EXECUTION COPY
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RECEIVABLES PURCHASE AGREEMENT
among
TRIMAS CORPORATION,
THE SELLERS NAMED HEREIN
as Sellers
and
TSPC, INC.,
as Purchaser
Dated as of June 6, 2002
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Definitions...............................................................................1
SECTION 1.02. Other Terms...............................................................................1
SECTION 1.03. Computation of Time Periods...............................................................1
ARTICLE II
Purchase, Conveyance and Servicing of Receivables
SECTION 2.01. Sales.....................................................................................2
SECTION 2.02. Servicing of Receivables..................................................................3
ARTICLE III
Consideration and Payment; Reporting
SECTION 3.01. Purchase Price............................................................................4
SECTION 3.02. Payment of Purchase Price.................................................................4
SECTION 3.03. Reports...................................................................................6
SECTION 3.04. Transfer of Records.......................................................................6
SECTION 3.05. Payments and Computations.................................................................7
ARTICLE IV
Representations and Warranties
SECTION 4.01. Sellers' Representations and Warranties...................................................7
SECTION 4.02. Reaffirmation of Representations and Warranties by the Sellers; Notice of
Breach..................................................................................................10
ARTICLE V
Covenants of the Sellers
SECTION 5.01. Covenants of the Sellers.................................................................10
ARTICLE VI
Repurchase Obligation
Table of Contents Page ii
SECTION 6.01. Mandatory Repurchase.....................................................................16
SECTION 6.02. Dilutions, Etc...........................................................................17
ARTICLE VII
Conditions Precedent
SECTION 7.01. Conditions Precedent.....................................................................17
SECTION 7.02. Conditions Precedent to the Addition of a Seller.........................................18
ARTICLE VIII
Term and Termination
SECTION 8.01. Term.....................................................................................21
SECTION 8.02. Effect of Termination....................................................................21
SECTION 8.03. Termination of Sellers and Seller Divisions..............................................21
ARTICLE IX
Miscellaneous Provisions
SECTION 9.01. Amendments, Etc..........................................................................22
SECTION 9.02. Governing Law; Submission to Jurisdiction................................................22
SECTION 9.03. Notices..................................................................................23
SECTION 9.04. Severability of Provisions...............................................................24
SECTION 9.05. Assignment...............................................................................24
SECTION 9.06. Further Assurances.......................................................................24
SECTION 9.07. No Waiver; Cumulative Remedies...........................................................25
SECTION 9.08. Counterparts.............................................................................25
SECTION 9.09. Binding Effect; Third-Party Beneficiaries................................................25
SECTION 9.10. Merger and Integration...................................................................25
SECTION 9.11. Headings.................................................................................25
SECTION 9.12. Exhibits.................................................................................25
SECTION 9.13. Addition of Sellers......................................................................25
SECTION 9.14. Confidentiality..........................................................................26
SECTION 9.15. No Bankruptcy Petition Against the Purchaser.............................................26
SECTION 9.16. Waiver of Jury Trial.....................................................................27
Exhibit A - Form of Subordinated Note
Exhibit B - Litigation
Exhibit C - Form of Additional Seller Supplement
Schedule I - Location of Each Seller's Chief Executive Office
RECEIVABLES PURCHASE AGREEMENT
RECEIVABLES PURCHASE AGREEMENT, dated as of
June 6, 2002 (as amended, supplemented or otherwise
modified and in effect from time to time, this
"Agreement"), among TRIMAS CORPORATION, a Delaware
corporation ("TriMas Corp."), the subsidiaries of
TriMas Corp. identified as Sellers on Schedule I, as
sellers, (each, individually, a "Seller" and
collectively, the "Sellers"), and TSPC, INC., a
Nevada corporation, as purchaser (in such capacity,
the "Purchaser").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Purchaser desires to purchase from time to time certain
accounts receivable existing on the Initial Incremental Transfer Date and
thereafter until the Purchase Termination Date;
WHEREAS, the Sellers desire to sell and assign from time to time such
certain accounts receivable to the Purchaser upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed by and among
the Purchaser and the Sellers as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. All capitalized terms used herein shall have
the meanings specified herein or, if not so specified, the meaning specified in,
or incorporated by reference into, Schedule A to the Receivables Transfer
Agreement, dated as of the date hereof (as amended, supplemented or otherwise
modified and in effect from time to time, the "Receivables Transfer Agreement"),
by and among TSPC, Inc., as Transferor thereunder, TriMas Corp., individually,
as Collection Agent and TriMas LLC, individually, as Guarantor thereunder, the
several CP Conduit Purchasers, Committed Purchasers and Funding Agents named
therein, and JPMorgan Chase Bank, as Administrative Agent thereunder.
SECTION 1.02. Other Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP. All terms used in
Article 9 of the Relevant UCC, and not specifically defined herein, are used
herein as defined in such Article 9.
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RECEIVABLES PURCHASE AGREEMENT
SECTION 1.03. Computation of Time Periods. Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding," and the word "within" means
"from and excluding a specified date and to and including a later specified
date."
ARTICLE II
Purchase, Conveyance and Servicing of Receivables
SECTION 2.01. Sales. (a) Upon the terms and subject to the conditions
set forth herein, and without recourse (except such limited recourse as is
specifically provided for in Sections 5.01(q), 6.01 and 6.02), each of the
Sellers hereby sells, assigns, transfers and conveys to the Purchaser, and the
Purchaser hereby purchases from each of the Sellers, all of such Seller's right,
title and interest, whether now owned or hereafter acquired and wherever
located, in, to and under the Receivables outstanding on the Initial Incremental
Transfer Date and thereafter owned by each of the Sellers, through any Purchase
Termination Date, together with all Related Security and Collections with
respect thereto (to the extent that such right, title and interest was not
already purchased by the Purchaser) and all Proceeds of the foregoing. Such
interest in the Receivables, expressed as a dollar amount, shall be equal to the
aggregate unpaid balance of the Receivables from time to time. Any sale,
assignment, transfer and conveyance hereunder does not constitute an assumption
by the Purchaser of any obligations of the Sellers or any other Person to
Obligors or to any other Person in connection with the Receivables or under any
Related Security or any other agreement or instrument relating to the
Receivables.
(b) In connection with such sale, each Seller authorizes the filing on
or prior to the Initial Incremental Transfer Date, at its own expense, a
financing statement or statements (Form UCC-1) with respect to the Receivables
and the other property described in Section 2.01(a) sold by such Seller
hereunder meeting the requirements of applicable state law in such manner and in
such jurisdictions as are necessary to perfect and protect the interests of the
Purchaser created hereby in the Receivables under the Relevant UCC against all
creditors of, and purchasers from, such Seller, and to deliver either the
originals of such financing statements or a file-stamped copy of such financing
statements or other evidence of such filings to the Purchaser on or prior to the
Initial Incremental Transfer Date.
(c) Each of the Sellers agrees that from time to time, at its expense,
it will promptly execute and deliver all instruments and documents and take all
actions as may be necessary or as the Purchaser may reasonably request in order
to perfect or protect the interest of the Purchaser in the Receivables purchased
hereunder or to enable the Purchaser to exercise or enforce any of its rights
hereunder. Without limiting the foregoing, each Seller will, in order to
accurately reflect this purchase and sale transaction, execute and file such
financing or continuation statements or amendments thereto or assignments
thereof (as permitted pursuant hereto) as may be requested by the Purchaser and
xxxx its master data processing records (or related subledger) and other
documents with a legend describing the purchase by the Purchaser of
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RECEIVABLES PURCHASE AGREEMENT
the Receivables and the interest transferred by the Purchaser to the
Administrative Agent pursuant to the Receivables Transfer Agreement and stating
"Substantially all accounts receivable (including all Receivables as defined in
the Receivables Purchase Agreement dated as of June 6, 2002 (as amended or
otherwise modified from time to time), among TriMas Corporation, a Delaware
corporation, each of the Sellers listed on Schedule I thereto or added pursuant
to an Additional Seller Supplement, and TSPC, Inc., a Nevada corporation, as
purchaser) have been sold to TSPC, Inc. and then transferred to JPMorgan Chase
Bank, as Administrative Agent for various lenders. Details are available from
Treasurer, TriMas Corporation, as Collection Agent, at telephone No. (248)
000-0000." The Sellers shall, upon request of the Purchaser, obtain such
additional search reports as the Purchaser shall request. To the fullest extent
permitted by applicable law, the Purchaser shall be permitted to sign and file
continuation statements and amendments thereto and assignments thereof without
the Sellers' signatures. Carbon, photostatic or other reproduction of this
Agreement or any financing statement shall be sufficient as a financing
statement.
(d) It is the express intent of the Sellers (including TriMas Corp.)
and the Purchaser that the conveyance of the Receivables by the Sellers to the
Purchaser pursuant to this Agreement be construed as a sale of such Receivables
by the Sellers to the Purchaser. Further, it is not the intention of the Sellers
and the Purchaser that such conveyance be deemed a grant of a security interest
in the Receivables by the Sellers to the Purchaser to secure a debt or other
obligation of the Sellers. Except under the limited circumstances described in
Sections 5.01(q), 6.01 and 6.02 hereof, the Sellers shall have no right or
obligation hereunder to repurchase or otherwise reacquire any such Receivables.
Except as otherwise provided in Sections 5.01(q), 6.01 and 6.02 hereof, each
sale of Receivables by the Sellers hereunder is made without recourse of any
kind. However, in the event that, notwithstanding the intent of the parties, the
Receivables are construed to constitute property of the Sellers, then (i) this
Agreement shall be deemed to be, and hereby is declared to be, a security
agreement within the meaning of the Relevant UCC; and (ii) the conveyances by
each of the Sellers provided for in this Agreement shall be deemed to be, and
each of the Sellers hereby grants to the Purchaser, a security interest in, to
and under all of such Seller's right, title and interest in, to and under the
Receivables outstanding on the Initial Incremental Transfer Date and thereafter
owned by such Seller, together with all Related Security and Collections with
respect thereto and all Proceeds of the foregoing, whether now owned or
hereafter acquired and wherever located, to secure the rights of the Purchaser
set forth in this Agreement or as may be determined in connection therewith by
applicable law. The Sellers and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Receivables,
such security interest would be deemed to be a perfected security interest in
favor of the Purchaser under applicable law and will be maintained as such
throughout the term of this Agreement.
SECTION 2.02. Servicing of Receivables. The servicing, administering
and collection of the Receivables shall be conducted by each of the Sellers, as
agents of the Collection Agent, in accordance with the terms and conditions of
the Receivables Transfer Agreement. Each Seller hereby agrees to perform, take
or cause to be taken all such action as may be necessary or advisable to collect
each Receivable from time to time, all in accordance
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RECEIVABLES PURCHASE AGREEMENT
with the terms and conditions of the Receivables Transfer Agreement, the Credit
and Collection Policy and applicable laws, rules and regulations and with the
care and diligence which each of the Sellers employs in servicing similar
receivables for its own account. The Collection Agent hereby appoints each of
the Sellers as its agent to enforce the Purchaser's rights and interests in, to
and under the Receivables, the Related Security and the Collections with respect
thereto. To the extent permitted by applicable law, each Seller hereby grants to
any Collection Agent appointed under the Receivables Transfer Agreement and at
any time following the designation of a Collection Agent other than TriMas
Corp., Metaldyne Corporation, any Seller or the Purchaser, to the Administrative
Agent an irrevocable power of attorney to take in the Seller's name and on
behalf of the Seller any and all steps necessary or desirable, in the reasonable
determination of the Collection Agent or the Administrative Agent, to collect
all amounts due under any and all Receivables, including, without limitation,
endorsing the Seller's name on checks and other instruments representing
Collections and enforcing such Receivables and the related Contracts. The
Collection Agent and each of the Sellers shall hold in trust for the Purchaser,
in accordance with its interests, all Records which evidence or relate to the
Receivables or Related Security, Collections and Proceeds with respect thereto.
Notwithstanding anything to the contrary contained herein, from and after the
occurrence of a Termination Event or a Collection Agent Default, the
Administrative Agent, upon written notice to the Collection Agent on behalf of
the CP Conduit Purchasers and the Committed Purchasers, shall have the absolute
and unlimited right to terminate the Sellers' servicing activities described in
this Section 2.02. In consideration of the foregoing, the Purchaser agrees to
pay each Seller a servicing fee of 0.5% per annum on the aggregate Outstanding
Balance of the Receivables sold by such Seller, payable monthly, for its
performance of the duties and obligations described in this Section 2.02;
provided that any such monthly payment shall be reduced by any amounts payable
in such month by the CP Conduit Purchasers or the Committed Purchasers to TriMas
Corp., in its capacity as Collection Agent pursuant to the Receivables Transfer
Agreement.
ARTICLE III
Consideration and Payment; Reporting
SECTION 3.01. Purchase Price. The purchase price for the Receivables
and related property conveyed to the Purchaser by the Sellers under this
Agreement (other than Receivables and related property contributed to the
Purchaser pursuant to the penultimate sentence of Section 3.02(a)) on any
Business Day shall be a dollar amount equal to (a) the product of (i) the
aggregate Outstanding Balance of the Receivables sold on such Business Day and
(ii) the then applicable Discount Percentage less (b) the amount of the deemed
Collection not paid in cash by the Transferror to the Collection Agent pursuant
to Section 2.10(a) of the Receivables Transfer Agreement (the "Purchase Price").
SECTION 3.02. Payment of Purchase Price. (a) The Purchase Price for
each Receivable sold hereunder on any Business Day shall be paid or provided for
on the Business Day on which such sale occurred (i) by payment in immediately
available funds to the extent the Purchaser has such funds available and (ii) to
the extent such funds are not available, by
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RECEIVABLES PURCHASE AGREEMENT
increasing the amount due under the Subordinated Note by notation thereon;
provided, however, that the aggregate outstanding principal amount of the
Subordinated Note on any Business Day (after giving effect to all repayments
thereof on or before such Business Day) shall not exceed the lesser of (x) 30%
of the Outstanding Balance of the Receivables purchased hereunder existing on
such Business Day and (y) an amount that would cause the Purchaser's net worth
(as defined in accordance with GAAP) to be less than $25,000,000. To the extent
that the Purchaser does not have sufficient cash or availability under the
Subordinated Note to pay the total Purchase Price for Receivables sold on any
Business Day in full, TriMas LLC may make or cause to be made a cash capital
contribution to the Purchaser. No sales of Receivables shall be made hereunder
on and after the Purchase Termination Date.
(b) All increases to the amount due under the Subordinated Note
pursuant to Section 3.02(a)(ii) (each, an "Advance") shall be evidenced by a
single subordinated note, duly executed on behalf of Purchaser, in substantially
the form of Exhibit A annexed hereto, delivered on the Closing Date and payable
to TriMas Corp., as agent for the Sellers (as amended, supplemented or otherwise
modified and in effect from time to time, the "Subordinated Note"). The
Collection Agent is hereby authorized by Purchaser to endorse on the schedule
attached to the Subordinated Note (or a continuation of such schedule attached
thereto and made a part thereof) an appropriate notation evidencing the date and
amount of each Advance, as well as the date and amount of each payment with
respect thereto; provided, however, that the failure of any Person to make such
a notation shall not affect any obligations of Purchaser thereunder. Any such
notation shall be conclusive and binding as to the date and amount of such
Advance, or payment of principal or interest thereon, absent manifest error.
(c) The terms and conditions of the Subordinated Note and all Advances
thereunder shall be as follows:
(i) Allocation of Advances. Advances shall be allocated among the
Sellers pro rata according to the Purchase Price due to each Seller on the
date such Advances are made.
(ii) Repayment of Advances. All amounts paid by the Purchaser with
respect to the Advances shall be allocated first to the repayment of accrued
interest until all such interest is paid, and then to the outstanding
principal amount of the Advances. TriMas Corp. shall apply and distribute
all payments of principal pro rata among the Sellers according to the
outstanding Advances of each Seller. Subject to the provisions of this
Agreement, the Purchaser may borrow, repay and reborrow Advances on and
after the date hereof and prior to the termination of this Agreement,
subject to the terms, provisions and limitations set forth herein.
(iii) Interest. The Subordinated Note shall bear interest from its date
on the outstanding principal balance thereof at an initial rate per annum
equal to 4.75%, adjusted on each Interest Payment Date (as defined therein)
to an amount equal to the Prime Rate (as defined therein). Interest on each
Advance shall be computed based on the number of days elapsed in a year of
360 days.
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RECEIVABLES PURCHASE AGREEMENT
(iv) Sole and Exclusive Remedy; Subordination. The Purchaser shall be
obligated to repay Advances to TriMas Corp., as agent for the Sellers, only
to the extent of funds available to the Purchaser from Collections on the
Receivables and, to the extent that such payments are insufficient to pay
all amounts owing to the Sellers under the Subordinated Note, the Sellers
shall not have any claim against the Purchaser for such amounts and no
further or additional recourse shall be available against Purchaser. The
Subordinated Note shall be fully subordinated to any rights of the
Administrative Agent, on behalf of the CP Conduit Purchasers and the
Committed Purchasers pursuant to the Receivables Transfer Agreement and the
Asset Purchase Agreement, and shall not evidence any rights in the
Receivables or related property.
(v) Offsets, etc. The Purchaser may offset any amount due and owing by
the Sellers to the Purchaser against any amount due and owing by the
Purchaser to TriMas Corp., as agent for the Sellers, under the terms of the
Subordinated Note.
SECTION 3.03. Reports. Each Seller will furnish to the Collection Agent
all information with respect to the Receivables sold by such Seller under this
Agreement required by the Collection Agent in order to complete the weekly
Deposit Reports and monthly Settlement Statements delivered by the Collection
Agent pursuant to the Receivables Transfer Agreement. Each delivery of a Deposit
Report and Settlement Statement by the Collection Agent shall be deemed to be a
representation and warranty by each Seller that all information set forth in
those reports with respect to the Receivables sold by such Seller under this
Agreement and Collections thereof is true and correct.
SECTION 3.04. Transfer of Records. (a) In connection with the Purchase
of Receivables hereunder, each of the Sellers hereby sells, transfers, and
conveys to the Purchaser all of its right and title to and interest in the
Records relating to all of its Receivables sold hereunder, without the need for
any further documentation in connection with any Purchase. In connection with
such transfer, each of the Sellers hereby grants to the Purchaser, the
Collection Agent and the Administrative Agent an irrevocable, non-exclusive
license to use without royalty or payment of any kind, all software used by such
Seller to account for its Receivables, to the extent necessary to administer its
Receivables, whether such software is owned by TriMas Corp. or is owned by
others and used by TriMas Corp. under license agreements with respect thereto,
provided that should the consent of any licensor to such grant of license
described herein be required, each Seller agrees that upon the request of the
Purchaser, the Collection Agent or the Administrative Agent, such Seller will
use reasonable efforts to obtain the consent of such third- party licensor. The
irrevocable license hereby granted shall terminate on the date when the Net
Investment has been reduced to zero, all other Aggregate Unpaids have been paid
in full and the Commitments have been terminated.
(b) Each Seller shall take such action as requested by the Purchaser,
from time to time hereafter, that may be necessary or appropriate to ensure that
the Purchaser and its assignees have an enforceable right to use all Records and
all software used to account for the Receivables and/or recreate such records.
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RECEIVABLES PURCHASE AGREEMENT
(c) The use of Records by the Purchaser is subject to Section 9.14 of
this Agreement.
SECTION 3.05. Payments and Computations. All amounts due to be
paid or deposited by the Purchaser hereunder shall be paid or deposited in
accordance with the terms hereof on the day when due in immediately available
funds to the account designated from time to time by the Sellers or as otherwise
directed by the Sellers. In the event that any payment owed by any Person
hereunder becomes due on a day that is not a Business Day, then such payment
shall be made on the next succeeding Business Day. Except as otherwise provided
in the Transaction Documents, any amount due hereunder that is not paid when due
hereunder shall bear interest at the Base Rate as in effect from time to time
until paid in full; provided, however, that such interest rate shall not at any
time exceed the maximum rate permitted by applicable law. All computations of
interest payable hereunder shall be made on the basis of a year of 360 days for
the actual number of days (including the first, but excluding the last) elapsed.
ARTICLE IV
Representations and Warranties
SECTION 4.01. Sellers' Representations and Warranties. Each of the
Sellers represents and warrants to the Purchaser as of the Closing Date and on
each Business Day on which Receivables are sold hereunder:
(a) Corporate Existence and Power. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the state
of its incorporation and has all requisite corporate power and all material
governmental licenses, authorizations, consents and approvals required to
carry on its business in each jurisdiction in which its business is now
conducted except where the failure to have such licenses, authorizations,
consents and approvals would not have a Material Adverse Effect. The Seller
is duly qualified to do business in, and is in good standing in, every other
jurisdiction in which the nature of its business requires it to be so
qualified, except where the failure to be so qualified or in good standing
would not have a Material Adverse Effect.
(b) Corporate and Governmental Authorization; Contravention. The
execution, delivery and performance by the Seller of the Transaction
Documents to which it is a party are within the Seller's corporate powers,
have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any Official Body or official
thereof (except for the filing of UCC financing statements as required by
this Agreement), and to the best of the Sellers' knowledge, do not
contravene, or constitute a default under, any provision of applicable law,
rule or regulation or of the Certificate of Incorporation or the By-Laws (or
other organizational documents) of the Seller or of any agreement, judgment,
injunction, order, writ, decree or other instrument binding upon the Seller
or result in the creation or imposition of any Adverse Claim on the assets
of the
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RECEIVABLES PURCHASE AGREEMENT
Seller (except those created by this Agreement, the Receivables Transfer
Agreement and the Asset Purchase Agreement).
(c) Valid Sale; Binding Effect. Each purchase of Receivables and
Related Security by the Purchaser hereunder shall constitute a valid sale
and assignment by the Seller to the Purchaser, enforceable against creditors
of, and purchasers from, the Seller. Each of the Transaction Documents to
which the Seller is a party will constitute the legal, valid and binding
obligation of the Seller, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws affecting the rights of creditors and
general equitable principles (whether considered in a proceeding in equity
or at law).
(d) Quality of Title. Immediately preceding the sale of the Receivables
and Related Security pursuant to this Agreement, the Seller was the owner of
all of the Receivables, free and clear of all liens, encumbrances, security
interests, preferences or other security arrangement. On or prior to the
date hereof, all financing statements and other documents required to be
recorded or filed in order to perfect and protect the interest of the
Purchaser in, to and under the Receivables against all creditors of and
purchasers from the Seller will have been duly executed and delivered to the
Purchaser or its representative for filing in each filing office necessary
for such purpose and all filing fees and taxes, if any, payable in
connection with such filings shall have been provided for in full.
(e) Accuracy of Information. All written information heretofore
furnished by the Seller to the Purchaser, the Collection Agent and the
Administrative Agent for purposes of or in connection with this Agreement,
any other Transaction Document, or any transaction contemplated hereby or
thereby is, and all such information hereafter furnished by the Seller to
the Purchaser, the Collection Agent, the Administrative Agent, the Funding
Agents, the CP Conduit Purchasers and the Committed Purchasers will be, true
and accurate in every material respect, on the date such information is
stated or certified.
(f) Tax Status. The Seller has filed all material tax returns (Federal,
state and local) required to be filed and has paid or made adequate
provision for the payment of all material taxes, assessments and other
similar governmental charges other than taxes contested in good faith and
for which adequate reserves have been established in accordance with GAAP
and taxes which are not yet due and payable.
(g) Litigation. Except as set forth in Exhibit B hereof, there are no
actions, suits or proceedings pending, or to the knowledge of the Seller
threatened, against or affecting the Seller or any Affiliate of the Seller
or their respective properties, in or before any court, arbitrator or other
Official Body, which could reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect.
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RECEIVABLES PURCHASE AGREEMENT
(h) Place of Business. The state and form of organization, principal
place of business and chief executive office of the Seller are located at
the address specified on Schedule I, and the offices where the Seller keeps
all its Records, are located at the address specified on Schedule I, or such
other locations notified to the Purchaser in accordance with this Agreement
in jurisdictions where all action required by the terms of this Agreement
has been taken and completed.
(i) Solvency. The Seller is not insolvent, does not have unreasonably
small capital with which to carry on its business, is able to pay its debts
generally as they become due and payable, and its liabilities do not exceed
its assets. TriMas Corp. is, and TriMas Corp. and its Subsidiaries are, on a
consolidated basis, solvent.
(j) Tradenames, Etc. As of the date hereof: (i) The Seller has only the
subsidiaries and divisions listed on Exhibit J to the Receivables Transfer
Agreement; and (ii) the Seller has, within the last five years, operated
only under the tradenames identified on Exhibit J to the Receivables
Transfer Agreement, and, within the last five (5) years, has not changed its
name, merged with or into or consolidated with any other corporation or been
the subject of any proceeding under Xxxxx 00, Xxxxxx Xxxxxx Code
(Bankruptcy), except as disclosed in Exhibit J to the Receivables Transfer
Agreement.
(k) Nature of Receivables. Each Receivable included in the calculation
of the Net Receivables Balance in fact satisfies at such time the definition
of "Eligible Receivable" and is an "eligible asset" as defined in Rule 3a-7
under the Investment Company Act of 1940, as amended, and is not a Defaulted
Receivable.
(l) Credit and Collection Policy. Since the Closing Date, there have
been no material changes in the Credit and Collection Policy other than as
permitted hereunder.
(m) Collections and Servicing. Since March 31, 2002, there has been no
material adverse change in the ability of the Seller to service and collect
the Receivables.
(n) Binding Effect of Receivables and Contract. Each Receivable and
related Contract constitutes a legal, valid and binding obligation of the
Obligor, enforceable against the Obligor, subject to the effect of
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and general equitable principles (whether considered in a
proceeding at law or in equity).
(o) Not an Investment Company. The Seller is not, nor is it controlled
by, an "investment company" within the meaning of the Investment Company Act
of 1940, as amended, and it is exempt from all provisions of such Act.
(p) ERISA. The Seller and its ERISA Affiliates are in compliance with
ERISA, except for any noncompliance which would not reasonably be expected
to have a Material Adverse Effect, and no lien exists in favor of the
Pension Benefit Guaranty Corporation on any of the Receivables.
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RECEIVABLES PURCHASE AGREEMENT
(q) Lock-Box Accounts. The names and addresses of all the Lock-Box
Banks, together with the account numbers of the Lock-Box Accounts at such
Lock-Box Banks, are specified in Exhibit C to the Receivables Transfer
Agreement. All Obligors have been instructed to make payment to a Lock-Box
Account.
(r) Bulk Sales. No transaction contemplated by this Agreement requires
compliance with any bulk sales act or similar law.
(s) Reasonably Equivalent Value. The Purchase Price constitutes
reasonably equivalent value in consideration for the transfer by each Seller
to the Purchaser of Receivables from such Seller pursuant to this Agreement
and no such transfer has been made for or on account of an antecedent debt
owed by such Seller to the Purchaser, and no such transfer is or may be
voidable or subject to avoidance under any section of the Bankruptcy Code.
(t) Regulations T, U and X. No proceeds of the sales of Receivables
under this Agreement will be used by the Seller to acquire any security in
any transaction which violates Regulation T, U or X of the Federal Reserve
Board.
SECTION 4.02. Reaffirmation of Representations and Warranties by the
Sellers; Notice of Breach. On the Closing Date and on each Business Day on which
Receivables are sold hereunder, the Sellers, by accepting the proceeds of such
sale, shall be deemed to have certified that all representations and warranties
described in Section 4.01 are true and correct on and as of such day as though
made on and as of such day. The representations and warranties set forth in
Section 4.01 shall survive (i) the conveyance of the Receivables to the
Purchaser, (ii) the termination of the rights and obligations of the Purchaser
and the Sellers under this Agreement and (iii) the termination of the rights and
obligations of the Transferor, the Sellers and the Funding Agent under the
Receivables Transfer Agreement. Upon the coming to the knowledge of any
Responsible Officer of the Purchaser or any of the Sellers of a breach of any of
the foregoing representations and warranties, the party with knowledge of such
breach shall give prompt written notice to the other within three (3) Business
Days of such discovery.
ARTICLE V
Covenants of the Sellers
SECTION 5.01. Covenants of the Sellers. Each of the Sellers hereby
covenants and agrees with the Purchaser that, unless otherwise specified herein,
for so long as this Agreement is in effect, and until all Receivables which have
been sold to the Purchaser pursuant hereto, shall have been paid in full or
written-off as uncollectible, and all amounts owed by the
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RECEIVABLES PURCHASE AGREEMENT
Sellers pursuant to this Agreement have been paid in full, unless the Purchaser,
the Administrative Agent and the Required Committed Purchasers otherwise consent
in writing, as follows:
(a) Conduct of Business. The Seller will, and will cause each of its
Affiliates to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly organized, validly
existing and in good standing in its jurisdiction of incorporation and will
maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted except where the failure to
be so qualified or in good standing would not have a Material Adverse
Effect.
(b) Compliance with Laws. The Seller will, and will cause each of its
Affiliates to, comply in all material respects with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to
which it may be subject, except to the extent that the failure to comply
with such laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards would not materially adversely affect the ability of the
Seller to perform its obligations under this Agreement.
(c) Furnishing of Information and Inspection of Records. The Seller
will furnish to the Purchaser from time to time such information with
respect to itself or the Receivables as the Purchaser may reasonably
request, including, without limitation, listings identifying the Obligor and
the Outstanding Balance for each Receivable. The Seller will at any time and
from time to time during regular business hours, upon reasonable notice (it
being agreed that one Business Day's notice shall be reasonable when a
Termination Event or Potential Termination Event has taken place and is
continuing), and at the Purchaser's expense, permit the Purchaser, its
agents or representatives or such other individuals as the Purchaser may
reasonably request, (i) to examine and make copies of and abstracts from all
Records and (ii) to visit the offices and properties of the Seller for the
purpose of examining such Records, and to discuss matters relating to
Receivables or the Seller's performance hereunder with any of the officers
or employees of the Seller having knowledge of such matters.
(d) Keeping of Records and Books of Account. The Seller will maintain a
system of accounting established and administered in accordance with
generally accepted accounting principles, consistently applied, and will
maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing Receivables in
the event of the destruction of the originals thereof), and keep and
maintain, or obtain, as and when required, all documents, books, records and
other information reasonably necessary or advisable for the collection of
all Receivables (including, without limitation, records adequate to permit
the daily identification of each Receivable and all Collections of and
adjustments to each existing Receivable). The Seller will give the Purchaser
prompt notice of any change in the administrative and operating procedures
referred to in the previous sentence to the extent such change could
reasonably be expected to have a Material Adverse Effect.
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RECEIVABLES PURCHASE AGREEMENT
(e) Performance and Compliance with Receivables and Contracts. The
Seller at its expense will timely and fully perform and comply with all
material provisions, covenants and other promises required to be observed by
it under the Contracts related to the Receivables.
(f) Credit and Collection Policies. The Seller will comply in all
material respects with the Credit and Collection Policy in regard to each
Receivable and the related Contract.
(g) Collections. The Seller shall instruct all Obligors to cause all
Collections to be deposited directly to a Lock-Box Account.
(h) Collections Received. As of and subsequent to the Initial
Incremental Transfer Date, the Seller shall hold in trust for the Purchaser,
and deposit immediately (and in any event within one Business Day) after
receipt thereof to a Lock-Box Account all Collections received from time to
time by the Seller. The Seller shall prevent the deposit of any funds other
than Collections into any of the Lock-Box Accounts and, to the extent that
any such funds are nevertheless deposited into any of such Lock-Box
Accounts, promptly (and in any event within one Business Day) identify any
such funds to the Collection Agent for segregation and remittance to the
owner thereof. If such Seller or any of its agents or representatives or
Affiliates shall at any time receive any cash, checks or other instruments
constituting Collections, such recipient shall segregate such payments and
hold such payments in trust for the Purchaser and shall, promptly upon
receipt (and in any event within one Business Day following receipt), remit
all such collections, duly endorsed or with duly executed instruments of
transfer, to a Lock-Box Account.
(i) Sale Treatment. The Seller agrees to treat each conveyance
hereunder for all purposes (including, without limitation, tax and financial
accounting purposes) as a sale and, to the extent any such reporting is
required, shall report the transactions contemplated by this Agreement on
all relevant books, records, tax returns, financial statements and other
applicable documents as a sale of the Receivables to the Purchaser.
(j) No Sales, Liens, Etc. Except as otherwise provided herein, the
Seller will not sell, assign (by operation of law or otherwise) or otherwise
dispose of, or create or suffer to exist any Adverse Claim upon (except for
the filing of any financing statement as required under this Agreement) or
with respect to, any Receivable, Related Security or Collections or upon or
with respect to any Lock-Box Account to which any Collections of any
Receivable are sent, or, in each case, assign any right to receive income in
respect thereof.
(k) No Extension or Amendment of Receivables. The Seller will not
extend, amend or otherwise modify the terms of any Receivable, or amend,
modify or waive any term or condition of any Contract related thereto in a
manner which adversely affects the
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RECEIVABLES PURCHASE AGREEMENT
amount or collectibility of any Receivable, except as provided in Section
2.02 hereof or in the Receivables Transfer Agreement, without the prior
written consent of the Purchaser.
(l) No Change in Credit and Collection Policy. Except as provided in
the Receivables Transfer Agreement, the Seller will not make any change in
the Credit and Collection Policy, which change might impair the Seller's
ability to collect the Receivables, considered as a whole, in any respect.
(m) No Mergers, Etc. The Sellers will not (i) consolidate or merge with
or into any other Person, or (ii) sell, lease or transfer all or
substantially all of its assets to any other Person; provided, that the
Seller may merge with another Person if the Seller is the surviving entity
and such merger or consolidation does not cause a Termination Event or
Potential Termination Event under Section 7.01(h) of the Receivables
Transfer Agreement.
(n) Change in Payment Instructions to Obligors; Deposits to Lock-Box
Accounts. The Sellers will not add or terminate, or make any change to, any
Lock-Box Account, except in accordance with the Receivables Transfer
Agreement. The Seller will not deposit or otherwise credit, or cause or
permit to be so deposited or credited, to any Lock- Box Account, cash or
cash proceeds other than Collections of Receivables.
(o) Change of Name, Etc. As of and subsequent to the Initial
Incremental Transfer Date, the Seller shall not change its name,
jurisdiction of organization, form of organization, taxpayer identification
number or state organization number, unless at least ten (10) days prior to
the effective date of any such change the Seller delivers to the Purchaser
and the Administrative Agent (i) financing statements under the Relevant
UCC, executed by the Seller, necessary to reflect such change and to
continue the perfection of the Purchaser's interest in the Receivables and
(ii) new or revised Lock-Box Account Agreements which reflect such change
and enable the Administrative Agent, on behalf of the CP Conduit Purchasers
and the Committed Purchasers, to exercise its rights under the Transaction
Documents.
(p) Separate Existence. The Seller shall:
(i) Maintain its deposit account or accounts, separate from those
of the Purchaser and use its commercially reasonable efforts to ensure
that its funds will not be diverted to the Purchaser and that its funds
and assets will not be commingled with those of the Purchaser;
(ii) To the extent that it shares any officers or other employees
with the Purchaser, fairly allocate between it and the Purchaser the
salaries of and the expenses related to providing benefits to such
officers and other employees, and the Seller and the Purchaser shall
bear their respective fair share of the salary and benefit costs
associated with all such common officers and employees;
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RECEIVABLES PURCHASE AGREEMENT
(iii) To the extent that it jointly contracts with the Purchaser
to do business with vendors or service providers or to share overhead
expenses, fairly allocate between it and the Purchaser the costs
incurred in so doing, and it and the Purchaser shall bear their fair
shares of such costs; and to the extent that it contracts or does
business with vendors or service providers where the goods and services
provided are partially for the benefit of the Purchaser, the costs
incurred in so doing shall be fairly allocated between it and the
Purchaser in proportion to the benefit of the goods or services each is
provided, and the Seller and the Purchaser shall bear their fair shares
of such costs;
(iv) Enter into all material transactions with the Purchaser,
whether currently existing or hereafter entered into, only on an arm's
length basis, it being understood and agreed that the transactions
contemplated in the Transaction Documents meet the requirements of this
clause (iv);
(v) Maintain office space separate from the office space of the
Purchaser (but which may be located at the same address as the
Purchaser). To the extent that it and the Purchaser have offices in the
same location, there shall be a fair and appropriate allocation of
overhead costs between them, and each shall bear its fair share of such
expenses subject to a written sublease agreement;
(vi) Conduct its affairs strictly in accordance with its
certificate of incorporation and observe all necessary, appropriate and
customary corporate formalities, including, but not limited to, holding
all regular and special stockholders' and directors' meetings
appropriate to authorize all corporate action, keeping separate and
accurate minutes of its meetings, passing all resolutions or consents
necessary to authorize actions taken or to be taken, and maintaining
accurate and separate books, records and accounts, including, but not
limited to, payroll and intercompany transaction accounts;
(vii) Not assume or guarantee any of the liabilities of the
Purchaser;
(viii) Take, or refrain from taking, as the case may be, all other
actions that are necessary to be taken or not to be taken in order (x)
to ensure that the assumptions and factual recitations set forth in the
Specified Bankruptcy Opinion Provisions remain true and correct with
respect to it (and, to the extent within its control, to ensure that
the assumptions and factual recitations set forth in the Specified
Bankruptcy Opinion Provisions remain true and correct with respect to
the Purchaser) and (y) to comply with those procedures described in
such provisions that are applicable to it;
(ix) Maintain its books of account, financial reports and
corporate records of the Seller separately from those of TriMas Corp.
and each other Affiliate of the Seller;
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RECEIVABLES PURCHASE AGREEMENT
(x) Cause its accounting records and the published financial
statements to clearly show that, for accounting purposes, the
Receivables and Related Security have been sold to the Purchaser;
(xi) Maintain its assets in a manner that facilitates their
identification and segregation from those of TriMas Corp., the other
Sellers, the Purchaser and other Affiliates of TriMas Corp.;
(xii) Not, directly or indirectly, name the Purchaser or enter
into any agreement to name the Purchaser a direct or contingent
beneficiary or loss payee or any insurance policy covering the property
of the Seller; and
(xiii) Not be, nor will hold itself out to be, responsible for the
debts of the Purchaser or the decisions or actions in respect of the
daily business and affairs of the Purchaser and immediately correct any
known misrepresentation with respect to the foregoing. The Sellers, the
Purchaser and their Affiliates will not operate or purport to operate
as an integrated single economic unit with respect to each other or in
their dealing with any other entity.
(q) Indemnification. The Seller agrees to indemnify, defend and hold
the Purchaser harmless from and against any and all losses, liabilities,
damages, judgments, claims, deficiencies, costs, disbursements and expenses
including, without limitation, interest, penalties, reasonable attorneys'
fees and amounts paid in settlement) to which the Purchaser may become
subject insofar as such losses, liabilities, damages, judgments, claims,
deficiencies, costs, disbursements or expenses arise out of or are based
upon a breach by the Seller of its representations, warranties and covenants
contained herein, or any information certified in any schedule or
certificate delivered by any of the Sellers hereunder or in connection with
the Transaction Documents, being untrue in any material respect at any time;
provided that in no event shall this Section 5.01(q) be construed to include
uncollectibility of any Receivable for credit-related reasons pertaining to
the related Obligor. The obligations of the Seller under this Section
5.01(q) shall be considered to have been relied upon by the Purchaser and
the Administrative Agent, on behalf of the CP Conduit Purchasers, the
Funding Agents and the Committed Purchasers, and shall survive the
execution, delivery, performance and termination of this Agreement for a
period of three (3) years following the Purchase Termination Date,
regardless of any investigation made by the Purchaser or the Administrative
Agent or on behalf of either of them.
It is expressly understood and agreed by the parties (i) that the
foregoing indemnification is not intended to, and shall not constitute a
guarantee of the collectibility or payment of the Receivables and (ii) that
nothing in this Section 5.01(q) shall constitute recourse (except as otherwise
specifically provided in this Agreement) for (a) uncollectible Receivables or
other obligations hereunder or related costs or expenses resulting from such
indemnified Person's gross negligence or wilful misconduct, (b) any franchise
taxes owed by such indemnified Person or (c) any other taxes imposed against
such indemnified Person on account of its ownership of
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RECEIVABLES PURCHASE AGREEMENT
the Receivables to the extent such taxes are measured by or against the gross or
net income or receipts of such Person.
(r) ERISA. (i) The Seller will not (A) engage or permit any of its
ERISA Affiliates to engage in any prohibited transaction (as defined in
Section 4975 of the Code and Section 406 of ERISA) for which an exemption is
not available or has not previously been obtained from the U.S. Department
of Labor; (B) permit to exist any accumulated funding deficiency (as defined
in Section 302(a) of ERISA and Section 412(a) of the Code) or funding
deficiency with respect to any Benefit Plan other than a Multiemployer Plan;
(c) fail to make any payments to any Multiemployer Plan that the Seller or
any ERISA Affiliate of the Seller is required to make under the agreement
relating to such Multiemployer Plan or any law pertaining thereto; (D)
terminate any Benefit Plan so as to result in any liability to the Pension
Benefit Guaranty Corporation; or (E) permit to exist any occurrence of any
reportable event described in Title IV of ERISA which represents a material
risk of a liability to the Sellers, or any ERISA Affiliate of the Seller
under ERISA or the Code, if such prohibited transactions, accumulated
funding deficiencies, failure to make payments, terminations and reportable
events occurring within any fiscal year of the Seller, in the aggregate,
involve a payment of money or an incurrence of liability by the Seller or
any ERISA Affiliate of the Seller, in an amount which would reasonably be
expected to have a Material Adverse Effect and (ii) the Seller shall
promptly give the Purchaser written notice upon becoming aware that the
Seller is not in compliance with ERISA if such non compliance would
reasonably be expected to have a Material Adverse Effect or that any ERISA
lien on any of the Receivables exists and, promptly after the receipt or
filing thereof, shall provide the Purchaser with copies of all reports and
notices with respect to any reportable event (as defined in Article IV of
ERISA) which the Seller or any ERISA Affiliate thereof files under ERISA
with the Internal Revenue Service, the Pension Benefit Guaranty Corporation
or the U.S. Department of Labor or which the Seller or any ERISA Affiliate
thereof receives from the Internal Revenue Service, the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor.
(s) Amendments to Credit Agreement. The Seller agrees not to amend the
Credit Agreement without the Purchaser's consent.
ARTICLE VI
Repurchase Obligation
SECTION 6.01. Mandatory Repurchase. (a) Breach of Representation or
Warranty. If any Receivable which has been sold by any Seller hereunder and
which has been reported by such Seller as an Eligible Receivable to the
Collection Agent in the reports of such Seller delivered pursuant to Section
3.03 shall have failed to meet the conditions set forth in the definition of
Eligible Receivable on the date of such report or if, on any day, any
representation or warranty made herein in respect of such Receivable shall no
longer be true in any material
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RECEIVABLES PURCHASE AGREEMENT
respect, such Seller shall be deemed to have received on the date of such report
or such day, as applicable, a Collection of such Receivable in full and shall on
such day pay to the Purchaser an amount equal to the aggregate Outstanding
Balance of such Receivable.
(b) Reconveyance Under Certain Circumstances. Each Seller agrees that,
in the event of a breach of any of the representations and warranties set forth
in Sections 4.01(d), (h), (j), (k), (l), (n), (o), and (p), with respect to any
Receivable which has been sold hereunder, such Seller agrees to accept the
reconveyance of such Receivable upon receipt by such Seller of notice given in
writing by the Purchaser and such Seller's failure to cure such breach within
fifteen (15) days (or, in the case of Section 4.01(d) or (k), within one (1)
Business Day) after receipt of such notice. In the event of a reconveyance under
this Section 6.01(b), the Seller shall pay to the Purchaser in immediately
available funds on such 15th day (or such Business Day, if applicable) an amount
equal to the Outstanding Balance of any such Receivable.
SECTION 6.02. Dilutions, Etc. Each Seller agrees that if on any
Business Day the Outstanding Balance of a Receivable, an interest in which has
been sold by such Seller hereunder, is either (x) reduced as a result of
defective, rejected or returned goods or other dilution factor, any billing
adjustment or other adjustment, or (y) reduced or canceled as a result of (i) a
setoff or dispute in respect of any claim by any Person (whether such claim
arises out of the same or a related transaction or an unrelated transaction), or
(ii) any action by any Federal or state taxing authority or as a result of the
payment by any Obligor of any portion of a Receivable constituting a tax or
governmental fee or charge to any Person other than the Purchaser, then such
Seller shall be deemed to have received on such day a collection of such
Receivable in the amount of such reduction, cancelation or payment made by the
Obligor and shall on such day pay to the Purchaser an amount equal to such
reduction or cancelation (to the extent not netted against the Purchase Price on
such day pursuant to Section 3.01 hereof) on each Business Day of the calendar
month in which such reduction or cancelation occurred.
ARTICLE VII
Conditions Precedent
SECTION 7.01. Conditions Precedent. The obligations of the Purchaser to
purchase the Receivables on the Closing Date and on any Business Day on which
Receivables are sold hereunder shall be subject to the satisfaction of the
following conditions:
(a) All representations and warranties of the Sellers contained in this
Agreement shall be true and correct on the Closing Date and on the
applicable Business Day of sale, with the same effect as though such
representations and warranties had been made on such date;
(b) All information concerning the Receivables provided to the
Purchaser shall be true and correct in all material respects as of the
Closing Date, in the case of any Receivables sold on the Closing Date, or
the date such Receivables are created, in the
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RECEIVABLES PURCHASE AGREEMENT
case of any Receivables created after the Closing Date and sold by the
Sellers to the Purchaser on a subsequent Business Day;
(c) Each of the Sellers shall have substantially performed all other
obligations required to be performed by the provisions of this Agreement and
the other Transaction Documents to which it is a party;
(d) The Sellers shall have either filed or caused to be filed the
financing statement(s) required to be filed pursuant to Section 2.01(b);
(e) On the Closing Date, all corporate and legal proceedings, and all
instruments in connection with the transactions contemplated by this
Agreement and the other Transaction Documents shall be satisfactory in form
and substance to the Purchaser, and the Purchaser shall have received from
the Sellers copies of all documents (including, without limitation, records
of corporate proceedings) relevant to the transactions herein contemplated
as the Purchaser may reasonably have requested;
(f) On the Closing Date, the Sellers shall deliver to the Purchaser and
the Administrative Agent a statement of the aggregate Outstanding Balance of
the Receivables in existence as of the close of business on the second
Business Day prior to the Closing Date; and
(g) the Purchase Termination Date shall not have occurred.
SECTION 7.02. Conditions Precedent to the Addition of a
Seller. The obligation of the Purchaser to purchase Receivables and Related
Security hereunder from a Subsidiary of TriMas Corp. requested to be an
additional Seller pursuant to Section 9.13 is subject to the conditions
precedent that the Purchaser shall have received the following items on or
before the date designated for the addition of such Seller (the "Seller Addition
Date") and in form and substance satisfactory to the Purchaser:
(a) Additional Seller Supplement. An Additional Seller Supplement
substantially in the form of Exhibit C attached hereto (with a copy for the
Administrative Agent and each Funding Agent) duly executed and delivered by
such Seller;
(b) Secretary's Certificate. A certificate of the Secretary or an
Assistant Secretary of such Seller, dated the related Seller Addition Date,
and certifying (i) that attached thereto is a true and complete copy of the
by-laws (or similar organizational documents) of such Seller, as in effect
on the Seller Addition Date and at all times since a date prior to the date
of the resolutions described in clause (ii) below, (ii) that attached
thereto is a true and complete copy of the resolutions, in form and
substance reasonably satisfactory to the Purchaser, of the Board of
Directors (or other governing body or Person) of such Seller or committees
thereof authorizing the execution, delivery and performance of this
Agreement and the other Transaction Documents to which it is a party and the
transactions contemplated hereby and thereby, and that such resolutions have
not been
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RECEIVABLES PURCHASE AGREEMENT
amended, modified, revoked or rescinded and are in full force and effect,
(iii) that the articles of incorporation (or similar organizational
documents) of such Seller have not been amended since the date of the last
amendment thereto shown on the certificate of good standing (or its
equivalent) furnished pursuant to subsection (e) below and (iv) as to the
incumbency and specimen signature of each officer executing the Additional
Seller Supplement and any other Transaction Documents or any other document
delivered in connection therewith on behalf of such Seller (on which
certificates the Purchaser may conclusively rely until such time as the
Purchaser shall receive from such Seller a revised certificate with respect
to such Seller meeting the requirements of this subsection (b));
(c) Officer's Certificate. A Certificate of a Responsible Officer of
TriMas Corp., dated the related Seller Addition Date, and certifying such
Seller is in the same or a related line of business as the existing Sellers
as of the related Seller Addition Date;
(d) Corporate Documents. The organizational documents, including all
amendments thereto, of such Seller, certified as of a recent date by the
Secretary of State or other appropriate authority of the state of
incorporation, as the case may be;
(e) Good Standing Certificates. Certificates of compliance, of status
or of good standing, dated as of a recent date, from the Secretary of State
or other appropriate authority of such jurisdiction, with respect to such
Seller in each State where the ownership, lease or operation of property or
the conduct of business requires it to qualify as a foreign corporation,
except where the failure to so qualify would not have a Material Adverse
Effect;
(f) Consents, Licenses, Approvals, Etc. A certificate dated the related
Seller Addition Date of a Responsible Officer of such Seller either (i)
attaching copies of all consents (including, without limitation, consents
under loan agreements and indentures to which any Seller or its Affiliates
are parties), licenses and approvals required in connection with the
execution, delivery and performance by such Seller of the Additional Seller
Supplement and the validity and enforceability of the Additional Seller
Supplement against such Seller, and such consents, licenses and approvals
shall be in full force and effect or (ii) stating that no such consents,
licenses and approvals are so required;
(g) No Litigation. Confirmation that there is no pending or, to its
knowledge after due inquiry, threatened action or proceeding affecting such
Seller or any of its Subsidiaries before any Official Body that could
reasonably be expected to have a Material Adverse Effect;
(h) Lock-Boxes. A Lock-Box Account with respect to Receivables to be
sold by such Seller shall have been established in the name of the
Purchaser, each invoice issued to an Obligor on and after the related Seller
Addition Date shall indicate that payments in respect of its Receivable
shall be made by such Obligor to a Lock-Box Account or by wire transfer or
other electronic payment to a Lock-Box Account or the Collection Account and
the Collection Agent shall have delivered with respect to each Xxxx-Xxx
00
XXXXXXXXXXX XXXXXXXX AGREEMENT
Account a Lock-Box Agreement signed by the Purchaser, the Administrative
Agent and the applicable Lock-Box Bank;
(i) UCC Certificate; UCC Financing Statements. Executed copies of such
proper financing statements (or other similar instruments), filed and
recorded at such Seller's expense prior to the related Seller Addition Date,
naming such Seller as the seller and the Purchaser as the purchaser of the
Receivables and the Related Security, in proper form for filing in each
jurisdiction in which the Purchaser (or any of its assignees) deems it
necessary or desirable to perfect the Purchaser's ownership interest in all
Receivables and Related Security under the UCC or any comparable law of such
jurisdiction;
(j) UCC Searches. Written search reports, listing all effective
financing statements (or other similar instruments) that name such Seller as
debtor or assignor and that are filed in the jurisdictions in which filings
were made pursuant to subsection (i) above and in any other jurisdictions
that the Purchaser (or any of its assignees) determines are necessary or
appropriate, together with copies of such financing statements (none of
which, except for those described in subsection (i) above, shall cover any
Receivables or Related Security), and tax and judgment lien searches showing
no liens that are not permitted by the Transaction Documents;
(k) List of Obligors. A microfiche, typed or printed list or other
tangible evidence reasonably acceptable to the Purchaser showing, as of a
date acceptable to the Purchaser prior to the related Seller Addition Date,
the Obligors whose Receivables are to be transferred to the Purchaser and
the balance of the Receivables with respect to each such Obligor as of such
date;
(l) Back-up Servicing Arrangements. Evidence that such Seller maintains
disaster recovery systems or back-up computer or other information
management systems that, in the Purchaser's, the Administrative Agent's and
each Funding Agent's reasonable judgment, are sufficient to protect such
Seller's business against material interruption or loss or destruction of
its primary computer and information management systems;
(m) Systems. Evidence, reasonably satisfactory to the Purchaser, the
Administrative Agent and each Funding Agent, that such additional Seller's
systems, procedures and record keeping relating to the Receivables remain in
all material respects sufficient and satisfactory in order to permit the
purchase and administration of the Receivables in accordance with the terms
and intent of this Agreement;
(n) Opinions . The Purchaser shall have received (i) legal opinions on
behalf of such Seller as to general corporate matters (including an opinion
as to the perfection and priority of the Purchaser's interest in the
Receivables) and (ii) a certificate from a Responsible Officer of such
Seller stating that the Specified Bankruptcy Opinion Provisions are also
true and correct as to such Seller as of the Seller Addition Date, all in
form and substance reasonably satisfactory to the Administrative Agent and
the Funding Agents; and
20
RECEIVABLES PURCHASE AGREEMENT
(o) Other. Such other approvals or documents as the Purchaser (or any
of its assignees) may reasonably request from such additional Seller,
including, but not limited to, a pro-forma Deposit Report and Settlement
Statement incorporating the receivables data for at least the most recent
fourteen (14) months of such additional Seller.
ARTICLE VIII
Term and Termination
SECTION 8.01. Term. This Agreement shall commence as of the first day
on which all of the conditions precedent as set out in Section 7.01 have been
satisfied and shall continue in full force and effect until the earlier of (i)
the date designated by the Purchaser or the Sellers as the Purchase Termination
Date at any time following ten (10) days' written notice to the other (with a
copy thereof to the Administrative Agent), (ii) the date on which the
Administrative Agent, on behalf of the CP Conduit Purchasers, the Funding Agents
and the Committed Purchasers, declares a Termination Event pursuant to the
Receivables Transfer Agreement, (iii) upon the occurrence of an Event of
Bankruptcy with respect to either the Purchaser or any of the Sellers or (iv)
the date on which either the Purchaser or any of the Sellers becomes unable for
any reason to purchase or repurchase, respectively, any Receivable in accordance
with the provisions of this Agreement or defaults on its obligations hereunder,
which default continues unremedied for more than ten (10) days after written
notice to the defaulting party (any such date being a "Purchase Termination
Date"); provided, however, that the termination of this Agreement pursuant to
this Section 8.01 hereof shall not discharge any Person from any obligations
incurred prior to such termination or any obligations under Articles V or VI
with respect to Receivables arising prior to such termination, including,
without limitation, any obligations to make any payments with respect to any
Receivable sold prior to such termination.
SECTION 8.02. Effect of Termination. Following the termination of this
Agreement pursuant to Section 8.01, the Sellers shall not sell, and the
Purchaser shall not purchase, any Receivables. No termination, rejection or
failure to assume the executory obligations of this Agreement in any Event of
Bankruptcy with respect to the Sellers or the Purchaser shall be deemed to
impair or affect the obligations pertaining to any executed sale or executed
obligations, including, without limitation, pre-termination breaches of
representations and warranties by the Sellers or the Purchaser. Without limiting
the foregoing, prior to termination, the failure of the Sellers to deliver
computer records of Receivables or any reports regarding the Receivables shall
not render such transfer or obligation executory, nor shall the continued duties
of the parties pursuant to this Agreement render an executed sale executory.
SECTION 8.03. Termination of Sellers and Seller Divisions. (a) TriMas
Corp. hereby covenants and agrees with the Purchaser that TriMas Corp. shall not
permit any Seller at any time to cease to be a wholly-owned Subsidiary of TriMas
Corp., except as provided in the following paragraph (b).
21
RECEIVABLES PURCHASE AGREEMENT
(b) If TriMas Corp. wishes to permit any Seller to cease to be a
wholly-owned Subsidiary of TriMas Corp. or terminate the sales of Receivables
hereunder by any Seller or Seller Division, then TriMas Corp. shall submit a
request (a "Seller Termination Request") to such effect in writing to the
Purchaser, which request shall be accompanied by a certificate prepared by a
Responsible Officer of the Collection Agent indicating the Purchased Receivables
Percentage applicable to such Seller (or Seller Division) as of the date of
submission of such request (the "Seller Termination Request Date"). Subject to
the terms and provisions hereof and of the Receivables Transfer Agreement, the
relevant Seller (or Seller Division) shall be terminated as a Seller (or Seller
Division) hereunder immediately upon the earlier of the date set forth in the
Seller Termination Request or the consummation of the transaction in connection
with which such Seller ceases to be a wholly-owned Subsidiary of TriMas Corp. or
in the case of a Seller Division upon the satisfaction of any applicable
conditions in the Receivables Transfer Agreement. From and after the date any
such Seller (or Seller Division) is terminated as a Seller (or Seller Division)
pursuant to this subsection, the Seller (or Seller Division) shall cease
selling, and the Purchaser shall cease buying, Receivables and Related Security
from such Seller (or Seller Division) and a Purchase Termination Date shall be
deemed to have occurred, but only with respect to such Seller (or Seller
Division).
(c) A terminated Seller (or Seller Division) shall have no
further obligation under any Transaction Document, other than pursuant to
Sections 5.01(q), 6.01 and 6.02 of this Agreement, with respect to Receivables
previously sold by it to the Purchaser.
ARTICLE IX
Miscellaneous Provisions
SECTION 9.01. Amendments, Etc. This Agreement and the rights and
obligations of the parties hereunder may not be amended, supplemented, waived or
otherwise modified and no consent to any such amendment, supplement, waiver or
modification may be given except in an instrument in writing signed by the
Purchaser and the Sellers and consented to in writing by the Administrative
Agent (with the consent of the Required Committed Purchasers). Any reconveyance
executed in accordance with Section 5.01(q), 6.01 or 6.02 hereof shall not be
considered an amendment or modification to this Agreement.
SECTION 9.02. Governing Law; Submission to Jurisdiction. (a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York except to the extent that the validity or perfection of the
Purchaser's ownership of or security interest in the Receivables, or remedies
hereunder in respect thereof, are governed by the laws of a jurisdiction other
than the State of New York.
(b) The parties hereto hereby submit to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York state court sitting in The City of New York for purposes of all
legal proceedings arising out of or relating to this agreement or the
transactions contemplated hereby. Each party hereto hereby
22
RECEIVABLES PURCHASE AGREEMENT
irrevocably waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. Nothing in
this Section 9.02 shall affect the right of the Purchaser to bring any other
action or proceeding against any of the Sellers or its property in the courts of
other jurisdictions.
SECTION 9.03. Notices. (a) All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
or telecopied to:
(a) in the case of the Purchaser:
TSPC, Inc.
Xxxxxx Center, Suite 460
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
with copy to:
Comptroller
00000 Xxxxxxxx Xxxxxx Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
and
Xxxxxxxx X. Xxxxxxxxx
Xxxxxx Xxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
23
RECEIVABLES PURCHASE AGREEMENT
(b) in the case of the Sellers to the address set forth on
Schedule I; and
in each case, with a copy to:
JPMorgan Chase Bank,
as Administrative Agent
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Conduit Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: XXXXXXX@Xxxxx.xxx
with a copy to:
X.X. Xxxxxx Services
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxx 0/XX
Xxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
(b) Notices and communications by facsimile shall be effective upon
receipt.
SECTION 9.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
SECTION 9.05. Assignment. This Agreement may not be assigned by the
parties hereto, except that the Purchaser may assign its rights hereunder
pursuant to the Receivables Transfer Agreement to the Administrative Agent for
the benefit of the CP Conduit Purchasers, the Funding Agents and the Committed
Purchasers as security for the Purchaser's repayment obligations under the
Receivables Transfer Agreement and the Asset Purchase Agreement. The Purchaser
hereby notifies the Sellers, and the Sellers hereby acknowledge and agree, that
the Purchaser, pursuant to the Receivables Transfer Agreement, has assigned its
rights (but not its obligations) hereunder to the Administrative Agent for the
benefit of the CP Conduit Purchasers and the Committed Purchasers and that the
representations, warranties, covenants and agreements of the Sellers contained
in this Agreement and the rights, powers and remedies of the Purchaser under
this Agreement are intended to benefit the CP Conduit Purchasers and the
24
RECEIVABLES PURCHASE AGREEMENT
Committed Purchasers and will be directly enforceable by the Administrative
Agent on their behalf. All rights, powers and remedies of the Purchaser
hereunder may be exercised by the Administrative Agent to the extent of its
rights hereunder and under the other Transaction Documents.
SECTION 9.06. Further Assurances. The Purchaser and the Sellers agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the other party more
fully to effect the purposes of this Agreement and the other Transaction
Documents, including, without limitation, the execution of any financing
statements or continuation statements or equivalent documents relating to the
Receivables for filing under the provisions of the Relevant UCC or other laws of
any applicable jurisdiction.
SECTION 9.07. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Purchaser, the Sellers or the
Administrative Agent, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privilege provided by law.
SECTION 9.08. Counterparts. (a) This Agreement may be executed in two
or more counterparts thereof (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
(b) 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.
SECTION 9.09. Binding Effect; Third-Party Beneficiaries. This Agreement
and the other Transaction Documents will inure to the benefit of and be binding
upon the parties hereto and their respective successors, transferees and
permitted assigns. The CP Conduit Purchasers, the Funding Agents, Committed
Purchasers and the Administrative Agent are each intended by the parties hereto
to be third-party beneficiaries of this Agreement.
SECTION 9.10. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and the other Transaction Documents set forth
the entire understanding of the parties relating to the subject matter hereof,
and all prior understandings, written or oral, are superseded by this Agreement
and the other Transaction Documents.
SECTION 9.11. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 9.12. Exhibits. The schedules and exhibits referred to herein
shall constitute a part of this Agreement and are incorporated into this
Agreement for all purposes.
25
RECEIVABLES PURCHASE AGREEMENT
SECTION 9.13. Addition of Sellers. Subject to the terms and conditions
hereof, from time to time one or more wholly-owned direct or indirect
Subsidiaries of TriMas Corp. may become additional Seller parties hereto. If any
such Subsidiary wishes to become an additional Seller, TriMas Corp. shall submit
a request to such effect in writing to the Purchaser, the Administrative Agent,
the Funding Agents and each Rating Agency. If TriMas Corp., the Purchaser, the
Administrative Agent, each Funding Agent and each Rating Agency shall have
agreed to any such request (such consent not to be unreasonably withheld or
delayed from the date such request is received and such consent of each Funding
Agent being obtained by the Administrative Agent), such wholly-owned Subsidiary
shall become an additional Seller party hereto on the related Seller Addition
Date upon satisfaction of the conditions set forth in Section 7.02.
SECTION 9.14. Confidentiality. (a) Each of TriMas Corp., the Sellers
and the Purchaser shall maintain, and shall cause each officer, employee and
agent of itself and its Affiliates to maintain, the confidentiality of this
Agreement, the other Transaction Documents and all other confidential
proprietary information with respect to the other parties and each of their
respective businesses obtained by them in connection with the structuring,
negotiation and execution of the transactions contemplated herein and in the
other Transaction Documents, except for information that has become publicly
available or information disclosed (i) to legal counsel, accountants and other
professional advisors to the parties and their Affiliates, (ii) as required by
law, regulation or legal process (including in connection with any registration
Statement or other filing made with the SEC); or (iii) in connection with any
legal or regulatory proceeding to which the parties or any of their Affiliates
is subject. Each of the parties hereby consents to the disclosure of any
nonpublic information with respect to it received by any CP Conduit Purchaser,
any Committed Purchaser, any Funding Agent or the Administrative Agent to (i)
any of the CP Conduit Purchasers, Committed Purchasers, Funding Agents or the
Administrative Agent, (ii) any nationally recognized rating agency providing a
rating or proposing to provide a rating to the CP Conduit Purchasers' Commercial
Paper, (iii) any placement agent which proposes to offer and sell the CP Conduit
Purchasers' Commercial Paper, (iv) any provider of the CP Conduit Purchasers'
program-wide liquidity or credit support facilities, (v) any potential Committed
Purchaser, (vi) any Participant or potential Participant, (vii) to legal
counsel, accountants and other professional advisors to the CP Conduit
Purchasers, Committed Purchasers, Funding Agents or the Administrative Agent,
(viii) as required by law, regulation or legal process (including in connection
with any registration Statement or other filing made with the SEC) or (ix) in
connection with any legal or regulatory proceeding to which the CP Conduit
Purchasers, Committed Purchasers, Funding Agents or the Administrative Agent may
be subject to.
(b) Each of the parties hereto shall maintain, and shall cause each
officer, employee and agent of itself and its Affiliates to maintain, the
confidentiality of the Transaction Documents and all other confidential
proprietary information with respect to the CP Conduit Purchasers, the Committed
Purchasers, the Funding Agents and the Administrative Agent and each of their
respective businesses obtained by them in connection with the structuring,
negotiation and execution of the transactions contemplated herein and in the
other Transaction Documents, except for information that has become publicly
available or information disclosed
26
RECEIVABLES PURCHASE AGREEMENT
(i) to legal counsel, accountants and other professional advisors to the parties
and their Affiliates, (ii) as required by law, regulation or legal process
(including in connection with any registration statement or other filing made
with the SEC) or (iii) in connection with any legal or regulatory proceeding to
which the parties or any of their Affiliates is subject.
SECTION 9.15. No Bankruptcy Petition Against the Purchaser. TriMas
Corp. and each Seller hereby covenants and agrees that, prior to the date which
is one year and one day after the payment in full of all outstanding Commercial
Paper or other indebtedness of the CP Conduit Purchasers, it will not institute
against, or join any other Person in instituting against, the Purchaser any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any state of
the United States. The provisions set forth in this Section 9.15 shall be
continuing and shall survive any termination of this Agreement.
SECTION 9.16. Waiver of Jury Trial. Each of the parties hereto hereby
waives any right to have a jury participate in resolving any dispute, whether
sounding in contract, tort or otherwise among any of them arising out of,
connected with, relating to or incidental to the relationship between them in
connection with this Agreement or the other Transaction Documents. The
provisions of this Section 9.16 shall be continuing and shall survive any
termination of this Agreement.
27
RECEIVABLES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the Purchaser and the Sellers each have caused this
Receivables Purchase Agreement to be duly executed by their respective officers
as of the day and year first above written.
TRIMAS CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title:
28
RECEIVABLES PURCHASE AGREEMENT
As Sellers:
ARROW ENGINE COMPANY
BEAUMONT BOLT & GASKET, INC.
COMPAC CORPORATION
CONSUMER PRODUCTS, INC.
CUYAM CORPORATION
DI-RITE COMPANY
DRAW-TITE, INC.
ENTEGRA FASTENER CORPORATION
XXXXXX PERFORMANCE PRODUCTS, INC.
HITCH'N POST, INC.
INDUSTRIAL BOLT & GASKET, INC.
K. S. DISPOSITION, INC.
KEO CUTTERS, INC.
LAKE ERIE SCREW CORPORATION
XXXXXX METAL GASKET CO.
LOUISIANA HOSE & RUBBER CO.
MONOGRAM AEROSPACE FASTENERS, INC.
NETCONG INVESTMENTS, INC.
NI FOREIGN MILITARY SALES CORP.
NI INDUSTRIES, INC.
NI WEST, INC.
XXXXXX CYLINDER COMPANY
XXXXXX ENVIRONMENTAL SERVICES, INC.
XXXXXX INDUSTRIES, INC.
PLASTIC FORM, INC.
XXXXX PRODUCTS, INC.
XXXXX SPLINE PRODUCTS, INC.
XXXXXXXX MICRO-TOOL, INC.
XXXXX CORPORATION
XXXXX OF INDIANA, INC.
XXXXX OF MEXICO, INC.
XXXXX LEASING CO., INCORPORATED
TRIMAS COMPANY LLC
TRIMAS FASTENERS, INC.
TRIMAS SERVICES CORP.
WESBAR CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title:
29
RECEIVABLES PURCHASE AGREEMENT
As Purchaser:
TSPC, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title:
Acknowledged and agreed as of the date first above written:
JPMORGAN CHASE BANK, as Administrative Agent for the benefit of the CP Conduit
Purchasers, the Funding Agents and the Committed Purchasers
By: /s/ Xxxxxxxxxxx Xxx
-------------------------------
Name: Xxxxxxxxxxx Xxx
Title: Assistant Vice President
30
EXHIBIT A
FORM OF SUBORDINATED NOTE
_________, 2002
FOR VALUE RECEIVED, the undersigned, TSPC, INC., a Delaware
corporation (the "Maker"), hereby promises to pay to the order of TRIMAS
CORPORATION, a Delaware corporation (the "Payee"), as Agent for the Sellers
under the Receivables Purchase Agreement referred to below, on _________, ____
or earlier as provided for in the Receivables Purchase Agreement dated as of the
date hereof between the Maker, the Payee and the Sellers (as such agreement may
from time to time be amended, supplemented or otherwise modified and in effect,
the "Receivables Purchase Agreement"), the aggregate unpaid principal amount of
all Advances to the Maker from the Sellers pursuant to the terms of the
Receivables Purchase Agreement, in lawful money of the United States of America
in immediately available funds, and to pay interest from the date thereof on the
principal amount hereof from the date of this Note continuing until such
principal balance shall be paid in full, in like funds, at an office designated
by the Payee. Accrued and unpaid interest shall be payable in arrears on the
last Business Day of each calendar month (each day, an "Interest Payment Date").
Interest shall be payable at the initial rate of 4.75% per
annum, adjusted monthly on each Interest Payment Date, for the month commencing
on such Interest Payment date, to the sum of Prime Rate then in effect. With
respect to any Interest Payment Date, the "Prime Rate" shall be the prime rate
as reported in The Wall Street Journal on such Interest Payment Date (or, if The
Wall Street Journal is not published on such Interest Payment Date, the Business
Day next succeeding such Interest Payment Date on which The Wall Street Journal
is published.) If The Wall Street Journal shall no longer be published or if it
shall cease to report a prime rate, the "Prime Rate" shall be the rate publicly
announced by JPMorgan Chase Bank, New York Branch, on such Interest Payment Date
as its base commercial lending rate. If any Interest Payment Date shall not be a
Business Day, then such Interest Payment Date shall be deemed to occur on the
next following Business Day, but no additional interest shall be payable. A
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York, New York or , , are required or authorized
by law to be closed.
The undersigned, for itself and its legal representatives,
successors and assigns, and any others who may at any time become liable for
payment hereunder, hereby (a) consents to any and all extensions of time,
renewals, waivers, or modifications, if any, that may be granted or consented to
by the Payee with regard to the time of payment hereunder or any other
provisions hereof.
A-1
The Maker hereby waives diligence, presentment, demand,
protest, notice of dishonor and notice of nonpayment. The non-exercise by the
holder hereof of any of its rights, powers or remedies hereunder or thereafter
available in law, in equity, by statute or otherwise in any particular instance
shall not constitute a waiver thereof in that or any subsequent instance.
All borrowings evidenced by this Subordinated Note and all
payments and prepayments of the principal hereof and interest hereon and the
respective dates thereof shall be endorsed by the holder hereof on the schedule
attached hereto and made a part hereof, or on a continuation thereof which shall
be attached hereto and made a part hereof, or otherwise recorded by such holder
in its internal records; provided, however, that the failure of the holder
hereof to make such a notation or any error in such a notation shall not in any
manner affect the obligation of the Maker to make payments of principal and
interest in accordance with the terms of this Subordinated Note and the
Receivables Purchase Agreement.
The Maker shall have the right to subject to the limitations
set forth in the Receivables Purchase Agreement, reborrow Advances made to it
without penalty or premium.
This Note may be prepaid in full, or from time to time in
part, at any time. All payments received under this Note shall be applied first
to accrued interest and the remainder, if any, to the principal amount
hereunder.
This Subordinated Note is the Subordinated Note referred to in
the Receivables Purchase Agreement, which, among other things, contains
provisions for the subordination of this Subordinated Note to the rights of
certain parties under the Receivables Transfer Agreement, all upon the terms and
conditions specified therein and as specified on Schedule II to this
Subordinated Note. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in, or incorporated by
reference into, the Receivables Purchase Agreement.
This Subordinated Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
A-2
IN WITNESS WHEREOF, the Maker has caused this Note to be
signed in its corporate name by the officer thereunto duly authorized, and to be
dated as of the date first above written.
TSPC, INC.,
By:
---------------------
Name:
Title:
A-3
SCHEDULE I TO
SUBORDINATED NOTE
Advances and Payments
Amount Payments Unpaid Principal Name of Person
Date of Advance Principal/Interest Balance of Note Making Notation
---- ---------- ------------------ --------------- ---------------
I-1
SCHEDULE II TO
SUBORDINATED NOTE
SUBORDINATION
Section 1. Agreement to Subordinate. (a) The Maker for itself
and its successors covenants and agrees, and the Payee, by its acceptance of
this Note, likewise covenants and agrees, that the indebtedness represented by
this Note and the payment of the principal of and interest on this Note is
hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, to the prior payment in full of all Senior Indebtedness (as defined in
Section l(b) below). This Schedule II shall constitute a continuing offer and
inducement to all Persons who become holders of, or continue to hold, Senior
Indebtedness. The provisions of this Schedule II are made for the benefit of the
holders of Senior Indebtedness, each of whom is an obligee hereunder and is
entitled to enforce such holders' rights hereunder, without any act or notice of
acceptance hereof or reliance hereon. No amendment, modification or discharge of
any provision of this Schedule II shall be effective against any holder of
Senior Indebtedness unless expressly consented to in writing by such holder. The
provisions of this Schedule II apply notwithstanding anything to the contrary
contained in this Note.
(b) "Senior Indebtedness" means all indebtedness incurred,
assumed or guaranteed, directly or indirectly, by the Maker, either before, on,
or after the date hereof without any limitation as to the amount or terms
thereof, and whether such indebtedness (including, but not limited to, interest
on any such indebtedness) arises or accrues before or after the commencement of
any bankruptcy, insolvency or receivership proceedings, including (1) all
obligations of the Maker to the Administrative Agent, the CP Conduit Purchasers,
the Funding Agents and the Committed Purchasers (as such terms are defined
below) incurred pursuant to the Receivables Transfer Agreement dated as of June
6, 2002 (as amended, supplemented or otherwise modified from time to time, the
"Receivables Transfer Agreement"), among the Maker, the CP Conduit Purchasers,
the Committed Purchasers, the Funding Agents, The Chase Manhattan Bank, as
administrative agent (the "Administrative Agent"), and the Payee, individually,
as collection agent (in such capacity, the "Collection Agent") and as Guarantor,
including all fees, expenses, indemnities and any other amounts payable pursuant
to the Receivables Transfer Agreement. Senior Indebtedness shall continue to
constitute Senior Indebtedness for all purposes of this Note, and the provisions
of this Schedule II shall continue to apply to such Senior Indebtedness,
notwithstanding the fact that such Senior Indebtedness or any claim in respect
thereof shall be disallowed, avoided or subordinated pursuant to the provisions
of the United States Bankruptcy Code or other applicable law.
Section 2. Subordination of this Note. In the event of any
dissolution, winding- up, liquidation or reorganization of the Maker (whether
voluntary or involuntary and whether in bankruptcy, insolvency or receivership
proceedings, or upon an assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of the Maker or otherwise), the Maker
and the Payee, by its acceptance hereof, covenant and agree that:
II_1
(a) all Senior Indebtedness shall first be paid in full,
before any payment or distribution is made upon the principal of or
interest on this Note:
(b) any payment or distribution of assets of the Maker or from
the estate created by the commencement of any such proceeding, whether
in cash, property or securities to which the Payee would be entitled
except for the provisions of this Schedule II (including any such
payments or distributions which may be payable or deliverable by reason
of the payment of any other indebtedness of the Maker being
subordinated to the payment of this Note), shall be paid or delivered
by the Maker or any receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution
directly to the holders of Senior Indebtedness or their representative
or representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Indebtedness
may have been issued, as their respective interests may appear, to the
extent necessary to pay in full all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness, before any payment or
distribution is made to the Payee; and
(c) in the event that any payment or distribution of cash,
property or securities shall be received by the Payee in contravention
of subsection (a) or (b) of this Section 2 (including any such payments
or distributions which may be payable or deliverable by reason of the
payment of any other indebtedness of the Maker being subordinated to
payment of this Note) before all Senior Indebtedness is paid in full,
such payment or distribution shall be held for the benefit of and shall
be paid over to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under
any indenture under which any instrument evidencing any Senior
Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay in full all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of Senior Indebtedness.
The Maker shall give prompt written notice to the Payee of any
dissolution, winding-up, liquidation or reorganization of the Maker or any
assignment for the benefit of creditors.
Section 3. Subrogation; Enforcement. Subject to and only after
the payment in full of all Senior Indebtedness at the time outstanding, the
Payee shall be subrogated to the rights of the holders of Senior Indebtedness
(to the extent of payments or distributions previously made to such holders of
Senior Indebtedness pursuant to the provisions of Section 2 and equally and
ratably with the holders of all indebtedness of the Maker which by its express
terms is subordinated to indebtedness of the Maker to substantially the same
extent as this Note is subordinated and is entitled to like rights of
subrogation) to receive payments or distributions of assets of the Maker
applicable to the Senior Indebtedness until amounts owing on this Note shall be
paid in full. No payments or distributions to the holders of Senior Indebtedness
of any cash, property or securities to which the Payee would be entitled except
for the provisions of this Schedule II, and no payment over pursuant to the
provisions of this Schedule II to holders of
II-2
Senior Indebtedness by the Payee, shall as between the Maker, its creditors
other than the holders of Senior Indebtedness and the Payee be deemed to be a
payment by the Maker to or for the account of the holders of Senior
Indebtedness, it being understood that the provisions of this Schedule II are
intended solely for the purpose of defining the relative rights of the Payee, on
the one hand, and the holders of the Senior Indebtedness, on the other hand, and
nothing contained in this Schedule II or elsewhere in this Note is intended to
or shall impair the obligation of the Maker, which is absolute and
unconditional, to pay to the Payee, subject to the rights of the holders of
Senior Indebtedness, the principal of and interest on this Note as and when the
same shall become due and payable in accordance with its terms, or is intended
to or shall effect the relative rights of the Payee and creditors of the Maker
other than the holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Payee from exercising all remedies otherwise permitted by
applicable law upon default under this Note, subject to the rights, if any,
under this Schedule II, of the holders of Senior Indebtedness in respect of
cash, property or securities of the Maker received upon the exercise of any such
remedy.
The Payee by its acceptance hereof: (i) if and so long as
payment with respect to this Note is prohibited under this Schedule II,
irrevocably authorizes and empowers (but without imposing any obligation on, or
any duty to the Payee from) each holder of Senior Indebtedness at any time
outstanding and such holder's representatives, to demand, xxx for, collect,
receive and receipt for the Payee's payments and distributions in respect of
this Note (including, without limitation, all payments and distributions which
may be payable or deliverable pursuant to the terms of any indebtedness
subordinated to this Note which are required to be paid or delivered to the
holders of Senior Indebtedness as provided in this Schedule II and to file and
prove all claims therefor and all such other action (including the right to
vote, file and prove claims respecting any indebtedness subordinated to this
Note), as such holder of Senior Indebtedness or such holder's representatives,
may determine to be necessary or appropriate for the enforcement of the
provisions of this Schedule II; and (ii) agrees to execute and to deliver to
each holder of Senior Indebtedness and such holder's representatives all such
further instruments confirming the authorization hereinabove set forth, and all
such powers of attorney, proofs of claim, assignments of claim and other
instruments, and to take all such other action that may be requested by such
holder of Senior Indebtedness or such holder's representatives in order to
enable such holder to enforce all claims upon or in respect of the Payee's
payments and distributions in respect of this Note and so long as there is
Senior Indebtedness outstanding, not to compromise, release, forgive or
otherwise discharge the obligations of the Maker with respect to this Note. For
purposes of this Note, Senior Indebtedness shall be deemed to be outstanding
until the Receivables Transfer Agreement is no longer in effect.
Section 4. Reliance on Court Orders. Upon any payment or
distribution of assets of the Maker referred to in Section 2, the Payee shall be
entitled to rely upon a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
delivered to the Payee, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of Senior Indebtedness and other
indebtedness of the Maker, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Schedule II.
II-3
The Payee owes no fiduciary duty to the holders of Senior
Indebtedness and the Payee undertakes to perform or to observe only such
covenants and obligations as are specifically set forth in this Note and no
implied covenants and obligations with respect to holders of Senior Indebtedness
shall be read into this Note against the Payee.
Section 5. Payments Upon Default in Payment of Senior
Indebtedness and During Senior Indebtedness Default. The Maker shall not make
any payment with respect to this Note if and so long as:
(1) any Senior Indebtedness is or becomes due and payable
(whether at maturity, for an installment of principal or interest, upon
acceleration, for mandatory prepayment, or otherwise) and remains
unpaid; or
(2) any Senior Indebtedness Default (as defined below) has
occurred and has not been cured or waived in conformity with the terms
of the instrument, indenture or agreement governing such Senior
Indebtedness; or
(3) a payment by the Maker with respect to this Note would,
immediately after giving effect thereto, result in a Senior
Indebtedness Default.
A payment with respect to this Note shall include, without
limitation, payment of principal of and interest on this Note, purchase of this
Note by the Maker and any other payment.
"Senior Indebtedness Default" means the failure to make any
payment of any Senior Indebtedness when due or the happening of an event of
default with respect to any Senior Indebtedness, as defined therein or in the
instrument under which the same is outstanding which, by its terms, if occurring
prior to the stated maturity of such Senior Indebtedness, permits or with the
giving of notice or lapse of time (or both) would permit any holder thereof, any
group of such holders or any trustee or representative for such holders
thereupon to accelerate the maturity thereof or results in such acceleration,
including, without limitation, a "Termination Event" or "Potential Termination
Event" as defined in the Receivables Transfer Agreement, whether or not such
Senior Indebtedness or instrument has been avoided, disallowed or subordinated.
In the event that, notwithstanding the foregoing, any payment
or distribution of cash, property or securities shall be received or collected
by the Payee in contravention of this Section 5 or if and as long as payment
with respect to this Note is prohibited under this Schedule II, and except as
otherwise expressly provided in Sections 6 and 7 below, such payment or
distribution shall be held for the benefit of and shall be paid over to the
holders of Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instrument
evidencing Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay in full all Senior
Indebtedness then due, after giving effect to any concurrent payment to the
holders of Senior Indebtedness.
II-4
Section 6. Payee Entitled to Presume Payments Permitted in
Absence of Notice. Unless and until written notice shall be received by the
Payee from any holder of Senior Indebtedness notifying the Payee of the
existence of one or more of the circumstances which would prohibit the making of
any payment with respect to this Note under the provisions of Section 5 and
stating that it is a "Notice of Senior Indebtedness Default", the Payee shall be
entitled to assume that no such circumstances exist. From and after the receipt
by the Payee of such Notice the Payee shall, so long as Senior Indebtedness
shall be outstanding (but not thereafter), assume that such circumstances
continue to exist unless and until the Payee receives a notice from the holder
of such Senior Indebtedness to which such default relates stating that such
holder has received evidence satisfactory to it that such circumstances have
been cured or waived and stating that it is a "Notice of Cure or Waiver of
Senior Indebtedness Default."
Section 7. Application by Payee of Moneys Deposited With It.
Any funds deposited with or collected by the Payee in respect of this Note shall
be subject to the provisions of this Schedule II, except that, if immediately
prior to the date on which by the terms of this Note any such funds may become
payable for any purpose (including, without limitation, the payment of either
the principal of or the interest on this Note), the Payee shall not have
received with respect to such finds the Notice of Senior Indebtedness Default
provided for in Section 6, then the Payee shall have full power and authority to
receive such funds and to apply the same to the purpose for which they were
received and shall not be affected with respect to such funds by any Notice of
Senior Indebtedness default to the contrary which may be received by the Payee
on or after such date.
Section 8. Obligation not Affected. Except as expressly
provided in this Schedule II, nothing contained in this Schedule II or elsewhere
in this Note shall affect the obligation of the Maker to make payments of the
principal of or interest on this Note at any time in accordance with the
provisions hereof.
Section 9. No Waiver. No right of any present or future holder
of any Senior Indebtedness of the Maker to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act of or
failure to act on the part of the Maker or the Payee or by any act or failure to
act, by any such holder, or by any noncompliance by the Maker or the Payee with
the terms, provisions and covenants of this Note, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with. The holders
of Senior Indebtedness may extend, renew, modify or amend the terms of the
Senior Indebtedness or any security therefor or guaranty thereof and release,
sell or exchange or enforce such security or guaranty or elect any right or
remedy, or delay in enforcing or release any right or remedy and otherwise deal
freely with the Maker all without notice to the Payee and all without affecting
the liabilities and obligations of the Payee, even if any right of reimbursement
or subrogation or other right or remedy of the Payee is extinguished, affected
or impaired thereby. No provision of any supplemental indenture which affects
the superior position of the holders of Senior Indebtedness shall be effective
against the holders of Senior Indebtedness who have not consented thereto.
II-5
Section 10. Effectuation of Subordination by the Payee. The
Payee, by his acceptance of this Note, agrees to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Schedule II.
Section 11. Notice to Maker. The Payee shall promptly advise
the Maker of any notice, presentation or demand, as the case may be, received by
the Payee from holders of Senior Indebtedness.
Section 12. Payee to Presume Outstanding Senior Indebtedness
in Absence of Notice. Unless and until written notice shall be given to the
Payee by the Maker and the Funding Agent notifying the Payee that Senior
Indebtedness is no longer outstanding, the Payee shall assume that Senior
Indebtedness is outstanding. The Maker agrees to give, and to cause the Funding
Agent to give, such notice to the Payee promptly after the first date on which
no Senior Indebtedness shall be outstanding.
II-6
EXHIBIT C TO
RECEIVABLES PURCHASE AGREEMENT
[FORM OF ADDITIONAL SELLER SUPPLEMENT]
SUPPLEMENT, dated [ ], to the Receivables Purchase
Agreement, dated as of June 6, 2002 (as amended, supplemented or otherwise
modified from time to time in accordance with its terms, the "Receivables
Purchase Agreement"), among TRIMAS CORPORATION ("TriMas Corp."), the Sellers
named on Schedule I thereto or added pursuant to a prior Additional Seller
Supplement and TSPC, INC., as the Purchaser.
W I T N E S S E T H:
WHEREAS, the Receivables Purchase Agreement provides that any
wholly- owned direct or indirect Subsidiary of TriMas Corp., although not
originally a Seller thereunder, may become a Seller under the Receivables
Purchase Agreement upon the satisfaction of each of the conditions precedent set
forth in Sections 7.02 and 9.13 of the Receivables Purchase Agreement;
WHEREAS, the undersigned was not an original Seller under the
Receivables Purchase Agreement but now desires to become a Seller thereunder.
NOW, THEREFORE, the undersigned hereby agrees as follows:
The undersigned agrees to be bound by all of the provisions of
the Receivables Purchase Agreement applicable to a Seller thereunder and agrees
that it shall, on the date this Supplement is accepted by MascoTech, the
Purchaser, the Administrative Agent and each Funding Agent and each of the
conditions precedent set forth in Section 7.02 of the Receivables Purchase
Agreement have been satisfied, become a Seller for all purposes of the
Receivables Purchase Agreement to the same extent as if originally a party
thereto.
C-1
IN WITNESS WHEREOF, the undersigned has caused this Supplement
to be executed and delivered by a duly authorized officer on the date first
above written.
[Insert name of Seller]
By:
-------------------------
Name:
Title:
[address]
Accepted as of the date first above written:
TRIMAS CORPORATION
By:
----------------------------
Name:
Title:
Accepted as of the date first above written:
TSPC, INC.
By:
----------------------------
Name:
Title:
Acknowledged as of the date first above written:
JPMORGAN CHASE BANK,
as Administrative Agent
By:
----------------------------
Name:
Title:
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JPMORGAN CHASE BANK,
as Funding Agent for PARCO
By:
--------------------------
Name:
Title:
CDC FINANCIAL PRODUCTS INC.,
as Funding Agent for EIFFEL
By:
-------------------------
Name:
Title:
[Add other Funding Agents as applicable]
C-3
