EXHIBIT 10.8
EXECUTION COPY
AMENDED AND RESTATED
SERVICING AGREEMENT
AMENDED AND RESTATED SERVICING AGREEMENT (as amended, restated,
supplemented or otherwise modified and in effect from time to time, the
"Agreement"), dated as of December 31, 2004, by and among TRW AUTOMOTIVE GLOBAL
RECEIVABLES LLC, a Delaware limited liability company (the "Borrower"), TRW
AUTOMOTIVE U.S. LLC, a Delaware limited liability company ("TRW U.S."), as the
initial Collection Agent (as defined below) hereunder, the Persons identified on
Schedule I (each a "Seller" and, collectively, the "Sellers"), as Sub-Collection
Agents (as defined below) and JPMorgan Chase Bank, N.A., as administrative agent
(together with any successor thereto in such capacity, the "Administrative
Agent") under the Receivables Loan Agreement referred to below.
PRELIMINARY STATEMENTS
A. The Transferor has purchased, and may from time to time hereafter
purchase Receivables from the Originators pursuant to the Originator Purchase
Agreement.
B. Pursuant to the Transfer Agreement, the Borrower has purchased, and
shall from time to time hereafter purchase, from the Transferor all Receivables
sold to the Transferor under the Originator Purchase Agreement.
C. Each of the Borrower and the Secured Parties desires that the
Collection Agent shall conduct the servicing, administering and collection of
the Pool Receivables on the terms and subject to the conditions set forth in
this Agreement.
D. Each of the Sellers has agreed to act as a Sub-Collection Agent in
accordance with the terms and subject to the conditions set forth in this
Agreement.
E. The Collection Agent and the Sub-Collection Agents (each a "Collection
Agent Party" and, collectively, the "Collection Agent Parties") intend to
conduct the servicing, administration, collection and management of the Pool
Receivables on the terms and subject to the conditions set forth in this
Agreement.
F. The Borrower, TRW U.S., the Sellers and the Administrative Agent are
parties to a Servicing Agreement dated as of February 28, 2003 (as amended,
restated, supplemented or otherwise modified from time to time, the "Existing
Servicing Agreement").
G. On the terms and conditions set forth herein, the parties hereto have
agreed to amend and restate the Existing Servicing Agreement in its entirety.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Unless otherwise defined herein, capitalized terms
which are used herein shall have the meanings assigned to such terms in the
Amended and Restated Receivables Loan Agreement dated as of December 31, 2004
among the Borrower, TRW U.S., as Collection Agent, the entities from time to
time parties thereto as "Conduit Lenders," "Committed Lenders" and "Funding
Agents" and the Administrative Agent (as amended, restated, supplemented or
otherwise modified from time to time, the "Receivables Loan Agreement").
1.2 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. All terms defined directly or by incorporation herein shall have the
defined meanings when used in any certificate or other document delivered
pursuant hereto unless otherwise defined therein.
1.3 Amendment and Restatement. Subject to the satisfaction of the
conditions precedent set forth in Section 3.01 of the Receivables Loan
Agreement, this Agreement amends and restates the Existing Servicing Agreement
in its entirety. This Agreement is not intended to constitute a novation of any
obligations under the Existing Servicing Agreement. Upon the effectiveness of
this Agreement (the date of such effectiveness being the "Amendment Effective
Date"), each reference to the Existing Servicing Agreement in any other
document, instrument or agreement executed and/or delivered in connection
therewith shall mean and be a reference to this Agreement.
ARTICLE II
ADMINISTRATION AND COLLECTIONS
2.1 Designation of Collection Agent. The servicing, administration,
collection and management of the Pool Receivables shall be conducted by the
Person so designated hereunder from time to time (such Person, the "Collection
Agent"). Until the Administrative Agent (with the consent or at the direction of
the Required Committed Lenders) gives notice to the Borrower of the designation
of a new Collection Agent (which notice may be given at any time following the
occurrence and during the continuation of a Collection Agent Default), TRW U.S.
is hereby designated as, and hereby agrees to perform the duties and obligations
of, the Collection Agent pursuant to the terms of this Agreement and the other
Transaction Documents. TRW U.S. may not resign from the obligations and
liabilities hereby imposed on it. The Administrative Agent may, and at the
direction of the Required Committed Lenders shall, at any time after the
occurrence and during the continuation of a Collection Agent Default, designate
as Collection Agent any Person (including itself) to succeed TRW U.S. or any
successor Collection Agent, on such terms and conditions as the Administrative
Agent and such successor Collection Agent shall agree. The Collection Agent may,
with the prior consent of the Required Committed
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Lenders, subcontract with any other Person for the servicing, administration,
collection or management of the Receivables (each such Person a "Sub-Collection
Agent"); provided that TRW U.S. may without such consent delegate its duties as
Collection Agent hereunder to any Affiliate. Any such subcontract or delegation
shall not affect the Collection Agent's liability for performance of its duties
and obligations pursuant to the terms hereof. Without limiting the generality of
the foregoing, any action taken or omitted to be taken by any Person that has
entered into a subcontract with the Collection Agent or to whom the Collection
Agent has delegated any of its duties (including, without limitation, any
Seller) shall be deemed to be an action or omission by the Collection Agent
(including, without limitation, for purposes of determining whether any
Receivable is a Diluted Receivable and for purposes of Sections 2.6 of this
Agreement and 10.01 of the Receivables Loan Agreement).
2.2 Duties of Collection Agent.
(a) The Collection Agent shall take or cause to be taken all
such actions as may be necessary or advisable to collect and manage each Pool
Receivable from time to time, all in accordance in all material respects with
applicable Laws and in accordance with the Credit and Collection Policy. The
Borrower and the Administrative Agent hereby appoint the Collection Agent, from
time to time designated pursuant to Section 2.1, as their agent to enforce their
respective rights and interests in the Pool Receivables, the Related Security
and the related Contracts. In performing its duties as Collection Agent, the
Collection Agent shall exercise reasonable care and diligence and shall use the
same care and apply the same policies as it would exercise and apply if it owned
such Pool Receivables and shall act in such manner as it reasonably deems to be
in the best interests of the Lenders and the Administrative Agent. Following the
occurrence and during the continuation of a Collection Agent Default, if the
Termination Date has occurred, the Administrative Agent shall have the sole
right to direct the Collection Agent to commence or settle any legal action to
enforce collection of any Receivable or any Related Security with respect
thereto.
(b) The Collection Agent shall perform and shall comply with,
and agrees to be bound by, the terms of the Receivables Loan Agreement in the
same manner as if it were a party thereto. Without limiting the generality of
the foregoing, the Collection Agent shall (i) administer, manage and apply the
Collections in accordance with Article II of the Receivables Loan Agreement and
(ii) cause Accountants' Letters to be delivered, at its own expense, as and when
required pursuant to Section 5.02(b) of the Receivables Loan Agreement.
(c) If no Termination Event shall have occurred and be
continuing, the Collection Agent, may, in accordance with the Credit and
Collection Policy, extend the maturity or adjust the Outstanding Balance of any
Pool Receivable as the Collection Agent deems appropriate to maximize
Collections thereof, provided that the classification of any such Pool
Receivable as a Delinquent Receivable or Defaulted Receivable shall not be
affected by any such extension, and provided further that if such Pool
Receivable is an Eligible Receivable, the Collection Agent shall not amend or
modify such Pool Receivable or any Contract related thereto in a manner that
would cause such Receivable to cease to be an Eligible Receivable unless (i)
following such amendment or modification the Percentage Factor would not exceed
the Maximum Percentage Factor, as determined by the most recent Portfolio Report
delivered hereunder, and (ii) the applicable Originator has granted or paid all
Purchase Price Credits (as
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defined in the Originator Purchase Agreement) required in connection therewith.
Following the occurrence and during the continuation of a Termination Event, the
Collection Agent may grant such extensions or adjustments only with the prior
written consent of the Administrative Agent. In no event shall the Collection
Agent be entitled to make any Lender, any Funding Agent or the Administrative
Agent a party to any litigation involving the Transaction Documents or the
Receivables without such Lender's, such Funding Agent's or the Administrative
Agent's prior written consent.
(d) The Collection Agent shall hold in trust for the Borrower,
the Administrative Agent, the Funding Agents and each Lender, in accordance with
their respective interests, all documents, instruments and records (including,
without limitation, computer tapes or disks) which evidence or relate to Pool
Receivables or Related Security. The Collection Agent shall xxxx or cause to be
marked the Borrower's, the Transferor's and each Originator's master data
processing records evidencing the Pool Receivables with a legend, reasonably
acceptable to the Administrative Agent, evidencing that the Pool Receivables
have been sold to the Borrower and a security interest has been granted in favor
of the Administrative Agent.
(e) The Collection Agent shall, as soon as practicable
following receipt and identification thereof, and in any event within one
Business Day, turn over to the Borrower or such other Person as may be entitled
thereto any cash collections or other cash proceeds received in the Collection
Accounts or the Concentration Account and not constituting Collections of
Collateral.
2.3 Reports.
(a) Monthly Report. No later than 4:00 p.m., New York City
time, on each Monthly Reporting Date, the Collection Agent shall deliver to the
Administrative Agent, each Funding Agent and the Borrower a Monthly Report
containing the information listed in Exhibit A-1 as of the close of business on
the last Business Day of the immediately preceding Calculation Period and such
other information as the Administrative Agent or any Funding Agent may
reasonably request.
(b) Weekly Reports. No later than 4:00 p.m., New York City
time, on the third Business Day of each calendar week, for so long as the
Collection Agent is not required to deliver Daily Reports hereunder, the
Collection Agent shall deliver to the Administrative Agent, each Funding Agent
and the Borrower a Weekly Report setting forth the information listed in Exhibit
A-2 as of the close of business on the last Business Day of the immediately
preceding week, and such other information as the Administrative Agent or any
Funding Agent may reasonably request.
(c) Daily Reports. No later than 4:00 p.m., New York City
time, on each Business Day commencing on the date which falls six months after
the Closing Date (or, if the Performance Guarantor does not have a published
Debt Rating from S&P of at least B and from Xxxxx'x of at least B2, on the date
which falls three months after the Closing Date) the Collection Agent shall
deliver to the Administrative Agent, each Funding Agent and the Borrower a Daily
Report setting forth the information listed in Exhibit A-3 as of the close of
business on the second preceding Business Day, and such other information as the
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Administrative Agent or any Funding Agent may reasonably request; provided that
during any such period when the Performance Guarantor has a published Debt
Rating from S&P of at least B+ and from Xxxxx'x of at least B1, no such Daily
Report shall be required unless the Percentage Factor exceeds 80%, in which case
a Daily Report shall be required on second Business Day following the 29th day
of each calendar month with respect to such day (or, if such 29th day is not a
Business Day or if there is no such 29th day, in the case of February, the next
succeeding Business Day).
(d) Transmission of Portfolio Reports. The Collection Agent
shall transmit each Portfolio Report to each Funding Agent by electronic mail.
In addition, the Collection Agent shall transmit a copy of each such Portfolio
Report to the Administrative Agent and, upon request, each Funding Agent by
facsimile (certified by a Financial Officer of the Collection Agent or such
other employee of the Collection Agent as shall have primary responsibility for
the preparation of such report and shall have been authorized to certify
Portfolio Reports hereunder by a Financial Officer).
(e) Notice of Termination Events. The Collection Agent shall
provide to the Administrative Agent and each Funding Agent, promptly, and in any
event within one Business Day after a Responsible Officer of the Collection
Agent obtains actual knowledge thereof, notice of any Termination Event or
Incipient Termination Event.
(f) Notice of Downgrades. Promptly after a Responsible Officer
of the Collection Agent obtains actual knowledge thereof, the Collection Agent
shall provide to each Funding Agent notice of any downgrade in the Debt Rating
(or the withdrawal by either S&P or Xxxxx'x of a Debt Rating) of the Performance
Guarantor, setting forth the Indebtedness affected and the nature of such change
(or withdrawal).
(g) Notice of Litigation; Material Adverse Effect. Promptly
after a Responsible Officer of the Collection Agent obtains actual knowledge
thereof, the Collection Agent shall provide to the Administrative Agent and each
Funding Agent notice of:
(i) the filing or commencement of, or any written threat
or notice of intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Official Body or in
arbitration, against the Collection Agent or any of its Subsidiaries as to which
an adverse determination is reasonably probable and which could reasonably be
expected to have a Material Adverse Effect; and
(ii) any other development that is not a matter of
general public knowledge and that has had, or could reasonably be expected to
have, a Material Adverse Effect.
(h) Other Information. The Collection Agent shall provide to
the Administrative Agent and each Funding Agent, promptly upon request, such
other information respecting the Receivables or the condition or operations,
financial or otherwise, of the Collection Agent (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.
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2.4 Transition to Successor Collection Agent. If replaced as
Collection Agent, TRW U.S. agrees that it will (i) terminate, and cause each
existing Sub-Collection Agent to terminate, its collection activities in a
manner and to the extent requested by the Administrative Agent to facilitate the
transition to a new Collection Agent and (ii) transfer to the Administrative
Agent (or its designee), or (to the extent permitted by applicable Law and
contract) license to the Administrative Agent (or its designee) the use of, all
software used in connection with the collection of the Pool Receivables. To the
extent any such transfer or license would require the payment of any license fee
or other amount, TRW U.S. agrees to pay such fee or other amount out of its own
funds promptly upon demand by the Administrative Agent. TRW U.S. shall cooperate
with and assist any successor Collection Agent in the performance of its
responsibilities as Collection Agent (including, without limitation, providing
access to, and transferring, to such successor Collection Agent all records
related to the Collateral and allowing (to the extent permitted by applicable
law and contract) the successor Collection Agent to use all licenses, hardware
or software necessary or desirable to collect or obtain or store information
regarding the Pool Receivables. TRW U.S. irrevocably agrees to act (to the
extent requested to do so by the Administrative Agent) as the data-processing
agent for any successor Collection Agent in substantially the same manner as TRW
U.S. conducted such data-processing functions while it acted as the Collection
Agent.
2.5 Sub-Collection Agents.
(a) As the initial Collection Agent, TRW U.S. hereby appoints
each Seller to be its Sub-Collection Agent with respect to the Pool Receivables
originated by such Seller. Each Seller hereby accepts such appointment and
agrees to act as Sub-Collection Agent in accordance with the terms and
conditions set forth herein and in the other Transaction Documents.
(b) Each Sub-Collection Agent shall take or cause to be taken
all such actions as may be necessary or advisable to collect each Pool
Receivable for which it acts as Sub-Collection Agent from time to time, all in
accordance in all material respects with applicable Laws and in accordance with
the Credit and Collection Policy. In performing its duties as Sub-Collection
Agent, each Sub-Collection Agent shall exercise reasonable care and diligence
and shall use the same care and apply the same policies as it would exercise and
apply if it owned such Pool Receivables and shall act in such manner as it
reasonably deems to be in the best interests of the Lenders and the
Administrative Agent. Each Sub-Collection Agent agrees to be bound by the
provisions of Section 2.2(c) to the same extent as if it were the Collection
Agent.
(c) Each Sub-Collection Agent shall hold in trust for the
Borrower, the Administrative Agent, the Funding Agents and each Lender, in
accordance with their respective interests, all documents, instruments and
records (including, without limitation, computer tapes or disks) which evidence
or relate to Pool Receivables or Related Security. Each Sub-Collection Agent
shall xxxx its master data processing records evidencing the Pool Receivables
with a legend, reasonably acceptable to the Administrative Agent, evidencing
that the Pool Receivables have been sold to the Borrower and a security interest
has been granted in favor of the Administrative Agent.
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(d) To the extent the Administrative Agent is entitled to
exercise any rights or remedies with respect to the Collection Agent, each
Sub-Collection Agent acknowledges and agrees that the Administrative Agent may
exercise the same rights and remedies against such Sub-Collection Agent with
respect to the Pool Receivables originated by such Sub-Collection Agent. Without
limiting the generality of the foregoing, each Sub-Collection Agent hereby
acknowledges and agrees that its appointment as Sub-Collection Agent hereunder
shall automatically terminate upon the appointment of a new Collection Agent in
accordance with the terms hereof. Upon the designation of a successor Collection
Agent, each Seller agrees that it will (i) terminate its collection activities
in a manner and to the extent requested by the Administrative Agent to
facilitate the transition to a new Collection Agent and (ii) transfer to the
Administrative Agent (or its designee), or (to the extent permitted by
applicable Law and contract) license to the Administrative Agent (or its
designee) the use of, all software used by such Seller in connection with the
collection of the Pool Receivables. To the extent any such transfer or license
would require the payment of any license fee or other amount, such Seller agrees
to pay such fee or other amount out of its own funds promptly upon demand by the
Administrative Agent. Each Seller shall cooperate with and assist any successor
Collection Agent in the performance of its responsibilities as Collection Agent
(including, without limitation, providing access to, and transferring, to such
successor Collection Agent all records related to the Collateral and allowing
(to the extent permitted by applicable law and contract) the successor
Collection Agent to use all licenses, hardware or software necessary or
desirable to collect or obtain or store information regarding the Receivables.
Each Seller irrevocably agrees to act (to the extent requested to do so by the
Administrative Agent) as the data-processing agent for any successor Collection
Agent in substantially the same manner as such Seller conducted such
data-processing functions while it acted as a Sub-Collection Agent.
(e) On or prior to the close of business on the Business Day
immediately preceding each Reporting Date, each Sub-Collection Agent shall
deliver a report to the Collection Agent a report (each an "Originator Report")
in the form attached hereto as Exhibit A-4 with respect to the Receivables for
which it acts as Sub-Collection Agent.
2.6 Indemnities.
(a) Indemnities by Collection Agent. Without limiting any
other rights that the Indemnified Parties may have under the Transaction
Documents or under applicable law, and in consideration of its appointment as
Collection Agent, TRW U.S. hereby agrees to indemnify each Secured Party, the
Borrower and the Transferor (collectively, the "Indemnified Parties") from and
against any and all damages, losses, claims, liabilities, deficiencies, costs,
disbursements and expenses, including, without limitation, interest, penalties,
amounts paid in settlement and reasonable attorneys' fees (all of the foregoing
being collectively referred to as "Special Indemnified Amounts") arising out of
or resulting from any of the following (excluding, however, (a) Special
Indemnified Amounts to the extent such Special Indemnified Amounts resulted from
gross negligence or willful misconduct on the part of such Indemnified Party and
(b) any income taxes or any other tax or fee measured by income incurred by such
Indemnified Party arising out of or as a result of this Agreement or the
Collateral or any interest of the Secured Parties therein):
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(i) any representation, warranty, certification, report or
other statement made or deemed made by any Collection Agent Party
under or in connection with this Agreement or any other Transaction
Document which shall have been incorrect in any respect when made or
deemed made;
(ii) the failure by any Collection Agent Party to comply with
any applicable Law;
(iii) any failure of any Collection Agent Party to perform its
duties or obligations in accordance with the provisions of this
Agreement or any other Transaction Document;
(iv) the commingling of Collections of Collateral at any time
by any Collection Agent Party or any Affiliate of a Collection Agent
Party (other than the Borrower or the Transferor) with other funds;
(v) any action by any Collection Agent Party (other than an
action required by the Transaction Documents) reducing or impairing
the rights of the Borrower, the Transferor or the Secured Parties
with respect to any Pool Receivable or the value of any Pool
Receivable;
(vi) any Servicing Fees or other costs and expenses payable to
any replacement Collection Agent, to the extent in excess of the
Servicing Fees payable to TRW U.S. in its capacity as Collection
Agent hereunder;
(vii) any claim brought by any Person arising from any
activity by any Collection Agent Party or Affiliate thereof in
servicing, administering or collecting any Pool Receivable;
(viii) any change in the Credit and Collection Policy by any
Collection Agent Party which impairs the collectibility of any
Receivable or the ability of any Collection Agent Party to perform
its obligations under this Agreement;
(ix) any failure by any Collection Agent Party to fully comply
in all material respects with the Credit and Collection Policy in
regard to each Pool Receivable and the related Contract; or
(x) the Percentage Factor exceeding the Maximum Percentage
Factor as of the close of business on the Business Day immediately
preceding any Release Date or Borrowing Date.
(b) Indemnities by Sub-Collection Agents. Without limiting any
other rights that the Indemnified Parties may have under the Transaction
Documents or under applicable law, and in consideration of its appointment as a
Sub-Collection Agent, each Seller hereby agrees to indemnify each Indemnified
Party from and against any and all Special Indemnified Amounts arising out of or
resulting from any action, omission or breach of such Seller of a type described
in any of clauses (i) through (x) of Section 2.6(a) above (excluding, however,
(a) Special Indemnified Amounts to the extent such Special Indemnified Amounts
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resulted from gross negligence or willful misconduct on the part of such
Indemnified Party and (b) any income taxes or any other tax or fee measured by
income incurred by such Indemnified Party arising out of or as a result of this
Agreement or the Collateral or any interest of the Secured Parties therein).
(c) Construction. Notwithstanding anything to the contrary in
this Agreement, solely for purposes of the indemnification obligations described
in this Section 2.6, any representation, warranty or covenant of a Collection
Agent Party 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.
2.7 Concentration Account. On or prior to the date hereof, the
Collection Agent shall establish, in the name of the Transferor, with an
Eligible Account Bank, a segregated account (the "Concentration Account"),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Secured Parties. The Collection Agent shall cause
all Collections deposited into any Collection Account or otherwise received by
the Collection Agent or any other Transaction Party to be transferred to the
Concentration Account on or prior to the next Business Day following the day on
which such Collections are so deposited or received. If the bank at which the
Concentration Account is maintained ceases to be an Eligible Account Bank, the
Collection Agent shall promptly and in any event within 30 days establish a new
Concentration Account at an Eligible Account Bank and shall deliver to the
Administrative Agent a duly executed Control Agreement covering such
Concentration Account. Upon such establishment and delivery, all funds on
deposit in the prior Concentration Account shall be transferred to the new
Concentration Account. The Collection Agent shall not at any time use more than
one Concentration Account unless such use has been approved in writing by the
Administrative Agent.
2.8 Collateral Account.
(a) On or prior to the Closing Date, the Administrative Agent
shall cause to be established, in its own name at an Eligible Account Bank a
segregated account (the "Collateral Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Secured Parties.
(b) Each of the Borrower and the Collection Agent agrees that
the Administrative Agent shall have exclusive dominion and control over the
Collateral Account and all monies, instruments and other property from time to
time deposited in or credited to the Collateral Account.
(c) The Administrative Agent may invest funds on deposit in
the Collateral 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 Collection Agent
may select (or, in the absence of any such selection by the Collection Agent, 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 Settlement Date. Such proceeds, interest or income which are not so
invested or reinvested in Permitted Investments shall, except as otherwise
provided in this Agreement, be
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deposited and held in the Collateral Account; provided that, prior to the
Termination Date, any interest or income in respect of such Permitted
Investments shall, at the direction of the Collection Agent be deposited into
the Concentration Account and applied as Collections in accordance with Section
2.06 of the Receivables Loan Agreement. Neither the Administrative Agent nor any
of its Affiliates shall be liable to the Borrower, the Collection Agent, any
Secured Party or any other Person for, or with respect to, any decline in value
of amounts on deposit in the Collateral Account. Permitted Investments from time
to time purchased and held pursuant to this Section 2.8 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 Collateral
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) Following the occurrence of any Termination Event, the
Administrative Agent may, at any time or from time to time after funds are
either deposited in the Collateral Account or invested in Collateral Securities,
after selling, if necessary, any Collateral Securities, withdraw funds then held
in the Collateral Account and apply the same in accordance with the priority of
payments set forth in Section 2.07 of the Receivables Loan Agreement. The
Borrower 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 Borrower
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.
(e) The Administrative Agent shall have the sole right of
withdrawal with respect to the Collateral Account. None of the Borrower, the
Collection Agent or any Person claiming on behalf of or through the Borrower, or
the Collection Agent shall have any right to withdraw any of the funds held in
the Collateral Account.
(f) The Administrative Agent shall exercise reasonable care in
the custody and preservation of any funds held in the Collateral Account and
shall be deemed to have exercised such care if such funds are accorded treatment
substantially equivalent 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.
(g) On the Final Payout Date, any funds remaining on deposit
in the Collateral Account shall be paid to the Borrower.
2.9 Collection Agent Default. If any one or more of the following
events shall occur (each, a "Collection Agent Default"):
(a) (i) any Collection Agent Party or, to the extent that any
Originator or any Affiliate of an Originator is then a Collection
Agent Party, such Originator
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or such Affiliate, as applicable, shall fail to observe or perform
any material term, covenant or agreement under this Agreement or any
other Transaction Document (other than as referred to in clauses
(ii) and (iii) of this Section 2.9(a)), and such failure shall
remain unremedied for ten days after a Responsible Officer of such
Collection Agent Party has knowledge or obtains notice thereof or
(ii) the Collection Agent or, to the extent that any Originator or
any Affiliate of an Originator is then acting a Collection Agent
Party, such Originator or such Affiliate, as applicable, shall fail
to make any payment or deposit required to be made by it under this
Agreement or any other Transaction Document when due and such
failure remains unremedied for one Business Day, (iii) the
Collection Agent shall fail to deliver any Weekly Report or Monthly
Report within two Business Days of the date when due or any Daily
Report within one Business Day of the date when due or shall fail to
deliver any other report required to be delivered by it hereunder or
under the Receivables Loan Agreement within two Business Days after
a Responsible Officer of the Collection Agent has knowledge or
obtains notice thereof, or (iv) during any calendar month, the
Collection Agent shall fail to deliver more than two Weekly Reports
on the date when due or more than two Daily Reports on the date when
due; or
(b) any representation, warranty, certification or statement
made by any Collection Agent Party or, to the extent that any
Originator or any Affiliate of an Originator is then a Collection
Agent Party, by such Originator or such Affiliate, as applicable, in
this Agreement, any other Transaction Document or in any report or
other document delivered pursuant hereto or thereto shall prove to
have been incorrect in any material respect when made or deemed
made; or
(c) any Event of Bankruptcy shall occur and be continuing with
respect to any Collection Agent Party; or
(d) there shall have occurred since December 31, 2003 any
event or condition which has had or could reasonably be expected to
have a material adverse effect on the ability of any Collection
Agent Party to perform its obligations under the Transaction
Documents; or
(e) there shall have occurred any other Termination Event of
the type described in Section 7.01(d) or 7.01(e) of the Receivables
Loan Agreement; or
(f) the Performance Guaranty or this Agreement shall cease,
for any reason, to be in full force and effect, or any Transaction
Party shall so assert in writing or the Performance Guarantor or any
Collection Agent Party shall otherwise seek to terminate or
disaffirm its obligations under the Performance Guaranty or this
Agreement;
then, and in any such event, the Administrative Agent may, in its discretion,
and shall, at the direction of the Required Committed Lenders, designate another
Person to succeed TRW U.S. as the Collection Agent.
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2.10 Servicing Fee. The Collection Agent shall be paid a Servicing
Fee out of Collections available for such purpose pursuant to the Receivables
Loan Agreement and subject to the priorities therein. Each Sub-Collection Agent
shall be paid such fees as the Collection Agent and such Sub-Collection Agent
shall agree from time to time; provided that such fees shall be the sole
responsibility of the Collection Agent and none of the Borrower or any of the
Secured Parties shall have any liability therefor.
2.11 Power of Attorney. The Collection Agent authorizes the
Administrative Agent, and hereby irrevocably appoints 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 Collection Agent, following
the occurrence and during the continuation of a Termination Event or Involuntary
Bankruptcy Event, to take any and all steps in the Collection Agent's name and
on behalf of the Collection Agent that are necessary or desirable, in the
determination of the Administrative Agent, to collect amounts due under the
Collateral, including, without limitation, (i) endorsing the Borrower's, the
Collection Agent's, the Transferor's or any Originator's name on checks and
other instruments representing Collections of Collateral, (ii) enforcing the
Receivables and the Related Security and the Collateral Agreements including to
ask, demand, collect, xxx for, recover, compromise, receive and give acquittance
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 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
Borrower in respect of, the Receivables and the Related Security and the
Collateral Agreements; provided that no enforcement action of the type described
in this clause (ii) may be taken by the Administrative Agent if no Involuntary
Bankruptcy Event then exists and the only Termination Event(s) that shall have
occurred are those set forth in Section 7.01(h), (k), (l) or (m) of the
Receivables Loan Agreement.
2.12 Receivables Loan Agreement Provisions. Each party to this
Agreement hereby acknowledges and agrees that (i) Collections shall be applied
as provided in Sections 2.06 and 2.07 of the Receivables Loan Agreement and (ii)
any right or claim of such party to receive any payment from such Collections is
subject to the terms, conditions and priorities of such Sections.
2.13 Remittance of Other Receivables Payments. Each of the Borrower,
the Collection Agent and the Administrative Agent hereby agree that in the event
any payment is made into a Collection Account, the Concentration Account or the
Collateral Account with respect to a Receivable that is not a Pool Receivable,
such Person shall promptly after becoming aware thereof pay over such payment to
the Originator that owns the relevant Receivable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Collection Agent Parties.
Each Collection Agent Party hereby represents and warrants as follows as of the
date hereof, as of the date of each Borrowing and each Release under the
Receivables Loan Agreement and as of each
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Reporting Date (except that the representations set forth in paragraphs (e) and
(f) below shall be required to be made only as of the date of each Borrowing and
as of each Reporting Date):
(a) Such Collection Agent Party is a corporation, partnership or
limited liability company duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of organization specified in the
preamble to this Agreement, and is duly qualified to do business, and is in good
standing, 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 such Collection Agent
Party of this Agreement and any other Transaction Document to which it is a
party (i) are within the such Collection Agent Party's corporate powers, (ii)
have been duly authorized by all necessary corporate action, (iii) will not (A)
violate (1) such Collection Agent Party's certificate of incorporation or
by-laws or other organizational documents, as applicable, (2) any Law applicable
to such Collection Agent Party, or (3) any provision of any indenture,
certificate of designation for preferred stock, agreement or other instrument to
which such Collection Agent Party is a party or by which it or any of its
property is or may be bound or (B) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under, give
rise to a right of or result in any cancellation of a material right or
acceleration of any material payment obligation under any such indenture,
certificate of designation for preferred stock, agreement or other instrument,
where any such conflict, violation, breach or default referred to in clause (A)
or (B) of this Section 3.1(b), 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. This Agreement has been duly executed and delivered by
such Collection Agent Party.
(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 such Collection Agent Party of
this Agreement or any other Transaction Document to which it is a party except
for such as have already been obtained or made and are in full force and effect.
(d) This Agreement constitutes the legal, valid and binding
obligation of such Collection Agent Party, enforceable against such Collection
Agent Party 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 December 31, 2003, there has been no Material Adverse
Effect.
(f) Except as set forth on Schedule II, as of each Borrowing Date
and 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 such Collection Agent Party, threatened in
writing against or affecting such Collection Agent Party or any of its business,
property or rights as to which in either case, an adverse determination is
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reasonably probable and which could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
(g) All Obligors have been instructed to remit all their payments in
respect of Pool Receivables directly to a Collection Account.
(h) Each Portfolio Report (if prepared by such Collection Agent
Party or any of its Affiliates, or to the extent that information contained
therein is supplied by such Collection Agent Party or an Affiliate),
information, exhibit, financial statement, document, book, record or report
furnished in writing at any time by or on behalf of any Collection Agent Party
in connection with the Transaction Documents is accurate in all material
respects as of its date or (except as otherwise disclosed to the Administrative
Agent and each Funding Agent at such time) as of the date so furnished.
(i) On the date of each Borrowing and Release under the Receivables
Loan Agreement (and after giving effect thereto) the Percentage Factor does not
exceed the Maximum Percentage Factor, as determined by the most recent Portfolio
Report delivered hereunder.
(j) No event has occurred and is continuing and no condition exists
which constitutes a Termination Event.
(k) Each Receivable treated as or represented by such Collection
Agent Party to be an Eligible Receivable on any date (whether by inclusion in
the Net Receivables Balance or otherwise) was an Eligible Receivable on such
date.
ARTICLE IV
COVENANTS
4.1 Covenants of the Collection Agent Parties. Until the Final
Payout Date:
(a) Compliance with Laws, Etc. Each Collection Agent Party 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) Records and Books of Account. Each Collection Agent Party will
maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing Pool Receivables
and related Contracts in the event of the destruction of the originals thereof),
and keep and maintain all documents, books, records and other information
reasonably necessary or advisable for the collection of all Pool Receivables or,
in the case of a Sub-Collection Agent, all Pool Receivables for which it acts as
Sub-Collection Agent (including, without limitation, records adequate to permit
the daily identification of each such Receivable and all Collections of and
adjustments to each such existing Receivable).
(c) Compliance with Credit and Collection Policy. Each Collection
Agent Party will timely and fully comply in all material respects with the
Credit and Collection Policy
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in regard to Purchased Receivables that are treated as or represented by such
Collection Agent Party to be Eligible Receivables.
(d) Extension or Amendment of Receivables and Contracts. Except as
provided in Section 2.2(c), no Collection Agent Party will extend, amend or
otherwise modify the terms of any Pool Receivable or amend, modify or waive any
term or condition of any Contract related thereto in a manner that could
reasonably be expected to adversely affect the collectability of such Pool
Receivable.
(e) Change in Credit and Collection Policy. No Collection Agent
Party will make any change in the Credit and Collection Policy, except (i) for
any such change that would not impair the collectibility of any Pool Receivables
in any material respect or otherwise be reasonably likely to have a Material
Adverse Effect or (ii) as required by applicable Law. In the event that any
Collection Agent Party makes any material change to the Credit and Collection
Policy, it shall, promptly following such change, provide the Administrative
Agent and each Funding Agent with an updated Credit and Collection Policy and a
summary of all material changes.
(f) Change in Payment Instructions to Obligors. No Collection Agent
Party will add or terminate any Collection Account or any Concentration Account
from those listed in Schedule V to the Receivables Loan Agreement, or make any
change in its instructions to Obligors regarding payments to be made in respect
of the Receivables or payments to be made to any Collection Account or the
Concentration Account, unless the Administrative Agent shall have received
notice of such addition, termination or change (including an updated Schedule V)
and a fully executed Control Agreement with respect to each new Collection
Account and each new Concentration Account, provided that, the Collection
Account (Lockbox No. 98912; Acct. No. 8188102974) maintained with Bank of
America may be terminated so long as the relevant Obligors are instructed to
make payments to another Collection Account. Each Collection Account and the
Concentration Account shall be maintained at all times in the name of the
Transferor.
(g) Deposits to Collection Accounts. Each Collection Agent Party
will instruct all Obligors to remit all their payments in respect of Receivables
to a Collection 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 any Collection Agent Party shall receive any Collections
directly, such Collection Agent Party shall promptly (and in any event within
one Business Day) cause such Collections to be deposited into a Collection
Account or the Concentration Account. Each Collection Agent Party will use its
reasonable best efforts to prevent funds which do not constitute Collections of
Receivables from being deposited into any Collection Account or the
Concentration Account. Each Collection Agent Party shall instruct each
Collection Account Bank to remit funds on deposit in each Collection Account to
the Concentration Account on a daily basis.
(h) Control Agreements. The Collection Agent shall cause all
Collection Accounts and the Concentration Account to be subject at all times to
a Control Agreement duly executed by the Collection Agent, the Transferor, the
Administrative Agent and the applicable bank.
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(i) Inspections. Each Collection Agent Party will, from time to time
during regular business hours as requested by the Administrative Agent or any
Funding Agent upon reasonable prior notice, permit the Administrative Agent, any
Funding Agent, or their respective agents or representatives (including
independent public accountants, which may be the Borrower's or the Collection
Agent's independent public accountants), (i) to conduct periodic audits of the
Receivables, the Related Security, the other Collateral and the related books
and records and collections systems of each Collection Agent Party, (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 any Collection Agent Party relating to Receivables, the
Related Security and the other Collateral, including, without limitation, the
Contracts, and (iii) to visit the offices and properties of any Collection Agent
Party for the purpose of examining such materials described in clause (ii)
above, and to discuss matters relating to Receivables, the Related Security and
the other Collateral or any Collection Agent Party's performance under the
Transaction Documents or under the Contracts with any of the officers or
employees of such Collection Agent Party having knowledge of such matters.
ARTICLE V
MISCELLANEOUS
5.1 Amendment. No failure on the part of the Administrative Agent 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. No amendment or waiver of any provision of this Agreement or consent to
any departure by any Collection Agent Party therefrom shall be effective unless
in a writing signed by the Administrative Agent and the Required Committed
Lenders (and, in the case of any amendment, also signed by the Collection
Agent), and then such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no consent of the Borrower, TRW U.S. or any Seller shall be
required for any amendment which modifies the representations, warranties,
covenants or responsibilities of the Collection Agent at any time when the
Collection Agent is not TRW U.S. or any Affiliate of TRW U.S. or upon the
replacement of the Collection Agent with a Person who is not TRW U.S. or any
Affiliate of TRW U.S.
5.2 Notices. All communications and notices provided for hereunder
shall be in writing (including telecopy or electronic facsimile transmission or
similar writing) and shall be given to the other party (i) in the case of the
Borrower, the Collection Agent and the Administrative Agent, at its address or
telecopy number specified for notices pursuant to the Receivables Loan Agreement
and (ii) in the case of any Seller, at its address or telecopy number specified
for notices pursuant to the Originator Purchase Agreement to which it is a party
or, in any such case, at such other address or telecopy number as such party may
hereafter specify for the purposes of notice to such party. Each such notice or
other communication shall be effective (i) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section 5.2 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 5.2.
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5.3 Assignments. No Collection Agent Party may assign any of its
rights or obligations hereunder or any interest herein without the prior written
consent of the Administrative Agent and the Required Committed Lenders. The
Borrower may assign its rights hereunder only to the Administrative Agent
pursuant to the Receivables Loan Agreement. The Administrative Agent may assign
any of its rights or obligations hereunder or any interest herein to any
successor Administrative Agent appointed pursuant to the terms of the
Receivables Loan Agreement.
5.4 No Proceedings. Each Collection Agent Party hereby agrees that
it will not institute against the Borrower any proceeding of the type referred
to in the definition of "Event of Bankruptcy" until there shall have elapsed one
year plus one day since the Final Payout Date. Each Collection Agent Party
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" 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.
5.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
5.6 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. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.
5.7 Binding Effect; Survival of Termination. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns (including any trustee in bankruptcy). 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. 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
the provisions of Sections 2.6 and 5.4 shall survive any termination of this
Agreement.
5.8 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
17
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 party hereto 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 for notices specified or referred to in Section 5.2. Nothing in
this Section 5.8 shall affect the right of the Administrative Agent to serve
legal process in any other manner permitted by law.
5.9 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.
5.10 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. The Secured Parties are express third party
beneficiaries of this Agreement.
5.11 Additional Sellers. In the event any Person becomes a "Seller"
under (and in accordance with the terms and conditions set forth in) the
Originator Purchase Agreement after the date hereof, such Person shall
automatically become a party to this Agreement as a Sub-Collection Agent upon
the execution and delivery of an "Additional Seller Supplement" pursuant to the
Originator Purchase Agreement.
SIGNATURES FOLLOW
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
TRW AUTOMOTIVE U.S. LLC, as
Collection Agent, Seller and
Sub-Collection Agent
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Chief Financial
Officer
XXXXXX-XXXXX COMPANY, as Seller and
Sub-Collection Agent
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
TRW VEHICLE SAFETY SYSTEMS INC.,
as Seller and Sub-Collection Agent
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Chief Financial
Officer
LAKE CENTER INDUSTRIES
TRANSPORTATION, INC., as Seller and
Sub-Collection Agent
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Secretary
TRW AUTOMOTIVE GLOBAL
RECEIVABLES LLC, as Borrower
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By: /s/
--------------------------------------------
Name:
Title:
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