FIRST AMENDMENT TO AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT AND CONSENT
Exhibit
10.1
FIRST
AMENDMENT TO AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT AND
CONSENT
This
FIRST AMENDMENT TO AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT AND
CONSENT
(this
“Amendment”),
made
and entered into as of June 23, 2006 (the “First Amendment
Effective Date”),
by
and between METALDYNE CORPORATION,
a
Delaware corporation (“Metaldyne”),
MRFC,
INC.,
a
Delaware corporation (“MRFC”;
each
of MRFC and Metaldyne, a “Company”),
the
Purchasers signatory hereto and GENERAL
ELECTRIC CAPITAL CORPORATION in
its
capacity as the Administrative Agent (the “Administrative
Agent”)
and
the other parties signatory hereto.
W I T N E S E T H:
WHEREAS,
the
Administrative Agent, MRFC, Metaldyne, in its capacity as Master Servicer,
the
financial institutions party thereto as Purchasers and the other parties
thereto, are parties to that certain Amended and Restated Receivables Transfer
Agreement, dated as of July 8, 2005 (as amended to the date hereof, the
“Transfer
Agreement”;
capitalized terms used herein and not otherwise defined herein shall have
the
meanings given such terms in Annex
X
to the
Transfer Agreement and the Purchase Agreement (as hereafter defined) as amended
by this Amendment), whereby MRFC has
agreed to sell, contribute or otherwise transfer to the Purchasers and the
Purchasers have agreed to purchase or otherwise acquire from MRFC, all of
the
right, title and interest of MRFC in the Receivables; and
WHEREAS,
MRFC,
Metaldyne and the Originators are parties to that certain Amended and Restated
Receivables Purchase Agreement, dated as of July 8, 2005 (as amended to the
date
hereof, the “Purchase
Agreement”),
whereby the Originators have agreed to sell or contribute to MRFC all of
the
Originators’ Receivables;
WHEREAS,
Xxxx
Corporation, an Obligor that is a customer of one or more of the Originators,
filed a voluntary petition under the Bankruptcy Code on March 3, 2006 (the
“Xxxx
Filing Date”);
and
WHEREAS,
the
Purchasers propose to confirm and ratify the sale of certain Receivables
with
respect to which the Obligor is Xxxx Corporation (or any of its subsidiaries
that are debtors in the Xxxx Corporation bankruptcy) that were originated
prior
to the Xxxx Filing Date (such Receivables, the “Xxxx
Pre-Petition Receivables”);
and
WHEREAS,
MRFC and
Metaldyne have
requested that the Transfer Agreement and Annex
X
be
amended as set forth herein, and the parties hereto are willing to agree
to such
amendment subject to the terms and conditions of this Amendment.
NOW
THEREFORE,
in
consideration of the premises and mutual covenants contained herein, and
other
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the parties hereto agree as follows:
1. Amendment
of Transfer Agreement and Annex X.
Subject
to the terms and conditions of this Amendment, effective as of the Xxxx Filing
Date, the definition of “Defaulted Receivables” as set forth in Annex
X
is
hereby amended by inserting, prior to the final “.” therein, the following
language: “; provided,
however, that all Receivables with respect to which the Obligor is
Xxxx
Corporation (or any of its subsidiaries that are debtors in the Xxxx Corporation
bankruptcy) that were originated prior to the Xxxx Filing Date shall not
constitute “Defaulted Receivables” for purposes of calculating the Default Ratio
for any period that such Receivables are outstanding”.
2. No
Other Amendments.
Except
for the amendments expressly set forth and referred to in Section
1
above,
the Transfer Agreement and Annex
X
shall
remain unchanged and in full force and effect.
3. Consent
to Sale of Xxxx Pre-Petition Receivables.
(a) Subject
to the terms and conditions of this Amendment, and effective as of the Xxxx
Filing Date: (i) each Purchaser hereby assigns, transfers and conveys to
MRFC
for good and valuable consideration hereby acknowledged, without recourse,
except as specifically set forth herein, and MRFC hereby purchases and accepts
assignment and transfer from each Purchaser of, all of each Purchaser’s Pro Rata
Share of the Purchaser Interest relating to the Xxxx Pre-Petition Receivables;
and (ii) MRFC hereby assigns, transfers and conveys to Metaldyne for good
and
valuable consideration hereby acknowledged, without recourse, except as
specifically set forth herein, and Metaldyne shall purchase and accept, all
of
MRFC’s rights, titles and interests in and to the Xxxx Pre-Petition Receivables.
The Administrative Agent and each Purchaser hereby consent to the assignment
and
transfer described in the immediately preceding sentence.
(b) Subject
to the terms and conditions of this Amendment, the Administrative Agent and
each
Purchaser hereby consent to the sale of the Xxxx Pre-Petition Receivables
to the
purchaser and in the manner described in the documentation previously provided
to the Administrative Agent and pursuant to documentation substantially
consistent therewith.
4. Representations
and Warranties.
Each
Company hereby represents and warrants to the Administrative Agent and the
Purchasers that (a) this Amendment has been duly authorized, executed and
delivered by each Company, (b) after giving effect to this Amendment, no
Termination Event or Event of Servicer Termination has occurred and is
continuing as of this date, and (c) all of the representations and warranties
made by each Company in both the Purchase Agreement and the Transfer Agreement
are true and correct in all material respects on and as of the date of this
Amendment (except to the extent that any such representations or warranties
expressly referred to a specific prior date). Any breach in any material
respect
by Company of any of its representations and warranties contained in this
Section
4
shall be
a Termination Event and an Event of Servicer Termination for all purposes
of
both the Purchase Agreement and the Transfer Agreement.
5. Ratification.
Each
Company hereby ratifies and reaffirms each and every term, covenant and
condition set forth in both the Purchase Agreement and the Transfer Agreement
and all other documents delivered by such Company in connection therewith
(including without limitation the other Related Documents in effect on the
date
hereof to which each Company is a party), effective as of the date
hereof.
6. Waiver
by the Companies.
Each of
the Companies hereby waives any claim, defense, demand, action or suit of
any
kind or nature whatsoever against the Administrative Agent and the Purchasers
arising on or prior to the date hereof in connection with any of the Purchase
Agreement, the Transfer Agreement or the transactions contemplated
thereunder.
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7. Conditions
to Effectiveness; Effectiveness.
This
Amendment shall become effective, upon the First Amendment Effective Date,
upon
the receipt by the Administrative Agent of this Amendment, duly executed,
completed and delivered by each of the Companies, the Administrative Agent
and
the Requisite Purchasers. This Amendment is effective for all purposes of
the
Transfer Agreement, Purchase Agreement and Annex X, including Article IX
of the
Transfer Agreement.
8. Reimbursement
of Expenses.
Each
Company hereby agrees that, to the extent and in the manner provided in the
Transfer Agreement, it shall reimburse the Administrative Agent on demand
for
all reasonable costs and expenses (including without limitation reasonable
legal
fees) incurred by it in connection with the negotiation, documentation and
consummation of this Amendment and the other documents executed in connection
herewith and therewith and the transactions contemplated hereby and
thereby.
9. Governing
Law.
THIS
AMENDMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES), AND ANY APPLICABLE LAWS OF THE UNITED STATES
OF
AMERICA.
10. Severability
of Provisions.
Any
provision of this Amendment which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
11. Counterparts.
This
Amendment may be executed in any number of several counterparts, all of which
shall be deemed to constitute but one original and shall be binding upon
all
parties, their successors and permitted assigns.
12. Entire
Agreement.
Each of
the Purchase Agreement and the Transfer Agreement, as amended by this Amendment,
embody the entire agreement between the parties hereto relating to the subject
matter hereof and supersedes all prior agreements, representations and
understandings, if any, relating to the subject matter hereof.
13. Miscellaneous.
This
Amendment is a Related Document. The headings herein are for convenience
of
reference only and shall not alter or otherwise affect the meaning
hereof.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF,
the
parties have caused this Amendment to be duly executed by their respective
officers thereunto duly authorized, as of the date first above
written.
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MRFC,
INC.
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By:
/s/
Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx
X. Xxxxxxx
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METALDYNE
CORPORATION
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By:
/s/
Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx
X. Xxxxxxx
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GENERAL
ELECTRIC CAPITAL CORPORATION,
as a Purchaser and as Administrative Agent
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By:
/s/
Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx
X. Xxxx
Title: Duly
Authorized Signatory
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CONSENT
OF REQUISITE PURCHASERS
RECEIVED
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