Execution Copy
AMENDMENT No. 4 dated as of October 18, 2001 (this
"Amendment"), to the Receivables Transfer Agreement referred to
below among MTSPC, INC.,(the "Transferor"), METALDYNE CORPORATION
(f/k/a MascoTech, Inc.) (the "Parent"), individually, as
Collection Agent and as Guarantor, PARK AVENUE RECEIVABLES
CORPORATION ("PARCO"), and EIFFEL FUNDING, LLC ("Eiffel")
(collectively, the "CP Conduit Purchasers"), THE CHASE MANHATTAN
BANK, as Committed Purchaser and Funding Agent for PARCO
("Chase"), CDC FINANCIAL PRODUCTS INC., as Committed Purchaser and
Funding Agent for Eiffel ("CDC") (collectively, the "Committed
Purchasers"), and THE CHASE MANHATTAN BANK, as Administrative
Agent.
A. The Transferor, the Collection Agent, the Guarantor, PARCO, Chase
and the Administrative Agent have entered into a Receivables Transfer Agreement
dated as of November 28, 2000 (the "Receivables Transfer Agreement").
B. The Transferor, the Collection Agent, the Guarantor, PARCO, Chase,
Eiffel, CDC and the Administrative Agent have amended the Receivables Transfer
Agreement as of December 15, 2000 (the "First Amendment"), as of March 23, 2001
(the "Second Amendment") and as of June 22, 2001 (the "Third Amendment").
C. The Transferor has asked to amend certain terms of the Receivables
Transfer Agreement and the Transferor, the Collection Agent, the Guarantor,
PARCO, Chase, Eiffel, CDC and the Administrative Agent are willing, on the terms
and subject to the conditions set forth below, to amend the Receivables Transfer
Agreement as provided herein.
D. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to them in the Receivables Transfer Agreement.
Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Schedule A of the Receivables Transfer Agreement. (a) The
following definitions are hereby added to Schedule A of the Receivables Transfer
Agreement:
2
"Credit Default Swap" shall mean (i) the credit default swap dated as
of October 18, 2001 between the Transferor and an Eligible Counterparty with
respect to the payment obligations of DaimlerChrysler AG or (ii) the credit
default swap dated as of October 18, 2001 between the Transferor and an
Eligible Counterparty with respect to the payment obligations of Ford Motor
Company, as applicable, in each case which shall be satisfactory in form,
substance, amount and in all other respects to the Administrative Agent and
each Committed Purchaser, as the same may from time to time be modified,
supplemented, amended, extended or replaced as consented to by the
Administrative Agent and each Committed Purchaser.
"Eligible Counterparty" shall mean a counterparty with commercial paper
or short-term deposit ratings of at least A-1 or P-1. If at any time the
commercial paper or short term deposit ratings assigned to a counterparty by
any Rating Agency is such that the counterparty is no longer an Eligible
Counterparty, the Transferor shall (x) require such counterparty to secure
its obligations under such Credit Default Swap or (y) replace the
counterparty with an Eligible Counterparty within 30 days.
"Notional Amount" shall mean (i) with respect to DaimlerChrysler AG,
$5,000,000 and (ii) with respect to Ford Motor Company, $20,000,000.
(b) The definition of "Related Security" is hereby amended to read in
its entirety as follows:
"Related Security" shall mean, with respect to any Receivable,
all of a Seller's or Transferor's right, title and interest in, to and
under:
(a) the merchandise (including returned or repossessed merchandise), if
any, the sale of which by the Seller gave rise to such Receivable;
(b) all other security interests or liens and property subject thereto
from time to time, if any, purporting to secure payment of such Receivable,
whether pursuant to the Contract related to such Receivable or otherwise,
together with all financing statements signed by an Obligor describing any
collateral securing such Receivable;
(c) all guarantees, indemnities, warranties, insurance (and proceeds
thereof) or other agreements or
3
arrangements of any kind (including, but not limited to, each Credit
Default Swap) from time to time supporting or securing payment of such
Receivable whether pursuant to the Contract related to such Receivable or
otherwise;
(d) all Records related to such Receivable;
(e) in the case of the Administrative Agent for the benefit of the CP
Conduit Purchasers and the Committed Purchasers, all rights and remedies of
the Transferor under the Receivables Purchase Agreement, together with all
financing statements naming any Seller as debtor or seller and the
Transferor as secured party or buyer filed in connection therewith; and
(f) all Proceeds of any of the foregoing.
SECTION 2. Amendments to Schedule C of the Receivables Transfer
Agreement. Schedule C of the Receivables Transfer Agreement is hereby amended to
read in its entirety as set forth in Schedule C attached to this Amendment.
SECTION 3. Further Amendments to the Receivables Transfer Agreement.
(a) Amendment to Section 5.01. Section 5.01 of the Receivables Transfer
Agreement is hereby amended by adding the following new subsection (p) at the
end of such Section:
"(p) Credit Default Swaps. The Transferor agrees that at any time that
it enters into any Credit Default Swap (or such Credit Default Swap is
contributed to the Transferor as an equity contribution), it shall execute
and deliver to the Administrative Agent, for the benefit of the CP Conduit
Purchasers, the Committed Purchasers and Funding Agents, an assignment of
all amounts payable to the Transferor under such Credit Default Swap,
substantially in the form of Exhibit L attached hereto. Any counterparty
that enters into a Credit Default Swap with the Transferor shall expressly
acknowledge that the amounts payable to the Transferor under such Credit
Default Swap will be assigned to the Administrative Agent, for the benefit
of the CP Conduit Purchasers, the Committed Purchasers and Funding Agents."
(b) Amendment to Sections 6.02.(c)(ii), (iv), (vi), (vii) and (viii).
Sections 6.02.(c)(ii), (iv), (vi), (vii) and (viii) of the Receivables Transfer
Agreement are
4
hereby amended by increasing the number of Sellers to be selected in each such
subsections from four (4) to six (6) to reflect the addition of additional
Sellers to the facility.
(c) Addition of Exhibit L to the Receivables Transfer Agreement.
Exhibit L to the Receivables Transfer Agreement is hereby added to the
Receivables Transfer Agreement to read in its entirety as set forth in Exhibit L
attached to this Amendment.
SECTION 4. Effectiveness. This Amendment shall become effective on the
date when the following conditions are met:
(a) Execution of Amendment. This Amendment shall have been executed by
the Transferor, the Parent, individually, as Collection Agent and as Guarantor,
each of the CP Conduit Purchasers, each of the Committed Purchasers and Funding
Agents and the Administrative Agent;
(b) Officer's Certificates. The Administrative Agent shall have
received an Officer's Certificate dated as of the date hereof by the Transferor
and the Parent as to such matters as the Administrative Agent may reasonably
request;
(c) Rating Confirmations. Pursuant to Section 10.02 of the Receivables
Transfer Agreement, this Amendment will not become effective until the Rating
Agencies have provided Rating Confirmations; and
(d) Fees. (a) The Administrative Agent shall have received payment of
all fees and other amounts due and payable to it (including the reasonable fees
and disbursements of counsel for the Administrative Agent and rating agency
amendment fees) as of the date hereof and (b) each Committed Purchaser shall
have received payment of all fees and other amounts due and payable to it
(including the reasonable fees and disbursements of counsel for such Committed
Purchaser in connection with the preparation of this Amendment and any documents
related thereto) as of the date hereof.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 6. Expenses. The Transferor shall pay all out-of-pocket fees
and expenses incurred by the Administrative Agent in connection with the
preparation,
5
negotiation, execution and delivery of this Amendment, including the fees,
disbursements and other charges of Cravath, Swaine & ▇▇▇▇▇, counsel for the
Administrative Agent and rating agencies fees for processing this Amendment.
SECTION 7. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be an original but all of which, when taken
together, shall constitute but one instrument. Delivery of an executed
counterpart of a signature page of this Amendment by fax shall be as effective
as delivery of a manually executed counterpart of this Amendment.
SECTION 8. Headings. Section headings used herein are for convenience
of reference only, are not part of this Amendment and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Amendment.
SECTION 9. Effect of Amendment. Except as specifically amended or
modified hereby, the Receivables Transfer Agreement, as previously amended by
the First Amendment, the Second Amendment, and the Third Amendment shall
continue in full force and effect in accordance with the provisions thereof. As
used therein, the terms "Agreement", "herein", "hereunder", "hereinafter",
"hereto", "hereof" and words of similar import shall, unless the context
otherwise requires, refer to the Receivables Transfer Agreement as amended
hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the date first above
written.
MTSPC, INC., as
Transferor
by
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
6
METALDYNE CORPORATION (f/k/a/ MascoTech, Inc.),
individually, as
Collection Agent and as
Guarantor
by
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇
▇▇▇▇ ▇▇▇▇▇▇ RECEIVABLES
CORPORATION, as
CP Conduit Purchaser
by
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Committed Purchaser for
Park Avenue Receivables
Corporation,
by
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Funding Agent for Park
Avenue Receivables
Corporation,
by
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent,
by
-------------------------
Name:
Title:
8
EIFFEL FUNDING LLC,
as CP Conduit Purchaser
by Global Securitization
Services, LLC, its Manager
by
-------------------------
Name:
Title:
CDC FINANCIAL PRODUCTS INC.,
as Committed Purchaser for
Eiffel Funding, LLC
by
-------------------------
Name:
Title:
by
-------------------------
Name:
Title:
CDC FINANCIAL PRODUCTS, INC.,
as Funding Agent for
Eiffel Funding, LLC
by
-------------------------
Name:
Title:
by
-------------------------
Name:
Title:
SCHEDULE C
Schedule of Special Obligors
--------------------------------------------------------------------------------
Special Obligor Percentage Limit Conditions
--------------------------------------------------------------------------------
New Venture Gear 12.0% So long as short-term or
long-term ratings of
DaimlerChrysler and
General Motors are at
least A-2/BBB by S&P and
at least P-2/Baa2 by
▇▇▇▇▇'▇, respectively.
--------------------------------------------------------------------------------
General Motors 15.0% So long as short-term or
Corporation long-term ratings are at
least A-1/A by S&P and
at least P-1/A2 by
▇▇▇▇▇'▇, respectively.
--------------------------------------------------------------------------------
DaimlerChrysler The lessor of (X) the DaimlerChrysler shall be
sum of (i) 4%, (ii) the a Special Obligor until
applicable percentage December 31, 2002 (as
set forth in the such date may be extended
definition of following the purchase of
"Concentration Factor" a new Credit Default Swap
if such Obligor was not acceptable to the
a Special Obligor plus Committed Purchasers), so
(iii) the quotient long as (i) a Credit
(expressed as a Default Swap is in full
percentage) of (A) the force and effect with an
Notional Amount of the Eligible Counterparty
applicable Credit with an expiration date
Default Swap divided by no earlier than March 31,
(B) the Outstanding 2003 and (ii) such
Balance of Eligible Obligor shall be rated at
Receivables and (Y) least BBB- and Baa3 by
15%. both S&P and ▇▇▇▇▇'▇,
respectively, provided,
however, that
DaimlerChrysler shall be
a Special Obligor at all
times under this
Agreement with a 15%
Percentage Limit so long
as its short-term or
long-term ratings are at
least A-1/A by S&P and at
least P-1/A2 by ▇▇▇▇▇'▇,
respectively.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Ford Motor Company The lessor of (X) the Ford Motor Company shall
sum of (i) the be a Special Obligor
applicable percentage until December 31, 2002
set forth in the (as such date may be
definition of extended following the
"Concentration Factor" purchase of a new Credit
if such Obligor was not Default Swap acceptable
a Special Obligor plus to the Committed
(ii) the quotient Purchasers), so long as
(expressed as a (i) a Credit Default Swap
percentage) of (A) the is in full force and
Notional Amount of the effect with an Eligible
applicable Credit Counterparty with an
Default Swap divided by expiration date no
(B) the Outstanding earlier than March 31,
Balance of Eligible 2003 and (ii) such
Receivables and (Y) Obligor shall be rated at
20%. least BBB- and Baa3 by
both S&P and ▇▇▇▇▇'▇,
respectively, provided,
however, that Ford Motor
Company shall be a
Special Obligor at all
times under this
Agreement with a 20%
Percentage Limit so long
as its short-term or
long-term ratings are at
least A-1/A by S&P and at
least P-1/A2 by ▇▇▇▇▇'▇,
respectively.
--------------------------------------------------------------------------------
EXHIBIT L
Form of Credit Default Swaps Assignment
WHEREAS, MTSPC, Inc. (the "Transferor"), Metaldyne Corporation (f/k/a
MascoTech Inc.) (the "Parent"), individualy, as Guarantor and Collection Agent
(in such capacity, the "Collection Agent"), Park Avenue Receivables Corporation
("PARCO") and Eiffel Funding, LLC ("Eiffel") (collectively the "CP Conduit
Purchasers"), The Chase Manhattan Bank, as Committed Purchaser and Funding Agent
for PARCO ("Chase"), CDC Financial Products Inc., as Committed Purchaser and
Funding Agent for Eiffel ("CDC") (collectively, the "Committed Purchasers"), and
The Chase Manhattan Bank, as Administrative Agent have entered into a
Receivables Transfer Agreement (as amended, supplemented or otherwise modified
from time to time, the "Receivables Transfer Agreement"), dated as of November
28, 2000, providing for, among other things, the transfer of undivided
percentage interests in certain receivables and related assets thereunder;
WHEREAS, the Transferor and the Sellers have entered into the
Receivables Purchase Agreement, dated as of November 28, 2000, to provide for
the sale of the Receivables and the Related Security; and
WHEREAS, the Transferor entered into a Credit Default Swap with a swap
provider acceptable to the Administrative Agent with respect to the payment
obligations of DaimlerChrysler AG under certain Receivables sold to the
Transferor (the "DaimlerChrysler Swap") and a Credit Default Swap with respect
to the payment obligations of Ford Motor Company under certain Receivables sold
to the Transferor (together with the DaimlerChrysler Swap, the "Swaps");
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used in this Credit Default
Swaps Assignment shall have the respective meanings assigned to such terms in
the Schedule A to the Receivables Transfer Agreement, as amended.
Section 2. Assignment. In order to secure and to provide for the
payment of amounts due pursuant to the Receivables Transfer Agreement, the
Transferor hereby
2
assigns, conveys, transfers, delivers and sets over unto the Administrative
Agent, its successors and assigns, and grants to the Administrative Agent in
each case for the benefit of the Committed Purchasers and the Funding Agents, a
security interest in, all right, title and interest of the Transferor in and to
the Swaps including, without limitation, all moneys due and to become due to the
Transferor thereunder or in connection therewith, whether payable as fees,
expenses, costs, indemnities, damages for the breach of such Swaps or otherwise,
and all rights, remedies, powers, privileges and claims of the Transferor under
or with respect to such Swaps (whether arising pursuant to the terms of such
Swaps or otherwise available to the Transferor at law or in equity), including,
without limitation, the right of the Transferor to enforce the obligations of
the swap provider thereunder and to give or withhold any and all consents,
requests, notices, directions, approvals, extensions or waivers under or with
respect to such Swaps to the same extent as the Transferor could but for the
assignment and security interest granted hereby.
Section 3. Successors and Assigns. This Credit Default Swaps Assignment
and the covenants set forth herein shall be binding upon and inure to the
benefit of the Transferor, the Administrative Agent, the Funding Agents and the
Committed Purchasers, respectively, and their respective successors and
permitted assigns.
Section 4. Governing Law. THIS ASSIGNMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 5. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Credit Default Swaps Assignment is
executed and delivered by The Chase Manhattan Bank, not individually or
personally but solely as Administrative Agent, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Administrative Agent
are made and intended not as personal representations, undertakings and
agreements by The Chase Manhattan Bank, (c) nothing herein contained shall be
construed as creating any liability of the Administrative Agent, individually or
personally, to perform any covenant under the Credit Default Swaps Assignment
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties who are signatories to this Credit Default Swaps
Assignment and by any Person claiming by, through or under such parties;
provided, however, the Administrative Agent shall be liable in its individual
capacity for its own
3
willful misconduct or negligence and (d) under no circumstances shall the
Administrative Agent be personally liable for the payment of any indebtedness or
expenses or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under any Credit Default
Swaps Assignment; provided further, that the foregoing clauses (a) through (d)
shall survive the resignation or removal of the Administrative Agent.
The Transferor hereby agrees to indemnify and hold harmless the
Administrative Agent, the Funding Agents and the Committed Purchasers (each, an
"indemnified person") from and against any loss, liability, expense, damage or
injury suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of, or relating to, activities of the Transferor pursuant
to this Credit Default Swaps Assignment, including but not limited to any
judgment, award, settlement, reasonable attorneys' fees and other reasonable
costs or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim, except to the extent such loss,
liability, expense, damage or injury resulted from the negligence, bad faith or
willful misconduct of an indemnified person; provided that any payments made by
the Transferor pursuant to this subsection shall be made solely from funds
available to the Transferor which are not otherwise required to be applied to
the payment of any amounts pursuant to the Receivables Transfer Agreement (other
than to the Transferor), shall be non-recourse other than with respect to such
funds, and shall not constitute a claim against the Transferor to the extent
that insufficient funds exist to make such payment.
4
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Default Swaps Assignment to be executed as of _________ by their respective
duly authorized officers.
MTSPC, INC.
By: ___________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK,
not in its individual
capacity, but solely as
Administrative Agent
By: ___________________
Name:
Title:
5
ACKNOWLEDGED:
By: ___________________
Name:
Title:
