
any Committed Purchaser (for purposes of this Section 2.15 only, a "Recipient")
shall obtain any
14
RECEIVABLES TRANSFER AGREEMENT
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of any interest in the Transferred Interest
owned by it in excess of its Pro Rata Share of payments on account of any
interest in the Transferred Interest obtained by the CP Conduit Purchasers
and/or the Committed Purchasers entitled thereto, such Recipient shall forthwith
purchase from the CP Conduit Purchasers and/or the Committed Purchasers entitled
to a share of such amount participations in the percentage interests owned by
such Persons as shall be necessary to cause such Recipient to share the excess
payment ratably with each such other Person entitled thereto; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such Recipient, such purchase from each such other Person shall be rescinded and
each such other Person shall repay to the Recipient the purchase price paid by
such Recipient for such participation to the extent of such recovery, together
with an amount equal to such other Person's Pro Rata Share (according to the
proportion of (a) the amount of such other Person's required payment to (b) the
total amount so recovered from the Recipient) of any interest or other amount
paid or payable by the Recipient in respect of the total amount so recovered.
SECTION 2.16. Broken Funding. In the event that (a) the payment of any
principal of any Eurodollar Tranche is made other than on the last day of the
Eurodollar Tranche Period applicable thereto (including as a result of the
occurrence of the Termination Date or an optional prepayment by the Transferor
of a Eurodollar Tranche), (b) the conversion of any Eurodollar Tranche in made
by the Transferor other than on the last day of the related Eurodollar Tranche
Period, or (c) the Transferor fails to borrow, convert, continue or prepay any
Eurodollar Tranche on the date specified in any notice delivered pursuant
hereto, then, in any such event, the Transferor shall compensate the Committed
Purchasers for the loss, cost and expense actually incurred by such Committed
Purchasers attributable to such event. Such loss, cost or expense to any
Committed Purchaser shall include an amount determined by such Committed
Purchaser to be the excess, if any, of (i) the amount of Discount which would
have accrued on the principal amount of such Eurodollar Tranche had such event
not occurred, at the Eurodollar Rate that would have been applicable to such
Eurodollar Tranche, for the period from the date of such event to the last day
of the Eurodollar Tranche Period (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the related Eurodollar
Tranche Period), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Committed
Purchaser would bid were it to bid, at the commencement of such period, for
dollar deposits of a comparable amount and period from other banks in the
interbank Eurodollar market. Within forty-five (45) days after any Committed
Purchaser hereunder receives actual knowledge of any of the events specified in
this Section 2.16, a certificate of such Committed Purchaser setting forth any
amount or amounts that such Committed Purchaser is entitled to receive pursuant
to this Section 2.16 and the reason(s) therefor shall be delivered to the
Transferor (with a copy to the Administrative Agent) and shall be conclusive
absent manifest error. The Transferor shall pay each such Committed Purchaser
the amount shown as due on any such certificate within ten (10) days after
receipt thereof.
SECTION 2.17. Conversion and Continuation of Outstanding Tranches
Funded by the Committed Purchasers. Prior to the occurrence of the Termination
Date or a Potential Termination Event, (a) each BR Tranche hereunder may, at the
option of the Transferor, be
15
RECEIVABLES TRANSFER AGREEMENT
continued as a BR Tranche or converted to a Eurodollar Tranche and (b) each
Eurodollar Tranche may, at the option of the Transferor, be continued as a
Eurodollar Tranche or converted to a BR Tranche. If the Termination Date has
occurred or a Potential Termination Event has been declared by the
Administrative Agent and is continuing, then (i) no outstanding Tranche funded
by the Committed Purchasers may be converted to, or continued as, a Eurodollar
Tranche and (ii) unless repaid, each Eurodollar Tranche shall be converted to a
BR Tranche on the last day of the Tranche Period related thereto. For any such
optional conversion or continuation by the Transferor, the Transferor shall give
the Administrative Agent irrevocable notice (each, a "Conversion/Continuation
Notice") of such request not later than 12:30 p.m. (New York City time) (i) in
the case of a conversion of a BR Tranche into a Eurodollar Tranche, or a
continuation of a Eurodollar Tranche as a Eurodollar Tranche, three (3) Business
Days before the date of such conversion or continuation, as applicable, and (ii)
following the Termination Date or the declaration by the Administrative Agent
and continuation of a Potential Termination Event, in the case of a conversion
of a Eurodollar Tranche into a BR Tranche or a continuation of a BR Tranche as a
BR Tranche, on the Business Day of such conversion. If a Conversion/
Continuation Notice has not been timely delivered with respect to any BR Tranche
or Eurodollar Tranche, such Tranche shall be automatically continued as, or
converted to, a BR Tranche. Each Conversion/Continuation Notice shall specify
(a) the requested date (which shall be a Business Day) of such conversion or
continuation, (b) the aggregate amount and rate option applicable to the Tranche
which is to be converted or continued and (c) the amount and rate option(s) of
Tranche(s) into which such Tranche is to be converted or continued.
SECTION 2.18. Illegality. (a) Notwithstanding any other provision
herein, if, after the Closing Date, the adoption of any Law or bank regulatory
guideline or any amendment or change in the interpretation of any existing or
future Law or bank regulatory guideline by any Official Body charged with the
administration, interpretation or application thereof, or the compliance with
any directive of any Official Body (in the case of any bank regulatory
guideline, whether or not having the force of Law), shall make it unlawful for
any Committed Purchaser to acquire or maintain a Eurodollar Tranche as
contemplated by this Agreement, (i) such Committed Purchaser shall, within
forty-five (45) days after receiving actual knowledge thereof, deliver a
certificate to the Transferor (with a copy to the Administrative Agent) setting
forth the basis for such illegality, which certificate shall be conclusive
absent manifest error, (ii) the commitment of such Committed Purchaser hereunder
to make a portion of a Eurodollar Tranche, continue any portion of a Eurodollar
Tranche as such and convert a BR Tranche to a Eurodollar Tranche shall forthwith
be canceled, and such cancelation shall remain in effect so long as the
circumstance described above exists, and (iii) such Committed Purchaser's
portion of any Eurodollar Tranche then outstanding shall be converted
automatically to a BR Tranche on the last day of the related Eurodollar Tranche
Period, or within such earlier period as required by law.
If any such conversion of a portion of a Eurodollar Tranche occurs on a
day which is not the last day of the related Eurodollar Tranche Period, then
pursuant to Section 2.16 the Transferor shall pay to such Committed Purchaser
such amounts, if any, as may be required to compensate such Committed Purchaser.
If circumstances subsequently change so that it is no longer unlawful for an
affected Committed Purchaser to acquire or to maintain a portion of a Eurodollar
Tranche as contemplated hereunder, such Committed Purchaser will, as soon as
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RECEIVABLES TRANSFER AGREEMENT
reasonably practicable after such Committed Purchaser knows of such change in
circumstances, notify the Transferor and the Administrative Agent, and upon
receipt of such notice, the obligations of such Committed Purchaser to acquire
or maintain its acquisition of portions of Eurodollar Tranches or to convert its
portion of a BR Tranche into portions of Eurodollar Tranches shall be
reinstated.
(b) Each Committed Purchaser agrees that, upon the occurrence of any
event giving rise to the operation of Section 2.18(a) with respect to such
Committed Purchaser, it will, if requested by the Transferor and to the extent
permitted by law or by the relevant Official Body, endeavor in good faith to
change the office at which it books its portions of Eurodollar Tranches
hereunder if such change would make it lawful for such Committed Purchasers to
continue to acquire or to maintain its acquisition of portions of Eurodollar
Tranches hereunder; provided, however, that such change may be made in such
manner that such Committed Purchaser, in its sole determination, suffers no
unreimbursed cost or expense or any other disadvantage whatsoever.
SECTION 2.19. Inability to Determine Eurodollar Rate. If, prior to the
first day of any Eurodollar Tranche Period:
(1) the Administrative Agent shall have determined (which determination
in the absence of manifest error shall be conclusive and binding upon the
Transferor) that, by reason of circumstances affecting the interbank
Eurodollar market, either (a) dollar deposits in the relevant amounts and
for the relevant Tranche Period are not available, or (b) adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Eurodollar Tranche Period; or
(2) the Administrative Agent shall have received notice from the
Required Committed Purchasers that the Eurodollar Rate determined or to be
determined for such Eurodollar Tranche Period will not adequately and fairly
reflect the cost to such Committed Purchasers (as conclusively certified by
such Committed Purchasers) of purchasing or maintaining their affected
portions of Eurodollar Tranches during such Eurodollar Tranche Period;
then, in either such event, the Administrative Agent shall give telecopy or
telephonic notice thereof (confirmed in writing) to the Transferor and the
Committed Purchasers as soon as practicable (but, in any event, within ten (10)
days after such determination or notice, as applicable) thereafter. Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Tranches shall be made. The Administrative Agent agrees to withdraw any such
notice as soon as reasonably practicable after the Administrative Agent is
notified of a change in circumstances which makes such notice inapplicable.
SECTION 2.20. Indemnities by the Transferor. Without limiting any other
rights which the Administrative Agent, the CP Conduit Purchasers or the
Committed Purchasers may have hereunder or under applicable law, the Transferor
hereby agrees to indemnify the CP Conduit Purchasers, the Committed Purchasers,
the Funding Agents and the Administrative
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RECEIVABLES TRANSFER AGREEMENT
Agent and any successors and permitted assigns and their respective officers,
directors, agents and employees (collectively, "Indemnified Parties") from and
against any and all damages, losses, claims, liabilities, deficiencies, costs,
disbursements and expenses, including, without limitation, interest, penalties,
amounts paid in settlement and reasonable attorneys' fees (including allocated
costs of attorneys who may be employees of the Administrative Agent) (all of the
foregoing being collectively referred to as "Indemnified Amounts") awarded
against or incurred by any of them in any action or proceeding between the
Transferor, the Collection Agent in such capacity or the Sellers and any of the
Indemnified Parties or between any of the Indemnified Parties and any third
party or otherwise arising out of or as a result of this Agreement, the other
Transaction Documents, the ownership or maintenance, either directly or
indirectly, by the Administrative Agent, the CP Conduit Purchasers or any
Committed Purchaser of the Transferred Interest or any of the other transactions
contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to
the extent relating to or resulting from (x) gross negligence or willful
misconduct on the part of an Indemnified Party or (y) recourse (except as
otherwise specifically provided in this Agreement) for uncollectible Receivables
or (ii) all taxes (other than Indemnified Taxes). Without limiting the
generality of the foregoing, the Transferor shall indemnify each Indemnified
Party for Indemnified Amounts (without duplication of amounts for which any
Indemnified Party is effectively held harmless under any other provision hereof)
relating to or resulting from:
(a) any representation or warranty made in writing by the Transferor,
the Collection Agent or the Sellers or any officers of the Transferor, the
Collection Agent or the Sellers under or in connection with this Agreement,
any of the other Transaction Documents, any Deposit Report, any Settlement
Report or any other information or report delivered by any of them pursuant
hereto or thereto, which shall have been false or incorrect in any material
respect when made or deemed made;
(b) the failure by the Transferor, the Collection Agent or the Sellers
to comply with any applicable law, rule or regulation with respect to any
Receivable or the related Contract, or the nonconformity of any Receivable
or the related Contract with any such applicable law, rule or regulation;
(c) the failure to either (x) vest and maintain vested in the
Administrative Agent, for the benefit of the CP Conduit Purchasers and the
Committed Purchasers, an undivided first priority, perfected percentage
ownership interest, to the extent of the Transferred Interest, in the
Receivables and Related Security, Collections and Proceeds with respect
thereto, free and clear of any Adverse Claim or (y) to create or maintain a
valid and perfected first priority security interest in favor of the
Administrative Agent, for the benefit of the CP Conduit Purchasers and the
Committed Purchasers, in the Transferor's interest in the Receivables and
Related Security, Collections and Proceeds with respect thereto, free and
clear of any Adverse Claim (other than any Adverse Claim created by or
through the CP Conduit Purchasers or the Committed Purchasers);
(d) the failure to file, or any delay in filing, financing statements,
continuation statements, or other similar instruments or documents under the
Relevant UCC or other
18
RECEIVABLES TRANSFER AGREEMENT
applicable laws with respect to any of the Receivables or Related Security,
Collections and Proceeds with respect thereto;
(e) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor) of the Obligor to the payment of any Receivable
(including, without limitation, a defense based on such Receivable or the
related Contract not being a legal, valid and binding obligation of such
Obligor enforceable against it in accordance with its terms), or any other
claim resulting from the sale of merchandise or services related to such
Receivable or the furnishing or failure to furnish such merchandise or
services (if such collection activities were performed by the Transferor or
any of its Affiliates acting as the Collection Agent);
(f) any products liability claim or personal injury or property damage
suit or other similar or related claim or action of whatever sort arising
out of or in connection with merchandise or services which are the subject
of any Receivable;
(g) the transfer of an ownership interest in any Receivable other than
an Eligible Receivable pursuant to the Transaction Documents;
(h) the failure by any of the Transferor, TriMas Corp. as the
Collection Agent or the Sellers to comply with any term, provision or
covenant contained in this Agreement or any of the other Transaction
Documents to which it is a party or to perform any duty or obligation in
accordance with the provisions hereof or thereof or to perform any of its
duties or obligations under the Contracts;
(i) the Percentage Factor exceeding the Maximum Percentage Factor at
any time on or prior to the Termination Date;
(j) the failure of the Sellers to pay when due any taxes, including
without limitation, sales, excise or personal property taxes payable in
connection with any of the Receivables with respect to which an Indemnified
Party may be held liable as a transferee of such Receivables;
(k) any repayment by any Indemnified Party of any amount previously
distributed in reduction of Net Investment which such Indemnified Party
believes in good faith is required to be made;
(l) the commingling by the Transferor, the Sellers or TriMas Corp. as
the Collection Agent of Collections of Receivables at any time with other
funds;
(m) any investigation, litigation or proceeding related to this
Agreement, any of the other Transaction Documents, the use of proceeds of
Transfers by the Transferor or the Sellers, the ownership of Transferred
Interests, or any Receivable, Related Security or Contract;
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RECEIVABLES TRANSFER AGREEMENT
(n) the failure of any Lock-Box Bank to remit any amounts held in the
Lock-Box Accounts pursuant to the instructions of the Collection Agent, the
Transferor, the Sellers or the Administrative Agent (to the extent such
Person is entitled to give such instructions in accordance with the terms
hereof and of any applicable Lock-Box Agreement) whether by reason of the
exercise of set-off rights or otherwise;
(o) any inability to obtain any judgment in or utilize the court or
other adjudication system of, any state in which an Obligor may be located
as a result of the failure of the Transferor or the Sellers to qualify to do
business or file any notice of business activity report or any similar
report;
(p) any failure of the Transferor to give reasonably equivalent value
to the Sellers in consideration of the purchase by the Transferor from the
Sellers of any Receivable, or any attempt by any Person to void, rescind or
set aside any such transfer under statutory provisions or common law or
equitable action, including, without limitation, any provision of the
Bankruptcy Code; or
(q) any action taken by the Transferor, the Sellers or the Collection
Agent in the enforcement or collection of any Receivable;
provided, however, that the Transferor shall not be liable for Indemnified
Amounts attributable to the fraud, gross negligence, breach of fiduciary duty or
willful misconduct of any Collection Agent in the enforcement or collection of
any Receivable if such Collection Agent is not TriMas Corp. or an Affiliate or
stockholder of TriMas Corp.; provided, further, that if any CP Conduit Purchaser
enters into agreements for the purchase of interests in Receivables from one or
more Other Transferors, such CP Conduit Purchaser shall equitably allocate such
Indemnified Amounts to the Transferor and each Other Transferor; and provided,
further, that if such Indemnified Amounts are attributable solely to the
Transferor, the Transferor shall be solely liable for such Indemnified Amounts,
and if such Indemnified Amounts are attributable solely to Other Transferors,
such Other Transferors shall be solely liable for such Indemnified Amounts.
SECTION 2.21. Indemnity for Reserves and Expenses. (a) If after the
date hereof, the adoption of any Law or bank regulation or regulatory guideline
or any amendment or change in the interpretation of any existing or future Law
or bank regulation or regulatory guideline by any Official Body charged with the
administration, interpretation or application thereof, or the compliance with
any directive of any Official Body (in the case of any bank regulation or
regulatory guideline, whether or not having the force of Law), other than Laws,
interpretations, guidelines or directives relating to Taxes:
(i) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System)
against assets of, deposits with or for the account of, or credit extended
by, any Indemnified Party or shall impose on any Indemnified Party or on the
United States market for certificates of deposit or the London interbank
market any other condition affecting this Agreement, the other Transaction
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RECEIVABLES TRANSFER AGREEMENT
Documents, the ownership, maintenance or financing of the Transferred
Interest, the Receivables or payments of amounts due hereunder or its
obligation to advance funds hereunder or under the other Transaction
Documents; or
(ii) imposes upon any Indemnified Party any other expense (including,
without limitation, reasonable attorneys' fees and expenses, and expenses
of litigation or preparation therefor in contesting any of the foregoing)
with respect to this Agreement, the other Transaction Documents, the
ownership, maintenance or financing of the Transferred Interest, the
Receivables or payments of amounts due hereunder or its obligation to
advance funds hereunder or otherwise in respect of this Agreement, the
other Transaction Documents, the ownership, maintenance or financing of the
Transferred Interests or the Receivables;
and the result of any of the foregoing is to increase the cost to such
Indemnified Party with respect to this Agreement, the other Transaction
Documents, the ownership, maintenance or financing of the Transferred Interest,
the Receivables, the obligations hereunder, the funding of any Purchases
hereunder or under the other Transaction Documents, by an amount deemed by such
Indemnified Party to be material, then, within ten (10) Business Days after
demand by such Indemnified Party through the Administrative Agent, acting at the
direction of the applicable Funding Agent, the Transferor shall pay to the
Administrative Agent, for the benefit of such Indemnified Party, such additional
amount or amounts (other than with respect to taxes) as will compensate such
Indemnified Party for such increased cost or reduction; provided that no such
amount shall be payable with respect to any period commencing more than two
hundred seventy (270) days prior to the date the Administrative Agent, acting at
the direction of the applicable Funding Agent, first notifies the Transferor of
its intention to demand compensation therefor under this Section 2.21; provided
further that if such change in Law, rule or regulation giving rise to such
increased costs or reductions is retroactive, then such 270-day period shall be
extended to include the period of retroactive effect thereof. In making demand
hereunder, the applicable Indemnified Party shall submit to the Transferor a
certificate as to such increased costs incurred which shall provide in
reasonable detail the basis for such claim.
(b) If any Indemnified Party shall have determined that after the date
hereof, the adoption of any applicable Law or bank regulation or regulatory
guideline regarding capital adequacy, or any change therein, or any change in
the interpretation thereof by any Official Body, or any directive regarding
capital adequacy (in the case of any bank regulatory guideline, whether or not
having the force of law) of any such Official Body, has or would have the effect
of reducing the rate of return on capital of such Indemnified Party (or its
parent) as a consequence of such Indemnified Party's obligations hereunder or
with respect hereto to a level below that which such Indemnified Party (or its
parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Indemnified Party to be material, then from time to time,
within ten (10) Business Days after demand by such Indemnified Party through the
Administrative Agent, acting at the direction of the applicable Funding Agent,
the Transferor shall pay to the Administrative Agent, for the benefit of such
Indemnified Party, such additional amount or amounts (other than with respect to
taxes) as will compensate such Indemnified Party (or its parent) for such
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RECEIVABLES TRANSFER AGREEMENT
reduction; provided that no such amount shall be payable with respect to any
period commencing more than two hundred seventy (270) days prior to the date the
Administrative Agent first notifies the Transferor of its intention to demand
compensation therefor under this Section 2.21(b); provided further that if such
change in Law, rule or regulation giving rise to such increased costs or
reductions is retroactive, then such 270-day period shall be extended to include
the period of retroactive effect thereof. In making demand hereunder, the
applicable Indemnified Party shall submit to the Transferor a certificate as to
such increased costs incurred which shall provide in reasonable detail the basis
for such claim.
(c) Anything in this Section 2.21 to the contrary notwithstanding, if
any CP Conduit Purchaser enters into agreements for the acquisition of interests
in receivables from one or more Other Transferors, such CP Conduit Purchaser
shall equitably allocate the liability for any amounts under this Section 2.21
("Section 2.21 Costs") to the Transferor and each Other Transferor; provided,
however, that if such Section 2.21 Costs are attributable to the Transferor and
not attributable to any Other Transferor, the Transferor shall be solely liable
for such Section 2.21 Costs or if such Section 2.21 Costs are attributable to
Other Transferors and not attributable to the Transferor, such Other Transferors
shall be solely liable for such Section 2.21 Costs.
SECTION 2.22. Indemnity for Taxes. (a) All payments made by the
Transferor or the Collection Agent to the Administrative Agent for the benefit
of the CP Conduit Purchasers, the Funding Agents and the Committed Purchasers
under this Agreement and any other Transaction Document shall be made free and
clear of, and without deduction or withholding for or on account of any
Indemnified Taxes. If any such Indemnified Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Indemnified Party
hereunder, (i) the amounts so payable to the Administrative Agent or such
Indemnified Party shall be increased to the extent necessary to yield to the
Administrative Agent or such Indemnified Party (after payment of all Indemnified
Taxes) all amounts payable hereunder at the rates or in the amounts specified in
this Agreement and the other Transaction Documents and (ii) the Transferor or
the Collection Agent, as the case may be, shall make such deductions or
withholdings and shall pay the amount so deducted or withheld to the applicable
Official Body in accordance with the applicable law. The Transferor shall
indemnify the Administrative Agent or any Indemnified Party for the full amount
of any Indemnified Taxes paid by the Administrative Agent or the Indemnified
Party within ten (10) Business Days after the date of written demand therefor by
the Administrative Agent or such Indemnified Party if the Administrative Agent
or such Indemnified Party, as the case may be, has delivered to the Transferor a
certificate signed by an officer of the Administrative Agent or such Indemnified
Party, as the case may be, setting forth in reasonable detail the amount so paid
and the computations made to determine such amount. Such certificate shall be
conclusive absent manifest error.
(b) Each Indemnified Party that is not a United States person (within
the meaning of Section 7701(a)(30) of the Code) (a "United States Person")
shall:
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RECEIVABLES TRANSFER AGREEMENT
(i) at the time such Indemnified Party becomes a party to this
Agreement or the Transaction Documents, deliver to the Transferor and the
Administrative Agent (A) two duly completed copies of IRS Form W-8ECI, or
successor applicable form, as the case may be, and (B) an IRS Form W-8BEN or
W-9, or successor applicable form, as the case may be;
(ii) deliver to the Transferor and the Administrative Agent two (2)
further copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Transferor or the Administrative Agent;
and
(iii) obtain such extensions of time for filing and complete such forms
or certifications as may reasonably be requested by the Transferor or the
Administrative Agent;
unless, in the case of (ii) and (iii) above, any change in treaty, law
regulation, governmental rule, guideline order, or official application or
official interpretation thereof has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Indemnified Party from duly completing and
delivering any such form with respect to it, and such Indemnified Party so
advises the Transferor and the Administrative Agent. Each such Indemnified Party
that is not a United States person (A) shall certify (i) in the case of an IRS
Form W-8ECI, or successor applicable form, that it is entitled to receive
payments under this Agreement and the other Transaction Documents without
deduction or withholding of any United States federal income taxes and (ii) in
the case of an IRS Form W-8BEN or IRS Form W-9, or successor applicable form,
that it is entitled to an exemption from United States backup withholding tax
and (B) shall agree to provide any other certification and documentation as
required by the applicable law that is reasonably requested by the Transferor,
the Sellers or the Collection Agent. Each Person that is a Purchaser or
Participant hereunder, or which otherwise becomes a party to this Agreement and
the other Transaction Documents as a Committed Purchaser, shall, prior to the
effectiveness of such assignment, participation or addition, as applicable, be
required to provide all of the forms and statements required pursuant to this
Section 2.22.
SECTION 2.23. Other Costs, Expenses and Related Matters. (a) The
Transferor agrees, upon receipt of a written invoice, to pay or cause to be
paid, and to save the Administrative Agent, the CP Conduit Purchasers, the
Committed Purchasers and each Funding Agent harmless against liability for the
payment of, all reasonable out-of-pocket expenses (including, without
limitation, reasonable attorneys', accountants', rating agencies' and other
third parties' fees and expenses, any filing fees and expenses incurred by
officers or employees of the Administrative Agent, the CP Conduit Purchasers,
the Committed Purchasers and/or the Funding Agents) or intangible, documentary
or recording taxes incurred by or on behalf of the Administrative Agent, the CP
Conduit Purchasers, the Committed Purchasers and the Funding Agents (i) in
connection with the negotiation, execution, delivery and preparation of this
Agreement, the other Transaction Documents and any documents or instruments
delivered
23
RECEIVABLES TRANSFER AGREEMENT
pursuant hereto and thereto and the transactions contemplated hereby or thereby
(including, without limitation, the perfection or protection of the Transferred
Interest) and (ii) (A) relating to any amendments, waivers or consents under
this Agreement, any Asset Purchase Agreement and the other Transaction
Documents, (B) arising in connection with the Administrative Agent's, the CP
Conduit Purchasers', the Committed Purchasers' or the Funding Agents'
enforcement or preservation of rights (including, without limitation, the
perfection and protection of the Transferred Interest under this Agreement), or
(C) arising in connection with any audit, dispute, disagreement, litigation or
preparation for litigation involving this Agreement or any of the other
Transaction Documents (all of such amounts, collectively, "Transaction Costs").
All Transaction Costs owed by the Transferor pursuant to this subsection 2.23(a)
shall be payable in accordance with Section 2.05 and 2.06.
(b) The Transferor shall pay the Administrative Agent, for the account
of the relevant CP Conduit Purchasers and the Committed Purchasers, as
applicable, on demand any Early Collection Fee due on account of the reduction
of a Tranche on any day prior to the last day of its Tranche Period.
(c) The Administrative Agent, at the request of any Funding Agent, will
within forty-five (45) days after receipt of notice of any event occurring after
the date hereof which will entitle an Indemnified Party to compensation pursuant
to this Article II, notify the Transferor in writing of such event. Any notice
by a Funding Agent claiming compensation under this Article II and setting forth
the additional amount or amounts to be paid to it hereunder shall be conclusive
in the absence of manifest error, provided that such claim is made in good faith
and on a reasonable basis. In determining such amount, the applicable Funding
Agent or any applicable Indemnified Party may use any reasonable averaging and
attributing methods.
(d) If the Transferor is required to pay any additional amount to any
Committed Purchaser pursuant to Sections 2.21 or 2.22, then such Committed
Purchaser shall use reasonable efforts (which shall not require such Committed
Purchaser to incur an unreimbursed loss or unreimbursed cost or expense or
otherwise take any action inconsistent with its internal policies or legal or
regulatory restrictions or suffer any disadvantage or burden reasonably deemed
by it to be significant) (A) to file any certificate or document reasonably
requested in writing by the Transferor or (B) to assign its rights and delegate
and transfer its obligations hereunder to another of its offices, branches or
affiliates, if such filing or assignment would reduce amounts payable pursuant
to Sections 2.21 or 2.22, as the case may be, in the future.
SECTION 2.24. Funding Agents. (a) The Funding Agent with respect to
each CP Conduit Purchaser and Committed Purchaser is hereby authorized to record
on each Business Day the CP Conduit Funded Amount with respect to such CP
Conduit Purchaser and the aggregate amount of Discount and Fees accruing with
respect thereto on such Business Day and the Committed Purchaser Funded Amount
with respect to such Committed Purchaser and the amount of Discount and Fees
accruing with respect thereto on such Business Day. Any such recordations by a
Funding Agent, absent manifest error, shall constitute prima facie evidence of
the accuracy of the information so recorded. The Funding Agents will report the
aggregate amounts due to the CP Conduit Purchasers and the Committed Purchasers
for the prior calendar
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RECEIVABLES TRANSFER AGREEMENT
month to the Transferor, the Collection Agent and the Administrative Agent not
later than two (2) Business Days prior to the related Settlement Date.
Furthermore, the Funding Agent with respect to each CP Conduit Purchaser and
Committed Purchaser will maintain records sufficient to identify the percentage
interest of such CP Conduit Purchaser and such Committed Purchaser in the
Receivables and any amounts owing thereunder.
(b) Upon receipt of funds from the Administrative Agent on each
Settlement Date pursuant to Sections 2.05 and 2.06, each Funding Agent shall pay
such funds to the related CP Conduit Purchaser and/or the related Committed
Purchaser owed such funds in accordance with the recordations maintained by it
in accordance with Section 2.24(a). If a Funding Agent shall have paid to any CP
Conduit Purchaser or Committed Purchaser any funds that (i) must be returned for
any reason (including bankruptcy) or (ii) exceeds that which such CP Conduit
Purchaser or Committed Purchaser was entitled to receive, such amount shall be
promptly repaid to such Funding Agent by such CP Conduit Purchaser or Committed
Purchaser.
SECTION 2.25. Use of Historical Data. Where necessary to calculate any
ratios or other amounts under this Agreement with reference to periods prior to
the Initial Incremental Transfer Date, historical data shall be used.
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Administrative Agent, the
Funding Agents, the CP Conduit Purchasers and the Committed Purchasers that:
(a) Corporate Existence and Power. The Transferor is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware and has all corporate power and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business in each jurisdiction in which its business is now conducted. The
Transferor is duly qualified (or has duly applied for such qualification) to
do business in, and is in good standing in, every other jurisdiction in
which the nature of its business requires it to be so qualified, except
where the failure to be so qualified or in good standing would not have a
Material Adverse Effect.
(b) Corporate and Governmental Authorization; Contravention. The
execution, delivery and performance by the Transferor of this Agreement and
the other Transaction Documents to which the Transferor is a party are
within the Transferor's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any Official Body or official thereof, and do not contravene any
provision of applicable law, rule or regulation or of the Certificate of
Incorporation or Bylaws of the Transferor or constitute a default under any
agreement or
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RECEIVABLES TRANSFER AGREEMENT
any judgment, injunction, order, writ, decree or other instrument binding
upon the Transferor or result in the creation or imposition of any Adverse
Claim on the assets of the Transferor (except as contemplated by Section
2.09 hereof).
(c) Binding Effect. Each of this Agreement and the other Transaction
Documents to which the Transferor is a party constitutes, and (upon and
after payment of the Transfer Price for the initial Incremental Transfer)
the Transfer Certificate will constitute the legal, valid and binding
obligation of the Transferor, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws affecting the rights
of creditors generally and general equitable principles (whether considered
in a proceeding at law or in equity).
(d) Perfection. Immediately preceding each Transfer hereunder, the
Transferor shall be the owner of all of the Receivables, free and clear of
all Adverse Claims (except as contemplated by Section 2.09 hereof). On or
prior to each Transfer and each recomputation of the Transferred Interest,
all financing statements and other documents required to be recorded or
filed in order to perfect and protect the Transferred Interest against all
creditors of, and purchasers from, the Transferor and the Sellers will have
been duly filed in each filing office necessary for such purpose, and all
filing fees and taxes, if any, payable in connection with such filings shall
have been paid in full.
(e) Accuracy of Information. All information heretofore furnished by or
on behalf of the Transferor or the Collection Agent on its behalf
(including, without limitation, the Deposit Reports, the Settlement
Statements, any other reports delivered pursuant to the terms of this
Agreement and the Transferor's financial statements) to any CP Conduit
Purchaser, any Committed Purchaser, any Funding Agent or the Administrative
Agent for purposes of, or in connection with, this Agreement and the other
Transaction Documents are, and all such information hereafter furnished by
or on behalf of the Transferor to any CP Conduit Purchaser, any Committed
Purchaser, any Funding Agent or the Administrative Agent will be, true and
accurate in every material respect, on the date such information is stated
or certified.
(f) Tax Status. The Transferor has filed all material tax returns
(Federal, state and local) required to be filed and has paid or made
adequate provision for the payment of all material taxes, assessments and
other governmental charges other than taxes or filings contested in good
faith or taxes which are not yet due and payable, and for which adequate
reserves have been established in accordance with GAAP consistently applied.
(g) Action, Suits. There are no actions, suits or proceedings pending
or, to the knowledge of the Transferor threatened, against or affecting the
Transferor or its properties, in or before any court, arbitrator or other
Official Body, which could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, except as set forth in Exhibit
F concerning Affiliates of the Transferor.
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RECEIVABLES TRANSFER AGREEMENT
(h) Use of Proceeds. No proceeds of any Transfer will be used by the
Transferor to acquire any security in any transaction which violates
Regulation T, U or X of the Federal Reserve Board.
(i) Jurisdiction of Organization, Etc. The principal place of business
and chief executive office of the Transferor are located at the address of
the Transferor indicated in Section 10.03 hereof, and the jurisdiction of
organization and offices where the Transferor keeps all its Records, are
located at the address(es) described on Schedule I to the Receivables
Purchase Agreement or such other locations notified to the Administrative
Agent in accordance with Section 2.09 hereof in jurisdictions where all
action required by Section 2.09 hereof has been taken and completed.
(j) Good Title. Upon each Transfer and each recomputation of the
Transferred Interest, the Administrative Agent, on behalf of the CP Conduit
Purchasers and the Committed Purchasers, shall acquire (A) a valid and
perfected first priority undivided percentage ownership interest to the
extent of the Transferred Interest or (B) a first priority perfected
security interest in each Receivable that exists on the date of such
Transfer and recomputation and in the Related Security, Collections and
Proceeds with respect thereto, in either case free and clear of any Adverse
Claim.
(k) Trade Names, etc. As of the date hereof: (i) the Transferor's chief
executive office is located at the address for notices set forth in Section
10.03 hereof; (ii) the Transferor has no subsidiaries or divisions; and
(iii) the Transferor has, within the last five (5) years, operated only
under the trade names identified in Exhibit H hereto, and, within the last
five (5) years, has not changed its name, merged with or into or
consolidated with any other corporation or been the subject of any
proceeding under Xxxxx 00, Xxxxxx Xxxxxx Code (Bankruptcy), except as
disclosed in Exhibit H hereto.
(l) Nature of Receivables. Each Receivable (x) represented by the
Transferor or the Collection Agent to be an Eligible Receivable (including
in any Settlement Statement or other report delivered pursuant to Section
2.12 hereof) or (y) included in the calculation of the Net Receivables
Balance in fact satisfies at such time the definition of "Eligible
Receivable."
(m) Coverage Requirement; Amount of Receivables. The Percentage Factor
does not exceed the Maximum Percentage Factor. As of May 31, 2002, the
aggregate Outstanding Balance of the Receivables in existence was
$113,660,000, and the Net Receivables Balance was not less than $89,684,012.
(n) Credit and Collection Policy. Since the Closing Date, there have
been no material changes in the Credit and Collection Policy, other than as
permitted hereunder. Since the Closing Date, no material adverse change has
occurred in the overall rate of collection of the Receivables.
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RECEIVABLES TRANSFER AGREEMENT
(o) Collections and Servicing. Since March 31, 2002, there has been no
material adverse change in the ability of the Collection Agent, the Sellers,
the Transferor or any Subsidiary or Affiliate of any of the foregoing to
service and collect the Receivables.
(p) No Termination Event. No event has occurred and is continuing and
no condition exists which constitutes a Termination Event or a Potential
Termination Event.
(q) Not an Investment Company. The Transferor is not, and is not
controlled by, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or is exempt from all provisions of such
Act.
(r) ERISA. Each of the Transferor and its ERISA Affiliates is in
compliance with ERISA except for any noncompliance which would not
reasonably be expected to have a Material Adverse Effect, and no lien exists
in favor of the Pension Benefit Guaranty Corporation on any of the
Receivables.
(s) Lock-Box Accounts. The names and addresses of all the Lock-Box
Banks, together with the account numbers of the Lock-Box Accounts at such
Lock-Box Banks, are specified in Exhibit B hereto (or at such other Lock-Box
Banks and/or with such other Lock-Box Accounts as have been notified to the
Administrative Agent and the Funding Agents for the CP Conduit Purchasers
and the Committed Purchasers and for which Lock-Box Agreements have been
executed in accordance with Section 2.09(b) hereof and delivered to the
Collection Agent). All Obligors have been instructed to make payment to a
Lock-Box Account, and only Collections are deposited into a Lock-Box
Account.
(t) Bulk Sales. No transaction contemplated hereby or by the
Receivables Purchase Agreement requires compliance with any "bulk sales" act
or similar law.
(u) Transfers Under Receivables Purchase Agreement. Each Receivable
which has been transferred to the Transferor by any Seller has been
purchased by the Transferor from the Seller pursuant to, and in accordance
with, the terms of the Receivables Purchase Agreement.
(v) Preference; Voidability. The Transferor shall have given reasonably
equivalent value to each Seller in consideration for the transfer to the
Transferor of the Receivables and Related Security, Collections and Proceeds
with respect thereto from the Seller, and each such transfer shall not have
been made for or on account of an antecedent debt owed by the Seller to the
Transferor, and no such transfer is or may be voidable under any Section of
the Bankruptcy Reform Act of 1978 (11 U.S.C.ss.ss.101 et seq.), as amended
(the "Bankruptcy Code").
(w) Subsidiaries. The Transferor shall not have any subsidiaries.
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RECEIVABLES TRANSFER AGREEMENT
Any document, instrument, certificate or notice delivered to the
Administrative Agent or any Funding Agent by the Transferor or any agent of the
Transferor hereunder shall be deemed a representation and warranty by the
Transferor.
SECTION 3.02. Reaffirmation of Representations and Warranties by the
Transferor. On each day that a Transfer is made hereunder, the Transferor, by
accepting the proceeds of such Transfer, whether delivered to the Transferor
pursuant to Section 2.02(a) or Section 2.05 hereof, shall be deemed to have
certified that all representations and warranties described in Section 3.01
hereof are true and correct on and as of such day as though made on and as of
such day.
ARTICLE IV
Conditions Precedent
SECTION 4.01. Conditions to Effectiveness. This Agreement shall become
effective on the first day on which the Administrative Agent shall have received
the following documents, instruments and Fees, all of which shall be in a form
and substance acceptable to the each Funding Agent:
(a) A Certificate of the Secretary or Assistant Secretary of the
Transferor in substantially the form of Exhibit I hereto certifying (i) the
names and signatures of the officers and employees authorized on its behalf
to execute this Agreement and any other documents to be delivered by it
hereunder (on which Certificate the Administrative Agent, the Funding
Agents, the CP Conduit Purchasers and the Committed Purchasers may
conclusively rely until such time as the Administrative Agent shall receive
from the Transferor a revised Certificate meeting the requirements of this
clause (a)(i)), (ii) a copy of the Transferor's Certificate of
Incorporation, certified by the Secretary of State of the State of Delaware,
(iii) a copy of the Transferor's By-Laws, (iv) a copy of resolutions of the
Board of Directors of the Transferor approving this transaction and (v)
certificates of the Secretary of State of the State of Delaware certifying
the Transferor's good standing under the laws of the State of Delaware.
(b) A Certificate of the Secretary or Assistant Secretary of each
Seller in substantially the form of Exhibit I hereto certifying (i) the
names and signatures of the officers and employees authorized on its behalf
to execute the Receivables Purchase Agreement and any other documents to be
delivered by it (on which Certificate the Administrative Agent, the Funding
Agents, the CP Conduit Purchasers and the Committed Purchasers may
conclusively rely until such time as the Administrative Agent shall receive
from the Seller a revised Certificate meeting the requirements of this
clause (b)(i)), (ii) a copy of the Seller's certificate of incorporation,
certified by the Secretary of State of the state of such Seller's
incorporation, (iii) a copy of the Seller's By-Laws, (iv) a copy of
resolutions of the Board of Directors of the Seller approving this
transaction and
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RECEIVABLES TRANSFER AGREEMENT
(v) certificates of the Secretary of State of the state of such Seller's
incorporation, certifying the Seller's good standing under the laws of such
state.
(c) Executed copies of the Lock-Box Agreements relating to each of the
Lock-Box Banks and the Lock-Box Accounts and evidenced satisfactorily to
the Administrative Agent of the establishment of the Collection Account.
(d) An opinion of Xxxxxx Xxxxxx & Xxxxxxx, special counsel to the
Transferor and the Sellers, addressed to the Administrative Agent, the CP
Conduit Purchasers, the Committed Purchasers, the Funding Agents and the
Rating Agencies, regarding substantive consolidation in the event of a
bankruptcy of TriMas or any Seller and true sale between each Seller and the
Transferor.
(f) An opinion of R. Xxxxxxx Xxxxxxx, general counsel of TriMas Corp.
and TriMas LLC, addressed to the Administrative Agent, the CP Conduit
Purchasers, the Committed Purchasers, the Funding Agents and the Rating
Agencies.
(g) An executed copy of this Agreement and each other Transaction
Document to be executed by the Transferor and the Sellers.
(h) A Settlement Statement for April 30, 2002 and a Deposit Report for
the week ending May 31, 2002.
(j) All Fees required to be paid on or prior to the Closing Date in
accordance with the Fee Letter shall have been paid.
(k) Such other documents, instruments, certificates and opinions as the
Administrative Agent shall reasonably request.
SECTION 4.02. Conditions to Initial Incremental Transfer. The following
shall be additional conditions precedent to the initial Incremental Transfer:
(a) The Transferor shall notify to the Administrative Agent by
telecopy, of the proposed Initial Incremental Transfer Date at least ten
(10) Business Days prior to such proposed Initial Incremental Transfer Date.
(b) The Administrative Agent shall have received acknowledgment copies
evidencing the filing in the appropriate filing offices of proper financing
statements (Form UCC-1), naming the Transferor as the debtor, the
Administrative Agent, as secured party, and of such other similar
instruments or documents as may be necessary or, in the reasonable opinion
of the Administrative Agent, desirable under the Relevant UCC of all
appropriate jurisdictions or any comparable law to perfect the
Administrative Agent's security interest in all Receivables, Related
Security, Proceeds and Collections.
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RECEIVABLES TRANSFER AGREEMENT
(c) The Administrative Agent shall have received acknowledgment copies
evidencing the filing in the appropriate filing offices of proper financing
statements (Form UCC-1), naming each Seller as debtor, the Transferor as
assignor secured party, and the Administrative Agent, as secured party, and
of such other similar instruments or documents as may be necessary or, in
the reasonable opinion of the Administrative Agent, desirable under the
Relevant UCC of all appropriate jurisdictions or any comparable law to
perfect the Transferor's ownership or security interest in all Receivables,
Related Security and Collections.
(d) The Administrative Agent shall have received acknowledgment copies
evidencing the filing in the appropriate filing offices of proper financing
statements (Form UCC-3), if any, necessary to terminate or assign to the
Administrative Agent all security interests and other rights of any person
in Receivables previously granted by the Transferor.
(e) The Administrative Agent shall have received acknowledgment copies
evidencing the filing in the appropriate filing offices of proper financing
statements (Form UCC-3), if any, necessary to terminate or assign to the
Administrative Agent all security interests and other rights of any person
in Receivables, Related Security or Proceeds previously granted by the
Sellers.
(f) The Administrative Agent shall have received certified copies of
request for information or copies (Form UCC-11) (or a similar search report
certified by parties acceptable to the Administrative Agent), dated a date
reasonably near the Closing Date, listing all effective financing statements
which name the Transferor and any Seller (under their respective present
names and any previous names) as debtor and which are filed in jurisdictions
in which the filings were made pursuant to item (c), (d), (e) or (f) above
together with copies of such financing statements (none of which, except for
those filed pursuant to item (c) or (d) or those terminated pursuant to item
(e) or (f), shall cover any Receivables, Related Security or Contracts).
(g) An opinion of Xxxxxx Xxxxxx & Xxxxxxx, special counsel to the
Transferor and the Seller, addressed to the Administrative Agent, the CP
Conduit Purchasers, the Committed Purchasers, the Funding Agents and the
Rating Agencies, regarding the enforceability of the Transaction Documents
to which each is a party and other corporate matters.
(h) The Administrative Agent shall have received opinions of special
counsel to each Seller and the Transferor in the states of California,
Indiana, Louisiana, Michigan, New Jersey, Ohio, Texas and Wisconsin,
respectively, addressed to the Administrative Agent, the CP Conduit
Purchasers, the Committed Purchasers, the Funding Agents and the Rating
Agencies, regarding perfection and priority of the interest granted by the
Seller to the Transferor and the security interest granted by the Transferor
to the Administrative Agent.
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RECEIVABLES TRANSFER AGREEMENT
(i) The Administrative Agent shall have received the most recent
audited and unaudited consolidated financial statements of TriMas Corp. and
a balance sheet of the Transferor certified by its chief financial officer.
(j) The Administrative Agent shall have received such other documents,
instruments, certificates and opinions as the Administrative Agent shall
reasonably request.
ARTICLE V
Covenants
SECTION 5.01. Affirmative Covenants of the Transferor. At all times
from the date hereof to the later to occur of (i) the Termination Date or (ii)
the date on which all Commitments have been terminated, the Net Investment has
been reduced to zero, all accrued Discount, Fees, Servicing Fees and all other
Aggregate Unpaids shall have been paid in full in cash:
(a) Financial Reporting. The Transferor will maintain a system of
accounting established and administered in accordance with GAAP consistently
applied, and the Transferor and TriMas Corp. will furnish to the
Administrative Agent:
(i) Annual Reporting. Within ninety-five (95) days after the close
of the Transferor's fiscal year, audited financial statements of TriMas
Corp. and unaudited financial statements of the Transferor, prepared in
accordance with GAAP consistently applied, in the case of TriMas Corp.
on a consolidated basis for TriMas Corp. and its Subsidiaries,
including balance sheets as of the end of such period, related
statements of operations, shareholders' equity and cash flows,
accompanied by (in the case of TriMas Corp.) an audit report certified
by PricewaterhouseCoopers LLC or other nationally recognized
independent certified public accountants (without a "going concern" or
like qualification or exception and without any qualification or
exception as to the scope of the audit), acceptable to the
Administrative Agent, prepared in accordance with generally accepted
auditing standards and any management letter prepared by said
accountants.
(ii) Quarterly Reporting. Within fifty (50) days after the close
of the first three (3) quarterly periods of the Transferor's fiscal
year, for (x) the Transferor and (y) for TriMas Corp. and its
Subsidiaries, on a consolidated basis, unaudited balance sheets as at
the close of each such period and related statements of operations,
shareholders' equity and cash flows in each case for the period from
the beginning of such fiscal year to the end of such quarter, in each
case certified by its senior financial officer.
(iii) Compliance Certificate. Together with the financial
statements required hereunder, a compliance certificate signed by the
Transferor's chief
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RECEIVABLES TRANSFER AGREEMENT
financial officer stating that (x) the attached financial statements
have been prepared in accordance with GAAP consistently applied and
accurately reflect the financial condition of the Transferor or TriMas
Corp., as applicable, and (y) to the best of such Person's knowledge,
no Termination Event or Potential Termination Event exists, or if any
Termination Event or Potential Termination Event exists, stating the
nature and status thereof.
(iv) Notice of Termination Events or Potential Termination Events.
As soon as possible and in any event within two (2) Business Days after
the actual knowledge of a Responsible Officer of the Transferor of the
occurrence of each Termination Event or each Potential Termination
Event, a statement of the chief financial officer of the Transferor
setting forth details of such Termination Event or Potential
Termination Event and the action which the Transferor has taken or
proposes to take with respect thereto.
(v) Change in Credit and Collection Policy. Within ten (10)
Business Days after the date any material change in or amendment to the
Credit and Collection Policy is made, a copy of the Credit and
Collection Policy then in effect indicating such change or amendment.
(vi) Credit and Collection Policy. Within ninety (90) days after
the close of each Seller's and the Transferor's fiscal years, a
complete copy of the Credit and Collection Policy then in effect.
(vii) ERISA. Promptly after the filing or receiving thereof,
copies of all reports and notices with respect to any reportable event
(as defined in Article IV of ERISA) which the Transferor, any of the
Sellers or any ERISA Affiliate of the Transferor or the Sellers files
under ERISA with the Internal Revenue Service, the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor or which the
Transferor, any of the Sellers or any ERISA Affiliates of the
Transferor or the Sellers receives from the Internal Revenue Service,
the Pension Benefit Guaranty Corporation or the U.S. Department of
Labor.
(viii) Other Information. Such other information (including
non-financial information) as the Administrative Agent may from time to
time reasonably request with respect to the Sellers, the Transferor or
any Subsidiary of any of the foregoing; provided that after a CP
Conduit Purchaser's Termination Event with respect to any CP Conduit
Purchaser such information shall also be provided to the Committed
Purchaser with respect to such CP Conduit Purchaser.
(ix) Settlement Statements. On each Settlement Date, a Settlement
Statement to the Administrative Agent, the Funding Agent and the CP
Conduit Purchaser.
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RECEIVABLES TRANSFER AGREEMENT
(b) Conduct of Business. The Transferor will carry on and conduct its
business in substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted and do all things
necessary to remain duly incorporated, validly existing and in good standing
as a domestic corporation in its jurisdiction of incorporation and maintain
all requisite authority to conduct its business in each jurisdiction in
which its business is conducted except any jurisdictions where the failure
to maintain such authority could not reasonably be expected to have a
Material Adverse Effect.
(c) Compliance with Laws. The Transferor will, and will cause each
Seller and each of the Transferor's and such Seller's Affiliates to, comply
with all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it or its respective properties may be subject,
except to the extent that the failure to so comply with such laws, rules,
regulations, writs, judgments, injunctions, decrees or awards would not
materially adversely affect the ability of the Transferor to perform its
obligations under this Agreement.
(d) Furnishing of Information and Inspection of Records. The Transferor
will, and will cause each Seller to, furnish to the Administrative Agent
from time to time such information with respect to the Receivables as the
Administrative Agent may reasonably request, including, without limitation,
listings identifying the Obligor and the Outstanding Balance for each
Receivable, together with an aging of Receivables. The Transferor will, and
will cause each Seller to, at any time and from time to time during regular
business hours and upon reasonable notice and permit the Administrative
Agent and each Funding Agent, or their agents or representatives, (i) to
examine and make copies of and abstracts from all Records and (ii) to visit
the offices and properties of the Transferor and the Sellers for the purpose
of examining such Records, and to discuss matters relating to Receivables or
the Transferor's and the Sellers' performance hereunder and under the other
Transaction Documents to which such Person is a party with any of the
officers or employees of the Transferor and the Sellers having knowledge of
such matters.
(e) Keeping of Records and Books of Account. The Transferor will, and
will cause each Seller to, maintain and implement administrative and
operating procedures (including, without limitation, an ability to recreate
records evidencing Receivables in the event of the destruction of the
originals thereof), and keep and maintain, all documents, books, records and
other information reasonably necessary or advisable for the collection of
all Receivables (including, without limitation, records adequate to permit
the daily identification of each new Receivable and all Collections of and
adjustments to each existing Receivable). The Transferor will, and will
cause each Seller to, give the Administrative Agent, each of the Funding
Agents and each of the Committed Purchasers, prompt notice of any change in
the administrative and operating procedures of the Transferor or such
Seller, as applicable, referred to in the previous sentence to the extent
such change may have a Material Adverse Effect.
(f) Performance and Compliance with Contracts. The Transferor, at its
expense, will instruct the Collection Agent to, and to the extent
applicable, timely and fully
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RECEIVABLES TRANSFER AGREEMENT
perform and comply with all material provisions, covenants and other
promises required to be observed by the Transferor under the Contracts
related to the Receivables.
(g) Credit and Collection Policies. The Transferor will instruct the
Collection Agent and the Sellers to comply in all material respects with the
Credit and Collection Policy in regard to each Receivable and the related
Contract.
(h) Collections. The Transferor shall instruct the Collection Agent and
the Sellers to instruct all Obligors to cause all Collections (other than
Collections remitted directly) to be deposited directly to a Lock-Box
Account.
(i) Collections Received. The Transferor shall, and shall instruct the
Collection Agent and the Sellers to, hold in trust, and deposit immediately
(but in any event no later than one (1) Business Day following receipt
thereof) to a Lock-Box Account all Collections received from time to time by
the Transferor, the Collection Agent and the Sellers.
(j) Sale Treatment. The Transferor will not (i) account for (including
for accounting purposes), or otherwise treat, the transactions contemplated
by the Receivables Purchase Agreement in any manner other than as a sale of
Receivables by the Sellers to the Transferor, or (ii) account for (other
than for tax purposes) or otherwise treat the transactions contemplated
hereby in any manner other than as a sale of Receivables by the Transferor
to the CP Conduit Purchasers or the Committed Purchasers, as applicable. In
addition, the Transferor shall disclose (in a footnote or otherwise) in all
of its financial statements (including any such financial statements
consolidated with any other Persons' financial statements) the existence and
nature of the transaction contemplated hereby and by the Receivables
Purchase Agreement and the interest of the Transferor, the CP Conduit
Purchasers and the Committed Purchasers in the Receivables and Related
Security, Collections and Proceeds with respect thereto.
(k) Separate Business. The Transferor shall not engage in any business
not permitted by its Certificate of Incorporation as in effect on the
Closing Date.
(l) Corporate Documents. The Transferor shall only amend, alter, change
or repeal its Certificate of Incorporation or the By-laws with the prior
written consent of the Administrative Agent which shall not be unreasonably
withheld.
(m) Net Worth. The Transferor on the Initial Incremental Transfer Date
has a net worth, and thereafter maintain at all times a net worth (as
defined in accordance with GAAP), of at least $25,000,000.
(n) Separate Corporate Existence. The Transferor shall:
(i) Maintain its own deposit account or accounts, separate from
those of any Affiliate, with commercial banking institutions and use
its commercially
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RECEIVABLES TRANSFER AGREEMENT
reasonable efforts to ensure that the funds of the Transferor will not
be diverted to any other Person or for other than corporate uses of the
Transferor and that, except as contemplated by Section 6.02(b) such
funds will not be commingled with the funds of any Seller or any
Subsidiary or Affiliate of the Sellers;
(ii) To the extent that it shares the same officers or other
employees as any of its stockholders or Affiliates, fairly allocate
among such entities the salaries of and the expenses related to
providing benefits to such officers and other employees, and each such
entity shall bear its fair share of the salary and benefit costs
associated with all such common officers and employees;
(iii) To the extent that it jointly contracts with any of its
stockholders or Affiliates to do business with vendors or service
providers or to share overhead expenses, fairly allocate among such
entities the costs incurred in so doing, and each such entity shall
bear its fair share of such costs. To the extent that the Transferor
contracts or does business with vendors or service providers where the
goods and services provided are partially for the benefit of any other
Person, the costs incurred in so doing shall be fairly allocated to or
among such entities for whose benefit the goods or services are
provided, and each such entity shall bear its fair share of such costs;
(iv) Enter into all material transactions between the Transferor
and any of its Affiliates, whether currently existing or hereafter
entered into, only on an arm's length basis, it being understood and
agreed that the transactions contemplated in the Transaction Documents
meet the requirements of this clause (iv);
(v) Maintain office space separate from the office space of the
Sellers and any Affiliates of the Sellers. To the extent that the
Transferor and any of its stockholders or Affiliates have offices in
the same location, there shall be a fair and appropriate allocation of
overhead costs among them, and each such entity shall bear its fair
share of such expenses;
(vi) Issue separate unaudited financial statements prepared not
less frequently than quarterly and prepared in accordance with GAAP
consistently applied;
(vii) Conduct its affairs strictly in accordance with its articles
of incorporation and observe all necessary, appropriate and customary
corporate formalities, including, but not limited to, holding all
regular and special stockholders' and directors' meetings appropriate
to authorize all corporate action, keeping separate and accurate
minutes of its meetings, passing all resolutions or consents necessary
to authorize actions taken or to be taken, and maintaining accurate and
separate books, records and accounts, including, but not limited to,
payroll and intercompany transaction accounts;
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RECEIVABLES TRANSFER AGREEMENT
(viii) Not assume or guarantee any of the liabilities of the
Sellers or any Affiliate thereof;
(ix) Take, or refrain from taking, as the case may be, all other
actions that are necessary to be taken or not to be taken in order to
(x) ensure that the assumptions and factual recitations set forth in
the Specified Bankruptcy Opinion Provisions remain true and correct
with respect to the Transferor and (y) comply with those procedures
described in such provisions which are applicable to the Transferor;
(x) Take such actions as are necessary to ensure that not less
than one member of Transferor's Board of Directors shall be an
individual who (1) is not, and never has been, a direct, indirect or
beneficial stockholder, officer, director, employee, affiliate,
associate, material supplier or material customer of the Collection
Agent or any of its Affiliates, and (2) has experience as an
independent director for a corporation whose charter documents required
the unanimous consent of all independent directors thereof before such
corporation could consent to the institution of bankruptcy or
insolvency proceeding against it or before it could file a petition
seeking relief under any applicable federal or state law relating to
bankruptcy or insolvency, and (3) has at least three years of
employment experience with one or more entities that provide, in the
ordinary course of their respective businesses, advisory, management or
placement services to issuers of securitization or structured finance
instruments, agreements or securities (the "Independent Directors").
The certificate of incorporation of the Transferor shall provide that
(i) at least one member of the Transferor's Board of Directors shall be
an Independent Director, (ii) the Transferor's Board of Directors shall
not approve, or take any other action to cause the filing of, a
voluntary bankruptcy petition with respect to the Transferor unless a
unanimous vote of the Transferor's Board of Directors (which vote shall
include the affirmative vote of each Independent Director) shall
approve the taking of such action in writing prior to the taking of
such action and (iii) the provisions requiring an independent director
and the provision described in clauses (i) and (ii) of this paragraph
(b) cannot be amended without the prior written consent of each
Independent Director;
(xi) Take such actions as are necessary to ensure that no
Independent Director shall at any time serve as a trustee in bankruptcy
for the Transferor or any Affiliate thereof;
(xii) Take such actions as are necessary to ensure that the books
of account, financial reports and corporate records of the Transferor
will be maintained separately from those of TriMas Corp., TriMas LLC
and each other Affiliate of the Transferor;
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RECEIVABLES TRANSFER AGREEMENT
(xiii) Take such actions as are necessary to ensure that any
financial statements of TriMas Corp. or Affiliate thereof which are
consolidated to include the Transferor will contain detailed notes
clearly stating that (A) all of the Transferor's assets are owned by
the Transferor, and (B) the Transferor is a separate corporate entity
with its own separate creditors that will be entitled to be satisfied
out of the Transferor's assets prior to any value in the Transferor
becoming available to the Transferor's equity holders; and the
accounting records and the published financial statements of the
Sellers will clearly show that, for accounting purposes, the
Receivables and Related Security have been sold to the Transferor;
(xiv) Take such actions as are necessary to ensure that the
Transferor's assets will be maintained in a manner that facilitates
their identification and segregation from those of TriMas Corp., the
Sellers and other Affiliates of TriMas Corp.;
(xv) Take such actions as are necessary to ensure that no
Affiliates of the Transferor shall, directly or indirectly, name the
Transferor or enter into any agreement to name the Transferor a direct
or contingent beneficiary or loss payee or any insurance policy
covering the property of any such Affiliate; and
(xvi) Take such actions as are necessary to ensure that no
Affiliate of the Transferor will be, nor will hold itself out to be,
responsible for the debts of the Transferor or the decisions or actions
in respect of the daily business and affairs of the Transferor. The
Transferor will immediately correct any known misrepresentation with
respect to the foregoing, and the Transferor and its Affiliates will
not operate or purport to operate as an integrated single economic unit
with respect to each other or in their dealing with any other entity.
(o) Enforcement of Receivables Purchase Agreement. The Transferor shall
use its best efforts to enforce all rights held by it under the Receivables
Purchase Agreement and shall not waive any breach of any covenant contained
in Section 5.01 thereunder.
(p) Further Assurances. (i) TriMas Corp. at the joint and several
expense of TriMas Corp. and the Sellers, shall execute, acknowledge and
deliver, or cause to be executed, acknowledged or delivered, from time to
time, within a reasonable time period of such request, (A) such amendments
or supplements to this Agreement and the Receivables Purchase Agreement as
are reasonably requested by the Administrative Agent (acting at the
direction of the Committed Purchasers necessary to approve such action
pursuant to Section 10.02), and (B) such further instruments and take such
further action, in each case, as may be reasonably necessary (as determined
by the Funding Agents in consultation with TriMas Corp.), to obtain the
confirmation of the current ratings assigned to the Commercial Paper (on an
unwrapped basis), to the extent such ratings are attributable to the
transactions contemplated hereby and the other Transaction Documents. In
furtherance of the foregoing and thereafter from time to time as may be
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RECEIVABLES TRANSFER AGREEMENT
necessary, TriMas Corp. shall (A) cooperate with each of S&P, Xxxxx'x and/or
Fitch in connection with any review of the Transaction Documents which may
be undertaken by S&P, Xxxxx'x and/or Fitch prior to the Closing Date and (B)
provide each of S&P, Xxxxx'x and Fitch with such information or access to
such information as they may reasonably request in connection with any
future review of the ratings referred to above.
SECTION 5.02. Negative Covenants of the Transferor. At all times from
the date hereof until the date on which all Commitments have been terminated,
the Net Investment has been reduced to zero, and all accrued Discount, Fees,
Servicing Fees and all other Aggregate Unpaids shall have been paid in full in
cash:
(a) No Sales, Liens, etc. Except as otherwise provided herein and in
the Receivables Purchase Agreement, the Transferor will not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer
to exist any Adverse Claim upon (or the filing of any financing statement)
or with respect to (x) any of the Receivables or Related Security, or (y)
any Lock-Box Account.
(b) No Extension or Amendment of Receivables. Except as otherwise
permitted in Section 6.02 hereof, the Transferor will not, and will not
permit any Seller to, extend, amend or otherwise modify the terms of any
Receivable, or amend, modify or waive any term or condition of any Contract
related thereto.
(c) No Change in Business or Credit and Collection Policy. The
Transferor will not, and will not permit any Seller to, make any change in
the character of its business or in the Credit and Collection Policy, which
change would have a Material Adverse Effect.
(d) No Mergers, etc. The Transferor will not without the prior written
consent of the Administrative Agent, and except as otherwise permitted
pursuant to the Receivables Purchase Agreement, will not permit any Seller
to, (i) consolidate or merge with or into any other Person, or (ii) sell,
lease or transfer all or substantially all of its assets to any other
Person, provided, that a Seller may merge with or into another Seller or
with another Person if (A)(1) such Seller is the corporation surviving such
consolidation or merger or (2) the Person into or with whom the Seller is
merged or consolidated is an Affiliate and the surviving corporation assumes
in writing all duties and liabilities of the Seller under the Transaction
Documents, and (B) immediately after and giving effect to such consolidation
or merger, no Termination Event or Potential Termination Event shall have
occurred and be continuing.
(e) Change in Payment Instructions to Obligors; Deposits to Lock-Box
Accounts; Notice of Legal Process Against Lock-Box Account. The Transferor
will not, and will not permit any Seller to, add or terminate any bank as a
Lock-Box Bank or any account as a Lock-Box Account to or from those listed
in Exhibit B hereto or make any change in its instructions to Obligors
regarding payments to be made to any Lock-Box Account, unless (i) such
instructions are to deposit such payments to another existing Lock-Box
Account or (ii) the Administrative Agent shall have received written notice
of such addition,
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RECEIVABLES TRANSFER AGREEMENT
termination or change at least thirty (30) days prior thereto and the
Administrative Agent shall have received a Lock-Box Agreement executed by
each new Lock-Box Bank or an existing Lock-Box Bank with respect to each new
Lock-Box Account, as applicable. The Transferor will not deposit or
otherwise credit, or cause or permit to be so deposited or credited, to any
Lock-Box Account cash or cash proceeds other than Collections of
Receivables. However, in the event any Seller deposits or otherwise credits,
or cause or permits to be so deposited or credited, to any Lock-Box Account,
cash or cash proceeds other than Collections of Receivables, the Transferor
shall, or shall cause such Seller to, segregate or cause to be segregated
any such cash or cash proceeds from Collections within one (1) Business Day
following the deposit or credit to any Lock-Box Account. Promptly after a
Responsible Officer of the Transferor or the Collection Agent receives
notice or becomes aware that a lien, writ, garnishment or other legal
process has been filed against the Transferor, TriMas Corp., the Collection
Agent, any Seller or any Lock- Box Bank with respect to a Lock-Box Account
or Lock-Box Agreement, the Transferor or the Collection Agent, as
applicable, will notify the Administrative Agent thereof.
(f) Change of Name, etc. The Transferor will not, and will not permit a
Seller to, change its name, jurisdiction of organization, form of
organization, taxpayer identification number or state organizational number,
unless at least ten (10) days prior to the effective date of any such change
the Transferor delivers to the Administrative Agent (i) such documents,
instruments or agreements, executed by the Transferor as are necessary to
reflect such change and to continue the perfection of the Administrative
Agent's ownership interests or security interests in the Receivables and
Related Security, Collections and Proceeds with respect thereto and (ii) new
or revised Lock-Box Agreements executed by the Lock-Box Banks which reflect
such change and enable the Administrative Agent to continue to exercise its
rights contained in Section 2.08 hereof.
(g) Amendment to Receivables Purchase Agreement. The Transferor will
not, and will not permit any of the Sellers to, amend, modify, or supplement
the Receivables Purchase Agreement, except with the prior written consent of
the Administrative Agent; nor shall the Transferor take, or permit any of
the Sellers to take, any other action under the Receivables Purchase
Agreement that shall have a material adverse affect on the Administrative
Agent, any CP Conduit Purchaser or any Committed Purchaser or which is
inconsistent with the terms of this Agreement.
(h) Other Debt. Except as provided for herein or in the Receivables
Purchase Agreement, the Transferor will not create, incur, assume or suffer
to exist any indebtedness whether current or funded, or any other liability
other than (i) indebtedness of the Transferor representing fees, expenses
and indemnities arising hereunder or under the Receivables Purchase
Agreement (including the Subordinated Note) for the purchase price of the
Receivables under the Receivables Purchase Agreement; (ii) other
indebtedness incurred in the ordinary course of its business to the extent
permitted by or required under any other Transaction Document and (iii)
additional indebtedness in an amount not to exceed $9,850 at any time
outstanding.
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RECEIVABLES TRANSFER AGREEMENT
(i) ERISA Matters. The Transferor will not, and will not permit any
Seller to, (i) engage or permit any of its ERISA Affiliates to engage in any
prohibited transaction (as defined in Section 4975 of the Code and Section
406 of ERISA) for which an exemption is not available or has not previously
been obtained from the U.S. Department of Labor; (ii) permit to exist any
accumulated funding deficiency (as defined in Section 302(a) of ERISA and
Section 412(a) of the Code) or funding deficiency with respect to any
Benefit Plan other than a Multiemployer Plan; (iii) fail to make any
payments to any Multiemployer Plan that the Transferor or any ERISA
Affiliate of the Transferor is required to make under the agreement relating
to such Multiemployer Plan or any law pertaining thereto; (iv) terminate any
Benefit Plan so as to result in any liability to the Pension Benefit
Guaranty Corporation; or (v) permit to exist any occurrence of any
reportable event described in Title IV of ERISA which represents a material
risk of a liability to the Transferor or any ERISA Affiliate of the
Transferor under ERISA or the Code, if such prohibited transactions,
accumulated funding deficiencies, failure to make payments, terminations and
reportable events occurring within any fiscal year of the Transferor in the
aggregate, involve a payment of money or an incurrence of liability by the
Transferor or any ERISA Affiliate of the Transferor in an amount which would
reasonably be expected to have a Material Adverse Effect.
(j) Payment to the Sellers. With respect to any Receivable sold by the
Sellers to the Transferor, the Transferor shall, and shall cause the Sellers
to, effect such sale under, and pursuant to the terms of, the Receivables
Purchase Agreement, including, without limitation, the payment by the
Transferor either in cash or by increase in the amount of the Subordinated
Note of an amount equal to the purchase price for such Receivable as
required by the terms of the Receivables Purchase Agreement.
ARTICLE VI
Administration and Collections
SECTION 6.01. Appointment of Collection Agent. The servicing,
administering and collection of the Receivables shall be conducted by such
Person (the "Collection Agent") so designated from time to time in accordance
with this Section 6.01. Until the Administrative Agent (at the direction of the
Funding Agents) gives notice to TriMas Corp. of the designation of a new
Collection Agent pursuant to this Section 6.01, TriMas Corp. is hereby
designated as, and hereby agrees to perform the duties and obligations of, the
Collection Agent pursuant to the terms hereof. The Collection Agent may not
delegate any of its rights, duties or obligations hereunder, or designate a
substitute Collection Agent, without the prior written consent of the
Administrative Agent; provided that TriMas Corp. shall be permitted to delegate
its duties and obligations as Collection Agent hereunder to the Sellers, or any
of TriMas Corp.'s Affiliates or stockholders, but such delegation shall not
relieve TriMas Corp. of its duties and obligations as Collection Agent
hereunder. The Administrative Agent may, and upon the direction of the Required
Committed Purchasers the Administrative Agent shall, but only after the
occurrence of a Collection Agent Default or any other Termination Event,
designate as Collection Agent any
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RECEIVABLES TRANSFER AGREEMENT
Person (including itself) to succeed TriMas Corp. or any successor Collection
Agent, on the condition in each case that any such Person so designated shall
agree to perform the duties and obligations of the Collection Agent pursuant to
the terms hereof. Following a Collection Agent Default or a Termination Event,
the Administrative Agent may notify any Obligor of the designation of a
successor Collection Agent.
SECTION 6.02. Duties of Collection Agent. (a) The Collection Agent
shall take or cause to be taken all such action as may be necessary or advisable
to collect each Receivable from time to time, all in accordance with applicable
laws, rules and regulations, with reasonable care and diligence, and in
accordance with the Credit and Collection Policy. Each of the Transferor, the CP
Conduit Purchasers, the Committed Purchasers, the Funding Agents and the
Administrative Agent, hereby appoints as its agent the Collection Agent, from
time to time designated pursuant to Section 6.01 hereof, to enforce its
respective rights and interests in and under the Receivables and Related
Security, Collections and Proceeds with respect thereto. To the extent permitted
by applicable law, the Transferor hereby grants to any Collection Agent
appointed hereunder an irrevocable power of attorney to take in the Transferor's
name and on behalf of the Transferor any and all steps necessary or desirable,
in the reasonable determination of the Collection Agent, to collect all amounts
due under any and all Receivables, including, without limitation, endorsing the
Transferor's name on checks and other instruments representing Collections and
enforcing such Receivables and the related Contracts. The Collection Agent shall
set aside for the account of the Transferor, the CP Conduit Purchasers and the
Committed Purchasers their respective allocable shares of the Collections of
Receivables in accordance with Sections 2.05 and 2.06 hereof. The Collection
Agent shall segregate and deposit to the Collection Account each CP Conduit
Purchaser's and each Committed Purchaser's allocable share of Collections of
Receivables when required pursuant to Article II hereof. The Collection Agent
shall, and shall cause the Sellers to, hold in trust for the Transferor, the CP
Conduit Purchasers, the Committed Purchasers, the Funding Agents and the
Administrative Agent, in accordance with their respective interests, all Records
which evidence or relate to Receivables, Related Security or Collections.
Notwithstanding anything to the contrary contained herein, the Administrative
Agent shall have the absolute and unlimited right to direct the Collection Agent
(whether the Collection Agent is TriMas Corp. or any other Person) to commence
or settle any legal action to enforce collection of any Receivable or to
foreclose upon or repossess any Related Security. The Collection Agent shall not
make the Administrative Agent, any of the CP Conduit Purchasers, any of the
Funding Agents or any of the Committed Purchasers a party to any litigation
without the prior written consent of such Person.
(b) The Collection Agent shall, as soon as practicable following
receipt thereof, segregate any funds deposited in a Lock-Box Account or
otherwise commingled and not attributable to a Receivable within one (1)
Business Day of receipt thereof and remit such funds to the appropriate Person.
If the Collection Agent is not the Transferor, TriMas Corp., any Seller or an
Affiliate of the Transferor or the Sellers, the Collection Agent, by giving
three (3) Business Days' prior written notice to the Administrative Agent, may
revise the Servicing Fee; provided that such revised Servicing Fee shall be a
reasonable fee agreed upon by the Collection Agent and the Administrative Agent
reflecting rates and terms prevailing at such time as would be negotiated on an
arm's-length basis. The Collection Agent, if other than the Transferor, TriMas
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RECEIVABLES TRANSFER AGREEMENT
Corp., any Seller, TriMas Corp. stockholder or an Affiliate of the Transferor or
the Sellers, shall as soon as practicable upon demand, deliver to the applicable
Seller all Records in its possession which evidence or relate to indebtedness of
an Obligor which is not a Receivable.
(c) On or before ninety-five (95) days after the end of each fiscal
year of the Collection Agent, beginning with the fiscal year ending December 30,
2002, the Collection Agent shall cause a firm of nationally recognized
independent public accountants reasonably acceptable to the Administrative Agent
(who may also render other services to the Collection Agent, the Transferor, the
Sellers or any Affiliates of any of the foregoing), at the expense of the
Transferor, to furnish a report to the Administrative Agent and the Transferor
to the effect that they have:
(i) selected at least one Settlement Statement for each fiscal quarter
delivered during the fiscal year then ended and verified that the amounts
presented on such Settlement Statement relating to sales, total dilution,
net sales, collections, write-offs, concentrations and aging of Receivables
agreed with the information provided to the Collection Agent by each Seller;
(ii) for four (4) Sellers selected by the Administrative Agent,
verified that the amounts presented on each of the Seller's reports to the
Collection Agent for the periods selected in (i) above relating to sales,
total dilution, net sales, collections, write-offs, concentrations and aging
of Receivables agreed with the information contained within such Seller's
underlying accounting records for such Settlement Period;
(iii) selected at least one Deposit Report for each fiscal quarter
delivered during the fiscal year then ended and verified that the amounts
presented on such Deposit Report relating to sales, collections,
concentrations and aging of Receivables agreed with the information provided
to the Collection Agent by each Seller;
(iv) for four (4) Sellers selected by the Administrative Agent (which
may be the same Sellers selected in (ii) above), verified that the amounts
presented on each of the Seller's reports to the Collection Agent for the
periods selected in (iii) above relating to sales, collections,
concentrations and aging of Receivables agreed with the information
contained within such Seller's underlying accounting records for such
period;
(v) recalculated the Net Receivables Balance as of the end of at least
one Settlement Period and one Deposit Report for each fiscal quarter;
(vi) selected a sample of fifteen (15) Receivables for each of the four
(4) Sellers selected in (ii) above and verified that the Receivables treated
by the Collection Agent as Eligible Receivables in fact satisfied the
requirements of clauses (iii), (iv) and (viii) of the definition of such
term;
(vii) selected at least one Settlement Statement for each fiscal
quarter and conducted a "negative confirmation" or other alternative
procedures of a sample of fifteen
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(15) Receivables for each of the four (4) Sellers selected in (ii) above
(which can be the same Receivables selected in clause (vi) above) and
verified that each Seller's records and computer system used in servicing
the Receivables contained correct information with regard to outstanding
balances;
(viii) selected at least one Settlement Statement for each fiscal
quarter and selected a sample of fifteen (15) Receivables for each of the
four (4) Sellers selected in (ii) above (which can be the same Receivables
selected in clause (vi) above) and verified that such Receivables were
included in the proper aging category on such Settlement Statement based on
the dates listed on the original invoices for such Receivables; and
(ix) such other reasonable procedures identified by the Funding Agents
and for which notice of such additional procedures shall have been given to
the Collection Agent no later than 30 days after the end of such fiscal
year;
except, in each case for (a) such exceptions as such firm shall believe to be
immaterial (which exceptions need not be enumerated) and (b) such other
exceptions as shall be set forth in such statement.
(d) Notwithstanding anything to the contrary contained in this Article
VI, the Collection Agent, if not the Transferor, TriMas Corp., any Seller or any
Affiliate of the Transferor or the Sellers, shall have no obligation to collect,
enforce or take any other action described in this Article VI with respect to
any indebtedness that is not included in the Transferred Interest other than to
deliver to the Transferor the collections and documents with respect to any such
indebtedness as described in Section 6.02(b) hereof.
SECTION 6.03. Rights After Designation of New Collection Agent. At any
time following the designation of a Collection Agent other than TriMas Corp.,
any Seller or the Transferor pursuant to the penultimate sentence of Section
6.01 hereof:
(i) The Administrative Agent may, at its option, or shall, at the
direction of the Required Committed Purchasers, direct that payment of all
amounts payable under any Receivable be made directly to the Administrative
Agent or its designee for the benefit of the CP Conduit Purchasers and the
Committed Purchasers.
(ii) The Transferor shall, at the Administrative Agent's request and at
the Transferor's expense, give notice of the CP Conduit Purchasers', the
Transferor's and/or the Committed Purchasers' ownership of Receivables to
each Obligor and direct that payments be made directly to the Administrative
Agent or its designee.
(iii) The Transferor shall, at the Administrative Agent's request, (A)
assemble all of the Records, and shall make the same available to the
Administrative Agent or its designee at a place selected by the
Administrative Agent or its designee, and (B) segregate all cash, checks and
other instruments received by it from time to time constituting Collections
of Receivables in a manner acceptable to the Administrative
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RECEIVABLES TRANSFER AGREEMENT
Agent and shall, promptly upon receipt, remit all such cash, checks and
instruments, duly endorsed or with duly executed instruments of transfer, to
the Administrative Agent or its designee.
(iv) The Transferor hereby authorizes the Administrative Agent to take
any and all steps in the Transferor's name and on behalf of the Transferor
necessary or desirable, in the determination of the Administrative Agent, to
collect all amounts due under any and all Receivables, including, without
limitation, endorsing the Transferor's name on checks and other instruments
representing Collections and enforcing such Receivables and the related
Contracts.
SECTION 6.04. Representations and Warranties of the Collection Agent.
The Collection Agent represents and warrants (solely as to itself) to the
Administrative Agent, each CP Conduit Purchaser, each Committed Purchaser and
each Funding Agent as of the date it becomes a Collection Agent hereunder that:
(a) Corporate Existence and Power. The Collection Agent is a
corporation duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of incorporation and has all corporate
power and all material governmental licenses, authorizations, consents and
approvals required to carry on its business in each jurisdiction in which
its business is now conducted, except where the failure to obtain such
licenses, authorizations, consents and approvals would not have a Material
Adverse Effect. The Collection Agent is duly qualified to do business in,
and is in good standing in, every other jurisdiction in which the nature of
its business requires it to be so qualified, except where the failure to be
so qualified or in good standing would not have a Material Adverse Effect.
(b) Corporate and Governmental Authorization, Contravention. The
execution, delivery and performance by the Collection Agent of this
Agreement (i) are within the Collection Agent's corporate powers, (ii) have
been duly authorized by all necessary corporate action on the Collection
Agent's part, (iii) require no action by or in respect of, or filing with,
any Official Body or official thereof (except for the filing of UCC
financing statements as required by this Agreement or as have been taken or
filed and, with respect to filings other than UCC financing statements,
filings where the failure to file will not have a Material Adverse Effect),
(iv) do not contravene, or constitute a default under, any provision of
applicable Law or of the organizational documents of the Collection Agent or
of any agreement or other material instrument binding upon the Collection
Agent, except where such contravention or default would not have a Material
Adverse Effect, or (v) result in the creation or imposition of any Adverse
Claim on the assets of the Collection Agent or any of its Affiliates (except
those created by the Transaction Documents).
(c) Binding Effect. This Agreement constitutes the legal, valid and
binding obligations of the Collection Agent, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, moratorium or other
similar laws affecting the rights
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RECEIVABLES TRANSFER AGREEMENT
of creditors generally and general equitable principles (whether considered
in a proceeding at law or in equity).
(d) Action, Suits. Except as set forth in Exhibit F hereto, there are
no actions, suits or proceedings pending, or to the knowledge of the
Collection Agent, threatened, against the Collection Agent, or any Affiliate
of the Collection Agent, or its respective properties, in or before any
court, arbitrator or other body, which could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
SECTION 6.05. Covenants of the Collection Agent. At all times from the
date hereof to the date on which all Commitments have been terminated, the Net
Investment has been reduced to zero, and all accrued Discount, Fees, Servicing
Fees and all other Aggregate Unpaids have been paid in full in cash:
(a) Credit and Collection Policy. The Collection Agent will comply in
all material respects with the Credit and Collection Policy in regard to
each Receivable and the related Contract.
(b) Collections Received. The Collection Agent shall hold in trust, and
deposit as soon as reasonably practicable (but in any event no later than
one Business Day following its receipt thereof) to a Lock-Box Account all
Collections received from time to time by the Collection Agent.
(c) Notice of Termination Events, Potential Termination Events or
Collection Agent Defaults. Immediately, and in any event within one (1)
Business Day after the Collection Agent obtains knowledge of the occurrence
of each Termination Event, Potential Termination Event or Collection Agent
Default, the Collection Agent will furnish to the Administrative Agent and
each Funding Agent a statement of a Responsible Officer of the Collection
Agent setting forth details of such Termination Event, Potential Termination
Event or Collection Agent Default, and the action which the Collection
Agent, the Transferor or a Seller proposes to take with respect thereto.
(d) Conduct of Business. The Collection Agent will do all things
necessary to remain duly incorporated, validly existing and in good standing
as a domestic corporation in its jurisdiction of incorporation and maintain
all requisite authority to conduct its business in each jurisdiction in
which its business is conducted to the extent that the failure to maintain
such would have a Material Adverse Effect.
(e) Compliance with Laws. The Collection Agent will comply in all
respects with all Laws with respect to the Receivables to the extent that
any non-compliance would have a Material Adverse Effect.
(f) Further Information. The Collection Agent shall furnish or cause to
be furnished to the Administrative Agent and, after a Termination Event or a
Potential Termination Event, any Funding Agent such other information
relating to the Receivables
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RECEIVABLES TRANSFER AGREEMENT
and readily available public information regarding the financial condition
of the Collection Agent, as soon as reasonably practicable, and in such form
and detail, as the Administrative Agent may reasonably request and, after a
Termination Event or a Potential Termination Event, as any Funding Agent may
reasonably request.
SECTION 6.06. Negative Covenants of the Collection Agent. At all times
from the date hereof to the date on which all Commitments have been terminated,
the Net Investment has been reduced to zero, and all accrued Discount, Fees,
Servicing Fees and all other Aggregate Unpaids have been paid in full in cash:
(a) No Sales, Liens, Etc. Except as otherwise provided herein, in the
Receivables Purchase Agreement and in the Credit Agreement, the Collection
Agent will not sell, assign (by operation of law or otherwise) or otherwise
dispose of, or create any Adverse Claim upon (or file any financing
statement) or with respect to (x) any of the Receivables, Related Security,
Collections or Proceeds with respect thereto, (y) any Lock-Box Account (or
any other account referred to in Section 5.01(i) to which any Collections of
any Receivables are sent, or assign any right to receive income in respect
thereof, or (z) grant any Adverse Claim or file any financing statement
(other than those granted in the Transaction Documents) on or with respect
to any inventory or goods, the sale of which may give rise to a Collection,.
(b) Consolidations, Mergers and Sales of Assets. The Collection Agent
shall not without the prior written consent of the Administrative Agent, (i)
consolidate or merge with or into any other Person or (ii) sell, lease or
otherwise transfer all or substantially all of its assets to any other
Person; provided that the Collection Agent may consolidate or merge with
another Person if (A)(1) the Collection Agent is the corporation surviving
such consolidation or merger or (2) the Person into or with whom the
Collection Agent is merged or consolidated is an Affiliate and the surviving
corporation assumes in writing all duties and liabilities of the Collection
Agent hereunder and (B) immediately after and giving effect to such
consolidation or merger, no Termination Event or Potential Termination Event
shall have occurred and be continuing.
(c) Lock-Box Accounts. Except as permitted pursuant to Section 2.09(b)
of this Agreement or as otherwise permitted under or required by the
Transaction Documents, the Collection Agent shall not make, or cause or
permit any other Person to make any transfer of funds on deposit in a
Lock-Box Account.
(d) Modifications of Receivables or Contracts. The Collection Agent
shall not extend, amend, forgive, discharge, compromise, waive, cancel or
otherwise modify the terms of any Receivable or amend, modify or waive any
term or condition of any Contract related thereto; provided, that the
Collection Agent may take such actions as are expressly permitted by the
terms of any Transaction Document and are in accordance with the Credit and
Collection Policy.
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RECEIVABLES TRANSFER AGREEMENT
SECTION 6.07. Collection Agent Default. The occurrence of any one or
more of the following events shall constitute a Collection Agent default (each,
a "Collection Agent Default"):
(a) (i) the Collection Agent or, to the extent that the Transferor,
TriMas Corp., any Seller or any Affiliate of the Transferor or the Sellers
is then acting as Collection Agent, the Transferor, TriMas Corp., such
Seller or such Affiliate, as applicable, shall fail to observe or perform
any material term, covenant or agreement hereunder (other than as referred
to in clauses (ii) and (iii) of this Section 6.07(a)), and such failure
shall remain unremedied for ten (10) days, after a Responsible Officer of
the Collection Agent has knowledge thereof or (ii) the Collection Agent or,
to the extent that the Transferor, TriMas Corp., any Seller or any Affiliate
of the Transferor or the Sellers is then acting as Collection Agent, the
Transferor, TriMas Corp., such Seller or such Affiliate, as applicable,
shall fail to make any payment or deposit required to be made by it
hereunder when due and such failure remains uncured for one (1) Business Day
or the Collection Agent shall fail to observe or perform in any material
respect any term, covenant or agreement on the Collection Agent's part to be
performed under Section 2.09(b) hereof, or (iii) the Collection Agent fails
to deliver any Deposit Report within two (2) Business Days of the date when
due or Settlement Statement within one (1) Business Day of the date when
due; or
(b) any representation, warranty, certification or statement made by
the Collection Agent in this Agreement, any other Transaction Document or in
any other document delivered pursuant hereto or thereto shall prove to have
been incorrect in any material respect when made or deemed made; provided
that no such event shall constitute a Collection Agent Default unless such
event shall continue unremedied for a period of ten (10) days from the date
a Responsible Officer of the Collection Agent obtains knowledge thereof; or
(c) the Collection Agent or any of its Subsidiaries shall fail to make
any payment of principal or interest in respect of any Indebtedness
evidencing an aggregate outstanding principal amount exceeding $15,000,000,
when and as the same shall become due and payable after giving effect to any
applicable grace period with respect thereto; or any event or condition
occurs that results in any such Indebtedness becoming due prior to its
scheduled maturity or that enables or permits the holder or holders of any
such Indebtedness or any trustee or agent on its or their behalf to cause
any such Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (c) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer
of the property or assets securing such Indebtedness; or
(d) an involuntary proceeding described under clause (ii) of the
definition of Event of Bankruptcy shall occur and be continuing for sixty
(60) days, or any other Event of Bankruptcy shall occur and be continuing,
in each case with respect to the Collection Agent or any of its
Subsidiaries; or
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RECEIVABLES TRANSFER AGREEMENT
(e) there shall have occurred any event which, in the commercially
reasonable judgment of the Administrative Agent and the Required Committed
Purchasers materially and adversely affects the Collection Agent's ability
to collect the Receivables under this Agreement.
SECTION 6.08. Responsibilities of the Transferor and the Sellers.
Anything herein to the contrary notwithstanding, the Transferor shall, and/or
shall cause each Seller to, (i) perform all of such Seller's obligations under
the Contracts related to the Receivables to the same extent as if interests in
such Receivables had not been sold hereunder and under the Receivables Purchase
Agreement and the exercise by the Administrative Agent, the CP Conduit
Purchasers and the Committed Purchasers of their rights hereunder and under the
Receivables Purchase Agreement shall not relieve the Transferor or the Seller
from such obligations and (ii) pay when due any taxes, including without
limitation, any sales taxes payable in connection with the Receivables and their
creation and satisfaction. Neither the Administrative Agent, any of the Funding
Agents, any of the CP Conduit Purchasers nor any of the Committed Purchasers
shall have any obligation or liability with respect to any Receivable or related
Contracts, nor shall it be obligated to perform any of the obligations of the
Seller thereunder.
ARTICLE VII
Termination Events
SECTION 7.01. Termination Events. The occurrence of any one or more of
the following events shall constitute a Termination Event:
(a) TriMas Corp., TriMas LLC, the Transferor, any Seller or the
Collection Agent shall fail to make any payment or deposit to be made by it
hereunder or under any of the Transaction Documents when due hereunder or
thereunder and such failure continues for one (1) Business Day; or
(b) any representation, warranty, certification or statement made by
TriMas Corp., the Transferor, the Collection Agent or any Seller in this
Agreement, any other Transaction Document to which it is a party or in any
other document delivered pursuant hereto or thereto shall prove to have been
incorrect in any material respect when made or deemed made; provided that no
such event shall constitute a Termination Event unless such event shall
continue unremedied for a period of ten (10) days from the date a
Responsible Officer of the Transferor obtains knowledge thereof; provided
further that no grace period shall apply to Sections 3.01(c), 3.01(d),
3.01(j), 3.01(q) and 3.01(r) of this Agreement (and, for the avoidance of
doubt, the cure period described in the first proviso of this Section
7.01(b) shall not apply to payments required to be made pursuant to Section
2.10(b)); and provided further that no such event shall constitute a
Termination Event if the Transferor shall have timely paid to the Collection
Agent the Deemed Collection required to be paid as a result of such event in
accordance with Section 2.10(b); or
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(c) TriMas Corp., the Transferor, any Seller or the Collection Agent
shall default in the performance of any payment or undertaking (other than
those covered by clause (a) above) under any Transaction Document and such
default shall continue for ten (10) days after a Responsible Officer of
TriMas Corp., TriMas LLC, the Transferor or the Collection Agent has
knowledge thereof; or
(d) the Transferor shall fail to make any payment of principal or
interest in respect of any Indebtedness when and as the same shall become
due and payable after giving effect to any applicable grace period with
respect thereto; or any event or condition occurs that results in any such
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits the holder or holders of any such Indebtedness or any trustee or
agent on its or their behalf to cause any such Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; or
(e) any Event of Bankruptcy shall occur with respect to the Transferor,
the Collection Agent, any Seller, TriMas Corp., or any of its Subsidiaries;
or
(f) after the filing in the appropriate offices of the financing
statements described in Sections 4.01(c), 4.01(d), 4.01(e) and 4.01(f), the
Administrative Agent, on behalf of the CP Conduit Purchasers and the
Committed Purchasers, shall, for any reason, fail or cease to have a valid
and perfected first priority ownership or security interest in the
Receivables and Related Security, Collections and Proceeds with respect
thereto, free and clear of any Adverse Claims; or
(g) a Collection Agent Default shall have occurred; or
(h) the Transferor, TriMas Corp., or any Seller shall enter into any
corporate transaction or merger whereby it is not the surviving entity
(other than, in the case of any Seller, a merger or consolidation which does
not, in the reasonable opinion of the Administrative Agent, materially
adversely affect the collectability of the Receivables sold by such Seller
or the performance of such Seller's obligations under the transaction
documents); or
(i) there shall have occurred since the Closing Date any event or
condition which could reasonably be expected to have a Material Adverse
Effect; or
(j) (i) the Percentage Factor exceeds the Maximum Percentage Factor
unless the Transferor reduces the Net Investment from previously received
Collections or other funds available to the Transferor or increases the
balance of the Receivables on the next Business Day following such breach so
as to reduce the Percentage Factor to less than or equal to 100%; or (ii)
the Net Investment shall exceed the Facility Limit; or
(k) the average Dilution Ratio for the three preceding Settlement
Periods exceeds 4.25%; or
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(l) the average Default Ratio for the three preceding Settlement
Periods exceeds 5%; or
(m) TriMas Corp., TriMas LLC or any of its Subsidiaries default in the
observance or performance of Section 6.12 or 6.13 of the Credit Agreement or
an Event of Default (as such term is defined in the Credit Agreement)
described in Article VII(r) of the Credit Agreement shall have occurred; or
(n) a Responsible Officer of the Transferor receives notice or becomes
aware that a notice of lien has been filed against TriMas Corp., TriMas LLC,
the Transferor or the Collection Agent under Section 412(n) of the Code or
Section 302(f) of ERISA for a failure to make a required installment or
other payment to a plan to which Section 412(n) of the Code or Section
302(f) of ERISA applies; or
(o) the Receivables Purchase Agreement is terminated; or
(p) TriMas Corp., and the Sellers (in the aggregate) shall fail to
maintain 100% ownership of the Transferor.
SECTION 7.02. Remedies Upon the Occurrence of a Termination Event. (a)
Upon the occurrence of any Termination Event, the Administrative Agent may, or
at the direction of the Required Committed Purchasers shall, by notice to the
Transferor and the Collection Agent, declare the Termination Date to have
occurred; provided, however, that in the case of any event described in Sections
7.01(e), 7.01(f), 7.01(j), 7.01(k), 7.01(l) and 7.01(n) above, the Termination
Date shall be deemed to have occurred automatically upon the occurrence of such
event. At all times after the declaration or automatic occurrence of the
Termination Date pursuant to this Section 7.02(a), the Base Rate plus 2.00%
shall be the Tranche Rate applicable to the Net Investment for all existing and
future Tranches. If an event or condition shall have occurred which constitutes
a Potential Termination Event, of which the Administrative Agent is aware, the
Administrative Agent may advise the Transferor of the occurrence of such
Potential Termination Event.
(b) In addition, if any Termination Event occurs hereunder, the
Administrative Agent shall promptly notify the Transferor in writing whether it
has declared the Termination Date to have occurred and whether it will be
exercising the remedies specified in this Section 7.02. From and after the
Termination Date, (i) the Administrative Agent, on behalf of the CP Conduit
Purchasers and the Committed Purchasers, shall have all of the rights and
remedies provided to a secured creditor or a purchaser of accounts under the
Relevant UCC by applicable law in respect thereto and (ii) (A) the Facility
Limit shall be reduced as of each calendar date thereafter equal to the Net
Investment as of such date and (B) the Percentage Factor shall be increased to
100%.
SECTION 7.03. Reconveyance Under Certain Circumstances. The Transferor
agrees to accept the reconveyance from the Administrative Agent, on behalf of
the CP Conduit Purchasers and/or the Committed Purchasers, of the Transferred
Interest if any Termination
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Event occurs hereunder and the Administrative Agent notifies the Transferor of a
material breach of any representation or warranty made or deemed made pursuant
to Sections 3.01(a), 3.01(b), 3.01(c), 3.01(d), 3.01(g) and 3.01(j) of this
Agreement. The reconveyance price shall be paid by the Transferor to the
Administrative Agent, for the account of the CP Conduit Purchasers and the
Committed Purchasers, as applicable, in immediately available funds on demand in
an amount equal to the Aggregate Unpaids.
ARTICLE VIII
The Administrative Agent
SECTION 8.01. Appointment. Each of the CP Conduit Purchasers, the
Committed Purchasers and the Funding Agents hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Person under this
Agreement and irrevocably authorizes the Administrative Agent, in such capacity,
to take such action on its behalf under the provisions of this Agreement and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, (i) the Administrative Agent shall not
have any duties or responsibilities except those expressly set forth herein, or
any fiduciary relationship with any CP Conduit Purchaser, any Committed
Purchaser or any Funding Agent, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent; and (ii) in no
event shall the Administrative Agent be liable under or in connection with this
Agreement for indirect, special, or consequential losses or damages of any kind,
including lost profits, even if advised of the possibility thereof and
regardless of the form of action by which such losses or damages may be claimed.
In performing its functions and duties hereunder, the Administrative Agent shall
act solely as the agent of the CP Conduit Purchasers, the Committed Purchasers
and the Funding Agents, and the Administrative Agent does not assume, nor shall
be deemed to have assumed, any trust or fiduciary obligation or relationship
with or for any such Person. Without limiting the foregoing, in accordance with
customary practices in syndicate conduit financings, the Administrative Agent
will promptly forward to each Funding Agent any written information delivered by
or on behalf of the Transferor or TriMas Corp. or TriMas LLC to the
Administrative Agent.
SECTION 8.02. Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel (who may be counsel
for the Transferor or the Collection Agent), independent public accountants and
other experts selected by it concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with reasonable
care.
SECTION 8.03. Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection
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with this Agreement (x) with the consent or at the request of the CP Conduit
Purchasers, the Committed Purchasers or the Funding Agents or (y) in the absence
of its own gross negligence or willful misconduct or (ii) responsible in any
manner to any of the CP Conduit Purchasers, the Committed Purchasers or the
Funding Agents for any recitals, statements, representations or warranties made
by the Transferor, the Collection Agent, the Sellers or any officer thereof
contained in this Agreement or any other Transaction Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Transaction Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, any
other Transaction Document, the Receivables (or any Related Security,
Collections and Proceeds with respect thereto) or any Transferred Interest or
for any failure of any of the Transferor, the Collection Agent, the Sellers or
the Obligors to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any CP Conduit
Purchaser, any Committed Purchaser or any Funding Agent to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Transaction Document or to
inspect the properties, books or records of the Transferor, the Collection Agent
or any Seller.
SECTION 8.04. Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter, fax,
e-mail, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Transferor or the Collection Agent), independent
accountants and other experts selected by the Administrative Agent and shall not
be liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Transaction Document unless it shall
first receive such advice or concurrence of the Funding Agents, on behalf of the
CP Conduit Purchasers, as it deems appropriate or it shall first be indemnified
to its satisfaction by the Funding Agents against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and the other
Transaction Documents in accordance with a request of the Funding Agents, on
behalf of the CP Conduit Purchasers (unless, in the case of any action relating
to the giving of consent hereunder, the giving of such consent requires the
consent of all the CP Conduit Purchasers), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the CP Conduit
Purchasers, the Committed Purchasers and the Funding Agents.
SECTION 8.05. Notice of Collection Agent Default. The Administrative
Agent shall not be deemed to have knowledge or notice of the occurrence of any
Collection Agent Default or any Termination Event unless the Administrative
Agent has received notice from a CP Conduit Purchaser, a Committed Purchaser, a
Funding Agent, the Transferor or the Collection Agent referring to this
Agreement, describing such Collection Agent Default or Termination Event and
stating that such notice is a "notice of a Collection Agent Default" or "notice
of a
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Termination Event", as the case may be. In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give notice thereof
to the Funding Agents, the Transferor and the Collection Agent. The
Administrative Agent shall take such action with respect to such event as shall
be reasonably directed by the Required Committed Purchasers, provided that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such event as it shall deem
advisable in the best interests of the CP Conduit Purchasers and the Committed
Purchasers.
SECTION 8.06. Non-Reliance on the Administrative Agent and Other
Purchasers. Each of the CP Conduit Purchasers, the Committed Purchasers and the
Funding Agents expressly acknowledges that neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the Transferor, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any such Person. Each of the CP Conduit
Purchasers, the Committed Purchasers and the Funding Agents represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other CP Conduit Purchaser, Committed Purchaser or
Funding Agent and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Transferor, the Collection Agent and the Sellers and made its own decision to
enter into this Agreement. Each of the CP Conduit Purchasers, the Committed
Purchasers and the Funding Agents also represents that it will, independently
and without reliance upon the Administrative Agent or any other CP Conduit
Purchaser, Committed Purchaser or Funding Agent, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Transaction Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Transferor, the Collection Agent and the Sellers. Except for notices, reports
and other documents expressly required to be furnished to the Funding Agents by
the Administrative Agent hereunder, the Administrative Agent shall have no duty
or responsibility to provide any CP Conduit Purchaser, any Committed Purchaser
or any Funding Agent with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Transferor, the Collection Agent or the Sellers which
may come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
SECTION 8.07. Indemnification. Each of the Committed Purchasers,
severally and not jointly, agrees to indemnify the Administrative Agent in its
capacity as such (to the extent not reimbursed by the Transferor, the Collection
Agent and the Sellers and without limiting the obligation of the Transferor, the
Collection Agent and the Sellers to do so) ratably in accordance with their
respective Pro Rata Shares, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time be
imposed on, incurred by or
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asserted against the Administrative Agent in any way relating to or arising out
of this Agreement, any of the other Transaction Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Committed Purchaser shall be liable for the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the Administrative
Agent's gross negligence or willful misconduct. The agreements in this Section
shall survive the payment of all amounts payable hereunder.
SECTION 8.08. The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Transferor, the Collection
Agent or any of their Affiliates as though the Administrative Agent were not the
Administrative Agent hereunder. With respect to any Transferred Interest held by
the Administrative Agent, the Administrative Agent shall have the same rights
and powers under this Agreement and the other Transaction Documents as any
Purchaser and may exercise the same as though it were not the Administrative
Agent, and the terms "Committed Purchaser," and "Purchaser" shall include the
Administrative Agent in its individual capacity.
SECTION 8.09. Resignation of Administrative Agent; Successor
Administrative Agent. The Administrative Agent may resign as Administrative
Agent at any time by giving thirty (30) days' notice to the Funding Agents, the
Transferor and the Collection Agent. The Administrative Agent may be removed at
any time by a resolution of the Required Committed Purchasers, removing the
Administrative Agent and appointing from among the Funding Agents a successor
administrative agent, which successor administrative agent shall be approved by
the Transferor and the Collection Agent (which approval shall not be
unreasonably withheld), delivered to the Administrative Agent and the Collection
Agent. If Chase shall resign as Administrative Agent under this Agreement, then
the Required Committed Purchasers, shall promptly appoint a successor
administrative agent from among the Funding Agents, which successor
administrative agent shall be approved by the Transferor and the Collection
Agent (which approval shall not be unreasonably withheld). If no successor
administrative agent is appointed prior to the effective date of the resignation
of the Administrative Agent, the Administrative Agent may appoint, after
consulting with the Funding Agents, the Transferor and the Collection Agent, a
successor agent from among the Funding Agents. If no successor administrative
agent has accepted appointment as Administrative Agent by the date which is
thirty (30) days following a retiring Administrative agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Collection Agent shall assume and perform all
of the duties of the Administrative Agent hereunder until such time, if any, as
the Required Committed Purchasers appoint a successor agent as provided for
above. Effective upon the appointment of a successor administrative agent, such
successor administrative agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall mean such
successor administrative agent effective upon such appointment and approval, and
the former Administrative Agent's rights, powers and duties as Administrative
Agent shall be terminated,
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without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement.
SECTION 8.10. Authorization and Action of Funding Agents. Each CP
Conduit Purchaser and Committed Purchaser in a Related Group hereby appoints and
authorizes the Funding Agent for such Related Group to take such action as agent
on its behalf and to exercise such power under this Agreement and the other
Transaction Documents as are delegated to such Funding Agent by the terms hereof
and thereof, together with such powers as are reasonably incidental thereto. The
CP Conduit Purchaser and Committed Purchasers in a Related Group may at any time
appoint a new Funding Agent in accordance with the terms of the applicable Asset
Purchase Agreement with the prior written consent of the Administrative Agent in
its sole discretion, such appointment to become effective on the date specified
by such CP Conduit Purchaser in a written notice delivered to the Administrative
Agent. Upon the acceptance of any appointment as Funding Agent hereunder by a
successor Funding Agent, such successor Funding Agent shall thereupon succeed to
and become vested with all of the rights, powers and privileges, and subject to
the duties, obligations and liabilities of, the departing Funding Agent, and the
departing Funding Agent shall relinquish its rights, powers and privileges, and
be discharged from its duties, obligations and liabilities, under this
Agreement.
ARTICLE IX
Limited Guaranty
SECTION 9.01. Guaranty of Obligations. The Guarantor unconditionally
guarantees the full and prompt payment when due of all of the payment
obligations and the timely performance of all of the performance obligations of
the Sellers of every kind and nature now or hereafter existing, or due or to
become due, under the Transaction Documents (collectively, the "Obligations");
provided that, such Obligations shall not include amounts not collected in
respect of any Receivable as a result of the lack of creditworthiness of an
Obligor, including, but not limited to, amounts required to be returned to an
Obligor as a voidable preference. The Guarantor shall pay all reasonable costs
and expenses including, without limitation, all court costs and reasonable
attorney's fees and expenses paid or incurred by the Administrative Agent and
the other Beneficiaries in connection with (a) the collection of all or any part
of the Obligations from the Guarantor and (b) the prosecution or defense of any
action by or against the Administrative Agent, the other Beneficiaries or the
Transferor in connection with, or relating to, the Obligations, whether
involving the Sellers, the Collection Agent, the Guarantor, the Transferor or
any other party (including, but not limited to, a trustee in a bankruptcy or a
debtor-in-possession).
SECTION 9.02. Validity of Obligations; Irrevocability. The Guarantor
agrees that subject to the proviso set forth in Section 9.01 above its
obligations under this Guaranty shall be unconditional, irrespective of (i) the
validity, enforceability, discharge, disaffirmance,
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settlement or compromise (by any Person, including a trustee in a bankruptcy or
a debtor-in-possession) of the Obligations or of the Transaction Documents or
any Contract, (ii) the absence of any attempt to collect the Obligations from a
Seller or the Collection Agent or any other party, (iii) the waiver or consent
by any Person with respect to any provision of any instrument evidencing the
Obligations, (iv) any change of the time, manner or place of payment or
performance, or any other term of any of the Obligations, (v) any law,
regulation or order of any jurisdiction affecting any term of any of the
Obligations or rights of any Person with respect thereto, (vi) the failure by
any Person to take any steps to perfect and maintain perfected its interest in
the Receivables or any security or collateral related to the Obligations or
(vii) any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor or surety. The Guarantor agrees
that the Administrative Agent and the Beneficiaries shall be under no obligation
to marshal any assets in favor of or against or in payment of any or all of the
Obligations. The Guarantor further agrees that, to the extent a payment is made
by a Seller or the Collection Agent under the Transaction Documents, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to such
Seller or the Collection Agent, its estate, trustee, receiver or any other
party, under any bankruptcy, insolvency or similar state or federal law, common
law or equitable cause, then to the extent of such payment or repayment, the
Obligation or part thereof which has been paid, reduced or satisfied by such
amount shall be reinstated and continued in full force and effect as of the date
such initial payment, reduction or satisfaction occurred. The Guarantor waives
all set-offs, defenses and counterclaims and all presentments, demands for
performance, notices of dishonor and notice of acceptance of this Guaranty. The
Guarantor's obligations under this Guaranty shall be irrevocable.
SECTION 9.03. Several Obligations. The obligations of the Guarantor
hereunder are separate and apart from the Sellers or any other Person, and are
primary obligations concerning which the Guarantor is the principal obligor.
This Guaranty shall not be discharged except by payment in full of the
Obligations and complete performance of the obligations of the Guarantor
hereunder. The obligations of the Guarantor hereunder shall not be affected in
any way by the release or discharge of a Seller from the performance of any of
the Obligations (other than the full and final payment of all of the
Obligations), whether occurring by reason of law or any other cause, whether
similar or dissimilar to the foregoing.
SECTION 9.04. Subrogation Rights. If any amount shall be paid to the
Guarantor on account of subrogation rights relating to the Obligations at any
time when all the Obligations shall not have been paid in full, such amount
shall be held in trust for the benefit of the Administrative Agent, on behalf of
the Beneficiaries, and shall forthwith be paid to the Administrative Agent to be
applied to the Obligations. If (a) the Guarantor shall make payment to the
Administrative Agent of or perform all or any part of the Obligations and (b)
all the Obligations shall be paid and performed in full, the Administrative
Agent will, at the Guarantor's request, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Guarantor of any
interest in the Obligations resulting from such payment or performance by the
Guarantor. The Guarantor shall have no rights of subrogation with respect to
amounts due to the Administrative Agent or the Beneficiaries until such time as
all obligations of the Sellers to the
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Transferor, the Administrative Agent and the Beneficiaries have been paid or
performed in full and this Agreement has been terminated.
SECTION 9.05. Rights of Set-Off. The Guarantor hereby authorizes the
Administrative Agent, on behalf of the Beneficiaries, at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (whether general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by the Administrative
Agent or the Beneficiaries to or for the credit or the account of the Guarantor
against any and all of the obligations of the Guarantor now or hereafter
existing under this Guaranty (even if contingent or unmatured). The Guarantor
hereby acknowledges that rights of the Administrative Agent, on behalf of the
Beneficiaries, described in this Section 9.05 are in addition to all other
rights and remedies (including, without limitation, other rights of set-off) the
Administrative Agent and the Beneficiaries may have.
SECTION 9.06. Representations and Warranties. The Guarantor hereby
represents and warrants to the Administrative Agent, for the benefit of the
Beneficiaries, as of the date hereof, as follows:
(a) Corporate Existence and Power. The Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate power and all material
governmental licenses, authorizations, consents and approvals required to
carry on its business in each jurisdiction in which its business is now
conducted. The Guarantor is duly qualified to do business in, and is in good
standing in, every other jurisdiction in which the nature of its business
requires it to be so qualified, except where the failure to be so qualified
or in good standing would not have a Material Adverse Effect.
(b) Corporate and Governmental Authorization; Contravention. The
execution, delivery and performance by the Guarantor of this Guaranty and
the other Transaction Documents to which the Guarantor is a party are within
the Guarantor's corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
Official Body or official thereof, and do not contravene, or constitute a
default under, any provision of applicable law, rule or regulation or of the
Certificate of Incorporation or By-laws of the Guarantor or of any material
agreement, judgment, injunction, order, writ, decree or other instrument
binding upon the Guarantor or result in the creation or imposition of any
Adverse Claim on the assets of the Guarantor or any of its Subsidiaries
(except as contemplated by Section 2.09).
(c) Binding Effect. Each of this Guaranty and the other Transaction
Documents to which the Guarantor is a party constitutes the legal, valid and
binding obligation of the Guarantor, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium or other
similar laws affecting the rights of creditors and general equitable
principles (whether considered in a proceeding at law or in equity).
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(d) Accuracy of Information. All written information heretofore
furnished by the Guarantor to the Administrative Agent or the Beneficiaries
for purposes of or in connection with this Guaranty, the other Transaction
Documents or any transaction contemplated hereby or thereby is, and all such
written information hereafter furnished by the Guarantor to the
Administrative Agent or the Beneficiaries will be, true and accurate in
every material respect on the date such information is stated or certified.
(e) Tax Status. The Guarantor has filed all tax returns (Federal, state
and local) required to be filed and has paid prior to delinquency or made
adequate provision for the payment of all taxes, assessments and other
governmental charges (including for such purposes, the setting aside of
appropriate reserves for taxes, assessments and other governmental charges
being contested in good faith).
(f) Action, Suits. Except as set forth in Exhibit F hereto, there are
no actions, suits or proceedings pending, or to the knowledge of the
Guarantor threatened, against or affecting the Guarantor or any Affiliate of
the Guarantor or their respective properties, in or before any court,
arbitrator or other body, which may, individually or in the aggregate, have
a Material Adverse Effect.
(g) Not an Investment Company. The Guarantor is not, nor is it
controlled by, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or is exempt from all provisions of such
Act.
ARTICLE X
Miscellaneous
SECTION 10.01. Term of Agreement. This Agreement shall terminate on the
date following the Termination Date upon which the Net Investment has been
reduced to zero, and all accrued Discount, Fees, Servicing Fees and all other
Aggregate Unpaids have been paid in full, in each case, in cash; provided,
however, that (i) the rights and remedies of the Administrative Agent, the CP
Conduit Purchasers, the Committed Purchasers and the Funding Agents with respect
to any representation and warranty made or deemed to be made by the Transferor
or the Seller pursuant to this Agreement, (ii) the indemnification and payment
provisions of the Asset Purchase Agreements, and (iii) the agreements set forth
in Sections 10.08 and 10.09 hereof, shall be continuing and shall survive any
termination of this Agreement.
SECTION 10.02. Waivers; Amendments. No failure or delay on the part of
the Administrative Agent, any CP Conduit Purchaser, any Funding Agent or any
Committed Purchaser in exercising any power, right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other further exercise
thereof or the exercise of any other power, right or remedy. The rights and
remedies herein provided shall be cumulative and nonexclusive of any rights or
remedies provided by law. Any provision of this Agreement may be amended or
waived if, but
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RECEIVABLES TRANSFER AGREEMENT
only if, such amendment or waiver is in writing and is signed by the parties
hereto and the Required Committed Purchasers and, if such amendment or waiver is
material, only if the Rating Agencies, to the extent required by the terms and
conditions of the commercial paper program of any CP Conduit Purchaser, have
provided Rating Confirmations; provided, however, that no such amendment or
waiver shall, without the consent of each affected Committed Purchaser, (A)
extend the Termination Date or the date of any payment or deposit of Collections
by the Transferor or the Collection Agent, (B) reduce the rate or extend the
time of payment of any Discount, interest or fees hereunder or under any Fee
Letter, (C) change the amount of an Committed Purchaser's Pro Rata Share or
Commitment, (D) consent to or permit the assignment or transfer by the
Transferor of any of its rights or obligations under this Agreement, (E) amend
or modify the definitions of "Percentage Factor" or "Required Committed
Purchasers" or any other defined term used in such definitions, to the extent
used in such definitions, (F) amend or modify this Section 10.02, (G) change the
Net Investment held by any CP Conduit Purchaser or Committed Purchaser or
create, with respect to any Committed Purchaser, any obligation for such
Committed Purchaser to make any purchase allocable to another Related Group, (H)
amend or waive any Termination Event described in Sections 7.01(e), 7.01(f),
7.01(j), 7.01(k), 7.01(l) and 7.01(n), (I) release or terminate any interest
created hereunder in any Receivables or Related Security with respect thereto,
or (J) amend or waive any provision of Section 2.12(a).
SECTION 10.03. Notices. Except as provided below, all communications
and notices provided for hereunder shall be in writing (including telecopy,
electronic mail, electronic facsimile transmission or similar writing) and shall
be given to the other party at its address or telecopy number set forth below or
at such other address or telecopy number as such party may hereafter specify for
the purposes of notice to such party. Each such notice or other communication
shall be effective (i) if given by telecopy, when such telecopy is transmitted
to the telecopy number specified in this Section 10.03 and confirmation is
received, (ii) if given by mail three (3) Business Days following such posting,
postage prepaid, U.S. certified or registered, (iii) if given by overnight
courier, one (1) Business Day after deposit thereof with a national overnight
courier service, or (iv) if given by any other means, when received at the
address specified in this Section 10.03. However, anything in this Section 10.03
to the contrary notwithstanding, the Transferor hereby authorizes the
Administrative Agent and each Funding Agent to effect Transfers, Tranche Period
and Tranche Rate selections based on telephonic notices made by any Person which
the Administrative Agent or such Funding Agent in good faith believes to be
acting on behalf of the Transferor. The Transferor agrees to deliver promptly to
the Administrative Agent and each Funding Agent a written confirmation of each
telephonic notice signed by an authorized officer of Transferor. However, the
absence of such confirmation shall not affect the validity of such notice. If
the written confirmation differs in any material respect from the action taken
by the Administrative Agent or such Funding Agent, the records of the
Administrative Agent or such Funding Agent shall govern absent manifest error.
If to a Committed Purchaser, to its address set forth on Schedule B (with a copy
to the Administrative Agent and the related Funding Agent).
If to a CP Conduit Purchaser, to the address set forth on Schedule B (with a
copy to the Administrative Agent).
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RECEIVABLES TRANSFER AGREEMENT
If to a Funding Agent, to the address set forth on Schedule B (with a copy to
the Administrative Agent).
If to the Transferor:
TSPC, Inc.
Xxxxxx Center, Suite 460
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Telephone:
Telecopy: (000) 000-0000
with a copy to:
Comptroller
00000 Xxxxxxxx Xxxxxx Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
and
Xxxxxxxx X. Xxxxxxxxx
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
If to the Sellers, as provided in Section 9.03 of the Receivables Purchase
Agreement.
If to the Administrative Agent:
JPMorgan Chase Bank
000 X. 00xx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Conduit Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: XXXXXXX@Xxxxx.xxx
61
RECEIVABLES TRANSFER AGREEMENT
with a copy to:
X.X. Xxxxxx Services
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxx 0/XX
Xxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000)000-0000
If to the Committed Purchasers, at their respective addresses set forth on
Schedule B.
SECTION 10.04. Governing Law; Submission to Jurisdiction; Integration.
(a) This Agreement shall be governed by, and construed in accordance with the
laws of the State of New York. Each of the parties hereto hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in The City of New
York for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each of the parties hereto
hereby irrevocably waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. Nothing in
this Section 10.04 shall affect the right of any party hereto to bring any
action or proceeding against any party hereto or its respective properties in
the courts of other jurisdictions.
(b) Each of the parties hereto hereby waives any right to have a jury
participate in resolving any dispute, whether sounding in contract, tort or
otherwise among any of them arising out of, connected with, relating to or
incidental to the relationship between them in connection with this Agreement or
the other Transaction Documents.
(c) This Agreement contains the final and complete integration of all
prior expressions by the parties hereto with respect to the subject matter
hereof and shall constitute the entire Agreement among the parties hereto with
respect to the subject matter hereof superseding all prior oral or written
understandings.
SECTION 10.05. Severability; Counterparts. This Agreement may be
executed in any number of counterparts and by 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
Agreement. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
62
RECEIVABLES TRANSFER AGREEMENT
SECTION 10.06. Successors and Assigns. (a) This Agreement shall be
binding on the parties hereto and their respective successors and assigns;
provided, however, that neither the Transferor nor any Seller may assign any of
its rights or delegate any of its duties hereunder or under any of the other
Transaction Documents to which it is a party without the prior written consent
of the Administrative Agent and the Required Committed Purchasers. No provision
of this Agreement shall in any manner restrict the ability of any CP Conduit
Purchaser or any Committed Purchaser to assign, participate, grant security
interests in, or otherwise transfer any portion of the Transferred Interest as
provided in this Section 10.06. Each CP Conduit Purchaser may assign,
participate, grant security interests in or otherwise transfer all or any
portion of the Transferred Interest to any Program Support Provider with respect
to such CP Conduit Purchaser without prior notice to or consent from any other
party or any other condition or restriction of any kind.
(b) Conduit Assignees. Each CP Conduit Purchaser may, from time to time
with prior or concurrent notice to the Transferor, the Funding Agent for such CP
Conduit Purchaser and the Administrative Agent, assign all or any portion of the
CP Conduit Purchaser's Interest with respect to such CP Conduit Purchaser (and
its related Committed Purchasers) and its rights and obligations under this
Agreement and any other Transaction Documents to which it is a party to a
Conduit Assignee with respect to such CP Conduit Purchaser. Upon such assignment
by a CP Conduit Purchaser to a Conduit Assignee, (A) The Funding Agent for such
CP Conduit Purchaser will act as the Funding Agent for such Conduit Assignee
hereunder, (B) such Conduit Assignee and its liquidity support provider(s) and
credit support provider(s) and other related parties shall have the benefit of
all the rights and protections provided to such CP Conduit Purchaser and its
related Committed Purchasers herein and in the other Transaction Documents
(including, without limitation, any limitation on recourse against such Conduit
Assignee), (C) such Conduit Assignee shall assume all of such CP Conduit
Purchaser's obligations hereunder or under any other Transaction Document
(whenever created, whether before or after such assignment) with respect to the
assigned portion of the CP Conduit Purchaser's Interest and such CP Conduit
Purchaser shall be released from all such obligations, (D) all distributions to
such CP Conduit Purchaser hereunder with respect to the assigned portion of the
CP Conduit Purchaser's Interest shall be made to such Conduit Assignee, (E) the
definition of the term "CP Rate" shall be determined on the basis of the
interest rate or discount applicable to commercial paper issued by such Conduit
Assignee (rather than such CP Conduit Purchaser), (F) the defined terms and
other terms and provisions of this Agreement and the other Transaction Documents
shall be interpreted in accordance with the foregoing, and (G) if requested by
the Administrative Agent or Funding Agent with respect to the Conduit Assignee,
the parties will execute and deliver such further agreements and documents
(including amendments to this Agreement) and take such other actions as the
Administrative Agent or such Funding Agent may reasonably request to evidence
and give effect to the foregoing.
(c) Participations. Any Committed Purchaser may, with the consent of
the Administrative Agent and in the ordinary course of its business and its
accordance with applicable law, at any time sell to one or more Persons (each, a
"Participant") participating interest in its rights and obligations hereunder
and under the Transaction Documents; provided, however, that each Participant
shall purchase an identical percentage in such selling Committed
63
RECEIVABLES TRANSFER AGREEMENT
Purchaser's Commitment, and Pro Rata Share of the Committed Purchaser Funded
Amount. Notwithstanding any such sale by a Committed Purchaser of a
participating interest to a Participant, such Committed Purchaser's rights and
obligations under this Agreement shall remain unchanged, such Committed
Purchaser shall remain solely responsible for the performance hereof, and each
CP Conduit Purchaser, each Funding Agent and the Administrative Agent shall
continue to deal solely and directly with such Committed Purchaser in connection
with such Committed Purchaser's rights and obligations under this Agreement and
the other Transaction Documents. Each Committed Purchaser agrees that any
agreement between such Committed Purchaser and any such Participant in respect
of such participating interest shall not restrict such Committed Purchaser's
right to agree to any amendment, supplement, waiver or modification to this
Agreement.
(d) Assignments.
(i) Any Committed Purchaser may at any time and from time to time, upon
the prior written consent of the related CP Conduit Purchaser and the
Administrative Agent, and, if the Purchaser is not an Affiliate of the
selling Committed Purchaser, the prior written consent of the Transferor
(which consent shall not be unreasonably withheld), assign to one or more
accredited investors or other Persons ("Purchaser(s)") all or any part of
its rights and obligations under this Agreement and the other Transaction
Documents pursuant to a supplement to this Agreement, substantially in the
form of Exhibit K hereto (each, a "Transfer Supplement"), executed by the
Purchaser, such selling Committed Purchaser, the related CP Conduit
Purchaser, the related Funding Agent, the Administrative Agent and, if
applicable, the Transferor; and provided, however, that (A) each Purchaser
shall purchase an identical percentage in such selling Committed Purchaser's
Commitment and Pro Rata Share of the Committed Purchaser Funded Amount, (B)
any such assignment cannot be for an amount less than the lesser of (1)
$5,000,000 and (2) such selling Committed Purchaser's Commitment or Pro Rata
Share of the Committed Purchaser Funded Amount (calculated at the time of
such assignment) and (C) each Purchaser must be (1) a financial institution
incorporated in an OECD country and rated at least A-1/P-1 (or the
equivalent short-term ratio) by the Rating Agencies and (2) a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act of
1933, as amended).
(ii) Each of the Committed Purchasers agrees that in the event that it
shall cease to have short-term debt ratings at least equal other ratings
then assigned to the Commercial Paper by the Rating Agencies, or, if such
Committed Purchaser does not have short-term debt which is rated by the
Rating Agencies, in the event that the parent corporation of such Committed
Purchaser has rated short-term debt, such parent corporation ceases to have
short-term debt ratings at least equal to the ratings then assigned to the
Commercial Paper by the Rating Agencies (each, an "Affected Committed
Purchaser"), such Affected Committed Purchaser shall be obliged, at the
request of the related CP Conduit Purchaser and the Administrative Agent, to
assign all of its rights and obligations hereunder to (x) one or more other
Committed Purchasers selected by such CP Conduit Purchaser and the
Administrative Agent which are willing to accept such
64
RECEIVABLES TRANSFER AGREEMENT
assignment, or (y) another financial institution having short-term debt
ratings at least equal to the ratings then assigned to the Commercial Paper
by the Rating Agencies nominated by the Administrative Agent and consented
to by such CP Conduit Purchaser (which consent shall not be unreasonably
withheld) and the Administrative Agent, and willing to participate in this
facility through the Commitment Expiry Date in the place of such Affected
Committed Purchaser; provided that (i) the Affected Committed Purchaser
receives payment in full, pursuant to a Pro Rata Share of the Committed
Purchaser Funded Amount and any other amounts due and owing to such Affected
Committed Purchaser under this Agreement and the other Transaction Documents
and (ii) such nominated financial institution, if not an existing Committed
Purchaser, satisfies all the requirements of this Agreement.
(iii) Upon (A) execution of a Transfer Supplement, (B) delivery of an
executed copy thereof to the related CP Conduit Purchaser and the
Administrative Agent, (C) payment, if applicable, by the Purchaser to such
selling Committed Purchaser of an amount equal to the purchase price agreed
between such selling Committed Purchaser and the Purchaser and (D) receipt
by such CP Conduit Purchaser of a Rating Confirmation, if required, such
selling Committed Purchaser shall be released from its obligations hereunder
to the extent of such assignment and the Purchasers shall, for all purposes,
be a Committed Purchaser party to this Agreement and shall have all the
rights and obligations of a Committed Purchaser under this Agreement to the
same extent as if it were an original party hereto, and no further consent
or action by the CP Conduit Purchasers, the Committed Purchasers or the
Administrative Agent shall be required. The amount of the assigned portion
of the selling Committed Purchaser's Pro Rata Share of the Committed
Purchaser Funded Amount allocable to the Purchaser shall be equal to the
Transferred Percentage (as defined in the Transfer Supplement) of such
selling Committed Purchaser's Pro Rata Share of the Committed Purchaser
Funded Amount which is transferred thereunder regardless of the purchase
price paid therefor. Such Transfer Supplement shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of the Purchaser as a Committed Purchaser and the resulting
adjustment of the selling Committed Purchaser's Commitment arising from the
purchase by the Purchaser of all or a portion of the selling Committed
Purchaser's rights, obligations and interest hereunder.
SECTION 10.07. Confidentiality. (a) Each of the Transferor, the
Collection Agent and the Guarantor shall maintain, and shall cause each officer,
employee and agent of itself and its Affiliates to maintain, the confidentiality
of the Transaction Documents and all other confidential proprietary information
with respect to the CP Conduit Purchasers, the Committed Purchasers, the Funding
Agents and the Administrative Agent and each of their respective businesses
obtained by them in connection with the structuring, negotiation and execution
of the transactions contemplated herein and in the other Transaction Documents,
except for information that has become publicly available or information
disclosed (i) to legal counsel, accountants and other professional advisors to
the Transferor, the Collection Agent, the Guarantor and their respective
Affiliates, (ii) as required by law, regulation or legal process (including in
connection with any registration Statement or other filing made with the SEC) or
65
RECEIVABLES TRANSFER AGREEMENT
(iii) in connection with any legal or regulatory proceeding to which the
Transferor, the Collection Agent, the Guarantor or any of their respective
Affiliates is subject. Each of the Transferor, the Collection Agent and the
Guarantor hereby consents to the disclosure of any nonpublic information with
respect to it received by any CP Conduit Purchaser, any Committed Purchaser, any
Funding Agent or the Administrative Agent to (i) any of the CP Conduit
Purchasers, Committed Purchasers, Funding Agents or the Administrative Agent,
(ii) any nationally recognized rating agency providing a rating or proposing to
provide a rating to the CP Conduit Purchasers' Commercial Paper, (iii) any
placement agent which proposes to offer and sell the CP Conduit Purchasers'
Commercial Paper, (iv) any provider of the CP Conduit Purchasers' program-wide
liquidity or credit support facilities, (v) any potential Committed Purchaser or
(vi) any Participant or potential Participant.
(b) Each of the CP Conduit Purchasers, the Committed Purchasers, the
Funding Agents and the Administrative Agent shall maintain, and shall cause each
officer, employee and agent of itself and its Affiliates to maintain, the
confidentiality of the Transaction Documents and all other confidential
proprietary information with respect to the Transferor, the Sellers, the
Guarantor and their Affiliates and each of their respective businesses obtained
by them in connection with the structuring, negotiation and execution of the
transactions contemplated herein and in the other Transaction Documents, except
for information that has become publicly available except that such information
may be disclosed (i) to legal counsel, accountants and other professional
advisors to the CP Conduit Purchasers, the Committed Purchasers, the Funding
Agent, the Administrative Agent and their respective Affiliates, (ii) as
required by law, regulation or legal process or (iii) pursuant to the order of
any court or administrative agency or in any pending legal or administrative
proceeding, (iv) to any other Person specified in the last sentence of Section
10.07(a), or (v) upon the request of demand of any regulatory authority having
jurisdiction over the Administrative Agent, any CP Conduit Purchaser, any
Committed Purchaser or any Funding Agent.
SECTION 10.08. No Bankruptcy Petition Against the CP Conduit
Purchasers. Each of the Transferor, the Collection Agent, each Seller and the
Guarantor hereby covenants and agrees that, prior to the date which is one year
and one day after the payment in full of all outstanding Commercial Paper or
other indebtedness of the CP Conduit Purchasers, it will not institute against,
or join any other Person in instituting against, the CP Conduit Purchasers any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any state of
the United States.
SECTION 10.09. Limited Recourse. Notwithstanding anything to the
contrary contained herein, the obligations of the CP Conduit Purchasers under
this Agreement are solely the corporate obligations of the CP Conduit Purchasers
and, in the case of obligations of the CP Conduit Purchasers other than
Commercial Paper, shall be payable at such time as funds are actually received
by, or are available to, the CP Conduit Purchasers in excess of funds necessary
to pay in full all outstanding Commercial Paper and, to the extent funds are not
available to pay such obligations, the claims relating thereto shall not
constitute a claim against the CP Conduit Purchasers but shall continue to
accrue. The payment of any claim (as defined in Section 101 of
66
RECEIVABLES TRANSFER AGREEMENT
Title 11 of the Bankruptcy Code) of any such party shall be subordinated to the
payment in full of all Commercial Paper.
No recourse under any obligation, covenant or agreement of the CP
Conduit Purchasers contained in this Agreement shall be had against any
incorporator, stockholder, officer, director, member, manager, employee or agent
of the CP Conduit Purchasers, the Administrative Agent, any Funding Agent or any
of their Affiliates (solely by virtue of such capacity) by the enforcement of
any assessment or by any legal or equitable proceeding, by virtue of any statute
or otherwise; it being expressly agreed and understood that this Agreement is
solely a corporate obligation of the CP Conduit Purchasers, and that no personal
liability whatever shall attach to or be incurred by any incorporator,
stockholder, officer, director, member, manager, employee or agent of the CP
Conduit Purchasers, the Administrative Agent, any Funding Agent or any of their
Affiliates (solely by virtue of such capacity) or any of them under or by reason
of any of the obligations, covenants or agreements of the CP Conduit Purchasers
contained in this Agreement, or implied therefrom, and that any and all personal
liability for breaches by the CP Conduit Purchasers of any of such obligations,
covenants or agreements, either at common law or at equity, or by statute, rule
or regulation, of every such incorporator, stockholder, officer, director,
member, manager, employee or agent is hereby expressly waived as a condition of
and in consideration for the execution of this Agreement; provided that the
foregoing shall not relieve any such Person from any liability it might
otherwise have as a result of fraudulent actions taken or fraudulent omissions
made by them.
SECTION 10.10. Characterization of the Transactions Contemplated by the
Agreement. (a) It is the intention of the parties that the transactions
contemplated hereby constitute (other than for tax purposes) the sale of the
Transferred Interest, conveying good title thereto free and clear of any Adverse
Claims to the CP Conduit Purchasers or the Committed Purchasers, as the case
maybe, and that the Transferred Interest not be part of the Transferor's estate
in the event of an insolvency. If, notwithstanding the foregoing, the
transactions contemplated hereby should be deemed a financing, the parties
intend that the Transferor shall be deemed to have granted to the Administrative
Agent, on behalf of the CP Conduit Purchasers and the Committed Purchasers, and
the Transferor hereby grants to the Administrative Agent, on behalf of the CP
Conduit Purchasers and the Committed Purchasers, a first priority perfected and
continuing security interest in all of the Transferor's right, title and
interest in, to and under the Receivables outstanding on the Initial Incremental
Transfer Date and thereafter owned by the Transferor, together with the Related
Security and Collections with respect thereto and all Proceeds of the foregoing,
whether now owned or hereafter acquired and wherever located, the Lock-Box
Accounts, and all of the Transferor's rights under the Receivables Purchase
Agreement with respect to the Receivables and with respect to any obligations
thereunder of the Seller with respect to the Receivables, and that this
Agreement shall constitute a security agreement under applicable law. The
Transferor hereby assigns to the Administrative Agent, on behalf of the CP
Conduit Purchasers and the Committed Purchasers, all of its rights and remedies
under the Receivables Purchase Agreement with respect to the Receivables and
with respect to any obligations thereunder of the Seller with respect to the
Receivables. The Transferor shall not give any consent or waiver required or
permitted to be given under the Receivables Purchase
67
RECEIVABLES TRANSFER AGREEMENT
Agreement without the prior consent of the Administrative Agent and the Required
Committed Purchasers, such consent not to be unreasonably withheld.
(b) It is the intention of the parties that the transactions
contemplated by the Receivables Transfer Agreement will create a debt obligation
of the Transferor for United States Federal, state and local income and
franchise tax purposes. Unless otherwise required by law, the parties agree to
treat the transactions accordingly for all such purposes.
SECTION 10.11. Waiver of Setoff. Each of the Administrative Agent, the
Collection Agent, the Transferor and each Seller hereby waives any right of
setoff it may have or to which it may be entitled under this Agreement from time
to time against any CP Conduit Purchaser or its assets.
SECTION 10.12. Conflict Waiver. (a) JPMCB acts as Administrative Agent
and as Funding Agent for PARCO, as program administrator for PARCO's Commercial
Paper, as provider of other backup facilities for PARCO, and may provide other
services or facilities from time to time (the "JPMCB Roles"). Without limiting
the generality of Section 8.08, each of the parties hereto hereby acknowledges
and consents to any and all JPMCB Roles, waives any objections it may have to
any actual or potential conflict of interest caused by JPMCB's acting as the
Administrative Agent or as an Committed Purchaser under the Asset Purchase
Agreement with respect to PARCO and acting as or maintaining any of the JPMCB
Roles, and agrees that in connection with any JPMCB Role, JPMCB may take, or
refrain from taking, any action which it in its discretion deems appropriate.
(b) CDC Financial Products, Inc. ("CDC Financial") acts as Funding
Agent for EIFFEL, as program administrator for EIFFEL's Commercial Paper, as
provider of other backup facilities for EIFFEL and may provide other services or
facilities from time to time (the "CDC Financial Roles"). Each of the parties
hereto hereby acknowledges and consents to any and all CDC Financial Roles,
waives any objections it may have to any actual or potential conflict of
interest caused by CDC Financial's acting as a Committed Purchaser under the
Asset Purchase Agreement with respect to EIFFEL and acting as or maintaining any
of the CDC Financial Roles, and agrees that in connection with any CDC Financial
Role, CDC Financial may take, or refrain from taking, any action which it in its
discretion deems appropriate.
SECTION 10.13. Limitation on the Termination of Sellers.
Notwithstanding anything to the contrary contained in the Receivables Purchase
Agreement, the Transferor shall not consent to any request made pursuant to
Section 8.03 thereof, nor shall any Seller or Seller Division which is the
subject of such request be terminated under the Receivables Purchase Agreement,
in each case unless (i) no Termination Event or Potential Termination Event
(other than with respect to the Seller or Seller Division to be so terminated)
has occurred and is continuing (both before and after giving effect to such
termination) and (ii) the Administrative Agent shall have received prior notice
of such termination.
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RECEIVABLES TRANSFER AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Receivables Transfer Agreement as of the date first written above.
TSPC, INC., as Transferor
by: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title:
TRIMAS CORPORATION, individually, as
Collection Agent and as Guarantor
by: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title:
JPMORGAN CHASE BANK, as Administrative Agent
by: /s/ Xxxxxxxxxxx Xxx
-----------------------------------------
Name: Xxxxxxxxxxx Xxx
Title: Assistant Vice President
RECEIVABLES TRANSFER AGREEMENT
PARK AVENUE RECEIVABLES CORPORATION
by: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title:
JPMORGAN CHASE BANK, as Committed Purchaser for
Park Avenue Receivables Corporation
by: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
JPMORGAN CHASE BANK, as Funding Agent for Park
Avenue Receivables Corporation
by: /s/ Xxxxxxxxxxx Xxx
-------------------------------------------
Name: Xxxxxxxxxxx Xxx
Title: Assistant Vice President
RECEIVABLES TRANSFER AGREEMENT
EIFFEL FUNDING, LLC
by: Global Securitization Services, LLC, its Manager
by: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
CDC FINANCIAL PRODUCTS INC., as Committed Purchaser
for Eiffel Funding, LLC
by: /s/ Illegible
---------------------------------------
Name:
Title:
by: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
CDC FINANCIAL PRODUCTS INC., as Funding Agent for
Eiffel Funding, LLC
by: /s/ Illegible
---------------------------------------
Name:
Title:
by: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
SCHEDULE B
Schedule of CP Conduit Purchasers,
Committed Purchasers and Funding Agents
CP CONDUIT PURCHASERS:
Park Avenue Receivables Corporation
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
EIFFEL FUNDING, LLC
C/O Global Securitization Services, LLC
000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Tel. No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with copy to
CDC FINANCIAL PRODUCTS INC.,
as program administrator
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Facsimile No.: (000) 000-0000
CP Conduit Funding Limit: $ 62,500,000
COMMITTED PURCHASERS:
JPMorgan Chase Bank, as Committed Purchaser for Park Avenue Receivables
Corporation
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
B-1
Funding Agent & Committed Purchaser:
CDC FINANCIAL PRODUCTS INC.,
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Facsimile No.: (000) 000-0000
CP Conduit
Commitment: $ 63,750,000
FUNDING AGENTS:
JPMorgan Chase Bank, as Funding Agent for Park Avenue Receivables Corporation
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Funding Agent & Committed Purchaser:
CDC FINANCIAL PRODUCTS INC.,
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Facsimile No.: (000) 000-0000
CP Conduit
B-2
SCHEDULE C
Schedule of Match Funding CP Conduit Purchasers
NONE
C-1
