[Form of] WAIVER AND AGREEMENT dated as of
April 1, 2004 (this "Waiver"), to the Receivables
Transfer Agreement referred to below among MTSPC,
INC., (the "Transferor"), METALDYNE CORPORATION
(f/k/a MascoTech, Inc.) (the "Parent"), individually,
as Collection Agent and as Guarantor, PARK AVENUE
RECEIVABLES COMPANY, LLC ("PARCO"), and EIFFEL
FUNDING, LLC ("Eiffel") (collectively, the "CP
Conduit Purchasers"), JPMORGAN CHASE BANK (formerly
known as The Chase Manhattan Bank), as Committed
Purchaser and Funding Agent for PARCO ("Chase"), CDC
FINANCIAL PRODUCTS INC., as Committed Purchaser and
Funding Agent for Eiffel ("CDC") (collectively, the
"Committed Purchasers"), and JPMORGAN CHASE BANK, as
Administrative Agent.
A. The Transferor, the Parent, PARCO, Chase, Eiffel, CDC and the
Administrative Agent have entered into a Receivables Transfer Agreement dated as
of November 28, 2000, as amended from time to time (the "Receivables Transfer
Agreement").
B. The Transferor has requested that the Collection Agent, the
Guarantor, PARCO, Chase, Eiffel, CDC and the Administrative Agent (the
"Consenting Parties") agree to waive certain provisions of the Receivables
Transfer Agreement and refrain from taking certain actions as set forth herein.
C. The Consenting Parties are willing so to waive such provisions of
the Receivables Transfer Agreement pursuant to the terms and subject to the
conditions set forth herein.
D. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned thereto in the Receivables Transfer Agreement or Schedule
A thereto.
SECTION 1. Waivers by the Consenting Parties. (a) The Consenting
Parties hereby waive the obligation to deliver (i) the consolidated balance
sheets and related statements of operations, stockholders' equity and cash flows
as of the end of and for fiscal year 2003 required to be delivered by Section
5.01(a)(i) of the Receivables Transfer Agreement (the "2003 Financial
Statements"), (ii) the consolidated balance sheets and related statements of
operations, stockholders' equity and cash flows as of the end of and for the
fiscal quarter ending March 31, 2004 required to be delivered by Section
5.01(a)(ii) of the Receivables Transfer Agreement (collectively with the 2003
Financial Statements, the "Covered Financial Statements"), (iii) the certificate
required to be delivered by Section 5.01(a)(iii) of the Receivables Transfer
Agreement and (iv) the report required to be delivered by Section 6.02(c) of the
Receivables Transfer Agreement, in each case until the earlier of: (x) the date
on which (A) an event of default occurs under any Material Indebtedness (as
defined in the Credit Agreement) other than the
Indentures (as defined below), the Receivables Transfer Agreement, the Credit
Agreement and lease agreements or (B) a notice of termination is delivered under
any lease agreement that constitutes or would constitute Material Indebtedness,
in each case for failure to deliver any of the Covered Financial Statements, (y)
the date that is 30 days after the date on which a notice of default for failure
to deliver any of the Covered Financial Statements is delivered pursuant to any
of the indentures (the "Indentures") with respect to the 10% Senior Notes due
2013, the 11% Senior Subordinated Notes due 2012 or the 10% Senior Subordinated
Notes originally issued to an Affiliate of DaimlerChrysler Inc. (such 30-day
period, the "Lockout Period") or (z) June 1, 2004 (the period commencing on the
date this Waiver becomes effective and ending on the earlier of the dates
referred to in clauses (x), (y) and (z) of this Section being referred to herein
as the "Covered Period"). As a condition to this waiver, each party hereto
agrees that during any Lockout Period, no Incremental Transfers shall be made to
the CP Conduit Purchasers or the Committed Purchasers under the Receivables
Transfer Agreement.
(b) The Consenting Parties hereby waive, during the Covered Period, the
application of all representations and warranties in Sections 3.01(e) and (g) of
the Receivables Transfer Agreement and in any certificates delivered with
respect thereto to the extent such representations and warranties relate to the
Internal Evaluation (as defined below), except to the extent that the facts
relating to the matters that are the subject of the Internal Evaluation become
materially inconsistent with such facts previously disclosed to the
Administrative Agent, and such inconsistency is materially adverse to the CP
Conduit Purchasers or the Committed Purchasers.
(c) The Consenting Parties hereby waive, during the Covered Period, any
Termination Event arising from (i) the failure to comply with the requirements
of Sections 5.01(a)(i), 5.01(a)(ii), 5.01(a)(iii) and 6.02(c) of the Receivables
Transfer Agreement (to the extent limited by Section 1(a)(iv) above) and (ii)
the application of any of the representations and warranties in Article III of
the Receivables Transfer Agreement and in any certificates delivered under the
Receivables Transfer Agreement (to the extent limited by Section 1(b) above)
(such failure or application during the Covered Period being a "Waived Event").
(d) The Consenting Parties agree that a Waived Event (i) shall not
constitute a Potential Termination Event or Termination Event (including without
limitation for purposes of Section 2.09(b)) and (ii) shall not constitute the
basis for the declaration of the Termination Date pursuant to Section 7.2(a) of
the Receivables Transfer Agreement or the "declaration of a Termination Event"
as that phrase is used in Section 8.01 of the Receivables Purchase Agreement.
(e) The waivers and agreements provided for by paragraphs (a), (b), (c)
and (d) above shall terminate and expire at 11:59 p.m., New York City time, on
the final day of the Covered Period, and at all times thereafter the Receivables
Transfer Agreement shall apply in all respects, and the Administrative Agent,
the CP Conduit Purchasers, the Funding Agents and the Committed Purchasers shall
have all such rights and remedies, as if such waiver had never been granted.
SECTION 2. Representations and Warranties. Transferor and Parent
represent and warrant to the Administrative Agent and to each of the Committed
Purchasers that:
(a) This Waiver has been duly authorized, executed and delivered by it
and constitutes a legal, valid and binding obligation of the Transferor and the
Parent, enforceable against the Transferor and the Parent in accordance with its
terms.
(b) After giving effect to this Waiver, the representations and
warranties set forth in Article III of the Receivables Transfer Agreement are
true and correct in all material respects on and as of the date hereof with the
same effect as if made on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) After giving effect to this Waiver, no Termination Event has
occurred and is continuing.
(d) The Parent's press release dated as of March 29, 2004, attached
hereto as Annex A (such matters that are described therein collectively and all
matters reasonably related thereto are referred to herein as the "Internal
Evaluation") states all material facts, and does not omit to state any material
facts, necessary to make the statements concerning the Internal Evaluation
misleading in any material respect, in light of the circumstances in which they
were made, as of the date hereof.
SECTION 3. Waiver of CDC's Obligations. (a) The Collection Agent, the
Guarantor and the Transferor hereby waive any obligation of Eiffel as CP Conduit
Purchaser and CDC as Committed Purchaser to fund any Incremental Transfer
pursuant to Section 2.01 or Section 2.02(a) of the Receivables Transfer
Agreement until the later of:
(i) the date of the Transferor's compliance with the requirements of
Sections 5.01(a)(i), (ii) and (iii) and Section 6.02(c) of the Receivables
Transfer Agreement before the end of the Covered Period, in form and
substance reasonably satisfactory to Chase and CDC; and
(ii) the date of the completion of Chase's audit in scope and substance
equivalent to that described in Section 6.02(c) of the Receivables Transfer
Agreement, in form and substance reasonably satisfactory to Chase and CDC.
Chase does not assume any portion of CDC's obligation to fund any Incremental
Transfer.
(b) As between Chase and PARCO on one hand (the "Chase Group") and CDC
and Eiffel on the other hand ( the "CDC Group"), if the Transferor complies with
the requirements of Section 5.01(a)(i), (ii) and (iii) and Section 6.02(c) of
the Receivables Transfer Agreement, in form and substance reasonably
satisfactory to Chase and CDC, during the Covered Period, CDC will on the second
Business Day thereafter (the
"Settlement Date"), acquire at par from the Chase Group the portion of the Net
Investment on the Settlement Date equal to the following amount:
the Net Eiffel's CP Conduit Funding
Investment as Limit as of the Settlement the CDC Group's
( of the x Date (without giving effect ) - Transferred Interest
Settlement to the waiver referred to in as of the Settlement
Date this Section) Date
-----------------------------
the Facility Limit as of the
Settlement Date (without
giving effect to the waiver
referred to in this Section)
The Chase Group and the CDC Group agree to cooperate to effect the acquisition
of such amount pursuant to conventional market terms and procedures. Until such
acquisition, (x) the last sentence of Section 2.13(b) of the Receivables
Transfer Agreement shall be disregarded and (y) all Collections received by the
Administrative Agent for distribution to the CP Conduit Purchasers or Committed
Purchasers shall be distributed to such CP Conduit Purchasers or Committed
Purchasers on a pro rata basis.
SECTION 4. Waiver Fee. In consideration of the agreements of the
Administrative Agent and the Required Committed Purchasers contained in this
Waiver, the Transferor and the Parent agree to pay to the Administrative Agent,
for the account of each Committed Purchaser that delivers an executed
counterpart of this Waiver prior to 5:00 p.m., New York City time, on April 1,
2004, a waiver fee (the "Waiver Fee") equal to 0.10% of the aggregate amount of
the Aggregate Commitment attributable to such Committed Purchasers. The
Administrative Agent shall distribute the Waiver Fee to each Committed Purchaser
that delivers an executed counterpart of this Waiver based on such Committed
Purchaser's pro rata share of the Aggregate Commitment.
SECTION 5. Conditions to Effectiveness. This Waiver shall become
effective as of April 1, 2004, when (a) the Administrative Agent shall have
received (i) counterparts of this Waiver that, when taken together, bear the
signatures of the Administrative Agent, the Transferor, the Parent and the
Required Committed Purchasers and (ii) the Waiver Fee, (b) the representations
and warranties set forth in Section 2 hereof are true and correct (as set forth
on an officer's certificate delivered to the Administrative Agent) and (c) all
fees and expenses required to be paid or reimbursed by the Transferor or the
Parent pursuant hereto or to the Receivables Transfer Agreement or otherwise,
including all invoiced fees and expenses of counsel to the Administrative Agent
shall have been paid or reimbursed, as applicable.
SECTION 6. Receivables Transfer Agreement. Except as specifically
waived hereby, the Receivables Transfer Agreement shall continue in full force
and effect in accordance with the provisions thereof as in existence on the date
hereof. Without limiting the generality of the foregoing, the waivers and
agreement contemplated under Section 1(a), (b) and (c) above shall not affect
the obligations of the Transferor or the Parent to deliver other certificates
required by the Receivables Transfer Agreement except as specifically set forth
in Section 1(a), (b) or (c).
SECTION 7. APPLICABLE LAW. THIS WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Counterparts. This Waiver may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one agreement. Delivery of an executed
signature page to this Waiver by facsimile transmission shall be effective as
delivery of a manually signed counterpart of this Waiver.
SECTION 9. Expenses. The Transferor and the Parent agree to reimburse
the Administrative Agent, the CP Conduit Purchasers and the Committed Purchasers
for their out-of-pocket expenses in connection with this Waiver, including the
fees, charges and disbursements of Cravath, Swaine & Xxxxx LLP, counsel for the
Administrative Agent, and Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel for CDC.
SECTION 10. Headings. The headings of this Waiver are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
