EXHIBIT 4.1
EXECUTION COPY
AMENDMENT AND WAIVER
AMENDMENT AND WAIVER, dated as of August 26, 2003 (this
"Amendment"), to (i) the Receivables Transfer Agreement, dated as of December
20,2001, as amended and restated as of September 24, 2002 (as further amended,
supplemented or otherwise modified from time to time, the "Receivables Transfer
Agreement"), among Xxxxxxx & Xxxxxx Products Co., individually and as collection
agent (the "Collection Agent"), Carcorp, Inc. (the "Transferor"), the conduit
purchasers party thereto from time to time (the "CP Conduit Purchasers"), the
committed purchasers party thereto from time to time (the "Committed
Purchasers"; and, together with the CP Conduit Purchasers, the "Purchasers"),
the funding agents party thereto from time to time (the "Funding Agents") and
JPMorgan Chase Bank, as administrative agent (the "Administrative Agent") and
(ii) the Amended and Restated Receivables Purchase Agreement, dated as of
December 20, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Receivables Purchase Agreement"), among Xxxxxxx & Xxxxxx Products Co.
("C&A"), its wholly-owned direct and indirect subsidiaries named therein as
sellers from time to time (together with C&A, the "Sellers") and Carcorp,
Inc., as purchaser (the "Purchaser").
WITNESSETH:
WHEREAS, the Collection Agent, the Transferor, the Purchasers,
the Funding Agents and the Administrative Agent are parties to the Receivables
Transfer Agreement;
WHEREAS, the Collection Agent and the Transferor have
requested, and the Committed Purchasers have consented to, certain modifications
and waivers to the Receivables Transfer Agreement as set forth herein;
WHEREAS, the Sellers and the Purchaser are parties to the
Receivables Purchase Agreement; and
WHEREAS, the Sellers have requested, and the Purchaser and the
Funding Agents (with the consent of the Required Committed Purchasers) have
consented to, certain modifications to the Receivables Purchase Agreement as set
forth herein;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Receivables Transfer
Agreement and used herein shall, unless otherwise indicated, have the meanings
given to them in the Receivables Transfer Agreement.
2. Waiver of Section 2.12 of the Receivables Transfer
Agreement. The Committed Purchasers hereby waive noncompliance by the Collection
Agent with Section 2.12 of the Receivables Transfer Agreement resulting from the
failure of the Collection Agent to deliver Daily Reports to the Administrative
Agent on or prior to the date hereof. The Committed Purchasers further agree to
waive any Termination Event or Collection Agent Default resulting from such
noncompliance. For the avoidance of doubt, the waiver set forth in this
paragraph 2 is only applicable to the failure of the Collection Agent to deliver
Daily Reports pursuant to Section 2.12 of the Receivables Transfer Agreement on
or prior to the date hereof and shall not be construed to be a waiver of the
obligation of the Collection Agent to deliver Daily Reports pursuant to such
Section after the date hereof. Each of the
parties hereto agrees that as of the date hereof no Termination Date or Purchase
Termination Date has occurred or is continuing.
3. Amendment to Section 5.01 of the Receivables Transfer
Agreement. Section 5.01(a) of the Receivables Transfer Agreement is hereby
amended by deleting clause (iii) thereof in its entirety and substituting in
lieu thereof the following:
"(iii) Compliance Certificate. Together with the financial
statements required hereunder, a compliance certificate (setting forth,
among other things, the computations described in Section 5.04(c)(ii)
of the Senior Credit Facility) signed by the Transferor's or C&A's, as
applicable, chief financial officer stating that (x) the attached
financial statements have been prepared in accordance with GAAP
consistently applied and accurately reflect the financial condition of
the Transferor or the Parent, as applicable, and (y) to the best of
such Person's knowledge, no Termination Event or Potential Termination
Event exists, or if any Termination Event or Potential Termination
Event exists, stating the nature and status thereof."
4. Amendment to Schedule A of the Receivables Transfer
Agreement. (a) Schedule A to the Receivables Transfer Agreement is hereby
amended by deleting the following defined terms contained in their entirety and
substituting in lieu thereof the following:
"Deposit Report" shall mean a written report substantially in
the form attached hereto as Exhibit D-1 or Exhibit D-2.
"Interest Coverage Ratio" shall be calculated as set forth in
the Senior Credit Facility; provided that, for purposes set forth in
Section 2.12 of the Receivables Transfer Agreement, such ratio shall be
compared to the ratio set forth below opposite the applicable time
period:
Period Ending: Ratio:
-------------- ------
December 31, 2001-September 30,2002 2.25 to 1.00
December 31, 2002 2.35 to 1.00
March 31, 2003 2.45 to 1.00
June 30, 2003 2.55 to 1.00
September 30, 2003 2.65 to 1.00
December 31, 2003-September 30, 2004 2.85 to 1.00
December 31, 2004-March 31, 2005 3.00 to 1.00
June 30, 2005 and thereafter 3.25 to 1.00
"Leverage Ratio" shall be calculated as set forth in the
Senior Credit Facility; provided, that, for purposes set forth in Section 2.12
of the Receivables Transfer Agreement, such ratio shall be compared to the ratio
set forth below opposite the applicable time period:
Period Ending: Ratio:
-------------- ------
December 31, 2001-September 30, 2002 4.50 to 1.00
December 31, 2002 4.25 to 1.00
March 31, 2003 4.00 to 1.00
June 30, 2003 3.75 to 1.00
September 30, 2003 3.50 to 1.00
December 31, 2003-September 30, 2004 3.25 to 1.00
December 31, 2004 and thereafter 3.00 to 1.00
5. Amendment to Section 9.1 of the Receivables Purchase
Agreement. Section 9.1 of the Receivables Purchase Agreement is hereby amended
by deleting clauses (v) and (vi) thereof in their entirety and substituting in
lieu thereof the following:
"(v) with respect to all Sellers, the day on which the
Collection Agent or the Transferor delivers a compliance certificate
pursuant to Section 5.01(a)(iii) of the Receivables Transfer Agreement
that indicates that C&A shall have permitted the Interest Coverage
Ratio (as defined in the Senior Credit Facility and after giving effect
to all amendments from time to time to the Senior Credit Facility with
respect to such definition and the related financial covenant) during
any period set forth in the Senior Credit Facility to be less than the
ratio set forth therein, or (vi) with respect to all Sellers, the day
on which the Collection Agent or the Transferor delivers a compliance
certificate pursuant to Section 5.01(a)(iii) of the Receivables
Transfer Agreement that indicates that C&A shall have permitted the
Leverage Ratio (as defined in the Senior Credit Facility and after
giving effect to all amendments from time to time to the Senior Credit
Facility with respect to such definition and the related financial
covenant) during any period set forth in the Senior Credit Facility to
be greater than the ratio set forth therein (any such date being a
"Purchase Termination Date"); provided, however, that the termination
of this Agreement with respect to any Seller or all Sellers pursuant to
this Section 9.1 hereof shall not discharge any Person from any
obligations incurred prior to such termination, including, without
limitation, any obligations to make any payments with respect to the
interest of the Purchaser in any Receivable sold prior to such
termination or pursuant to Article VI."
6. Confirmation of Purchase of Receivables. The Sellers and
the Purchaser hereby agree that each Seller's Receivables outstanding on (x) the
Original Closing Date, in the case of the Sellers party to the Original
Agreement, and (y) the related Seller Addition Date, in the case of Sellers
(including the New Sellers) added as parties to the Receivables Purchase
Agreement pursuant to Section 10.13 thereto and, in each case, thereafter owned
by such Seller through the date hereof have been, sold, assigned, transferred
and conveyed by the Sellers to the Purchaser, together with all Related Security
and Collections with respect thereto and all Proceeds of the foregoing.
7. Effectiveness. This Amendment shall become effective as of
the date hereof when the Administrative Agent shall have received counterparts
hereof duly executed by the Transferor, the Collection Agent, the Committed
Purchasers, the Sellers, the Purchaser and the Funding Agents.
8. Representations and Warranties. Each of the Collection
Agent, the Sellers and the Transferor hereby represent and warrant that each of
the representations and warranties made by it in or pursuant to the Receivables
Transfer Agreement or the Receivables Purchase Agreement, as applicable, shall
be, after giving effect to this Amendment, true and correct in all material
respects, as if made on and as of the date hereof (unless such representations
and warranties are stated to relate to an earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date).
9. Continuing Effect of the Receivables Transfer Agreement and
the Receivables Purchase Agreement. This Amendment shall not be construed as a
waiver or consent to any further or future action on the part of the Collection
Agent, the Transferor or the Sellers that would require a waiver or consent of
the Funding Agents and the Required Committed Purchasers. Except as amended
hereby, the provisions of the Receivables Transfer Agreement and the Receivables
Purchase Agreement are and shall remain in full force and effect.
10. Counterparts. This Amendment may be executed by one or
more of the parties hereto in any number of separate counterparts (which may
include counterparts delivered by facsimile transmission) and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Any executed counterpart delivered by facsimile transmission shall
be effective as for all purposes hereof.
11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective authorized officers as of the day and
year first above written.
CARCORP, INC., as Transferor and as Purchaser
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX PRODUCTS CO., individually
and as Collection Agent and a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX CARPET & ACOUSTICS
(MI), INC., as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX CARPET & ACOUSTICS
(TN), Inc., as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX ACCESSORY MATS, INC., as
a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
DURA CONVERTIBLE SYSTEMS, INC., as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
AMCO CONVERTIBLE FABRICS, INC., as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX PLASTICS, INC., as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX CANADA INC., as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX PLASTICS, LTD., as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXX GROUP, L.L.C., as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
XXXXXXX & XXXXXX FABRICS, INC., as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX AUTOMOTIVE INTERIORS,
INC., as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX AUTOMOTIVE EXTERIORS,
INC., as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX AUTOMOTIVE CANADA
COMPANY (as successor to Textron Canada
Limited), as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
JPS AUTOMOTIVE, INC., as a Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX INTELLIMOLD, INC., as a
Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
JPMORGAN CHASE BANK, as
Administrative Agent and Funding Agent
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
JPMORGAN CHASE BANK, as
Committed Purchaser
By:
-----------------------------------
Name:
Title:
CDC FINANCIAL PRODUCTS INC., as
Committed Purchaser and Funding
Agent
By:
-----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as
Committed Purchaser and Funding
Agent
By:
-----------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Committed Purchaser
and Funding Agent
By:
-----------------------------------
Name:
Title: Duly Authorized Signatory
JPMORGAN CHASE BANK, as
Administrative Agent and Funding Agent
By:
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as
Committed Purchaser
By: /s/ Xxxxxxxxx X. Kachykals
-----------------------------------
Name: Xxxxxxxxx X. Kachykals
Title: Managing Director
CDC FINANCIAL PRODUCTS INC., as
Committed Purchaser and Funding
Agent
By:
-----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as
Committed Purchaser and Funding
Agent
By:
-----------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Committed Purchaser
and Funding Agent
By:
-----------------------------------
Name:
Title: Duly Authorized Signatory
JPMORGAN CHASE BANK, as
Administrative Agent
By:
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as
Committed Purchaser and Funding Agent
By:
-----------------------------------
Name:
Title:
CDC FINANCIAL PRODUCTS INC., as
Committed Purchaser and Funding
Agent
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA, as
Committed Purchaser and Funding
Agent
By:
-----------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Committed Purchaser
and Funding Agent
By:
-----------------------------------
Name:
Title: Duly Authorized Signatory
JPMORGAN CHASE BANK, as
Administrative Agent
By:
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as
Committed Purchaser and Funding Agent
By:
-----------------------------------
Name:
Title:
CDC FINANCIAL PRODUCTS INC., as
Committed Purchaser and Funding
Agent
By:
-----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as
Committed Purchaser and Funding
Agent
By: /s/ Xxxxxx Last
-----------------------------------
Name: XXXXXX LAST
Title: MANAGING DIRECTOR
GENERAL ELECTRIC CAPITAL
CORPORATION, as Committed Purchaser
and Funding Agent
By:
-----------------------------------
Name:
Title: Duly Authorized Signatory
JPMORGAN CHASE BANK, as
Administrative Agent
By:
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as
Committed Purchaser and Funding Agent
By:
-----------------------------------
Name:
Title:
CDC FINANCIAL PRODUCTS INC., as
Committed Purchaser and Funding
Agent
By:
-----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as
Committed Purchaser and Funding
Agent
By:
-----------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Committed Purchaser
and Funding Agent
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
