EXHIBIT 10.6
EXECUTION COPY
TRANSFER AGREEMENT
Dated as of February 28, 2003
between
TRW AUTOMOTIVE RECEIVABLES LLC
as Transferor
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and
TRW AUTOMOTIVE GLOBAL RECEIVABLES LLC
as Transferee
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TABLE OF CONTENTS
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PAGE
ARTICLE I DEFINITIONS......................................................2
SECTION 1.01. Certain Defined Terms....................................2
SECTION 1.02. Other Terms..............................................5
SECTION 1.03. Incorporation of Defined Terms...........................5
ARTICLE II AMOUNTS AND TERMS OF TRANSFERS...................................5
SECTION 2.01. Agreement to Transfer and Purchase.......................5
SECTION 2.02. Payment for the Transfers................................7
SECTION 2.03. Purchase Price/Transfer Price Credit Adjustments.........8
SECTION 2.04. Payments and Computations, Etc...........................8
SECTION 2.05. Transfer of Records......................................9
SECTION 2.06. Characterization; Grant of Security Interest.............9
SECTION 2.07. No Repurchase............................................9
SECTION 2.08. Certain Allocations......................................9
SECTION 2.09. Credit Default Swaps Indemnification; Grant
of Security Interest to Transferee.......................9
SECTION 2.10. Grant of Security Interest in the North
American Collection Accounts and the North
American Concentration Account..........................10
SECTION 2.11. Credit Default Premium Reserve Account..................10
ARTICLE III CONDITIONS OF TRANSFERS.........................................12
SECTION 3.01. Conditions Precedent to Initial Transfer
from the Transferor.....................................12
SECTION 3.02. Conditions Precedent to All Transfers...................12
SECTION 3.03. Condition Precedent to the Transferor's
Obligations.............................................13
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................14
SECTION 4.01. Representations and Warranties of the Transferor........14
SECTION 4.02. Representations and Warranties of the Transferee........16
ARTICLE V COVENANTS.......................................................17
SECTION 5.01. Covenants of the Transferor.............................17
ARTICLE VI ADMINISTRATION AND COLLECTION...................................25
SECTION 6.01. Designation of Collection Agent.........................25
SECTION 6.02. Certain Rights of the Transferee........................26
SECTION 6.03. Rights and Remedies.....................................27
ARTICLE VII EVENTS OF TERMINATION...........................................27
SECTION 7.01. Events of Termination...................................27
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ARTICLE VIII INDEMNIFICATION.................................................28
SECTION 8.01. Indemnities by the Transferor...........................28
ARTICLE IX MISCELLANEOUS...................................................30
SECTION 9.01. Amendments, Etc.........................................30
SECTION 9.02. Notices, Etc............................................30
SECTION 9.03. Binding Effect; Assignability...........................30
SECTION 9.04. Costs, Expenses and Taxes...............................31
SECTION 9.05. No Proceedings..........................................31
SECTION 9.06. GOVERNING LAW...........................................31
SECTION 9.07. Rights of Administrative Agent..........................31
SECTION 9.08. Restriction on Payments; Waiver of Setoff...............32
SECTION 9.09. Execution in Counterparts...............................33
SECTION 9.10. Integration; Survival of Termination....................33
SECTION 9.11. Consent to Jurisdiction.................................33
SECTION 9.12. WAIVER OF JURY TRIAL....................................33
EXHIBITS AND SCHEDULES
SCHEDULE I Notice Addresses
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TRANSFER AGREEMENT
Dated as of February 28, 2003
TRW AUTOMOTIVE RECEIVABLES LLC, a Delaware limited liability company
(the "Transferor") and TRW AUTOMOTIVE GLOBAL RECEIVABLES LLC, a Delaware limited
liability company (the "Transferee"), agree as follows:
PRELIMINARY STATEMENTS
(1) The Transferor has agreed to purchase certain Receivables and the
related Receivables Property from the North American Originators from time to
time, on the terms and subject to the conditions set forth in the North American
Originator Purchase Agreement.
(2) The Transferor may agree to make certain Loans to the European
Purchaser from time to time, which Loans will be secured by the European
Purchaser Collateral, on the terms and subject to the conditions contained in
the European Loan Agreement.
(3) In connection with the foregoing, the Transferor may from time to
time enter into Credit Default Swaps.
(4) The Transferor wishes to transfer and assign to the Transferee from
time to time, and the Transferee has agreed to acquire from the Transferor, (a)
all Receivables and related Receivables Property purchased by the Transferor
pursuant to the North American Originator Purchase Agreement, (b) all Loans
funded by the Transferor to the European Purchaser pursuant to the European Loan
Agreement (including, without limitation, the Transferor's right to receive
principal and interest with respect to such Loans) and all of the Transferor's
interest in and to the European Purchaser Collateral and (c) other Transferred
Assets (as defined herein).
(5) The Transferee intends to enter into the Receivables Loan
Agreement.
(6) In connection with the transfer of the Transferred Assets, (i) the
Transferor has agreed to indemnify the Transferee for all Credit Losses arising
in connection with Pool Receivables owing by Special Obligors and their
respective Affiliates and to secure such indemnity with the Credit Default Swap
Collateral and (ii) grant a security interest in the North American Collection
Accounts, the North American Concentration Account(s) and the Credit Default
Premium Reserve Account in favor of the "Administrative Agent" under the
Receivables Loan Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. The following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Account Collateral" has the meaning specified in Section 2.10.
"Agreement" means this Transfer Agreement, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"Applicable Agreements" means, collectively, the Assigned Agreements
and the Credit Default Swaps.
"Assigned Agreements" has the meaning specified in Section 2.01(a)(v).
"Borrower" means the Transferee, in its capacity as "Borrower" under
the Receivables Loan Agreement, and any successor thereto.
"Borrowing Date" means each date on which the Transferor funds a Loan
to the European Purchaser pursuant to the European Loan Agreement.
"Closing Date" means February 28, 2003 or, if later, the first date on
which the conditions precedent set forth in Section 3.01 are satisfied.
"Collection Agent" means TRW U.S. in its capacity as collection agent
under the Servicing Agreement, and any successor thereto in such capacity.
"Collections" means, collectively, all cash collections and other cash
Proceeds of the Transferred Assets (including, without limitation, all payments
of principal and interest with respect to the Loans), including, without
limitation, all cash Proceeds of Related Security or European Purchaser
Collateral (as the case may be) with respect to any such Transferred Asset.
"Contract" means an agreement (including, without limitation, an
agreement evidenced by a purchase order, invoice or similar document), pursuant
to or under which an Obligor shall be obligated to pay for goods or merchandise
purchased from an Originator or services rendered by an Originator.
"Credit Default Collateral Account" means a deposit account, securities
account or other account established by the Administrative Agent subject to the
security interest created under Section 2.09.
"Credit Default Premium Reserve Account" means a deposit account,
securities account or other account established by the Administrative Agent
pursuant to Section 2.11.
"Credit Default Swap Collateral" has the meaning specified in Section
2.09.
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"Credit Event" means, with respect to any Special Obligor, a "Credit
Event" as defined in the related Credit Default Swap.
"Credit Loss" means, with respect to any Special Obligor with respect
to which a Credit Event has occurred, the aggregate Outstanding Balance of all
Pool Receivables owing by such Obligor or any of its Affiliates (i) which remain
unpaid for 91 or more days from the original due date for such Receivable or
(ii) as to which an Event of Bankruptcy has occurred and is continuing with
respect to the Obligor(s) thereof (such Outstanding Balance determined without
giving effect to any write-off or any other non-cash reduction to the
outstanding balance of such Receivables and after giving effect to any
Collections attributable to such Pool Receivables).
"European Purchaser Collateral" means, with respect to the Loans, all
security interests, liens or charges and property subject thereto from time to
time purporting to secure repayment of such Loans, whether pursuant to the
European Loan Agreement, the European Purchaser Security Agreement or otherwise,
together with all guaranties and other agreements and arrangements of whatever
character from time to time supporting or securing repayment of such Loans.
"Incipient Termination Event" means an event that but for notice or
lapse of time or both would constitute a Termination Event.
"Indemnified Amounts" has the meaning specified in Section 8.01(a).
"Indemnified Parties" has the meaning specified in Section 8.01(a).
"Independent Parties" has the meaning specified in Section 5.01(l)(i).
"Intercompany Note" has the meaning specified in the North American
Originator Purchase Agreement.
"Loan" means each "Loan" funded by the Transferor to the European
Purchaser pursuant to the European Loan Agreement.
"Obligor" means a Person obligated to make payments pursuant to a
Contract.
"Originator" means each Person from time to time party to the North
American Originator Purchase Agreement as a "Seller" thereunder.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Purchase" has the meaning specified in the North American Originator
Purchase Agreement.
"Purchase Date" has the meaning specified in the North American
Originator Purchase Agreement.
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"Purchase Price" has the meaning specified in the North American
Originator Purchase Agreement.
"Purchase Price Credit" has the meaning specified in the North American
Originator Purchase Agreement.
"Purchased Receivable" has the meaning specified in the North American
Originator Purchase Agreement.
"Receivable" means the indebtedness and other obligations of any
Obligor resulting from the provision or sale of merchandise, goods or services
by an Originator, including, without limitation, the right to payment of any
interest or finance charges, late payment charges, delinquency charges,
extension or collection fees and all other obligations of such Obligor with
respect thereto.
"Receivables Loan Agreement" means that certain Receivables Loan
Agreement, dated as of February 27, 2003, among the Borrower, the entities
parties thereto from time to time as "Conduit Lenders," "Committed Lenders" and
"Funding Agents" and JPMorgan Chase Bank, as "Administrative Agent", as amended,
restated or otherwise modified from time to time.
"Receivables Property" has the meaning specified in the North American
Originator Purchase Agreement.
"Records" has the meaning specified in the North American Originator
Purchase Agreement.
"Related Security" has the meaning specified in the North American
Originator Purchase Agreement.
"Settlement Date" means (i) the third Business Day of each calendar
week and (ii) following the occurrence of the "Termination Date" for all North
American Originators under and in accordance with the North American Originator
Purchase Agreement, each other "Settlement Date" under and as defined in the
Receivables Loan Agreement.
"Termination Date" means the earlier of (i) the "Termination Date"
under and as defined in the Receivables Loan Agreement and, (ii) the date on
which the Termination Date is declared or automatically occurs pursuant to
Section 7.01 of this Agreement.
"Termination Event" has the meaning specified in Section 7.01.
"Transfer" means a transfer and assignment by the Transferor to the
Transferee of Transferred Assets pursuant to Article II.
"Transfer Date" means each date on which a Transfer is made pursuant to
Article II, each of which shall occur on each Purchase Date and each Borrowing
Date.
"Transfer Price" means, on any Transfer Date with respect to any
Transfer, an amount equal to the sum of (a) an amount (in Dollars) equal to the
face value of the Purchased
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Receivables and Receivables Property purchased by the Transferor pursuant to the
North American Originator Purchase Agreement on such date, (b) an amount (in the
relevant Local Currency) of the aggregate outstanding principal amount of the
Loans to be funded by the Transferor in such Local Currency to the European
Purchaser pursuant to the European Loan Agreement on such date and (c) an amount
(in Dollars) equal to any up-front or periodic premium paid by the Transferor
with respect to any Credit Default Swaps.
"Transferee Material Adverse Effect" means a material adverse effect on
(i) the ability of the Transferee to perform its obligations under any
Transaction Document, (ii) the legality, validity or enforceability of this
Agreement or any other Transaction Document against the Transferee, (iii) the
Transferee's interest in the Transferred Assets generally or in any material
portion of the Transferred Assets, (iv) the collectibility of the Transferred
Assets generally or of any material portion of the Transferred Assets or (v) the
business, operations, properties, assets or financial condition of the
Transferee.
"Transferred Assets" has the meaning specified in Section 2.01(a).
"Transferred Receivable" means any Purchased Receivable which is
purchased by the Transferee pursuant to Article II.
"TRW U.S." means TRW Automotive U.S. LLC, a Delaware limited liability
company.
SECTION 1.02. Other Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP. All terms used in
Article 9 of the UCC in the State of New York, as in effect on the date hereof
and not specifically defined herein, are used herein as defined in such Article
9. Unless otherwise expressly indicated, all references herein to "Article,"
"Section," "Schedule" or "Exhibit" means articles and sections of, and schedules
and exhibits to, this Agreement. Headings are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
SECTION 1.03. Incorporation of Defined Terms. Capitalized terms used
but not otherwise defined herein shall have the meanings ascribed to such terms
in the Receivables Loan Agreement.
ARTICLE II
AMOUNTS AND TERMS OF TRANSFERS
SECTION 2.01. Agreement to Transfer and Purchase.
(a) Upon the terms and subject to the conditions hereof, the Transferor
hereby sells, assigns, transfers and conveys to the Transferee, without recourse
(except to the limited extent provided herein), all its respective present and
future right, title and interest in, to and under:
(i) all Purchased Receivables, whether now owned and existing or
hereafter acquired or arising;
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(ii) all Receivables Property with respect thereto;
(iii) all Loans, whether now owned and existing or hereafter
acquired or arising;
(iv) all European Purchaser Collateral with respect thereto;
(v) all of the Transferor's rights (but none of its obligations)
under the North American Originator Purchase Agreement, the European
Loan Agreement, the European Purchaser Security Agreement and the
Performance Guaranty (collectively, the "Assigned Agreements"),
including, without limitation, (A) all monies due and to become due to
Transferor under the Assigned Agreements, whether in respect of
Purchase Price Credits, repurchase prices, principal, interest, fees,
expenses, costs, indemnities, damages for the breach thereof or
otherwise, (B) all security interests and property subject thereto from
time to time purporting to secure payment of monies due or to become
due under or pursuant to the Assigned Agreements, (C) all rights of the
Transferor to receive proceeds of any insurance, indemnity, warranty or
guaranty with respect to the Assigned Agreements and (D) all rights,
remedies, powers, privileges and claims of Transferor in relation to
the Assigned Agreements, in each case, whether arising pursuant to the
terms of Assigned Agreements or as otherwise available at law or in
equity; and
(vi) all Proceeds of the foregoing
(the property described in the foregoing clauses (i) through (vi), together with
the security interests conveyed pursuant to Section 2.09 and Section 2.10 are
hereinafter collectively referred to as the "Transferred Assets"). Subject to
the terms and conditions set forth herein, the Transferee hereby agrees to
acquire the Transferred Assets from time to time until the Termination Date.
(b) On the Closing Date and on each subsequent Transfer Date, all of
the Transferor's right, title and interest in, to and under (i) in the case of
the Closing Date, all then existing Transferred Assets and (ii) in the case of
each subsequent Transfer Date (but only so long as the Termination Date has not
occurred), all newly acquired or arising Transferred Assets shall be immediately
and automatically sold, assigned, transferred and conveyed to the Transferee
pursuant to paragraph (a) above without any further action by such Transferor or
any other Person.
(c) It is the intention of the parties hereto that each Transfer made
hereunder shall be treated as a purchase by the Transferee and a sale by the
Transferor of the applicable Transferred Assets (not including the Credit
Default Swaps, which will be retained by the Transferor subject to the
Transferee's security interest therein pursuant to Section 2.09), which sales
are absolute and irrevocable and provide the Transferee with the full benefits
of ownership of the Transferred Assets. Each Transfer hereunder is made without
recourse to the Transferor; provided, however, that (i) the Transferor shall be
liable to the Transferee for all representations, warranties, covenants and
indemnities made by the Transferor pursuant to the terms of this
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Agreement and (ii) such Transfer does not constitute, and is not intended to
result in, an assumption by the Transferee or any assignee thereof of any
obligation of the Transferor or any other Person arising in connection with the
Transferred Assets or any other obligations of the Transferor.
(d) In connection with the foregoing Transfers, the Transferor hereby
authorizes Transferee and its assigns to record and file from time to time, at
the Transferor's expense, a financing statement or statements with respect to
the Transferred Assets transferred or to be transferred by the Transferor
hereunder, in each case meeting the requirements of applicable Law in such
manner and in such jurisdictions as are necessary to perfect and protect the
interests of the Transferee created hereby under the UCC against all creditors
of the Transferor. In addition, the Transferor agrees that from time to time, at
its expense, it will promptly, upon request, execute and deliver all further
instruments and documents, and take all further actions that the Transferee or
the Administrative Agent may reasonably request, in order to perfect, protect or
more fully evidence the purchase by the Transferee of the Transferred Assets
with respect thereto. The Transferor agrees, at its own expense, on or prior to
the Closing Date, to (i) indicate clearly and unambiguously in its computer
files that all Transferred Assets have been or will be transferred to the
Transferee pursuant to this Agreement and (ii) note in its accounting records
that the Transferred Assets have been transferred to the Transferee.
SECTION 2.02. Payment for the Transfers.
(a) Upon the fulfillment of the conditions set forth in Article III,
the Transfer Price for the Transferred Assets shall be paid or provided for
(without duplication) by the Transferee in the manner provided in Section
2.02(b) below on the date of the initial Transfer and on each Transfer Date
thereafter until the Termination Date.
(b) The Transfer Price shall be paid by the Transferee to the
Transferor on each Transfer Date (including the initial Transfer Date) as
follows:
(i) by netting the amount of any Transfer Price Credit pursuant
to Section 2.03 against such Transfer Price;
(ii) to the extent available for such purpose, in cash from
Collections released to the Transferee pursuant to the Receivables Loan
Agreement on such Transfer Date;
(iii) to the extent available for such purpose, in cash from the
net proceeds of Loans made to the Transferee pursuant to the
Receivables Loan Agreement; and
(iv) to the extent available for such purpose, in cash from the
proceeds of capital contributed, if any, in respect of an equity
interest in the Transferee (in the form of cash equity).
The portion of the Transfer Price to be paid in cash shall be payable
solely from funds available to the Transferee which are not otherwise required
to be applied or set-aside for the payment of any Borrower Obligations pursuant
to the Receivables Loan Agreement. If, by
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reason of the insufficiency of funds, any portion of the Transfer Price is not
paid in full by the Transferee on any Transfer Date, then the Transferee shall
have no obligation to make such payment (and the Transferor shall have no claim
for payment) unless (and then only to the extent) the Transferee subsequently
obtains funds which are available to make such payment as described above.
SECTION 2.03. Purchase Price/Transfer Price Credit Adjustments. If on
any day the Transferor shall be entitled to a Purchase Price Credit under and in
accordance with the North American Originator Purchase Agreement, then, in such
event, the Transferee shall be entitled to a credit (a "Transfer Price Credit")
against the Transfer Price otherwise payable to the Transferor hereunder equal
to the full amount of the applicable Purchase Price Credit. If the aggregate
Transfer Price Credits exceeds the Transfer Price payable on any Purchase Date,
or if the Termination Date has occurred, then the Transferor agrees to pay the
remaining amount of such Transfer Price Credit to the Transferee in cash on or
prior to the first Settlement Date (or the Termination Date, if earlier) to
occur after such Purchase Date. Simultaneous with the granting or payment of any
Transfer Price Credit by the Transferor in respect of a Transferred Receivable
in connection with a Purchase Price Credit under and in accordance with the
North American Originator Purchase Agreement that gives rise to a reconveyance
by the Transferor of such Transferred Receivable to a "Seller" thereunder, such
Transferred Receivable and the Receivables Property with respect thereto shall
immediately and automatically be sold, assigned, transferred and reconveyed
(without recourse) by the Transferee to the Transferor without any further
action by the Transferee or any other person.
SECTION 2.04. Payments and Computations, Etc. All amounts to be paid or
deposited by the Transferee hereunder shall be paid or deposited in accordance
with the terms hereof by no later than 11:00 A.M. (New York time) on the day
when due in immediately available funds to the account of the Transferor
designated from time to time by the Transferor or as otherwise directed by the
Transferor. All payments hereunder shall be made solely in Dollars unless
otherwise specified herein. All amounts to be paid or deposited by the
Transferor hereunder shall be paid or deposited in accordance with the terms
hereof by no later than 11:00 A.M. (New York time) on the day when due in
immediately available funds to the account of the Transferee designated from
time to time by the Transferee or as otherwise directed by the Transferee. In
the event that any payment owed by any Person hereunder becomes due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
such payment. The Transferor shall, to the extent permitted by law, pay interest
on any amount not paid or deposited by the Transferor when due, at an interest
rate equal to 2.0% per annum above the Base Rate, payable on demand. The
Transferee shall, to the extent permitted by law, pay interest on any amount not
paid or deposited by the Transferee when due hereunder at an interest rate equal
to 2.0% per annum above the Base Rate, payable on demand provided, however, that
any payments to be made by the Transferee in respect of the foregoing shall be
made solely from funds available to the Transferee which are not otherwise
required to be applied or set-aside for the payment of any Borrower Obligations
pursuant to the Receivables Loan Agreement, shall be non-recourse other than
with respect to such funds and shall not constitute a claim against the
Transferee to the extent that insufficient funds exist to make such payment. All
computations of interest payable hereunder shall be made on the basis of a year
of 365 (or 366, as applicable) days for the actual number of days (including the
first but excluding the last day) elapsed.
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SECTION 2.05. Transfer of Records.
(a) In connection with the Transfers hereunder, the Transferor hereby
sells, transfers, assigns and otherwise conveys to the Transferee all of such
Transferor's right and title to and interest in all Records, licenses and other
rights granted to the Transferor pursuant to Section 2.06 of the North American
Originator Purchase Agreement, without the need for any further documentation in
connection with any Transfer hereunder.
(b) The Transferor shall take such action requested by the Transferee
and its assigns from time to time hereafter that may be necessary to ensure that
the Transferee and its assigns have an enforceable ownership interest in the
Records relating to the Transferred Assets purchased from the Transferor
hereunder and an enforceable security interest in the Records relating to the
Credit Default Swaps.
SECTION 2.06. Characterization; Grant of Security Interest. If,
notwithstanding the intention of the parties expressed in Section 2.01(c), the
conveyance by the Transferor to the Transferee of Transferred Assets hereunder
shall be characterized as a secured loan and not a sale, this Agreement shall
constitute a security agreement under applicable law. The Transferor hereby
grants to the Transferee a security interest in all of the Transferor's right,
title and interest in, to and under all Transferred Assets, which security
interest shall secure all obligations of the Transferor hereunder. After any
Termination Event, the Transferee and its assignees shall have, in addition to
the rights and remedies which they may have under this Agreement, all other
rights and remedies against the Transferor provided to a secured creditor after
default under the UCC and other applicable Law, which rights and remedies shall
be cumulative.
SECTION 2.07. No Repurchase. Except to the extent set forth in Section
2.03, the Transferor shall have no right or obligation under this Agreement, by
implication or otherwise, to repurchase from the Transferee any Transferred
Assets or to rescind or otherwise retroactively affect any Transfer of any
Transferred Assets after they are sold to the Transferee hereunder.
SECTION 2.08. Certain Allocations. The Transferor and the Transferee
hereby agree that, unless otherwise required by applicable Law or unless an
Obligor designates that a payment be applied to a specific Receivable, all
Collections from an Obligor shall be applied to the oldest Receivables (whether
or not such Receivables are Transferred Receivables) of such Obligor.
SECTION 2.09. Credit Default Swaps Indemnification; Grant of Security
Interest to Transferee. The Transferor hereby agrees to pay to the Transferee,
out of the Proceeds of the related Credit Default Swap Collateral, the amount of
all Credit Losses relating to the Special Obligors. The Transferor hereby grants
to the Transferee a security interest in all of the Transferor's right, title
and interest in, to and under all Credit Default Swaps now existing or hereafter
arising and any Credit Default Collateral Account, including, without
limitation, (A) all monies due and to become due to Transferor under the Credit
Default Swaps, whether in respect of ordinary payment date payments, termination
payments, fees, expenses, costs, indemnities, damages for the breach thereof or
otherwise, (B) all security interests and property
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subject thereto from time to time purporting to secure payment of monies due or
to become due under or pursuant to the Credit Default Swaps, (C) all rights of
the Transferor to receive proceeds of any indemnity, warranty or guaranty with
respect to the Credit Default Swaps, (D) all rights, remedies, powers,
privileges and claims of Transferor in relation to the Credit Default Swaps, in
each case, whether arising pursuant to the terms of Credit Default Swaps or as
otherwise available at law or in equity and (E) all Proceeds of the foregoing
(collectively, the "Credit Default Swap Collateral"), which security interest
shall secure all of the obligations of the Transferor under this Agreement,
including the obligations of the Transferor under this Section 2.09. The
Transferor agrees that Proceeds of any Credit Default Swap Collateral that are
not immediately payable hereunder to the Transferee in respect of Credit Losses
shall be held in a Credit Default Collateral Account in a manner satisfactory to
the Administrative Agent and in which the Administrative Agent has a perfected
security interest, free and clear of any Adverse Claims (other than Permitted
Adverse Claims).
SECTION 2.10. Grant of Security Interest in the North American
Collection Accounts and the North American Concentration Account(s). The
Transferor hereby grants to the Administrative Agent a security interest in all
of the Transferor's right, title and interest in, to and under (i) each of the
North American Collection Accounts, each North American Concentration Account(s)
and each Credit Default Premium Reserve Account (each an "Account"), (ii) all
funds and other evidences of payment held therein and all certificates and
instruments, if any, from time to time representing or evidencing any such
Account or any funds and other evidences of payment held therein, (iii) all
investment property and other financial assets held in, or acquired with funds
from, any such Account and all certificates and instruments from time to time
representing or evidencing such investment property and financial assets, (iv)
all notes, certificates of deposit and other instruments from time to time
hereafter delivered in substitution for any such Account and (v) all interest,
dividends, cash, instruments, financial assets, investment property and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any such Account (collectively, the "Account
Collateral"), which security interest shall secure all of the Borrower
Obligations.
SECTION 2.11. Credit Default Premium Reserve Account.
(a) On or prior to the Closing Date, the Transferor shall instruct the
Administrative Agent to establish in the name of the Administrative Agent at an
Eligible Account Bank an account designated as the "Credit Default Premium
Reserve Account" (or words of similar import), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Secured Parties.
(b) Each of the Transferor and the Transferee agrees that the
Administrative Agent shall have exclusive dominion and control over the Credit
Default Premium Reserve Account and all monies, instruments and other property
from time to time deposited in or credited to the Credit Default Premium Reserve
Account.
(c) The Administrative Agent may invest funds on deposit in the Credit
Default Premium Reserve Account, reinvest proceeds of any such investments which
may mature or be sold, and invest interest or other income received from any
such investments, in each case in such Permitted Investments as the Transferor
may select (or, in the absence of any
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such selection by the Transferor, as the Administrative Agent may select in its
sole discretion); provided that each such Permitted Investment shall have a
maturity date no later than the next succeeding payment date for premiums
payable by the Transferor under any Credit Default Swap. Such proceeds, interest
or income which are not so invested or reinvested in Permitted Investments
shall, except as otherwise provided in this Agreement, be deposited and held in
the Credit Default Premium Reserve Account; provided that, prior to the
Termination Date, any interest or income in respect of such Permitted
Investments shall, at the direction of the Transferor be remitted to the
Transferor. Neither the Administrative Agent nor any of its Affiliates shall be
liable to the Transferee, the Transferor, any Secured Party or any other Person
for, or with respect to, any decline in value of amounts on deposit in the
Credit Default Premium Reserve Account. Permitted Investments from time to time
purchased and held pursuant to this Section 2.11 shall be referred to as
"Collateral Securities" and shall, for purposes of this Agreement and each other
Transaction Document, constitute part of the funds held in the Credit Default
Premium Reserve Account in amounts equal to their respective outstanding
principal amounts. Each such Permitted Investment shall be made in the name of
the Administrative Agent or its designee.
(d) Prior to the occurrence of the Termination Event, the
Administrative Agent may, and at the direction of the Required Committed
Lenders, shall, at any time or from time to time after funds are either
deposited in the Credit Default Premium Reserve Account or invested in
Collateral Securities, after selling, if necessary, any Collateral Securities,
withdraw funds then held in the Credit Default Premium Reserve Account and apply
the same to pay the obligation of the Transferor to pay premium under any Credit
Default Swap.
(e) On or following the occurrence of a Termination Event, the
Administrative Agent may, and at the direction of the Required Committed
Lenders, shall, at any time or from time to time after funds are either
deposited in the Credit Default Premium Reserve Account or invested in
Collateral Securities, after selling, if necessary, any Collateral Securities,
withdraw funds then held in the Credit Default Premium Reserve Account and apply
the same to the Borrower Obligations in accordance with the priority of payments
set forth in Section 2.07 of the Receivables Loan Agreement. The Transferor
agrees that Permitted Investments are of a type customarily sold on a recognized
market and, accordingly, no notice of sale of any Permitted Investments shall be
required. To the extent notice of sale of any Collateral Securities shall be
required by law, at least ten days' notice to the Transferor of the time and
place of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Administrative Agent may adjourn
any public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned.
(f) The Administrative Agent shall have the sole right of withdrawal
with respect to the Credit Default Premium Reserve Account. Neither the
Transferor nor any Person claiming on behalf of or through the Transferor shall
have any right to withdraw any of the funds held in any the Credit Default
Premium Reserve Account.
(g) The Administrative Agent shall exercise reasonable care in the
custody and preservation of any funds held in the Credit Default Premium Reserve
Account and shall be deemed to have exercised such care if such funds are
accorded treatment substantially equivalent
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to that which the Administrative Agent accords its own property, it being
understood that the Administrative Agent shall not have any responsibility for
taking any necessary steps to preserve rights against any parties with respect
to any such funds.
(h) On the Final Payout Date, any funds remaining on deposit in the
Credit Default Premium Reserve Account shall be paid to the Transferor.
ARTICLE III
CONDITIONS OF TRANSFERS
SECTION 3.01. Conditions Precedent to Initial Transfer from the
Transferor. The Transferee's obligation to pay the Transfer Price for the
initial Transfer is subject to the conditions precedent that the Transferee
shall have received on or before the date of such Transfer all of the
instruments, documents, agreements and opinions specified in Schedule IV to the
Receivables Loan Agreement.
SECTION 3.02. Conditions Precedent to All Transfers. The Transferee's
obligation to pay for any Transfer (including the initial Transfer) hereunder
shall be subject to the further conditions precedent that:
(a) the Transferor shall have delivered to the Transferee such
information concerning the Transferred Assets as may reasonably be requested by
the Transferee; and
(b) on the date of (and after giving effect to) such Transfer the
following statements shall be true (and the Transferor, by accepting the
Transfer Price for such Transfer, shall be deemed to have represented and
warranted that):
(i) the warranties contained in Section 4.01 are correct on and
as of the date of such Transfer as though made on and as of such date
(except that the representations and warranties set forth in Sections
4.01(e) and (f) shall be required to be true and correct only as of the
Closing Date and each Reporting Date);
(ii) no event has occurred and is continuing, or would result
from such Purchase, that constitutes a Termination Event or an
Involuntary Bankruptcy Event; and
(iii) the Termination Date shall not have occurred.
Notwithstanding the foregoing, unless otherwise specified by the Transferee
(with a copy to the Administrative Agent) in a written notice to the Transferor,
each Transfer shall occur automatically on each day prior to the Termination
Date, with the result that the title to all Transferred Assets (other than the
Credit Default Swaps and the Account Collateral) shall vest in the Transferee
automatically on each Transfer Date and without any further action of any kind
by the Transferee or the Transferor, whether or not the conditions precedent
specified above were in fact satisfied on such date and notwithstanding any
failure to pay the Transfer Price for such Transferred Assets.
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SECTION 3.03. Condition Precedent to the Transferor's Obligations.
(a) The obligation of the Transferor to sell the Transferred Assets
(other than the Credit Default Swaps and the Account Collateral) existing on the
Closing Date to the Transferee is subject to the conditions precedent that the
Transferor shall have received on or before the date of such sale the following,
each (unless otherwise indicated) dated the day of such sale and in form and
substance reasonably satisfactory to the Transferor:
(i) Secretary's Certificate. A certificate of the Secretary or an
Assistant Secretary of the Transferee, dated the date hereof, and
certifying (A) that attached thereto is a true and complete copy of the
certificate of formation and limited liability company agreement of the
Transferee, as in effect on the date hereof and at all times since a
date prior to the date of the resolutions described in clause (B)
below, (B) that attached thereto is a true and complete copy of the
resolutions, in form and substance reasonably satisfactory to the
Transferor, of the managers of the Transferee or committees thereof
authorizing the execution, delivery and performance of this Agreement
and the other Transaction Documents to which it is a party and the
transactions contemplated hereby and thereby, and that such resolutions
have not been amended, modified, revoked or rescinded and are in full
force and effect, (C) that the certificate of formation of the
Transferee has not been amended since the date of the last amendment
thereto shown on the certificate of good standing (or its equivalent)
furnished pursuant to subsection (iii) below and (D) as to the
incumbency and specimen signature of each officer executing this
Agreement and any other Transaction Documents or any other document
delivered in connection herewith or therewith on behalf of the
Transferee (on which certificates the Transferors may conclusively rely
until such time as the Transferor shall receive from the Transferee a
revised certificate with respect to the Transferee meeting the
requirements of this subsection (i));
(ii) Corporate Documents. The certificate of formation, including
all amendments thereto, of the Transferee, certified as of a recent
date by the Secretary of State of the State of Delaware;
(iii) Good Standing Certificates. Certificates of compliance, of
status or of good standing for the Transferee, dated as of a recent
date, from the Secretary of State of the State of Delaware;
(iv) Consents, Licenses, Approvals, Etc. A Certificate dated the
date hereof of the President or a Vice President of the Transferee
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by
the Transferee of this Agreement and the validity and enforceability of
this Agreement against the Transferee, and such consents, licenses and
approvals shall be in full force and effect or (B) stating that no such
consents, licenses or approvals are so required; and
(v) No Litigation. Confirmation that there is no pending or, to
its knowledge after due inquiry, threatened action in writing or
proceeding affecting
13
the Transferee before any Official Body that could reasonably be
expected to have a material impairment of the ability of the Transferee
to perform its obligations under the Transaction Documents.
(b) The obligation of the Transferor to sell any Transferred Assets
(other than the Credit Default Swaps and the Account Collateral) on any date
(including on the Closing Date) shall be subject to the further condition
precedent that on such date no voluntary or involuntary case or proceeding is
pending against the Transferor or the Transferee under the United States
Bankruptcy Code.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Transferor. The
Transferor represents and warrants as follows as of the date hereof, as of each
Transfer Date hereunder (both before and after giving effect to any Transfers on
such date) and as of each Reporting Date (except that the representations and
warranties set forth in paragraphs (e) and (f) below shall be made only as of
the date hereof and each Reporting Date):
(a) The Transferor is a limited liability company duly formed, validly
existing and in good standing under the laws of Delaware, and is duly qualified
to do business, and is in good standing as a foreign limited liability company,
in every jurisdiction where the nature of its business requires it to be so
qualified, unless the failure to so qualify would not reasonably be expected to
have a Material Adverse Effect.
(b) The execution, delivery and performance by the Transferor of the
Transaction Documents, including the Transferor's use of the proceeds of
Transfers, (i) are within the Transferor's limited liability company powers,
(ii) have been duly authorized by all necessary limited liability company
action, (iii) do not contravene (A) the Transferor's certificate of formation or
limited liability company agreement, (B) any law, rule or regulation applicable
to the Transferor, (C) any contractual restriction binding on or affecting the
Transferor or its property or (D) any order, writ, judgment, award, injunction
or decree binding on or affecting the Transferor or its property, where any such
contravention described in this clause (iii) could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect and (iv) do
not result in or require the creation of any Adverse Claim upon or with respect
to any of its properties (except Permitted Adverse Claims). Each of the
Transaction Documents has been duly executed and delivered by the Transferor.
(c) No authorization or approval or other action by, and no notice to
or filing with, any Official Body is required for the due execution, delivery
and performance by the Transferor of the Transaction Documents to which it is a
party or any other document to be delivered by it thereunder, except for (i) the
filing of the financing statements referred to in Schedule IV of the Receivables
Loan Agreement and (ii) such as have been obtained or made and are in full force
and effect.
(d) Each of the Transaction Documents to which the Transferor is a
party constitutes the legal, valid and binding obligation of the Transferor
enforceable against the
14
Transferor in accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting creditors' rights generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (iii) implied covenants of good faith and fair dealing.
(e) Since the Closing Date there has been no Material Adverse Effect.
(f) As of the initial Transfer Date, there are no actions, suits or
proceedings at law or in equity or by or before any Official Body or in
arbitration now pending or, to the actual knowledge of a Responsible Officer of
the Transferor, threatened in writing against or affecting the Transferor or any
of its business, property or rights. As of each Reporting Date, there are no
actions, suits or proceedings at law or in equity or by or before any Official
Body or in arbitration, or, to the actual knowledge of a Responsible Officer of
the Transferor, threatened in writing against or affecting the Transferor or any
of its business, property or rights as to which in either case, an adverse
determination is reasonably probable and which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. The
Transferor is not in default in any material respect of any order of any
Official Body.
(g) No proceeds of any Transfer will be used to purchase or carry, or
to extend credit to others for the purpose of purchasing or carrying, "margin
stock" within the meaning of Regulation T, U or X promulgated by the Board of
Governors of the Federal Reserve System from time to time.
(h) Immediately prior to each Transfer hereunder, the Transferor will
be the owner of the Transferred Assets which are the subject of such Transfer,
free and clear of any Adverse Claim (other than Permitted Adverse Claims). Upon
each Transfer, the Transferee shall have acquired a valid and perfected first
priority ownership interest in the Transferred Assets which are the subject of
such Transfer perfected under Delaware or Irish law, as applicable, in each case
free and clear of any Adverse Claim (other than Permitted Adverse Claims). At
the time of any Transfer hereunder the Transferee will have a valid and
perfected security interest in the Credit Default Swap Collateral and the
Administrative Agent will have a valid and perfected security interest in the
Account Collateral, in each case free and clear of any Adverse Claim (other than
Permitted Adverse Claims). No effective financing statement or other instrument
similar in effect, is filed in any recording office listing the Transferor as
debtor, covering any Transferred Assets, or any interest therein, except (i)
such as may be filed in accordance with the North American Originator Purchase
Agreement, the European Loan Agreement or the European Purchaser Security
Agreement and (ii) such as may be filed in favor of the Transferee in accordance
with this Agreement.
(i) All information, exhibits, documents, books, records and reports
furnished in writing at any time by or on behalf of the Transferor to the
Transferee, the Administrative Agent, any Funding Agent or any Lender in
connection with the Transaction Documents is accurate in all material respects
as of its date or (except as otherwise disclosed to the Transferee, the
Administrative Agent, such Funding Agent or such Lender, as the case may be, at
such time) as of the date so furnished.
15
(j) The Transferor is located in the State of Delaware for the purposes
of Section 9-307 of the UCC as in effect in the State of New York.
(k) Since its formation, the Transferor has not used any corporate
name, tradename or doing-business-as name other than the name in which it has
executed this Agreement.
(l) The Transferor was formed on February 20, 2003 and the Transferor
did not engage in any business activities prior to the date of this Agreement.
The Transferor has no Subsidiaries other than the Borrower. TRW Automotive
Acquisition Corp., a Delaware corporation, directly owns 100% of the membership
interest of the Transferor, free and clear of any Adverse Claims.
(m) The Transferor is not an "investment company" as defined by, or
subject to regulation under the Investment Company Act of 1940, as amended.
(n) (i) The fair value of the assets of the Transferor, at a fair
valuation, exceed the debts and liabilities, direct, subordinated, contingent or
otherwise, of the Transferor; (ii) the present fair saleable value of the
property of the Transferor is greater than the amount that will be required to
pay the probable liability of the Transferor on its debts and other liabilities,
direct, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) the Transferor will be able to
pay its debts and liabilities, direct, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (iv) the Transferor
will not have unreasonably small capital with which to conduct the businesses in
which it is engaged as such business is now conducted and is proposed to be
conducted following the Closing Date. The Transferor does not intend to, and
does not believe that it will, incur debts beyond its ability to pay such debts
as they mature, taking into account the timing and amounts of cash to be
received by it and the timing and amounts of cash to be payable on or in respect
of its Indebtedness.
(o) All Transferred Assets acquired by the Transferor from the North
American Originators have been purchased by the Transferor pursuant to and in
accordance with the North American Purchase Agreement in an amount which
constitutes fair consideration and reasonably equivalent value. Each Purchase
under the North American Originator Purchase Agreement shall not have been made
for or on account of an antecedent debt owed by the Transferor to any Originator
and no such purchase is or may be voidable or subject to avoidance under any
section of the United States Bankruptcy Code or any other Law, whether foreign
or domestic. All Loans (if any) have been made in accordance with the terms of
the European Loan Agreement.
(p) No Adverse Claim exists in favor of the Pension Benefit Guaranty
Corporation on any of the Transferred Assets.
(q) No event has occurred and is continuing and no condition exists
which constitutes a Termination Event or Incipient Termination Event.
SECTION 4.02. Representations and Warranties of the Transferee. The
Transferee represents and warrants as follows:
16
(a) The Transferee is a limited liability company duly formed, validly
existing and in good standing under the laws of the jurisdiction of its
formation and is duly qualified in good standing as a foreign limited liability
company in each jurisdiction where the failure to be so qualified, individually
or in the aggregate, could not reasonably be expected to have a Transferee
Material Adverse Effect.
(b) The execution, delivery and performance by the Transferee of this
Agreement is within the Transferee's limited liability company powers, has been
duly authorized by all necessary limited liability company action, do not
contravene (i) the Transferee's articles of organization or limited liability
company agreement or (ii) applicable law or any contractual restriction binding
on or affecting the Transferee, and do not result in or require the creation of
any lien (other than pursuant hereto) upon or with respect to any of its
properties, except, in the case of clause (ii) to the extent that such
contravention could not reasonably be expected to result in a Transferee
Material Adverse Effect.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Transferee of this Agreement,
except (i) such as have been obtained or made and are in full force and effect
and (ii) for such authorizations, approvals or actions the failure of which to
obtain could not reasonably be expected to result in a Transferee Material
Adverse Effect.
(d) This Agreement, when executed and delivered by the Transferee, will
be the legal, valid and binding obligations of the Transferee, enforceable in
accordance with its terms, subject to (i) the effects of bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors' rights
generally, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii)
implied covenants of good faith and fair dealing.
ARTICLE V
COVENANTS
SECTION 5.01. Covenants of the Transferor. From the date hereof until
the Final Payout Date, the Transferor covenants and agrees as follows:
(a) Compliance with Laws, Etc. The Transferor will comply in all
respects with all applicable Laws and preserve and maintain its corporate
existence, rights, franchises, qualifications and privileges except to the
extent that the failure so to comply with such Laws or the failure so to
preserve and maintain such rights, franchises, qualifications, and privileges
would not reasonably be expected to have a Material Adverse Effect.
(b) Offices. The Transferor will keep the office where it keeps its
records concerning the Transferred Assets at (i) the address of the Transferor
specified on Schedule I as of the date of this Agreement or (ii) upon 30 days'
prior written notice to the Transferee, at any other locations in jurisdictions
where all actions reasonably requested by the Transferee to protect and perfect
the Transferee's interest in the Transferred Assets have been taken and
completed.
17
(c) Performance and Compliance with Contracts and Applicable
Agreements. The Transferor will, at its expense, timely and fully perform and
comply in all material respects with all provisions, covenants and other
promises (if any) required to be observed by it under the Contracts and
Applicable Agreements related to the Transferred Assets.
(d) Sales, Liens, Etc. 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 (except for Permitted Adverse Claims) upon or with
respect to, any Transferred Assets, or assign any right to receive income in
respect thereof. Nothing in this Section 5.01(d) shall prevent the Transferor
from making Restricted Payments otherwise permitted under Section 5.01(p).
(e) Extension or Amendment of Receivables and Contracts. The Transferor
will not extend, amend or otherwise modify the terms of any Transferred Asset.
(f) Change in Business. The Transferor will not make any change in the
character of its business.
(g) Change in Payment Instructions. The Transferor will not make any
change in its instructions to Obligors or the European Purchaser regarding
payments to be made in respect of the Transferred Assets.
(h) Deposits to Collection Accounts and Concentration Account. The
Transferor will instruct, or cause to be instructed, all Obligors and the
European Purchaser to remit all their payments in respect of the Transferred
Assets into a Collection Account or a Concentration Account (either directly by
wire transfer or electronic funds transfer or by check mailed to a lock-box
maintained by the relevant Collection Account Bank). If the Transferor shall
receive any Collections directly, the Transferor shall promptly (and in any
event within one Business Day) deposit the same into a Collection Account or a
Concentration Account. The Transferor will use its reasonable best efforts to
prevent funds which do not constitute Collections of Transferred Assets from
being deposited into any Collection Account or Concentration Account.
(i) Audits. The Transferor will, from time to time during regular
business hours as requested by the Transferee or its assigns upon reasonable
prior notice and at the Transferor's expense, permit the Transferee, or its
agents, representatives or assigns (including independent public accountants),
(i) to conduct periodic audits of the Transferred Assets and the related books
and records and collections systems of the Transferor, (ii) to examine and make
copies of and abstracts from all books, records and documents (including,
without limitation, computer tapes and disks) in the possession or under the
control of the Transferor relating to the Transferred Assets, and (iii) to visit
the offices and properties of the Transferor for the purpose of examining such
materials described in clause (ii) above, and to discuss matters relating to the
Transferred Assets or the Transferor's performance under the Transaction
Documents or under the Contracts with any of the officers or employees of the
Transferor having knowledge of such matters; provided that, so long as no
Termination Event or Involuntary Bankruptcy Event has occurred and is continuing
and no material deficiencies have been identified in the most recent
Accountant's Letter delivered pursuant to Section 5.02(b) of the Receivables
Loan Agreement,
18
the Transferor shall be required to pay the expenses of no more than two audits
conducted by the Transferee or its assigns during any single calendar year.
(j) Further Assurances; Change in Name or Jurisdiction of Origination,
etc.
(i) The Transferor agrees from time to time, at its expense,
promptly to execute and deliver all further instruments and documents,
and to take all further actions, that may be necessary or desirable, or
that the Transferee or its assignee may reasonably request, to perfect,
protect or more fully evidence the Transferee's ownership of the
Transferred Assets (other than the Credit Default Swaps and the Account
Collateral), the Transferee's security interest in the Credit Default
Swap Collateral or the Administrative Agent's security interest in the
Account Collateral, or to enable the Transferee or its assignee to
exercise and enforce its respective rights and remedies under this
Agreement. Without limiting the foregoing, the Transferor will, upon
the request of the Transferee or its assignee, (A) execute and file
such financing or continuation statements, or amendments thereto, and
such other instruments and documents, that may be necessary or
desirable or that the Transferee or its assignee may reasonably request
to perfect, protect or evidence the Transferee's ownership of the
Transferred Assets (other than the Credit Default Swaps and the Account
Collateral), the Transferee's security interest in the Credit Default
Swap Collateral or the Administrative Agent's security interest in the
Account Collateral; and (B) following the occurrence of a Termination
Event, deliver to the Transferee copies of the invoices evidencing the
Purchased Receivables (which delivery may be made in electronic form).
(ii) The Transferor authorizes the Transferee or its assignee to
file financing or continuation statements, and amendments thereto and
assignments thereof, relating to the Transferred Assets without the
signature of the Transferor. A photocopy or other reproduction of this
Agreement shall be sufficient as a financing statement where permitted
by law.
(iii) The Transferor shall not change its jurisdiction of
organization from the State of Delaware.
(iv) The Transferor will not change its name, identity or
corporate structure or tax identification number or the office at which
any records relating to the Transferred Assets are maintained unless
the Transferee shall have received at least thirty (30) days advance
written notice of such change or relocation and all action by the
Transferor necessary or appropriate to perfect or maintain the
perfection of the Transferee's interest in the Transferred Assets
(including, without limitation, the filing of all financing statements
and the taking of such other action as the Transferee may request in
connection with such change or relocation) shall have been duly taken.
(k) Reporting Requirements. The Transferor will cause to be provided to
the Transferee, the Administrative Agent and each Funding Agent the following:
19
(i) Termination Event and Incipient Termination Event. As soon as
possible and in any event within one Business Day after a Responsible
Officer of the Transferor obtains actual knowledge of the occurrence of
each Termination Event or Incipient Termination Event, a statement of a
Financial Officer of the Transferor setting forth details of such
Termination Event or Incipient Termination Event and the action that
the Transferor has taken and proposes to take with respect thereto;
(ii) Change in Name, Etc. At least thirty (30) days prior to any
change in the name, corporate structure or tax identification number of
any Transaction Party, a notice setting forth the new name,
jurisdiction of organization, corporate structure or tax identification
number, as applicable, and the effective date thereof;
(iii) Termination or Suspension of Sale by Originators. As soon
as possible and in any event within one Business Day of occurrence
thereof, notice that any Originator has stopped selling or contributing
to the Transferor or the European Purchaser (as applicable) all newly
arising Receivables originated by such Originator pursuant to the
Originator Purchase Agreement to which such Originator is a party;
(iv) Notices under Transaction Documents. Promptly after receipt
thereof, copies of all notices received by the Transferor from any
Originator, the European Purchaser or any counterparty under a Credit
Default Swap in connection with any Applicable Agreements;
(i) Material Adverse Effect. Promptly after a Responsible Officer
of the Transferor obtains actual knowledge thereof, notice of (i) the
filing or commencement of, any action, suit or proceeding, whether at
law or equity, by or before any Official Body or in arbitration against
the Transferor or (ii) other event or condition that is not a matter of
general public knowledge that has had, or could reasonably be expected
to have, a Material Adverse Effect; and
(v) Other Information. Such other information respecting the
Transferred Assets or the condition or operations, financial or
otherwise, of any Transaction Party (including, without limitation,
information regarding any pending or threatened litigation) as the
Administrative Agent or any Funding Agent may from time to time
reasonably request.
(l) Separateness.
(i) The Transferor will at all times have at least one "manager"
(as defined in the Transferor's limited liability agreement as in
effect on the date hereof) who will be (x) a natural person and (y) a
Person who (A) shall not have been at the time of such Person's
appointment, and may not have been at any time during the preceding
five years and shall not be as long as such Person is a manager of the
Transferor (i) a director, member, officer, manager, partner,
20
shareholder or employee of the Performance Guarantor or any Originator
or any of their respective directors, members, partners, Subsidiaries,
shareholders or Affiliates other than the Transferor or the Transferee
(collectively, the "Independent Parties"), (ii) a supplier to any of
the Independent Parties, (iii) a person controlling or under common
control with any directors, members, partners, shareholder or supplier
of any of the Independent Parties or (iv) a member of the immediate
family of any director, member, partner, shareholder, officer, manager,
employee or supplier of the Independent Parties, (B) has prior
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 proceedings against it or could file a
petition seeking relief under any applicable federal or state law
relating to bankruptcy and (C) 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.
(ii) The Transferor will at all times have sufficient personnel
to run its business and operations and will compensate its employees
(if any) from its own available funds for services provided to it. In
the event employees of the Transferor participate in pension, insurance
and other benefit plans of any Independent Party, the Transferor will
on a current basis reimburse such Independent Party for its pro rata
share of the costs thereof.
(iii) The Transferor will pay its own liabilities out of its own
funds and assets.
(iv) The Transferor will maintain a separate office (a) which if
leased from any Independent Party will be on terms no more or less
favorable to the Transferor than could be obtained in a comparable
arm's-length transaction with an unaffiliated Person and (b) which will
be conspicuously identified as the Transferor's office so it can be
easily located by outsiders. The Transferor will use its own electronic
mail address, stationery, invoices, checks and telephone and facsimile
numbers.
(v) The Transferor will hold itself out and identify itself as a
separate and distinct entity under its own name and not as a division
or part of any other Person.
(vi) The Transferor will promptly correct any misunderstanding of
which it has knowledge regarding its separate existence and identity.
(vii) The Transferor will prepare and maintain its own full and
complete books, records and financial statements separate from any
other Person. The Transferor's financial statements will comply with
generally accepted accounting principles.
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(viii) The Transferor will maintain a bank account in its name.
(ix) All business transactions entered into by the Transferor
with any of its Affiliates will be on terms that are intrinsically fair
and not more or less favorable to the Transferor, as the case may be,
than terms and conditions available at the time to the Transferor for
comparable arm's-length transactions with unaffiliated Persons, it
being understood that the Transaction Documents satisfy the provisions
of this paragraph (ix).
(x) The Transferor will not assume or guarantee or become
obligated for debts of any Independent Party and no Independent Party
will assume or guarantee or become obligated for the debts of the
Transferor, other than as provided in the Transaction Documents. The
Transferor will not hold its credit out as being available to satisfy
the obligations of any other Persons.
(xi) The Transferor will not acquire obligations or securities of
any Independent Party. The Transferor will not make loans, advances or
otherwise extend credit to any Independent Party except as expressly
contemplated by the North American Originator Purchase Agreement and
the European Loan Agreement.
(xii) Except to the extent provided in the Transaction Documents,
the Transferor will not commingle any of its money or other assets with
the money or assets of any other entity. The Transferor will ensure
that its funds will be clearly traceable at each step in any financial
transaction.
(xiii) The Transferor will engage in transactions and conduct all
other business activities solely in its own name and through its own
authorized officers and agents and will present itself to the public as
a separate company. Except to the extent provided in the Transaction
Documents, no Independent Party will be appointed agent of the
Transferor.
(xiv) The Transferor will not engage in any transaction with any
of its Affiliates involving any intent to hinder, delay or defraud any
Person.
(xv) The Transferor will observe all limited liability company
formalities.
(xvi) The Transferor will 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.
(m) Assigned Agreements. Except with the consent of the Transferee and
as permitted under Section 11.16 of the Receivables Loan Agreement and Section
5.01(w) of this Agreement, the Transferor will not terminate, amend, waive or
modify, or consent to any
22
termination, amendment, waiver or modification of, any provision of any
Applicable Agreement or grant any other consent or other indulgence under any
Applicable Agreement, in each case without the prior written consent of the
Transferee. The Transferor will perform all of its obligations under the
Applicable Agreements and will enforce the Applicable Agreements in accordance
with their respective terms. The Transferor will take all actions to perfect and
enforce its rights and interests (and the rights and interests of the Transferee
and its assigns, as assignees of Transferor) under the Applicable Agreements as
the Transferee may from time to time reasonably request, including, without
limitation, making claims to which it may be entitled under any indemnity,
reimbursement or similar provision contained in any Applicable Agreement.
(n) Nature of Business; No Subsidiaries. The Transferor will not engage
in any business other than the purchase of Receivables from the North American
Originators, the funding of Loans to the European Purchaser and the other
transactions contemplated by this Agreement and the Applicable Agreements. The
Transferor will not create or form any Subsidiary other than the Transferee.
(o) Mergers, Etc. The Transferor will not merge with or into or
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions), all or
substantially all of its assets (whether now owned or hereafter acquired) to, or
acquire all or substantially all of the assets or capital stock or other
ownership interest of, or enter into any joint venture or partnership agreement
with, any Person, other than as contemplated by this Agreement, the European
Loan Agreement and the North American Originator Purchase Agreement.
(p) Distributions, Etc. The Transferor will not (i) declare or make any
dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any membership interests or other equity
interests in the Transferor, or return any capital to its members or other
equity holders as such, or purchase, retire, defease, redeem or otherwise
acquire for value or make any payment in respect of any membership interests or
other equity of the Transferor or any warrants, rights or options to acquire any
membership interests or other equity of the Transferor, now or hereafter
outstanding, (ii) prepay, purchase or redeem any Indebtedness (other than
Indebtedness hereunder), (iii) lend or advance any funds or (iv) repay any loans
or advances to, for or from any of its Affiliates (the amounts described in
clauses (i) through (iv) being referred to as "Restricted Payments"); provided,
however, that, prior to the Termination Date, the Transferor may declare and pay
cash dividends to its members, may make payments in respect of the Intercompany
Note and may make purchases under the North American Originator Purchase
Agreement and Loans under the European Loan Agreement so long as (i) no
Termination Event or Involuntary Bankruptcy Event shall then exist or would
occur as a result thereof and (ii) any such dividends are in compliance with all
applicable law including the Delaware Limited Liability Company Act, and have
been approved by all necessary and appropriate limited liability company action
of the Transferor and its board of directors.
(q) Indebtedness. The Transferor will not create, incur, guarantee,
assume or suffer to exist any Indebtedness or other liabilities, whether direct
or contingent, other than (i) as a result of the endorsement of negotiable
instruments for deposit or collection or similar
23
transactions in the ordinary course of business, (ii) the incurrence of
obligations under this Agreement, (iii) the incurrence of other obligations
pursuant to, and, as expressly contemplated in, the Transaction Documents, and
(iv) the incurrence of operating expenses in the ordinary course of business.
(r) Limited Liability Company Agreement. The Transferor will not amend,
modify or delete (or permit any amendment, modification or deletion of) (i) the
definition of "Independent Director" or "Special Member" in its limited
liability company agreement as in effect on the date hereof or (ii) any other
provision of its limited liability company agreement as in effect on the date
hereof if, pursuant to the terms thereof, such amendment, modification or
deletion requires the consent of the Independent Director or Special Member
thereunder.
(s) Taxes. The Transferor will file all tax returns and reports
required by law to be filed by it and will promptly pay all taxes and
governmental charges at any time owing, except such as are being contested in
good faith by appropriate proceedings and for which appropriate reserves have
been established. The Transferor will pay when due any taxes payable in
connection with the Transferred Assets, exclusive of taxes on or measured by
income or gross receipts of the Transferee or any of its assignees.
(t) Treatment as Sales. Except as otherwise required by GAAP, the
Transferor shall not account for or treat (whether in financial statements or
otherwise) the transactions contemplated by this Agreement in any manner other
than as a sale and absolute conveyance of the Transferred Assets (other than the
Credit Default Swaps and the Account Collateral) by the Transferor to the
Transferee (except that, in accordance with applicable tax principles, each
Transfer may be ignored for tax reporting purposes).
(u) Investments. Except as provided in the Transaction Documents, the
Transferor will not make any loans to, advances to, investments in or otherwise
acquire any capital stock or equity security of, or any equity interest in, any
other Person, except as contemplated by the North American Originator Purchase
Agreement or the European Loan Agreement.
(v) Hedge Counterparties. If at any time a Hedge Counterparty ceases to
be an Eligible Counterparty, the Transferor shall replace such Hedge
Counterparty with an Eligible Counterparty under each Credit Default Swap or
deposit cash collateral into a Credit Default Collateral Account in a manner and
in an amount satisfactory to the Transferee and each Committed Lender by no
later than the earlier of (i) the 30th day following the date on which such
Hedge Counterparty ceases to be an Eligible Counterparty or (ii) the fifth
Business Day after such date in the event that such Hedge Counterparty's
short-term debt rating is withdrawn by any Rating Agency or is downgraded below
A-2 by S&P or below P-2 by Xxxxx'x. Each such replacement will be made pursuant
to documentation substantially in the form of Exhibit D to the Receivables Loan
Agreement (or such other documentation in form and substance reasonably
satisfactory to the Required Committed Lenders; provided that if the only
material differences between the documentation set forth in Exhibit D to the
Receivables Loan Agreement and the documentation proposed to be used for such
credit default swap transaction arise out of changes to the standard form credit
default swap documentation published by the International Swap and Derivatives
Association, Inc. (or any successor thereto), then the
24
Transferor may use such proposed documentation without the consent of any party
other than the Administrative Agent).
(w) Amendments to Credit Default Swaps. The Transferor will not
supplement, amend, extend, replace, terminate or otherwise modify any Credit
Default Swap without the prior written consent of the Transferee, the
Administrative Agent, each Funding Agent and each Committed Lender, except that
no such consent will be required to (A) enter into an amendment solely to reduce
the Notional Amount under a Credit Default Swap or (B) extend or terminate a
Credit Default Swap; provided that prior to (and, in any event, at least five
Business Days before) reducing the Notional Amount or terminating such Credit
Default Swap, either (1) the Collection Agent provides the Transferee, the
Administrative Agent, each Funding Agent and each Committed Lender with a
certificate (signed by a Responsible Officer of the Collection Agent) which
attaches a Weekly Report or Daily Report giving pro forma effect to any
reduction in the Net Receivables Balance resulting from the reduction or
termination of such Credit Default Swap and which certifies that, after giving
pro forma effect to the reduction or termination of such Credit Default Swap,
the Percentage Factor does not exceed the Maximum Percentage Factor; as
determined using the most recent Portfolio Report delivered under the Servicing
Agreement or (2) the Transferor has posted cash collateral in a Credit Default
Collateral Account with respect to its obligations under Section 2.09 in a
manner and in an amount not less than the Notional Amount of such Credit Default
Swap that is being terminated or the amount of the reduction of the Notional
Amount thereof as the case may be or if less than such amount, in an amount that
is satisfactory to each Committed Lender.
(x) The Transferor shall on each day, either (i) have prepaid the
accrued premium that will be payable by the Transferor under each Credit Default
Swap for the following six month period commencing on such day (such accrued
premium for such six month period, the "Aggregate Future Premium") or, (ii) to
the extent the Transferor does not make such a prepayment on such day, remit to
the Credit Default Premium Reserve Account on such day funds in an amount
sufficient to make the aggregate amount of funds held in the Credit Default
Premium Reserve Account equal to the portion of the Aggregate Future Premium
that has not been prepaid.
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.01. Designation of Collection Agent. Consistent with the
Transferee's ownership interest in the Transferred Assets (other than the Credit
Default Swaps and the Account Collateral), the Transferor acknowledges and
agrees that the servicing, administration and collection of the Transferred
Assets shall be the responsibility and right of the Transferee and its assigns.
The Transferee has advised the Transferor that (a) the Transferee, in its
capacity as Borrower under the Receivables Loan Agreement, has granted a
security interest in the Transferred Assets to the Administrative Agent, for the
benefit of the Secured Parties under the Receivables Loan Agreement and (b) the
servicing, administration and collection of the Transferred Assets shall be
conducted by the Person designated as the Collection Agent pursuant to the
Servicing Agreement from time to time. Pursuant to the Servicing Agreement, (i)
the Borrower has requested TRW U.S. to, and TRW U.S. has agreed that it will,
act as the initial
25
Collection Agent and (ii) TRW U.S. has appointed each Originator to act as its
Sub-Collection Agent with respect to the Receivables originated by such
Originator and each Originator has accepted such appointment.
SECTION 6.02. Certain Rights of the Transferee.
(a) The Transferee may, at any time, give notice of ownership and/or
direct the Obligors of Transferred Receivables and any Person obligated on any
Related Security with respect to such Transferred Receivables, or any of them,
that payment of all amounts payable under any Transferred Receivable shall be
made directly to the Transferee or its designee. The Transferor hereby transfers
to the Transferee (and its assigns and designees) the exclusive ownership and
control of the Collection Accounts and the Concentration Account and the
Transferor shall take any further action that the Transferee may reasonably
request to effect or further evidence such transfer.
(b) At any time following the occurrence and during the continuation of
a Termination Event:
(i) The Transferor shall, upon the Transferee's request and at
the Transferor's expense, give notice of the Transferee's ownership to
each Person obligated on the Transferred Assets and direct that
payments of all amounts payable under the Transferred Assets be made
directly to the Transferee or its designee; provided that no such
notice shall be required if the only Termination Event(s) that shall
have occurred are those set forth in 7.01(h), (k), (l) or (m) of the
Receivables Loan Agreement.
(ii) At the Transferee's request and at the expense of the
Transferor, the Transferor shall (A) assemble all of the documents,
instruments and other records (including, without limitation, computer
tapes and disks) that evidence or relate to the Transferred Assets, or
that are otherwise necessary or desirable to collect the Transferred
Assets, and shall make the same available to the Transferee or its
designee at a place selected by the Transferee or its designee, and (B)
segregate all cash, checks and other instruments received by it from
time to time constituting Collections of Transferred Assets in a manner
acceptable to the Transferee and, promptly upon receipt, remit all such
cash, checks and instruments, duly indorsed or with duly executed
instruments of transfer, to the Transferee or its designee. The
Transferee shall also have the right to make copies of all such
documents, instruments and other records at any time.
(c) The Transferor authorizes each of the Transferee and the
Administrative Agent, and hereby irrevocably appoints each of the Transferee and
the Administrative Agent as its attorney-in-fact coupled with an interest, with
full power of substitution and with full authority in place of the Transferor,
following the occurrence and during the continuation of a Termination Event or
Involuntary Bankruptcy Event, to take any and all steps in the Transferor's name
and on behalf of the Transferor, that are necessary or desirable, in the
determination of the Transferee or the Administrative Agent (as applicable), to
collect amounts due under the Transferred Assets, including, without limitation,
(i) endorsing the Transferor's name on checks
26
and other instruments representing Collections of Transferred Assets and
enforcing the Transferred Assets and (ii) enforcing the Transferred Assets
including to ask, demand, collect, xxx for, recover, compromise, receive and
give acceptance and receipts for moneys due and to become due under or in
connection with therewith and to file any claims or take any action or institute
any proceedings that the Transferee or the Administrative Agent (or such
designee) may deem to be necessary or desirable for the collection thereof or to
enforce compliance with the terms and conditions of, or to perform any
obligations or enforce any rights of the Transferor in respect of, the
Transferred Assets; provided that no enforcement action of the type described in
this clause (ii) may be taken by the Transferee or the Administrative Agent if
no Involuntary Bankruptcy Event then exists and the only Termination Events that
shall have occurred are those "Termination Events" set forth in 7.01(h), (k),
(l) or (m) of the Receivables Loan Agreement.
SECTION 6.03. Rights and Remedies.
(a) If the Transferor fails to perform any of its obligations under
this Agreement, the Transferee may (but shall not be required to) cause
performance of, such obligation, and the costs and expenses of the Transferee
reasonably incurred in connection therewith shall be payable by the Transferor.
(b) The Transferor shall cooperate with the Collection Agent in
collecting amounts due from Obligors, the European Purchaser and any other
Persons in respect of the Transferred Assets.
ARTICLE VII
EVENTS OF TERMINATION
SECTION 7.01. Events of Termination. If any of the following events
(each a "Termination Event") shall occur and be continuing:
(a) the Transferor shall fail to make any payment or deposit required
to be made by it hereunder or under any of the Transaction Documents when due
hereunder or thereunder and such failure remains unremedied for one Business
Day; or
(b) any representation, warranty, certification or statement made by
the Transferor 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;
or
(c) the Transferor shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.01(a) (as to maintenance of
existence only) or 5.01(d) of this Agreement or (ii) any other term, covenant or
agreement contained in this Agreement or any other Transaction Document on its
part to be performed or observed and, solely in the case of this clause (ii),
such failure shall remain unremedied for ten (10) days after a Responsible
Officer of the Transferor has actual knowledge or receives written notice
thereof; or
(d) any Event of Bankruptcy shall occur with respect to the Transferor;
or
27
(e) the Transferee shall, for any reason, fail or cease to have good
and marketable title to the Transferred Assets (other than the Credit Default
Swaps and the Account Collateral), fail to vest in or maintain in favor of the
Transferee a perfected security interest in the Credit Default Swaps or fail to
vest in or fail to maintain in favor of the Administrative Agent a perfected
security interest in the Account Collateral, in each case free and clear of any
Adverse Claims (other than Permitted Adverse Claims); or
(f) any "Termination Event" shall occur under the Receivables Loan
Agreement;
then, and in any such event, the Transferee shall, at the direction of the
Required Committed Lenders, declare the Termination Date to have occurred, upon
notice to the Transferor; provided that, automatically upon the occurrence of
any event (without any requirement for the giving of notice) described in
paragraph (d) of this Section 7.01, the Termination Date shall occur. Upon any
such declaration or upon such automatic termination, the Transferee and its
assigns shall have, in addition to the rights and remedies which it may have
under this Agreement, all other rights and remedies provided after default under
the UCC and under other applicable law, which rights and remedies shall be
cumulative.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Indemnities by the Transferor.
(a) Without limiting any other rights that the Transferee, any Secured
Party and their respective officers, directors, employees and agents (each, an
"Indemnified Party") may have hereunder or under applicable law, the Transferor
hereby agrees to indemnify each Indemnified Party 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 (all of the foregoing being
collectively referred to as "Indemnified Amounts") arising out of or resulting
from this Agreement or any other Transaction Document or the use of proceeds of
Transfers, excluding, however, (a) Indemnified Amounts to the extent that such
Indemnified Amounts resulted from gross negligence or willful misconduct on the
part of such Indemnified Party and (b) any income taxes incurred by such
Indemnified Party arising out of or as a result of this Agreement or the
ownership of Transferred Assets. Without limiting or being limited by the
foregoing, the Transferor shall pay on demand to each Indemnified Party any and
all amounts necessary to indemnify such Indemnified Party from and against any
and all Indemnified Amounts relating to or resulting from any of the following
(excluding Indemnified Amounts and taxes described in clauses (a) and (b)
above):
(i) any representation, warranty, certification, report or other
statement made or deemed made by any Transaction Party (or any of their
respective officers) under or in connection with this Agreement or any
of the other Transaction Documents which shall have been incorrect in
any respect when made;
28
(ii) the failure by any Transaction Party to comply with any
applicable Law with respect to any Receivable or the related Contract;
or the failure of any Receivable or the related Contract to conform to
any such applicable Law;
(iii) the failure to vest in the Transferee absolute ownership of
the Transferred Assets (other than the Credit Default Swap Collateral
and the Account Collateral), to vest in the Transferee a perfected
security interest in the Credit Default Swap Collateral or to vest in
the Administrative Agent a perfected security interest in the Account
Collateral, in each case free and clear of any Adverse Claim;
(iv) the failure to have filed, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of
any applicable jurisdiction or other applicable laws with respect to
the Transferred Assets, whether at the time of any Transfer or at any
subsequent time;
(v) any dispute, claim, offset or defense (other than discharge
in bankruptcy) of an Obligor to the payment of any Transferred Asset
(including, without limitation, a defense based on such Transferred
Asset or any 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 the
merchandise, goods or services related to such Transferred Asset or the
furnishing or failure to furnish such merchandise, goods or services or
relating to any Contract related thereto;
(vi) any failure of any Transaction Party to perform its duties
or obligations in accordance with the provisions hereof and each other
Transaction Document or to perform its duties or obligations under the
Contracts or to timely and fully comply in all respects with the Credit
and Collection Policy in regard to each Receivable and the related
Contract;
(vii) any products liability, environmental or other claim
arising out of or in connection with merchandise, goods or services
which are the subject of any Contract or the sale of which gave rise to
any Receivable;
(viii) the commingling of Collections of Transferred Assets at
any time with other funds;
(ix) any investigation, litigation or proceeding (actual or
threatened) related to this Agreement or any other Transaction Document
or the use of proceeds of Transfers or any Transferred Asset;
(x) any setoff exercised by the Persons obligated with respect to
any Transferred Asset;
(xi) any claim brought by any Person other than an Indemnified
Party arising from any activity by the Transferor or any Affiliate of
the Transferor in servicing, administering or collecting any
Transferred Asset; or
29
(xii) the failure by any Transaction Party to pay when due any
taxes, including, without limitation, sales, excise or personal
property taxes.
(b) Notwithstanding anything to the contrary in this Agreement, solely
for purposes of the Transferor's indemnification obligations pursuant to clauses
(i) and (vi) of this Article VIII, any representation, warranty or covenant
qualified by the occurrence or non-occurrence of a Material Adverse Effect or
similar concepts of materiality shall be deemed to be not so qualified.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or consent to any departure by the Transferor therefrom shall
be effective unless in a writing signed by the Transferee, the Administrative
Agent, the Required Committed Lenders and, in the case of any amendment, also
signed by the Transferor, and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No failure on the part of the Transferee to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right.
SECTION 9.02. Notices, Etc. All notices and other communications
hereunder shall, unless otherwise stated herein, be in writing (which shall
include facsimile communication) and be faxed or delivered, to each party
hereto, at its address set forth on Schedule I or at such other address as shall
be designated by such party in a written notice to the other parties hereto.
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 9.02 and confirmation is received, (ii) if given by mail three
Business Days following such posting, postage prepaid, U.S. certified or
registered, (iii) if given by overnight courier, one 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 9.02
SECTION 9.03. Binding Effect; Assignability.
(a) This Agreement shall be binding upon and inure to the benefit of
the Transferor, the Transferee and their respective successors and assigns;
provided, however, that the Transferor may not assign its rights or obligations
hereunder or any interest herein without the prior written consent of the
Transferee. The Transferee may assign all or any part of its rights and
obligations hereunder without the consent of the Transferor.
(b) This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms, and shall remain
in full force and effect until the Final Payout Date; provided, however, that
rights and remedies with respect to any breach of any representation and
warranty made by the Transferor pursuant to Article IV and the provisions of
Article VIII and Sections 9.04, 9.05 and 9.06 shall be continuing and shall
survive any termination of this Agreement.
30
SECTION 9.04. Costs, Expenses and Taxes.
(a) In addition to the rights of indemnification granted to the
Transferee pursuant to Article VIII hereof, the Transferor agrees to pay on
demand all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration of this Agreement and the other documents
and agreements to be delivered hereunder, including, without limitation, (i) the
reasonable fees and out-of-pocket expenses of counsel for the Transferee with
respect thereto and with respect to advising the Transferee as to its rights and
remedies under this Agreement; (ii) all reasonable fees and expenses associated
with any audits and other due diligence conducted prior to or after the Closing
Date and (iii) any amendments, waivers or consents under the Transaction
Documents. In addition, the Transferor agrees to pay all costs and expenses, if
any (including reasonable counsel fees and expenses), in connection with the
enforcement of this Agreement and the other documents to be delivered hereunder.
(b) In addition, the Transferor agrees to pay any and all stamp and
other taxes and fees payable in connection with the execution, delivery, filing
and recording of this Agreement or the other documents or agreements to be
delivered hereunder, and the Transferor agrees to save each Indemnified Party
harmless from and against any liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees.
SECTION 9.05. No Proceedings. The Transferor hereby agrees that it will
not institute against, or join any other Person in instituting against, the
Transferee any proceeding of the type referred to in the definition of "Event of
Bankruptcy" in the Receivables Loan Agreement so long as there shall not have
elapsed one year plus one day since the Final Payout Date. The Transferor
further agrees that it will not institute against any Conduit Lender any
proceeding of the type referred to in the definition of "Event of Bankruptcy" in
the Receivables Loan Agreement so long as any Commercial Paper or other senior
indebtedness issued by such Conduit Lender shall be outstanding or there shall
not have elapsed one year plus one day since the last day on which any such
Commercial Paper or other senior indebtedness shall have been outstanding.
SECTION 9.06. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.07. Rights of Administrative Agent. Each of the parties
hereto hereby acknowledges that the Transferee may assign all or any portion of
its rights under this Agreement and that such assignees may (except as otherwise
agreed to by such assignees) further assign, or grant security interests in,
their rights under this Agreement, and the Transferor hereby consents to any
such assignment and grants. All such assignees and secured parties, shall be
third party beneficiaries of, and shall be entitled to enforce the Transferee's
rights, remedies and powers under this Agreement to the same extent as if they
were parties hereto, subject to the terms of their agreement with the Transferee
or the Borrower, as the case may be. Without limiting the generality of the
foregoing, the Transferor hereby acknowledges that the Transferee has granted a
security interest in all such rights, remedies and powers to the Administrative
Agent pursuant to the Receivables Loan Agreement. The Transferor agrees that the
Administrative Agent (for the benefit of the Secured Parties under the
Receivables Loan
31
Agreement) shall, subject to the terms of the Receivables Loan Agreement, have
the right to enforce this Agreement and to exercise directly all of the
Transferee's rights and remedies under this Agreement (including, without
limitation, the right to give or withhold any consents or approvals of the
Transferee to be given or withheld hereunder) and the Transferor agrees to
cooperate fully with the Administrative Agent in the exercise of such rights,
remedies and powers. The Transferor further agrees to give to the Administrative
Agent copies of all notices and reports it is required to give to the Transferee
hereunder. Notwithstanding anything herein to the contrary, no declaration of
the Termination Date, and no other amendment, waiver, consent or other
modification made or granted hereunder, shall in any case be effective unless
the same shall have been made or granted by, or approved in writing by, the
Administrative Agent acting with the consent, or at the direction, of the
Required Committed Lenders.
SECTION 9.08. Restriction on Payments; Waiver of Setoff.
(a) Notwithstanding anything in this Agreement or elsewhere to the
contrary, the Transferor agrees that any indebtedness, obligation or claim it
may from time to time hold or otherwise have (including, without limitation, any
obligation or claim in respect of the Transfer Price) against the Transferee or
any assets or properties of the Transferee, whether arising hereunder or
otherwise existing (each a "Transferee Obligation"), shall be paid solely from
funds available to the Transferee which are not otherwise required to be applied
or set-aside for the payment of any Borrower Obligations pursuant to the
Receivables Loan Agreement and then only to the extent such payment is permitted
by the terms of the Receivables Loan Agreement. Without limiting the generality
of the foregoing, the Transferor acknowledges and agrees that no payments may be
made to the Transferor by the Transferee at any time (i) that a Termination
Event or Incipient Termination Event has occurred and is continuing or (ii)
during the period between the Termination Date and the Final Payout Date.
(b) Except as otherwise provided herein, the obligations and
liabilities of the Transferor under this Agreement (collectively, the
"Transferor Obligations") shall not be subject to deduction of any kind or type,
except by payment in full of the amount thereof in accordance with the terms
thereof. The Transferor hereby waives any right it may now or at any time
hereafter have to set-off any Transferor Obligation against any obligation of
the Transferee (including, without limitation, any obligation of the Transferee
in respect of the payment of the Transfer Price for any Transferred Assets)
except as expressly set forth herein.
(c) Notwithstanding any provision to the contrary elsewhere in this
Agreement, other than with respect to payments of a Transferee Obligation
specifically permitted by Section 9.08(a) above, no demand for any payment may
be made by the Transferor in respect of such Transferee Obligation, no payment
shall be due from the Transferee to the Transferor with respect thereto and the
Transferor shall not have any claim for payment of such Transferee Obligation.
In the event that, notwithstanding the foregoing provision limiting such
payment, the Transferor shall receive any payment or distribution of any kind or
character which is not permitted to be made by Section 9.08(a) above, such
payment or distribution shall be received and held in trust by the Transferor
for the benefit of, and shall be promptly paid over to, the Administrative Agent
for the benefit of the Secured Parties under the Receivables Loan Agreement.
32
SECTION 9.09. Execution in Counterparts. This Agreement may be executed
in any number of 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.
SECTION 9.10. Integration; Survival of Termination. This Agreement and
the other Transaction Documents executed by the parties hereto on the date
hereof contain 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 superceding all prior oral or written understandings. 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.
SECTION 9.11. Consent to Jurisdiction.
(a) Each party hereto hereby irrevocably submits to the non-exclusive
jurisdiction of any New York State or Federal court sitting in New York City in
any action or proceeding arising out of or relating to this Agreement, and each
party hereto hereby irrevocably agrees that all claims in respect of such action
or proceeding may be heard and determined in such New York State court or, to
the extent permitted by law, in such Federal court. The parties hereto hereby
irrevocably waive, to the fullest extent they may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or proceeding. The
parties hereto agree that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(b) Each of the Transferor and the Transferee consents to the service
of any and all process in any such action or proceeding by the mailing of copies
of such process to it at its address specified herein. Nothing in this Section
9.11 shall affect the right of any party to serve legal process in any manner
permitted by law.
SECTION 9.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO , OR
CONNECTED WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
TRANSFEROR: TRW AUTOMOTIVE RECEIVABLES LLC
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and General Counsel
TRANSFEREE: TRW AUTOMOTIVE GLOBAL RECEIVABLES LLC
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and General Counsel
