EXHIBIT 10.59
AMENDMENT NO. 1
Dated as of February 4, 2005
to
AMENDED AND RESTATED RECEIVABLES LOAN AGREEMENT
Dated as of December 31, 2004
THIS AMENDMENT NO. 1 (this "Amendment") dated as of February 4,
2005, is entered into by and among (i) TRW AUTOMOTIVE GLOBAL RECEIVABLES LLC, a
Delaware limited liability company (the "Borrower"), (ii) the "Conduit Lenders"
identified on the signature pages hereto, (iii) the "Committed Lenders"
identified on the signature pages hereto, (iv) the "Funding Agents" identified
on the signature pages hereto and (v) JPMORGAN CHASE BANK, N.A. as
administrative agent (the "Administrative Agent").
PRELIMINARY STATEMENTS
A. Reference is made to the Amended and Restated Receivables Loan
Agreement dated as of December 31, 2004 among the Borrower, the "Conduit
Lenders", "Committed Lenders" and "Funding Agents" from time to time parties
thereto and the Administrative Agent (the "Receivables Loan Agreement").
Capitalized terms used and not otherwise defined herein shall have the meanings
ascribed to them in the Receivables Loan Agreement.
B. The parties hereto have agreed to add Saratoga Funding Corp., LLC
as a new Conduit Lender under the Receivables Loan Agreement (the "New Conduit
Lender") and Deutsche Bank AG, New York Branch, as a new Committed Lender (in
such capacity, the "New Committed Lender") and a new Funding Agent (in such
capacity, the "New Funding Agent") under the Receivables Loan Agreement as
described herein.
C. In addition, the parties hereto have agreed to amend the
Receivables Loan Agreement on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth above,
and other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Addition of New Lender Group; Amendment to Schedule I.
(a) Effective as of the Effective Date (as defined in Section 3
below), (i) Schedule I to the Receivables Loan Agreement shall be amended in its
entirety to read as set forth on Schedule I attached hereto, (ii) the New
Conduit Lender will be a party to the Receivables Loan Agreement as a Conduit
Lender having a Conduit Lending Limit as set forth on such new Schedule I, (iii)
the New Committed Lender will be a party to the Receivables Loan
Agreement as a Committed Lender having a Commitment as set forth on such new
Schedule I, (iv) the New Funding Agent will be a party to the Receivables Loan
Agreement as a Funding Agent for the new Lender Group that includes the New
Conduit Lender as specified on such new Schedule I, (v) the Conduit Lending
Limit of each of Delaware Funding Company, LLC and Three Pillars Funding LLC
shall be reduced to the amount specified on such new Schedule I and (vi) the
Commitment of each of JPMorgan Chase Bank, N.A. and SunTrust Bank shall be
reduced to the amount specified on such new Schedule I.
(b) Each of the New Conduit Lender and the New Committed Lender:
(i) confirms that it has received a copy of the Receivables Loan
Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
this Amendment;
(ii) agrees that it will, independently and without reliance upon
the Administrative Agent, any Funding Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under the Receivables Loan Agreement;
(iii) appoints and authorizes the Administrative Agent and its
related New Funding Agent to take such action as agent on its behalf and
to exercise such powers under the Receivables Loan Agreement and the other
Transaction Documents as are delegated to the Administrative Agent and
such New Funding Agent, respectively, by the terms thereof, together with
such powers as are reasonably incidental thereto;
(iv) agrees that it will perform in accordance with their terms all
of the obligations which by the terms of the Receivables Loan Agreement
are required to be performed by it as a Conduit Lender or Committed
Lender, as the case may be;
(v) specifies as its address for notices the office set forth on
Schedule I hereto; and
(vi) if it is organized under the laws of a jurisdiction outside the
United States, (A) confirms that it has delivered to the Administrative
Agent, its Funding Agent and the Borrower the forms prescribed by the
Internal Revenue Service of the United States certifying as to its status
for purposes of determining exemption from United States withholding taxes
with respect to all payments to be made to it under the Receivables Loan
Agreement or such other documents as are necessary to indicate that all
such payments are subject to such taxes at a rate reduced by an applicable
tax treaty and (B) agrees to provide the Administrative Agent, its Funding
Agent and the Borrower (to the extent permitted by applicable law) with
similar forms for each subsequent tax year in which payments are to be
made to it under the Receivables Loan Agreement.
(c) This Amendment, in so far as it relates to the addition of the
New Conduit Lender, the New Committed Lender and the New Funding Agent as
parties to the Receivables Loan Agreement and the establishment of their new
Lender Group, shall be deemed to be a "Joinder Agreement" within the meaning of,
and entered into pursuant to, the Receivables Loan
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Agreement in accordance with Section 11.03(i) thereof and shall be effective as
such for all purposes thereunder. In connection therewith, the parties hereto
confirm and agree that, effective as of the Effective Date, the New Funding
Agent shall become a party to the Lender Fee Letter as a Funding Agent, and
shall be entitled to the rights and subject to the obligations of a Funding
Agent thereunder.
(d) On or prior to the Effective Date, the Borrower shall deliver
(i) to the New Funding Agent a Note payable to the New Funding Agent with a
stated principal amount equal to the Lender Group Limit for its Lender Group and
(ii) to each of JPMorgan Chase Bank, N.A. and SunTrust Capital Markets, Inc. a
new Note reflecting the reduction in the Lender Group Limit for its Lender
Group. Upon its receipt of such new Note, each of JPMorgan Chase Bank, N.A. and
SunTrust Capital Markets, Inc. shall return its old Note to the Borrower for
cancellation.
SECTION 2. Amendments. Effective as of the Effective Date, the
Receivables Loan Agreement is amended as follows:
2.1 Clause (v) of the definition of "Net Receivables Balance" in
Section 1.01 of the Receivables Loan Agreement is amended in its entirety to
read as follows:
"(v) the greater of (x) the aggregate amount of all Retro Pricing
Accruals and (y) the Retro Pricing Accrual Floor."
2.2 The definition of "Retro Pricing Approval Date" in Section 1.01
of the Receivables Loan Agreement is amended in its entirety to read as follows:
"Retro Pricing Approval Date" means February 4, 2005.
2.3 Section 1.01 of the Receivables Loan Agreement is further
amended to add the following two definitions in appropriate alphabetical order:
"Retro Pricing Accrual Floor" means, as of any Monthly Reporting
Date and continuing until (but not including) the next Monthly Reporting
Date, the product of (i) 2.5 and (ii) the highest three-month rolling
average Retro Pricing Monthly Adjustment Amount that occurred during the
period of twelve consecutive Calculation Periods immediately preceding
such earlier Monthly Reporting Date.
"Retro Pricing Monthly Adjustment Amount" means, for any Calculation
Period, the aggregate of all Retro Pricing Adjustments occurring during
such Calculation Period.
2.4 Section 7.01(k) of the Receivables Loan Agreement is amended in
its entirety to read as follows:
"(k) the average Dilution Ratio for any three consecutive
Calculation Periods exceeds (i) in the case of any such period that
includes sales from the month of July (for the avoidance of doubt such
periods include the September, October and November Calculation Periods)
or December (for the avoidance of doubt such periods include February,
March and April Calculation Periods), 3.50% or (ii) in the case of any
other period, 3.25%; or".
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SECTION 3. Conditions Precedent. This Amendment shall become
effective as of the date (the "Effective Date") on which (i) the Administrative
Agent shall have received a copy of this Amendment duly executed by the
Borrower, the Collection Agent, the Administrative Agent and each of the
Lenders, (ii) the new Note required to be executed and delivered by the Borrower
to the New Funding Agent pursuant to Section 1 above shall have been so executed
and delivered and (iii) to the extent required by the program documents
governing any Conduit Lender's Commercial Paper program, each Rating Agency
shall have confirmed that the execution and delivery of this Amendment by such
Conduit Lender will not result in the reduction or withdrawal of the
then-current ratings of such Conduit Lender's Commercial Paper.
SECTION 4. Reference to and Effect on the Receivables Loan
Agreement.
4.1 Upon the effectiveness of this Amendment, each reference in the
Receivables Loan Agreement to "this Agreement," "hereunder," "hereof," "herein,"
"hereby" or words of like import shall mean and be a reference to the
Receivables Loan Agreement as amended hereby, and each reference to the
Receivables Loan Agreement in any other document, instrument and agreement
executed and/or delivered in connection with the Receivables Loan Agreement
shall mean and be a reference to the Receivables Loan Agreement as amended
hereby.
4.2 Except as specifically amended hereby, the Receivables Loan
Agreement, the other Transaction Documents and all other documents, instruments
and agreements executed and/or delivered in connection therewith shall remain in
full force and effect and are hereby ratified and confirmed.
4.3 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Lender, any
Funding Agent or the Administrative Agent under the Receivables Loan Agreement,
the Transaction Documents or any other document, instrument, or agreement
executed in connection therewith, nor constitute a waiver of any provision
contained therein.
4.4 The Borrower represents that this Amendment has been duly
authorized, executed and delivered by it pursuant to its limited liability
company powers and constitutes its legal, valid and binding obligation.
SECTION 5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of this Amendment by
facsimile shall be effective as delivery of a manually executed counterpart of
this Amendment.
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SECTION 7. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
date first written above.
TRW AUTOMOTIVE GLOBAL RECEIVABLES LLC,
as Borrower
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
DELAWARE FUNDING COMPANY, LLC,
as a Conduit Lender
By: JPMorgan Chase Bank, N.A., as attorney
-in-fact for Delaware Funding Company, LLC
By: /s/
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.
as a Funding Agent
By: /s/
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.
as a Committed Lender
By: /s/
-----------------------------------
Name:
Title:
ALPINE SECURITIZATION CORP.,
as a Conduit Lender
By: Credit Suisse First Boston, New
York Branch, as Attorney-in-Fact
By: /s/
-----------------------------------
Name:
Title:
By: /s/
-----------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH,
as a Funding Agent
By: /s/
-----------------------------------
Name:
Title:
By: /s/
-----------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH,
as a Committed Lender
By: /s/
-----------------------------------
Name:
Title:
By: /s/
-----------------------------------
Name:
Title:
LIBERTY STREET FUNDING CORP.,
as a Conduit Lender
By: /s/
-----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Funding Agent
By: /s/
-----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Committed Lender
By: /s/
-----------------------------------
Name:
Title:
THREE PILLARS FUNDING LLC,
as a Conduit Lender
By: /s/
-----------------------------------
Name:
Title:
SUNTRUST CAPITAL MARKETS, INC.,
as a Funding Agent
By: /s/
-----------------------------------
Name:
Title:
SUNTRUST BANK,
as a Committed Lender
By: /s/
-----------------------------------
Name:
Title:
BEETHOVEN FUNDING CORPORATION,
as a Conduit Lender
By: /s/
-----------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK BRANCH,
as a Funding Agent
By: /s/
-----------------------------------
Name:
Title:
By: /s/
-----------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK BRANCH,
as a Committed Lender
By: /s/
-----------------------------------
Name:
Title:
By: /s/
-----------------------------------
Name:
Title:
SARATOGA FUNDING CORP., LLC,
as a Conduit Lender
By: Saratoga Member Corp., its sole
member
By: /s/
-----------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as a Committed Lender
By: /s/
-----------------------------------
Name:
Title:
By: /s/
-----------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as a Funding Agent
By: /s/
-----------------------------------
Name:
Title:
By: /s/
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
By: /s/
-----------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED:
TRW AUTOMOTIVE U.S. LLC, as Collection Agent
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Chief Financial Officer
